Alexander v. United States Of America

Filing 82

ORDER DENYING PLAINTIFFS MOTION FOR LEAVE TO AMEND; DENYING PLAINTIFFS MOTION FOR RECONSIDERATION; DISMISSING CASE. Signed by Magistrate Judge Jacqueline Scott Corley on 1/6/2014. (Attachments: # 1 Certificate of Service) (ahm, COURT STAFF) (Filed on 1/6/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Northern District of California

United States District Court

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ANN MARIE ALEXANDER,
Plaintiff,

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v.

Case No.: 13-0678 JSC
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND;
DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION; DISMISSING
CASE

THE UNITED STATES,
Defendant.

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Plaintiff Ann Marie Alexander, proceeding pro se, brings this action against the United States

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arising from an October 2012 Freedom of Information Act (“FOIA”) request. At the beginning of this

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suit, the Court dismissed Plaintiff’s claims under the Racketeer Influence and Corrupt Organizations

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(“RICO”) Act and the constitution. (Dkt. Nos. 8, 10.) The second dismissal of these claims was with

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prejudice. (See Dkt. No. 10 at 6-7.) Plaintiff’s FOIA claim was the only claim allowed to proceed.

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(See Dkt. No. 8.) Now pending before the Court are Plaintiff’s motion for leave to amend and motion

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for reconsideration. (Dkt. Nos. 69, 73.) For the reasons stated below, the motions are DENIED.

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Further, because Plaintiff has informed the Court that she no longer wishes to pursue her FOIA claim,

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the Court dismisses the action.

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Although not entirely clear, Plaintiff seeks leave to amend her complaint to include allegations
regarding a wrist injury she suffered following a “zap” from a Federal Bureau of Investigation

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(“FBI”) drone. (Dkt. Nos. 69 at 3-4, 70 at 6-7.) Plaintiff asserts that she is not seeking to pursue a

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RICO Act claim in this action. (Dkt. No. 70 at 6.) “Although five factors generally are considered

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when assessing the propriety of a motion to amend, futility of amendment alone can justify the denial

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of a motion.” Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (footnote

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omitted). 1 The Court denies Plaintiff’s motion because the proposed amendment is futile. The Court

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has twice already dismissed Plaintiff’s similar allegations regarding the FBI’s alleged harassment,

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finding her claims frivolous. (See Dkt. No 10. at 6 (“[I]t is not credible that the FBI and various state

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and law enforcement officials around the country have, since the time of Plaintiff’s birth, expended

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incalculable resources in tracking, manipulating, and harassing Plaintiff around the country as a result

almost 1,000 pages—are more of the same. Plaintiff’s proposed amendment is futile for the same

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Northern District of California

of her ancestry.”).) Plaintiff’s proposed amendments—which, including attached documents, total

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United States District Court

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reason her earlier allegations were frivolous.
Relatedly, Plaintiff moves for reconsideration “of ruling RICO Act ‘without prejudice.’” (Dkt.

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No. 73 at 1.) It appears that while Plaintiff has no interest in pursuing a RICO Act in this case, she

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would like the option to pursue that claim in the future, perhaps in a different action. (See id. at 6.)

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“[A] motion for reconsideration should not be granted, absent highly unusual circumstances, unless

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the district court is presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665

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(9th Cir. 1999). Plaintiff’s motion is presumably based on the assertion that the Court committed

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legal error in dismissing Plaintiff’s RICO claim with prejudice. The Court’s decision was not legal

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error. After a written order informing Plaintiff of the deficiencies in her initial complaint, Plaintiff’s

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amended complaint was unresponsive to the Court’s Order, again failing to state a claim under RICO

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since the predicate acts supporting the claim all occurred outside the statute of limitations and because

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Plaintiff failed to adequately allege a pattern of racketeering activity. (See Dkt. No. 10 at 5-6.) “It is

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not an abuse of discretion to deny leave to amend when any proposed amendment would be futile.”

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Klamath–Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1292–93 (9th Cir. 1983).

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The five factors are bad faith, undue delay, prejudice to the opposing party, futility of amendment,
and whether the plaintiff has previously amended the complaint. Id.
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Any amendment was very likely to be futile considering Plaintiff’s insistence on basing her claims on

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factually unsupported, wholly incredible government conspiracies. While the Court does not doubt

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the sincerity of Plaintiff’s belief in the facts she alleges, her allegations do not meet the pleading

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standards of the Federal Rules of Civil Procedure. Plaintiff’s motion for reconsideration is

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accordingly DENIED.

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Plaintiff confirmed at the recent Case Management Conference that she no longer wishes to

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pursue her FOIA claim, the only viable claim that exists in this lawsuit. The Court accordingly

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DISMISSES the FOIA claim without prejudice, and the Clerk is ordered to close this case.

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IT IS SO ORDERED.

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Dated: January 6, 2104

Northern District of California

United States District Court

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_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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