Reed v. Government Employees Insurance Company

Filing 20

ORDER by Judge Hamilton granting 18 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 4/17/2012)

1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
8
REVA REED,
9
Plaintiff,

No. C 12-0793 PJH

v.
11
For the Northern District of California

United States District Court

10

12

GOVERNMENT EMPLOYEES
INSURANCE COMPANY,

13

ORDER GRANTING MOTION
TO DISMISS

Defendant.
_______________________________/

14
15

Plaintiff Reva Reed filed this case as a proposed class action on January 18, 2012,

16

in the Superior Court of California, County of San Francisco, against defendant

17

Government Employees Insurance Company (“GEICO”), based on GEICO’s alleged failure

18

to pay benefits under a policy of automobile insurance. On February 17, 2012, GEICO

19

removed the case to this court, alleging diversity jurisdiction.

20

In the original complaint, plaintiff alleged four causes of action – breach of contract

21

and breach of the implied covenant of good faith and fair dealing; fraud; a request for a

22

judicial declaration that GEICO’s failure to pay benefits was racially motivated; and a

23

request for a judicial declaration regarding the parties’ respective rights and duties under

24

the policy.

25

On February 24, 2012, GEICO filed a motion to dismiss the claim of racial

26

discrimination expressed in the third cause of action for declaratory relief, arguing the

27

complaint alleged no facts in support of the claim; and a motion to strike the allegation in

28

the caption that the case was being brought on behalf of plaintiff and “all others similarly

1

situated.” Plaintiff did not file an opposition to the motion by the due date (March 9, 2012),

2

as required by the Civil Local Rules of this court.

3

Instead, on March 26, 2012, plaintiff filed a first amended complaint (“FAC”). In the

4

FAC, plaintiff eliminated the class action reference in the caption, but alleged the same four

5

causes of action as in the original complaint.

6

On April 2, 2012, GEICO filed a motion to dismiss the claim of racial discrimination

7

expressed in the third cause of action for declaratory relief, again arguing that the complaint

8

alleged no facts in support of the claim. On April 16, 2012, the date plaintiff’s opposition

9

was due, plaintiff filed a second amended complaint (“SAC”), alleging the same four causes

11
For the Northern District of California

United States District Court

10

of action as in the FAC, but adding a fifth cause of action for “elder abuse.”
Under Federal Rule of Civil Procedure 15, a party may amend its pleading once as a

12

matter of course within 21 days after serving it, or, if the pleading is one to which a

13

responsive pleading is required, 21 days after service of a responsive pleading or service of

14

a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a). In all

15

other cases, the party may amend its pleading only with the opposing party’s written

16

consent, or leave of court. Id.

17

To date, plaintiff has violated Rule 15(a) twice – once when she filed the FAC more

18

than 21 days after GEICO filed its first motion to dismiss, and once when she filed the SAC

19

after GEICO filed its second motion to dismiss, without first obtaining GEICO’s agreement

20

or leave of court. Because plaintiff failed to comply with Rule 15(a) before filing the SAC,

21

the court orders it STRICKEN from the docket.

22

In addition, the court has reviewed GEICO’s motion to dismiss the third cause of

23

action in the FAC – which motion plaintiff has failed to oppose – and finds that it must be

24

GRANTED, because the third cause of action fails to plead any facts in support of a claim

25

of racial discrimination. Plaintiff alleges only that GEICO’s representative “stopped taking

26

phone calls” from her and “hung up and disrespected” her; “failed to visually inspect the

27

claimed damage;” and failed to treat her “with the respect deserved of a paying client.”

28

FAC ¶¶ 55-59. Plaintiff “alleges and believes that this is in part due to her race” because
2

1
2

“she is an African American minority.” FAC ¶ ¶ 59, 61.
However, these conclusory allegations are insufficient to state a claim. See Bell

3

Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937,

4

1949-52 (2009). Moreover, since “racial discrimination” is not a recognized common law

5

cause of action in California, any cause of action asserting racial discrimination must plead

6

a statutory basis.

7

The dismissal of the third cause of action in the FAC is with leave to amend. The

8

second amended complaint shall be filed no later than May 16, 2012. Plaintiff may not

9

allege any additional causes of action or name any additional defendants unless she first
obtains leave of court.

11
For the Northern District of California

United States District Court

10

Finally, the court reminds plaintiff’s counsel that they are required to familiarize

12

themselves with the Federal Rules of Civil Procedure and the Civil Local Rules of this court,

13

and to comply with all rules and orders of the court, or risk dismissal of the case.

14

The May 16, 2012 date for the hearing on GEICO’s motion to dismiss is VACATED.

15
16

IT IS SO ORDERED.

17

Dated: April 17, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
3