Razavi v. Coti et al

Filing 14

ORDER DISMISSING 8 FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND. Amended Pleading due by 1/5/2018. Signed by Judge Beth Labson Freeman on 12/6/2017. (blflc1S, COURT STAFF) (Filed on 12/6/2017)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SAN JOSE DIVISION 5 6 MELINA RAZAVI, Plaintiff, 7 8 9 10 Case No. 17-cv-04341-BLF v. CARLOS COTI, et al., Defendants. ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND [Re: ECF 8] United States District Court Northern District of California 11 12 Plaintiff Melina Razavi, proceeding pro se, filed this action on July 31, 2017, alleging 13 unlabeled state law claims arising from an automobile accident and the subsequent insurance 14 claims process. Compl., ECF 1. Magistrate Judge Howard R. Lloyd, to whom the case initially 15 was assigned, granted Razavi leave to proceed in forma pauperis. HRL Order, ECF 4. 16 A federal court must conduct a preliminary screening of any complaint filed by an 17 individual proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). The screening requirement 18 applies to both prisoners and non-prisoners. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 19 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). The court’s 20 screening obligation extends beyond the original complaint, as the court “shall dismiss the case at 21 any time” if it determines that the plaintiff’s pleading is frivolous or malicious, fails to state a 22 claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune 23 from such relief. Id. 24 Subject Matter Jurisdiction 25 This Court adopted Magistrate Judge Lloyd’s report and recommendation that Razavi’s 26 original complaint be dismissed for lack of subject matter jurisdiction. Order Adopting R&R, 27 ECF 7. Because Razavi had alleged only state law claims, the only potential basis for subject 28 matter jurisdiction was diversity of citizenship, and Razavi had alleged neither the citizenship of 1 the parties nor facts showing that the amount in controversy exceeds $75,000. Id. at 2. The Court 2 therefore dismissed Razavi’s complaint with leave to amend. Id. It also informed Razavi that 3 although she is proceeding in forma pauperis, the Court will not direct service of process by the 4 U.S. Marshal unless and until Razavi files a viable complaint establishing the existence of subject 5 matter jurisdiction. Id. at 2. Razavi has filed a first amended complaint (“FAC”), again alleging state law claims arising 6 7 out of the automobile accident and claims process, and adding a new claim for violation of the 8 Americans with Disabilities Act (“ADA”).1 FAC, ECF 8. She appears to be asserting subject 9 matter jurisdiction based both on diversity of citizenship and federal question. FAC ¶¶ 7-8. In order to establish diversity jurisdiction, Razavi must “allege affirmatively the actual citizenship of 11 United States District Court Northern District of California 10 the relevant parties.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Razavi 12 sues Carlos Coti, the other party involved in the automobile accident, and her insurer, Geico 13 Insurance Company. She does not allege the citizenship of either. Moreover, her allegations that 14 Coti “is a natural person living and/or working in the jurisdictional area of the Northern District of 15 California” suggest that he is a California citizen. Accordingly, Razavi has failed to allege facts 16 showing the existence of diversity jurisdiction. See 28 U.S.C. § 1332(a) (“The district courts shall 17 have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or 18 value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.”). However, Razavi has alleged a new claim under the ADA, a federal statute. This Court 19 20 thus has federal question jurisdiction over that claim and supplemental jurisdiction over the state 21 law claims to the extent “they form part of the same case or controversy” as the ADA claim. See 22 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising 23 under the Constitution, laws, or treaties of the United States.”); 28 U.S.C. § 1367(a) (“[I]n any 24 civil action of which the district courts have original jurisdiction, the district courts shall have 25 supplemental jurisdiction over all other claims that are so related to claims in the action within 26 27 28 1 The Court’s order dismissing her original complaint did not grant Razavi leave to add new claims or parties. However, because the order did not expressly prohibit Razavi from adding new claims, and in light of her pro se status, the Court permits the amendment. 2 1 such original jurisdiction that they form part of the same case or controversy under Article III of 2 the United States Constitution.”). 3 Failure to State a Claim 4 Having concluded that it has subject matter jurisdiction, the Court next must determine 5 whether the FAC fails to state a claim upon which relief may be granted. See 28 U.S.C. § 6 1915(e)(2)(B). The Court begins with the ADA claim, because absent the assertion of a viable 7 federal claim, this Court declines to exercise supplemental jurisdiction over Razavi’s state law 8 claims. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“A district court 9 ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all claims over which it has 10 United States District Court Northern District of California 11 original jurisdiction.’” (quoting 28 U.S.C. § 1367(c)(3)). “Congress passed the ADA in 1990 to provide a clear and comprehensive national mandate 12 for the elimination of discrimination against individuals with disabilities.” Gilstrap v. United Air 13 Lines, Inc., 709 F.3d 995, 1002 (9th Cir. 2013) (internal quotation marks and citation omitted). 14 “The ADA includes three main sections – Title I, which concerns employment discrimination, 42 15 U.S.C. § 12111 et seq.; Title II, which governs access to public services, id. § 12131 et seq.; and 16 Title III, which governs access to privately operated public accommodations, such as restaurants 17 and movie theaters, id. § 12181 et seq.” Id. Razavi does not specify which Title she believes 18 governs here. As Razavi does not assert a claim of employment discrimination and Geico does 19 not provide public services, the Court presumes that Razavi is asserting a claim under Title III. 20 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) she is 21 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 22 operates a place of public accommodation; and (3) the plaintiff was denied public 23 accommodations by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 24 724, 730 (9th Cir. 2007). Razavi must allege facts which, if true, state a plausible claim under the 25 ADA. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 26 U.S. 544, 570 (2007)). 27 Razavi alleges that she is disabled within the meaning of the ADA as a result of a stroke. 28 See FAC ¶ 47. However, she does not allege that Geico “is a private entity that owns, leases, or 3 1 operates a place of public accommodation.” Even assuming that Geico does operate a place of 2 “public accommodation,” see 42 U.S.C. § 12181, Razavi does not allege facts showing that Geico 3 denied her access to such accommodation. She asserts that “GEICO failed to provide RAZAVI 4 with equal access to an orderly claims process.” FAC ¶ 48. She also asserts that she “desired to 5 use GEICO’s insurance claims process, but was precluded from doing so due to access violations 6 and was injured as a result.” Id. at 50. However, she does not allege how Geico denied her 7 access. It appears from the face of the FAC that Razavi did make an insurance claim which was 8 adjusted by Geico, and that Razavi is unhappy with the result in part because she believes that 9 Geico “lowballed” her. See FAC ¶ 40. Razavi’s dissatisfaction with the claims adjustment result 10 does not give rise to an ADA claim. ORDER United States District Court Northern District of California 11 12 For the foregoing reasons, 13 (1) Razavi’s ADA claim (Claim 4) is DISMISSED WITH LEAVE TO AMEND; 14 (2) Absent a viable federal claim, the Court DECLINES to exercise supplemental jurisdiction over Razavi’s state law claims (Claims 1, 2, and 3); 15 16 (3) Any amended complaint shall be filed on or before January 5, 2018; 17 (4) Razavi is granted leave to amend only her ADA claim; she may not add new claims or parties without making a motion and receiving leave of the Court; and 18 19 (5) Razavi is advised that failure to amend her complaint within the time provided or 20 failure to allege facts sufficient to state a claim under the ADA may result in 21 dismissal of her pleading without leave to amend and dismissal of her case with 22 prejudice. 23 24 25 26 Dated: December 6, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 27 28 4

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