Hightower v. Director et al

Filing 54

ORDER by Judge Joseph C. Spero granting 43 Motion to Dismiss and dismissing action without prejudice. The Clerk is instructed to close the file. (jcslc1, COURT STAFF) (Filed on 10/22/2013) (Additional attachment(s) added on 10/22/2013: # 1 Certificate/Proof of Service) (klhS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DIONNE R. HIGHTOWER, 7 Case No. 13-cv-01538-JCS Plaintiff, 8 v. 9 UNITED STATES OF AMERICA, 10 Defendant. ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Re: Dkt. No. 43 United States District Court Northern District of California 11 12 Plaintiff filed a First Amended Complaint in this action on September 12, 2013. The 13 14 United States has filed a Motion to Dismiss Plaintiff’s First Amended Complaint (“Motion”). In 15 the Motion, the United States seeks dismissal of Plaintiff’s First Amended Complaint (“FAC”) 16 under: 1) Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that 17 Plaintiff’s FAC does not provide “a short and plaint statement of the claim showing that the 18 pleader is entitled to relief;” 2) Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of 19 subject matter jurisdiction because the FAC does not allege any federal claim; and 3) the doctrine 20 of federal comity because this action is duplicative of two other actions currently pending in the 21 Central District of California. The Court dismisses Plaintiff’s FAC because the allegations contained in it are virtually 22 23 identical to the ones she has asserted in the Central District of California, where there is currently 24 pending a motion to dismiss. 1 Indeed, in this action Plaintiff appears to have submitted the same 25 pleadings she submitted in the Central District, or at least, excerpts of them: her FAC carries a 26 27 28 1 The Court takes judicial notice of the Amended Complaint filed on January 8, 2013 in Hightower v. Director, et al., Central District of California Case No. C-13-00045 MMM, as well as the complaint filed in Central District of California Case No. C-13-04099 RGK. 1 caption for the Central District of California; she alleges that venue is proper in the Central 2 District of California; and much of the FAC in this action is taken verbatim from her complaints in 3 the actions in the Central District. Under the “first to file” rule, “[w]hen cases involving the same 4 parties and issues have been filed in two different districts, the second district court has discretion 5 to transfer, stay, or dismiss the second case in the interest of efficiency and judicial economy.” 6 Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765, 769 (9th Cir. 1997). Because Plaintiff 7 filed her complaint in the Central District before filing in this Court, the Court dismisses 8 Plaintiff’s complaint without prejudice pursuant to the first-to-file rule. 9 10 United States District Court Northern District of California 11 The Motion is GRANTED. The motion hearing set for November 8, 2013 is vacated. The Clerk is directed to close the file in this action. IT IS SO ORDERED. 12 13 Dated: October 22, 2013 14 15 16 ______________________________________ JOSEPH C. SPERO United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 2

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