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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FRANK AND DEBORAH MCDOWELL,

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ORDER RE MOTION OPPOSING
DISMISSAL

Plaintiffs,
v.

(Docket No. 42)
For the Northern District of California

United States District Court

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No. C 12-03192 JSW

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CITY AND COUNTY OF SAN FRANCISCO,
Defendant.

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On February 25, 2013, Plaintiffs, Frank and Deborah McDowell, filed a motion

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opposing dismissal of 42 U.S.C. 1983, which the Court shall liberally construe as a motion for

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leave to file a motion for reconsideration under Northern District Civil Local Rule 7-9. Under

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Local Rule 7-9, a party may seek leave to file a motion for reconsideration any time before

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judgment. N.D. Civ. L.R. 7-9(a). A motion for reconsideration may be made on one of three

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grounds: (1) a material difference in fact or law exists from that which was presented to the

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Court, which, in the exercise of reasonable diligence, the party applying for reconsideration did

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not know at the time of the order; (2) the emergence of new material facts or a change of law; or

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(3) a manifest failure by the Court to consider material facts or dispositive legal arguments

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presented before entry of judgment. N.D. Civ. L.R. 7-9(b)(1)-(3). The moving party may not

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reargue any written or oral argument previously asserted to the Court. Id., 7-9(c).

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It appears that Plaintiffs seek leave to file a motion for reconsideration on the basis that

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the Court failed to consider dispositive legal arguments presented in opposition to their motion

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to dismiss. In support of their motion, they present arguments that were previously presented to

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the Court.

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The only Defendant named in Plaintiffs’ First Amended Complaint (“FAC”) was the

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City and County of San Francisco (the “City”). As the Court noted in its Order granting the

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City’s motion to dismiss, the FAC is not organized by claims for relief and, as a result, it was

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not a model of clarity. Liberally construed, Plaintiffs appeared to assert that the City, through

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various employees, defamed them, assaulted them, discriminated against them, retaliated

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against them, and violated their rights under the First, Fourth, and Fourteenth Amendments to

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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

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For the Northern District of California

United States District Court

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Plaintiffs also make a reference to the Fair Labor Standards Act and California Labor Code

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section 1102.5 and suggests that the City failed to pay its bus and train operators for a voter

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approved measure. (See Docket 48 at ECF p. 11, lines 1-3.)

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The Court dismissed the claims asserted pursuant to Section 1983 because Plaintiffs did

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not allege facts showing that the City acted pursuant to a custom or policy. In addition, to the

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extent Plaintiffs contend that specific City employees are responsible for these alleged

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violations, they had not named them as individual defendants and did not clearly identify those

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employees. The Court also dismissed the discrimination claims, because although Plaintiffs

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alleged they are African-American, they did not allege facts that suggested that the City took

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any of the actions described in the FAC because of Plaintiffs’ race or that the City treated

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individuals outside of this protected class more favorably. Similarly to the extent Plaintiffs

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attempted to assert an age discrimination claim, they failed to allege facts showing that the city

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took any of the alleged actions because of Plaintiffs’ age or treated younger persons more

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favorably. The Court also concluded that Plaintiffs had not alleged that they engaged in any

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activity that would qualify as protected activity under Title VII.

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Although the Court finds no basis to revisit its decision on the motion to dismiss, it has

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granted the Plaintiffs leave to amend these claims. If Plaintiffs believe that they need to name

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additional defendants, they should include those defendants in the caption of any amended
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complaint and clearly identify them in a section of the Amended Complaint entitled

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“Defendants.” To the extent the Plaintiffs believe they have a claim under the Fair Labor

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Standards Act, the Court will not preclude them from attempting to assert that claim in an

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amended complaint, but they must clearly identify the facts supporting that alleged claim.

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Finally, the Court dismissed the state law claims, without leave to amend, because

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Plaintiffs did not allege facts showing that they complied with the claims presentation

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requirement and over a year had passed since those claims accrued. The Court finds Plaintiffs

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have not presented any argument or facts that would warrant reconsideration of that decision.

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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

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For the Northern District of California

United States District Court

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Order. The Court set a deadline of March 15, 2013 to file and serve any amended complaint.

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In light of the instant motion, the Court shall extend that deadline by one week, to March 22,

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2013. The City shall respond within twenty-one (21) days after it has been served. If Plaintiffs

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name additional defendants, those Defendants also shall respond within twenty-one days after

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they have been served with the amended complaint. If Plaintiffs do not file an amended

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complaint by March 22, 2013, the Court shall dismiss this case with prejudice.

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The Court again admonishes Plaintiffs that if they choose to amend their federal claims,

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they shall clearly identify each claim for relief alleged against the City or a particular employee.

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By way of example, if Plaintiffs maintain a Section 1983 Claim for alleged violations of their

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First Amendment rights, they should identify that claim as follows: Claim One - Section 1983

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for Alleged Violations of the First Amendment. Each claim should then be followed by the

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particular facts that support that claim. The Court strongly suggests that Plaintiffs review

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Chapter 4 of the Court’s Handbook for Pro Se Litigants before submitting any proposed

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amended complaint.

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The Court AGAIN ADVISES Plaintiffs that the Handbook for Pro Se Litigants, which

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contains helpful information about proceeding without an attorney, is available through the

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Court’s website or in the Clerk’s office. The Court AGAIN ADVISES Plaintiffs that they also

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may wish to seek assistance from the Legal Help Center, and it once again encourages them to
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make an appointment before filing an amended complaint, in order to assist them in clearly

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identifying the specific claims for relief that they seek to allege against the City or its

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employees. Plaintiffs may call the Legal Help Center at 415-782-9000, extension 8657, or sign

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up on the 15th Floor of the Courthouse, Room 2796, for a free appointment with an attorney

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who may be able to provide basic legal help, but not legal representation.

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IT IS SO ORDERED.

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Dated: March 4, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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FRANK AND DEBORAH MCDOWELL
6 et al,

Case Number: CV12-03192 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.

9 CITY AND COUNTY OF SAN
FRANCISCO et al,
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Defendant.
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For the Northern District of California

United States District Court

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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.
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18 Deborah McDowell
Frank McDowell
19 2800 Bellwort Court
Antioch, CA 94531
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Dated: March 4, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk