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).

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