Aguilera, et al. v. Rosenberg, et al.

Filing 21

ORDER signed by Magistrate Judge Kendall J. Newman on 1/13/16 ORDERING that Defendant Unifunds motion to dismiss (ECF No. 8) is granted; Plaintiffs' original complaint is dismissed, but with leave to amend; Within 28 days of this order, plain tiffs shall file either (i) a first amended complaint in compliance with this order or (ii) a notice of voluntary dismissal of the action without prejudice; Failure to file either a compliant first amended complaint or a notice of voluntary dismissal by the required deadline may result in dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHELLE AGUILERA & ELI
AGUILERA,
Plaintiffs,

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ORDER
v.

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No. 2:15-cv-2313-JAM-KJN PS

DAVID ROSENBERG & UNIFUND
CCR, LLC,

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Defendants.

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Presently pending before the court is defendant Unifund CCR, LLC’s motion to dismiss

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plaintiffs Michelle Aguilera and Eli Aguilera’s1 original complaint. (ECF No. 8.)2 Plaintiffs have

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opposed the motion, and defendant Unifund filed a reply brief. (ECF Nos. 16, 18.) For the

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reasons discussed below, the court GRANTS the motion, but with leave to amend.3

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Based on their use of colons and other representative terminology throughout the complaint,
plaintiffs appear to be adherents of the Sovereign Citizens movement and refer to themselves as
“michelle: [House of Aguilera]” and “eli: [House of Aguilera].” (See ECF No. 1.) The court
respectfully declines to use such fictional names, and refers to plaintiffs Michelle Aguilera and
Eli Aguilera as “plaintiffs” throughout this order.
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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21).

On December 29, 2015, the motion was submitted without oral argument pursuant to Local Rule
230(g). (ECF No. 17.)
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A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6)

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challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase

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Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard

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of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and

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plain statement” of plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see

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also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). “To survive a motion to dismiss,

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a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

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is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id.

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In considering a motion to dismiss for failure to state a claim, the court accepts all of the

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well-pled factual allegations in the complaint as true and construes them in the light most

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favorable to the plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court

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is “not, however, required to accept as true conclusory allegations that are contradicted by

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documents referred to in the complaint, and [the court does] not necessarily assume the truth of

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legal conclusions merely because they are cast in the form of factual allegations.” Paulsen, 559

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F.3d at 1071. The court must construe a pro se pleading liberally to determine if it states a claim

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and, prior to dismissal, tell a plaintiff of deficiencies in her complaint and give plaintiff an

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opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See

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Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Hebbe v. Pliler, 627

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F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings

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liberally even when evaluating them under the standard announced in Iqbal).

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In this case, plaintiffs’ complaint is rambling, confusing, and largely incomprehensible.

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As best the court can tell, plaintiffs allege that defendants have improperly garnished a portion of

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plaintiff Michelle Aguilera’s wages, which purportedly amounts to various constitutional

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violations and other legal wrongs, but there are no intelligible factual allegations pled in support

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of plaintiffs’ vague and conclusory claims. Indeed, a large portion of the complaint consists of a
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collection of definitions of various legal terms, some with doubtful relevance to the case. Beyond

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conclusory assertions, plaintiffs have not alleged facts that allow the court to draw the reasonable

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inference that the defendants are liable for any misconduct. Moreover, plaintiffs have not

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identified precisely what legal claims they are asserting.
Because plaintiffs’ original complaint fails to comply with the above-mentioned Federal

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Rules of Civil Procedure and applicable law, it is subject to dismissal. Defendant Unifund

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requests dismissal with prejudice, arguing that the nature of plaintiffs’ complaint and other filings

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suggests that it is unlikely that plaintiffs could cure the original complaint and state cognizable

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claims. Nevertheless, in light of plaintiffs’ pro se status, the court finds it appropriate to provide

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plaintiffs, who have now received notice of the complaint’s deficiencies, an opportunity to

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amend.
If plaintiffs elect to file an amended complaint, it shall be captioned “First Amended

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Complaint” and shall comply with the Federal Rules of Civil Procedure and applicable law

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outlined above.

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Plaintiffs are informed that the court cannot refer to a prior complaint or filing in order to

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make any first amended complaint complete. Local Rule 220 requires that an amended complaint

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be complete in itself without reference to any prior pleading or filing. As a general rule, an

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amended complaint supersedes the original complaint, and once the amended complaint is filed,

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the original complaint no longer serves any function in the case.

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Importantly, nothing in this order requires plaintiffs to file an amended complaint. If

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plaintiffs determine that they are unable to amend their complaint in compliance with the court’s

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order or no longer wish to pursue the action in this court, plaintiffs may alternatively file a notice

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of voluntary dismissal of their claims without prejudice pursuant to Federal Rule of Civil

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Procedure 41(a)(1)(A)(i).

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If plaintiffs elect to proceed with this action in federal court, they are strongly encouraged

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to familiarize themselves with the Federal Rules of Civil Procedure and this court’s Local Rules.4

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A copy of the court’s Local Rules can be obtained from the Clerk of Court or on the court’s
website.
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Although the court is sympathetic to the difficulties faced by pro se litigants in litigating their

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cases in federal court, and liberally construes their pleadings and filings, pro se litigants are

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expected to comply with all deadlines, procedural rules, and court orders.

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

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Defendant Unifund’s motion to dismiss (ECF No. 8) is granted.

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2.

Plaintiffs’ original complaint is dismissed, but with leave to amend.

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3.

Within 28 days of this order, plaintiffs shall file either (i) a first amended

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complaint in compliance with this order or (ii) a notice of voluntary dismissal of

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the action without prejudice.

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Failure to file either a compliant first amended complaint or a notice of voluntary

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dismissal by the required deadline may result in dismissal of the action with

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prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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Dated: January 13, 2016

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