Portnoy v. Veolia Transporation Services, Inc. et al

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/15/2013 GRANTING 2 Motion to Proceed IFP; DISMISSING 1 Complaint, WITH LEAVE TO AMEND; GRANTING Plaintiff 30 days to file an Amended Complaint. (Michel, G)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SERGEI PORTNOY,
Plaintiff,

11
12
13
14

vs.
VEOLIA TRANSPORTATION
SERVICES, INC.; CARMEN
ALBA; PERRI NEWELL;
Defendants.

15

ORDER
/

16
17

No. 2:13-cv-0043-MCE-EFB PS

This case, in which plaintiff is proceeding in propria persona, was referred to the

18

undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks

19

leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff’s declaration makes

20

the showing required by 28 U.S.C. § 1915(a)(1) and (2). See Dckt. No. 2. Accordingly, the

21

request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

22

Determining plaintiff may proceed in forma pauperis does not complete the required

23

inquiry. Pursuant to § 1915(e)(2), the court is directed to dismiss the case at any time if it

24

determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to

25

state a claim on which relief may be granted, or seeks monetary relief against an immune

26

defendant.
1

1

Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

2

520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if

3

it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

4

Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

5

(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

6

his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

7

a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

8

relief above the speculative level on the assumption that all of the complaint’s allegations are

9

true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

10

legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

11

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

12

In reviewing a complaint under this standard, the court must accept as true the allegations

13

of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

14

(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

15

the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

16

satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

17

8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

18

pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

19

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

20

(citing Conley v. Gibson, 355 U.S. 41 (1957)).

21

Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

22

those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins.

23

Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &

24

1332, confer “federal question” and “diversity” jurisdiction, respectively. Federal question

25

jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2)

26

allege a “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or
2

1

(3) be authorized by a federal statute that both regulates a specific subject matter and confers

2

federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

3

jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

4

matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

5

Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

6

of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

7

subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

8

Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

9

Plaintiff’s complaint, which alleges only state law claims, is purportedly based on this

10

court’s diversity jurisdiction. Dckt. No. 1, Compl. at 2 (citing 28 U.S.C. § 1332(a)). Plaintiff

11

contends that this court has diversity jurisdiction because plaintiff is a citizen of California while

12

defendant Veolia Transportation Services, Inc. is a citizen of Illinois. Id. Plaintiff also alleges

13

that the amount in controversy exceeds $75,000.00. However, plaintiff’s complaint does not

14

include any allegations regarding the citizenship of the other two defendants named in the

15

complaint even though diversity jurisdiction requires complete diversity of citizenship among

16

the parties.1 Even if the controversy is primarily between citizens of different states, if some

17

properly joined defendant is a citizen of the same state as one of the plaintiffs, there is no federal

18

diversity jurisdiction. See Pullman Co. v. Jenkins, 305 U.S. 534, 541 (1939); Exxon Mobil Corp.

19

v. Allapattah Services, Inc., 545 U.S. 546, 562 (2005) (finding that the inclusion of a nondiverse

20

party “contaminates” the complaint); Munoz v. Small Business Admin., 644 F.2d 1361, 1365 (9th

21

Cir. 1981).

22

////

23
1

24
25
26

Although the citizenship of the other two defendants is unclear, it appears that they
might be citizens of California. The attachments to plaintiff’s complaint suggest that defendant
Alba has been the General Manager of Veolia Transportation Services, Inc.’s operations at its
Woodland, California facility since March 2009, Dckt. No. 1 at 20-22, and that defendant Newell
was the Regional Director of Human Resources in that facility from March 2008 to April 2011,
id. at 30.
3

1

Because plaintiff’s complaint does not allege complete diversity or any other basis for

2

this court’s jurisdiction, the complaint will be dismissed. However, plaintiff is granted leave to

3

file an amended complaint, if he allege a basis for this court’s jurisdiction, as well as a

4

cognizable legal theory and sufficient facts in support of that cognizable legal theory. Lopez v.

5

Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se

6

litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff

7

choose to file an amended complaint, the amended complaint shall clearly set forth the

8

allegations against defendant and shall specify a basis for this court’s subject matter jurisdiction.

9

Any amended complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as

10

far as practicable to a single set of circumstances,” as required by Federal Rule of Civil

11

Procedure 10(b), and shall be in double-spaced text on paper that bears line numbers in the left

12

margin, as required by Eastern District of California Local Rules 130(b) and 130(c). Any

13

amended complaint shall also use clear headings to delineate each claim alleged and against

14

which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead

15

clear facts that support each claim under each header.

16

Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

17

make an amended complaint complete. Local Rule 220 requires that an amended complaint be

18

complete in itself. This is because, as a general rule, an amended complaint supersedes the

19

original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

20

plaintiff files an amended complaint, the original no longer serves any function in the case.

21

Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

22

alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

23

1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

24

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

25

comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

26

may result in a recommendation that this action be dismissed. See Local Rule 110.
4

1

Accordingly, IT IS ORDERED that:

2

1. Plaintiff’s request for leave to proceed in forma pauperis, Dckt. No. 2, is granted.

3

2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

4

3. Plaintiff is granted thirty days from the date of service of this order to file an amended

5

complaint. The amended complaint must bear the docket number assigned to this case and must

6

be labeled “Amended Complaint.” Failure to timely file an amended complaint in accordance

7

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

8

DATED: January 15, 2013.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5