McDowell et al v. City and County of San Francisco et al

Filing 49

ORDER RE MOTION OPPOSING DISMISSAL. Amended Pleadings due by 3/22/2013.. Signed by Judge Jeffrey S. White on 3/4/13. (jjoS, COURT STAFF) (Filed on 3/4/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 FRANK AND DEBORAH MCDOWELL, 11 ORDER RE MOTION OPPOSING DISMISSAL Plaintiffs, v. (Docket No. 42) For the Northern District of California United States District Court 10 No. C 12-03192 JSW 12 13 CITY AND COUNTY OF SAN FRANCISCO, Defendant. 14 / 15 16 On February 25, 2013, Plaintiffs, Frank and Deborah McDowell, filed a motion 17 opposing dismissal of 42 U.S.C. 1983, which the Court shall liberally construe as a motion for 18 leave to file a motion for reconsideration under Northern District Civil Local Rule 7-9. Under 19 Local Rule 7-9, a party may seek leave to file a motion for reconsideration any time before 20 judgment. N.D. Civ. L.R. 7-9(a). A motion for reconsideration may be made on one of three 21 grounds: (1) a material difference in fact or law exists from that which was presented to the 22 Court, which, in the exercise of reasonable diligence, the party applying for reconsideration did 23 not know at the time of the order; (2) the emergence of new material facts or a change of law; or 24 (3) a manifest failure by the Court to consider material facts or dispositive legal arguments 25 presented before entry of judgment. N.D. Civ. L.R. 7-9(b)(1)-(3). The moving party may not 26 reargue any written or oral argument previously asserted to the Court. Id., 7-9(c). 27 It appears that Plaintiffs seek leave to file a motion for reconsideration on the basis that 28 the Court failed to consider dispositive legal arguments presented in opposition to their motion 1 to dismiss. In support of their motion, they present arguments that were previously presented to 2 the Court. 3 The only Defendant named in Plaintiffs’ First Amended Complaint (“FAC”) was the 4 City and County of San Francisco (the “City”). As the Court noted in its Order granting the 5 City’s motion to dismiss, the FAC is not organized by claims for relief and, as a result, it was 6 not a model of clarity. Liberally construed, Plaintiffs appeared to assert that the City, through 7 various employees, defamed them, assaulted them, discriminated against them, retaliated 8 against them, and violated their rights under the First, Fourth, and Fourteenth Amendments to 9 the United States Constitution. Plaintiffs repeat those arguments in the instant motion, although they also refer to specific City employees who are alleged to have taken these actions. The 11 For the Northern District of California United States District Court 10 Plaintiffs also make a reference to the Fair Labor Standards Act and California Labor Code 12 section 1102.5 and suggests that the City failed to pay its bus and train operators for a voter 13 approved measure. (See Docket 48 at ECF p. 11, lines 1-3.) 14 The Court dismissed the claims asserted pursuant to Section 1983 because Plaintiffs did 15 not allege facts showing that the City acted pursuant to a custom or policy. In addition, to the 16 extent Plaintiffs contend that specific City employees are responsible for these alleged 17 violations, they had not named them as individual defendants and did not clearly identify those 18 employees. The Court also dismissed the discrimination claims, because although Plaintiffs 19 alleged they are African-American, they did not allege facts that suggested that the City took 20 any of the actions described in the FAC because of Plaintiffs’ race or that the City treated 21 individuals outside of this protected class more favorably. Similarly to the extent Plaintiffs 22 attempted to assert an age discrimination claim, they failed to allege facts showing that the city 23 took any of the alleged actions because of Plaintiffs’ age or treated younger persons more 24 favorably. The Court also concluded that Plaintiffs had not alleged that they engaged in any 25 activity that would qualify as protected activity under Title VII. 26 Although the Court finds no basis to revisit its decision on the motion to dismiss, it has 27 granted the Plaintiffs leave to amend these claims. If Plaintiffs believe that they need to name 28 additional defendants, they should include those defendants in the caption of any amended 2 1 complaint and clearly identify them in a section of the Amended Complaint entitled 2 “Defendants.” To the extent the Plaintiffs believe they have a claim under the Fair Labor 3 Standards Act, the Court will not preclude them from attempting to assert that claim in an 4 amended complaint, but they must clearly identify the facts supporting that alleged claim. 5 Finally, the Court dismissed the state law claims, without leave to amend, because 6 Plaintiffs did not allege facts showing that they complied with the claims presentation 7 requirement and over a year had passed since those claims accrued. The Court finds Plaintiffs 8 have not presented any argument or facts that would warrant reconsideration of that decision. 9 Accordingly, the Court DENIES the motion opposing dismissal. Pursuant to the Order dated February 11, 2013, Plaintiffs were granted leave to amend on the terms set forth in that 11 For the Northern District of California United States District Court 10 Order. The Court set a deadline of March 15, 2013 to file and serve any amended complaint. 12 In light of the instant motion, the Court shall extend that deadline by one week, to March 22, 13 2013. The City shall respond within twenty-one (21) days after it has been served. If Plaintiffs 14 name additional defendants, those Defendants also shall respond within twenty-one days after 15 they have been served with the amended complaint. If Plaintiffs do not file an amended 16 complaint by March 22, 2013, the Court shall dismiss this case with prejudice. 17 The Court again admonishes Plaintiffs that if they choose to amend their federal claims, 18 they shall clearly identify each claim for relief alleged against the City or a particular employee. 19 By way of example, if Plaintiffs maintain a Section 1983 Claim for alleged violations of their 20 First Amendment rights, they should identify that claim as follows: Claim One - Section 1983 21 for Alleged Violations of the First Amendment. Each claim should then be followed by the 22 particular facts that support that claim. The Court strongly suggests that Plaintiffs review 23 Chapter 4 of the Court’s Handbook for Pro Se Litigants before submitting any proposed 24 amended complaint. 25 The Court AGAIN ADVISES Plaintiffs that the Handbook for Pro Se Litigants, which 26 contains helpful information about proceeding without an attorney, is available through the 27 Court’s website or in the Clerk’s office. The Court AGAIN ADVISES Plaintiffs that they also 28 may wish to seek assistance from the Legal Help Center, and it once again encourages them to 3 1 make an appointment before filing an amended complaint, in order to assist them in clearly 2 identifying the specific claims for relief that they seek to allege against the City or its 3 employees. Plaintiffs may call the Legal Help Center at 415-782-9000, extension 8657, or sign 4 up on the 15th Floor of the Courthouse, Room 2796, for a free appointment with an attorney 5 who may be able to provide basic legal help, but not legal representation. 6 IT IS SO ORDERED. 7 8 Dated: March 4, 2013 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 FRANK AND DEBORAH MCDOWELL 6 et al, Case Number: CV12-03192 JSW Plaintiff, CERTIFICATE OF SERVICE 7 v. 9 CITY AND COUNTY OF SAN FRANCISCO et al, 10 Defendant. 11 For the Northern District of California United States District Court 8 / 12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 13 District Court, Northern District of California. 14 That on March 4, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 15 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Deborah McDowell Frank McDowell 19 2800 Bellwort Court Antioch, CA 94531 20 21 22 23 24 25 26 27 28 Dated: March 4, 2013 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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