Dunmore v. Dunmore

Filing 19

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/13/2012 ORDERING that Defendant Sidney B. Dunmore's 9 motion to dismiss and/or to strike, filed 12/8/2011, is VACATED without prejudice from the court's 1/19/2012 calendar. Plaintif f's amended complaint is dismissed. Plaintiff is GRANTED twenty-eight days from the date of service of this order to file and serve a second amended complaint that complies with the requirements of the Federal Rules of Civil Procedure and the Lo cal Rules, and does not exceed fifty pages; the second amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint;" plaintiff must file an original and two copies of the second amended com plaint; failure to file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed. Defendants shall file a responsive pleading within twenty-eight days of being served with the second amended complaint. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN G. DUNMORE,
Plaintiff,

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CIV. NO. S-11-2867 MCE GGH PS

vs.
JEREMY A. DUNMORE, et al.,
Defendants.

ORDER
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Defendant Sidney B. Dunmore’s motion to dismiss and/or to strike presently is

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calendared for hearing on January 19, 2012. Having reviewed the record, the court has

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determined that oral argument would not be of material assistance in determining the pending

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motion. Defendant Dunmore has now submitted the first amended complaint for review, as

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ordered by the court. This pleading is over 200 pages long. (Dkt. nos. 16, 17, 18.) Having

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reviewed the motion and plaintiff’s opposition, the court has determined that the amended

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complaint must be dismissed with leave to amend.

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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By virtue of its length alone, the amended complaint does not contain a short and

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plain statement of the claims showing entitlement to relief as required by Fed. R. Civ. P. 8(a)(2).

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See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). There, the Ninth Circuit Court of

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Appeal upheld the dismissal of a complaint it found to be “argumentative, prolix, replete with

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redundancy, and largely irrelevant. It consists largely of immaterial background information.” It

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observed that the Federal Rules require that a complaint consist of “simple, concise, and direct”

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averments. Id. The court does not have the resources necessary to decipher such a long

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document as presented by plaintiff. Although the Federal Rules adopt a flexible pleading policy,

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a complaint must give fair notice and state the elements of the claim plainly and succinctly.

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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Although plaintiff must

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allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff’s claim, there need not be, and should not be, excruciating detail. Id. Moreover,
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there should not be legal briefing in the complaint. Finally, plaintiff must attempt to winnow

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down those claims and defendants for which a good faith basis in fact and the law exist.

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Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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amended complaint must be dismissed. The court will, however, grant leave to file a second

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amended complaint.

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Accordingly, any amended complaint should not exceed fifty pages.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the

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jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil

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Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted

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in a deprivation of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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In addition, plaintiff once more is informed that the court cannot refer to a prior

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pleading in order to make plaintiff’s second amended complaint complete. Local Rule 220

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requires that an amended complaint be complete in itself without reference to any prior pleading.

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This is because, as a general rule, an amended complaint supersedes the original complaint. See

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Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in an amended complaint,

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as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.
Accordingly, IT IS ORDERED that:

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1.

Defendant Sidney B. Dunmore’s motion to dismiss and/or to strike, filed December 8,
2011, is vacated without prejudice from the court’s January 19, 2012 calendar.

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Plaintiff’s amended complaint is dismissed.

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3.

Plaintiff is granted twenty-eight days from the date of service of this order to file and

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serve a second amended complaint that complies with the requirements of the Federal

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Rules of Civil Procedure and the Local Rules, and does not exceed fifty pages; the

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second amended complaint must bear the docket number assigned this case and must be
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labeled “Second Amended Complaint;” plaintiff must file an original and two copies of

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the second amended complaint; failure to file a second amended complaint in accordance

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with this order will result in a recommendation that this action be dismissed.

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Defendants shall file a responsive pleading within twenty-eight days of being served with
the second amended complaint.

DATED: January 13, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076:Dunmore2867.vac.wpd

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