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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAWNE C. SHACKELFORD,

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No. 2:16-cv-1601-TLN-EFB PS

Plaintiff,
v.

ORDER

VIRTU INVESTMENTS, LLC,

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Defendant.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 His

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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

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

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the allegation of poverty is untrue, or that the action is frivolous or malicious, fails to state a claim

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on which relief may be granted, or seeks monetary relief against an immune defendant. As

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discussed below, plaintiff’s complaint must be dismissed for failure to state a claim.

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

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

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

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

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

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

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

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

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

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

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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

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

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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“requires a complaint to include a short and plain statement of the claim showing that the pleader

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

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

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

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

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

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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

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

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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

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

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World
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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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

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

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

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Here, the allegations of plaintiff’s first amended complaint2 fail to state a claim. Plaintiff

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brings this action against defendant Virtu Investments, LLC, and all its officers, employees,

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agents, and stockholders, alleging claims under the Americans with Disabilities Act (“ADA”), 42

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U.S.C. §§ 12101, et seq., and state law. ECF No. 3. The allegations, however, are too vague and

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conclusory to state a claim upon which relief may be granted. Plaintiff claims to be seeking $25

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million from defendants due to “intentional infliction of additional ailments as well as intentional

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delay of ailment recovery & reemployment disruption [that] left plaintiff incapacitated to conduct

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home sale, clear up interest accruing pre-ailment debts, and successfully complete in progress

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employment retraining.” Id. at 3. Plaintiff further alleges that defendants “made efforts to hide

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harm & sources to continue profiting by increased bodily harm, physical pain and financial

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malice to disabled Gulf War veteran.” Id. at 4. Plaintiff also alleges that defendants modified

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documents and made dishonest statements to “induce physical pain and suffering” and exacerbate

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plaintiff’s stress. Id.

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These allegations are insufficient to state a claim for violation of the ADA. Title II of the

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ADA prohibits a public entity from discriminating against a qualified individual with a disability

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on the basis of disability. 42 U.S.C. § 12132. “To state a claim of disability discrimination under

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Title II, the plaintiff must allege four elements: (1) the plaintiff is an individual with a disability;

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(2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public

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entity’s services, programs, or activities; (3) the plaintiff was either excluded from participation in

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or denied the benefits of the public entity’s services, programs, or activities, or was otherwise

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discriminated against by the public entity; and (4) such exclusion, denial of benefits, or

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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.
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discrimination was by reason of the plaintiff’s disability.” Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir.2002); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (“If a

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public entity denies an otherwise ‘qualified individual’ ‘meaningful access’ to its ‘services,

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programs, or activities’ ‘solely by reason of’ his or her disability, that individual may have an

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ADA claim against the public entity.”).

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While plaintiff alleges that she is disabled, she fails to allege that defendants wrongfully

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denied her services, programs, or activities that she was otherwise qualified to receive on account

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of her disability. Accordingly, plaintiff fails to state a claim upon which relief may be granted.

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Plaintiff also purports to assert tort claims of negligent and intentional infliction of

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emotional distress and a variety of other state law claims. But plaintiff has yet to assert a properly

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pleaded federal cause of action which precludes supplemental jurisdiction over the state law

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claims. Further, plaintiff fails to establish diversity of citizenship that could support diversity

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jurisdiction over the state law claims. As noted above, to establish diversity jurisdiction plaintiff

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must allege diverse citizenship of all parties. Bautista, 828 F.2d at 552. Although the amended

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complaint does allege that plaintiff is a citizen of California, it does not adequately allege Virtu

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Investments, LLC’s state of incorporation or principal place of business.3 See 28 U.S.C.

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§ 1332(c)(1) (corporation is a citizen of both the state of incorporation and state where principal

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place of businesses located). Thus, plaintiff has failed to establish diversity jurisdiction over his

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claims.4

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Accordingly, the amended complaint must be dismissed. However, plaintiff is granted

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leave to file an amended complaint. Any amended complaint must allege a basis for this court’s

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jurisdiction, as well as a cognizable cause of action against a proper defendant and sufficient facts

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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).
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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.
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to support that cause of action. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly identify the claims asserted as to each defendant and set forth the factual allegations

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against that defendant(s) which give rise to a cause. It shall specify a basis for this court’s subject

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matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered

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paragraphs, each limited as far as practicable to a single set of circumstances,” as required by

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Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line

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numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and

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130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and

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

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plead clear facts that support each claim under each header.

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

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

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

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

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

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

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

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

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

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

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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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

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herein.

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

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

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

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

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DATED: October 4, 2017.

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