Shackelford v. Virtu Investments

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/4/2017 GRANTING 2 Motion to Proceed In Forma Pauperis and DISMISSING 3 First Amended Complaint with leave to amend. Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint. (Donati, J)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAWNE C. SHACKELFORD, 12 13 14 No. 2:16-cv-1601-TLN-EFB PS Plaintiff, v. ORDER VIRTU INVESTMENTS, LLC, 15 Defendant. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 His 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines that 22 the allegation of poverty is untrue, or that the action is frivolous or malicious, fails to state a claim 23 on which relief may be granted, or seeks monetary relief against an immune defendant. As 24 discussed below, plaintiff’s complaint must be dismissed for failure to state a claim. 25 26 27 28 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 1 This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 In reviewing a complaint under this standard, the court must accept as true the allegations 11 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 12 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 13 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 14 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 15 “requires a complaint to include a short and plain statement of the claim showing that the pleader 16 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 17 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing 18 Conley v. Gibson, 355 U.S. 41 (1957)). 19 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 20 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 21 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 22 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 23 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 24 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 25 authorized by a federal statute that both regulates a specific subject matter and confers federal 26 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 27 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 28 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 2 1 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 2 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 3 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 4 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 5 Here, the allegations of plaintiff’s first amended complaint2 fail to state a claim. Plaintiff 6 brings this action against defendant Virtu Investments, LLC, and all its officers, employees, 7 agents, and stockholders, alleging claims under the Americans with Disabilities Act (“ADA”), 42 8 U.S.C. §§ 12101, et seq., and state law. ECF No. 3. The allegations, however, are too vague and 9 conclusory to state a claim upon which relief may be granted. Plaintiff claims to be seeking $25 10 million from defendants due to “intentional infliction of additional ailments as well as intentional 11 delay of ailment recovery & reemployment disruption [that] left plaintiff incapacitated to conduct 12 home sale, clear up interest accruing pre-ailment debts, and successfully complete in progress 13 employment retraining.” Id. at 3. Plaintiff further alleges that defendants “made efforts to hide 14 harm & sources to continue profiting by increased bodily harm, physical pain and financial 15 malice to disabled Gulf War veteran.” Id. at 4. Plaintiff also alleges that defendants modified 16 documents and made dishonest statements to “induce physical pain and suffering” and exacerbate 17 plaintiff’s stress. Id. 18 These allegations are insufficient to state a claim for violation of the ADA. Title II of the 19 ADA prohibits a public entity from discriminating against a qualified individual with a disability 20 on the basis of disability. 42 U.S.C. § 12132. “To state a claim of disability discrimination under 21 Title II, the plaintiff must allege four elements: (1) the plaintiff is an individual with a disability; 22 (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public 23 entity’s services, programs, or activities; (3) the plaintiff was either excluded from participation in 24 or denied the benefits of the public entity’s services, programs, or activities, or was otherwise 25 discriminated against by the public entity; and (4) such exclusion, denial of benefits, or 26 27 28 2 Prior to screening of the original complaint, plaintiff filed a first amended complaint pursuant to Fed. R. Civ. P. 15(a) (Permitting an amendment once as a matter of course within 21 days after the filing of a responsive pleading). Therefore, the court screens the first amended complaint. 3 1 discrimination was by reason of the plaintiff’s disability.” Thompson v. Davis, 295 F.3d 890, 895 2 (9th Cir.2002); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (“If a 3 public entity denies an otherwise ‘qualified individual’ ‘meaningful access’ to its ‘services, 4 programs, or activities’ ‘solely by reason of’ his or her disability, that individual may have an 5 ADA claim against the public entity.”). 6 While plaintiff alleges that she is disabled, she fails to allege that defendants wrongfully 7 denied her services, programs, or activities that she was otherwise qualified to receive on account 8 of her disability. Accordingly, plaintiff fails to state a claim upon which relief may be granted. 9 Plaintiff also purports to assert tort claims of negligent and intentional infliction of 10 emotional distress and a variety of other state law claims. But plaintiff has yet to assert a properly 11 pleaded federal cause of action which precludes supplemental jurisdiction over the state law 12 claims. Further, plaintiff fails to establish diversity of citizenship that could support diversity 13 jurisdiction over the state law claims. As noted above, to establish diversity jurisdiction plaintiff 14 must allege diverse citizenship of all parties. Bautista, 828 F.2d at 552. Although the amended 15 complaint does allege that plaintiff is a citizen of California, it does not adequately allege Virtu 16 Investments, LLC’s state of incorporation or principal place of business.3 See 28 U.S.C. 17 § 1332(c)(1) (corporation is a citizen of both the state of incorporation and state where principal 18 place of businesses located). Thus, plaintiff has failed to establish diversity jurisdiction over his 19 claims.4 20 Accordingly, the amended complaint must be dismissed. However, plaintiff is granted 21 leave to file an amended complaint. Any amended complaint must allege a basis for this court’s 22 jurisdiction, as well as a cognizable cause of action against a proper defendant and sufficient facts 23 24 25 26 27 28 3 The amended complaint alleges that Virtu Investments, LLC’s principal place of business is located in California, Colorado, Nevada, Texas, and “others.” ECF No. 3 at 7. A corporation, however, can only have one principal place of business, which is located in the state “where a corporation’s officers direct, control, and coordinate the corporation’s activities.” Hertz Corp v. Friend, 559 U.S. 77, 92-93 (2010). 4 Aside from the jurisdictional issue, plaintiff also fails to properly plead a state law claim because her allegations are too vague and conclusory to provide defendants fair notice of the basis for any of his claims. See Twombly, 550 U.S. at 554. 4 1 to support that cause of action. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 2 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 3 their complaints). Should plaintiff choose to file an amended complaint, the amended complaint 4 shall clearly identify the claims asserted as to each defendant and set forth the factual allegations 5 against that defendant(s) which give rise to a cause. It shall specify a basis for this court’s subject 6 matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered 7 paragraphs, each limited as far as practicable to a single set of circumstances,” as required by 8 Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line 9 numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and 10 130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and 11 against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must 12 plead clear facts that support each claim under each header. 13 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 14 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 15 complete in itself. This is because, as a general rule, an amended complaint supersedes the 16 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 17 plaintiff files an amended complaint, the original no longer serves any function in the case. 18 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 19 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 20 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 21 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 22 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 23 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 24 Accordingly, IT IS ORDERED that: 25 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 26 2. Plaintiff’s first amended complaint is dismissed with leave to amend, as provided 27 herein. 28 ///// 5 1 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 2 complaint. The amended complaint must bear the docket number assigned to this case and must 3 be labeled “Second Amended Complaint.” Failure to timely file an amended complaint in 4 accordance with this order will result in a recommendation this action be dismissed. 5 DATED: October 4, 2017. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?