Razavi v. Coti et al

Filing 18

ORDER DISMISSING 15 SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND. Amended Pleading due by 7/2/2018. Signed by Judge Beth Labson Freeman on 6/11/2018. (blflc1S, COURT STAFF) (Filed on 6/11/2018)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4
5

MELINA RAZAVI,
Plaintiff,

6
v.

7
8

Case No. 17-cv-04341-BLF

CARLOS COTI, et al.,
Defendants.

9

ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH
LEAVE TO AMEND
[Re: ECF 15]

10

United States District Court
Northern District of California

11

Plaintiff Melina Razavi, proceeding pro se, filed this action after being involved in an

12

automobile accident. She sues the other driver, Carlos Coti, and her own insurer, Geico Insurance

13

Company. Because Ms. Razavi is proceeding in forma pauperis, her pleadings are subject to

14

initial screening by the Court. See 28 U.S.C. § 1915(e)(2)(B) (district court shall screen and

15

dismiss an action filed by a plaintiff proceeding in forma pauperis if the action “is frivolous or

16

malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief

17

against a defendant who is immune from such relief”). For the reasons discussed below, the

18

second amended complaint (“SAC”) is DISMISSED WITH LEAVE TO AMEND.

19
20

I.

BACKGROUND
Ms. Razavi filed the complaint in this action on July 31, 2017, alleging state law claims

21

arising out of the automobile accident and insurance claims process. Compl., ECF 1. Magistrate

22

Judge Howard R. Lloyd, to whom the case initially was assigned, granted Razavi leave to proceed

23

in forma pauperis. HRL Order, ECF 4. Judge Lloyd also issued a Report and Recommendation

24

(“R&R”) that the complaint be dismissed for lack of subject matter jurisdiction. Id. The Court

25

adopted the R&R and dismissed the complaint with leave to amend, as the only potential basis for

26

subject matter jurisdiction was diversity of citizenship and Ms. Razavi had alleged neither the

27

citizenship of the parties nor facts showing that the amount in controversy exceeded $75,000.

28

Order Adopting R&R, ECF 7. The Court stated that it would not direct service of process by the

1

U.S. Marshal absent a viable complaint establishing the existence of federal subject matter

2

jurisdiction. Id.
Ms. Razavi thereafter filed a first amended complaint (“FAC”), alleging both state law

4

claims and a new federal claim for violation of the Americans with Disabilities Act (“ADA”).

5

FAC, ECF 8. She asserted subject matter jurisdiction based on both diversity of citizenship and

6

federal question. FAC ¶¶ 7-8. The Court found the allegations of the FAC inadequate to give rise

7

to diversity jurisdiction, but it concluded that the ADA claim gave rise to federal question

8

jurisdiction. Order Dismissing FAC, ECF 14. The Court dismissed the ADA claim, however, and

9

it declined to exercise supplemental jurisdiction over the state law claims absent a viable federal

10

claim. Id. The Court granted leave to amend, but it advised Ms. Razavi that failure to cure the

11
United States District Court
Northern District of California

3

deficiencies of the ADA claim could result in dismissal of the case. Id.
Ms. Razavi timely filed the operative SAC, asserting claims for: (1) negligence, (2) breach

12
13

of contract, (3) bad faith, and (4) violation of the ADA. SAC, ECF 15. As Ms. Razavi has not

14

cured the deficiencies of her ADA claim, the SAC is subject to dismissal with leave to amend.

15

II.

DISCUSSION

16

Ms. Razavi asserts subject matter jurisdiction based on both diversity of citizenship and

17

federal question. SAC ¶¶ 8-9, ECF 15. She fails to allege facts showing complete diversity of

18

citizenship. See In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008)

19

(“Diversity jurisdiction requires complete diversity between the parties – each defendant must be a

20

citizen of a different state from each plaintiff.”). Ms. Razavi alleges neither her own citizenship

21

nor Defendants’ citizenship. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.

22

2001) (A plaintiff must “allege affirmatively the actual citizenship of the relevant parties.”).

23

Moreover, the facts she does allege suggest that both she and Defendant Coti are citizens of

24

California. See SAC ¶ 1 (alleging that Ms. Razavi is “a resident of city of San Jose in the State of

25

California”); ¶ 2 (alleging that Defendant Coti “is a natural person living and/or working in the

26

jurisdictional area of the Northern District of California”).

27
28

However, Ms. Razavi’s ADA claim is sufficient to give rise to federal question jurisdiction
over that claim and supplemental jurisdiction over the state law claims to the extent “they form
2

1

part of the same case or controversy” as the ADA claim. See 28 U.S.C. § 1331 (“The district

2

courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or

3

treaties of the United States.”); 28 U.S.C. § 1367(a) (“[I]n any civil action of which the district

4

courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all

5

other claims that are so related to claims in the action within such original jurisdiction that they

6

form part of the same case or controversy under Article III of the United States Constitution.”).

7

As stated in its prior order, the Court will not exercise supplemental jurisdiction over the state law

8

claims absent a viable federal claim. The Court therefore turns first to the ADA claim.

9
10

ADA Claim (Claim 4)
“The ADA includes three main sections – Title I, which concerns employment

United States District Court
Northern District of California

11

discrimination, 42 U.S.C. § 12111 et seq.; Title II, which governs access to public services, id. §

12

12131 et seq.; and Title III, which governs access to privately operated public accommodations,

13

such as restaurants and movie theaters, id. § 12181 et seq.” Gilstrap v. United Air Lines, Inc., 709

14

F.3d 995, 1002 (9th Cir. 2013). Ms. Razavi’s claim is asserted under Title III. SAC ¶ 49, ECF 15.

15

Title III of the ADA states that “[n]o individual shall be discriminated against on the basis

16

of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

17

advantages, or accommodations of any place of public accommodation by any person who owns,

18

leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The

19

ADA defines discrimination to include:

20
21
22
23

[A] failure to make reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities, unless
the entity can demonstrate that making such modifications would fundamentally
alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations[.]

24

42 U.S.C. § 12182(b)(2)(A)(ii). To prevail on a reasonable modification claim under this

25

provision, a plaintiff “must establish that: (1) he is disabled as that term is defined by the ADA;

26

(2) the defendant is a private entity that owns, leases, or operates a place of public

27

accommodation; (3) the defendant employed a discriminatory policy or practice; and (4) the

28

defendant discriminated against the plaintiff based upon the plaintiff’s disability by (a) failing to
3

1

make a requested reasonable modification that was (b) necessary to accommodate the plaintiff’s

2

disability.” Karczewski v. DCH Mission Valley LLC, 862 F.3d 1006, 1010 (9th Cir. 2017)

3

(citation omitted).

4

Ms. Razavi appears to be asserting a reasonable modification claim against Geico. She

5

alleges that she is permanently disabled as a result of a stroke (element 1). SAC ¶ 48, ECF 15.

6

She also alleges that Geico owns, leases, or operates a place of public accommodation, specifically

7

by selling automobile insurance to the general public (element 2). SAC ¶¶ 49-51. It appears that

8

she may be trying to allege that Geico had a discriminatory policy or practice regarding its claims

9

adjustment deadlines (element 3), and that Geico refused to provide her with a reasonable
modification of those deadlines (element 4). Ms. Razavi alleges that Geico took advantage of her

11
United States District Court
Northern District of California

10

disabilities “by forcing RAZAVI to comply with capricious and arbitrary deadlines that was too

12

fast and too soon for her to meet without reasonable accommodation,” and that Geico “refused to

13

accommodate RAZAVI’s need for extra time to meet deadlines.” SAC ¶¶ 60-61. However, Ms.

14

Razavi does not identify any discriminatory policy or practice employed by Geico, nor does she

15

allege that she actually requested but was refused a reasonable modification of Geico’s claims

16

deadlines. Moreover, Ms. Razavi does not allege that the deadlines which Geico imposed

17

deprived her of access to Geico’s claims process. To the contrary, it appears on the face of the

18

complaint that Geico adjusted Ms. Razavi’s claim, but that Ms. Razavi was unhappy with the

19

result. SAC ¶ 62 (alleging that Geico offered Ms. Razavi “an unreasonably reduced payment” and

20

then ultimately denied her claim).

21

The Court notes that some case authority suggests that Ms. Razavi would not be able to

22

state a claim under Title III even if she were to cure the deficiencies noted above, because there is

23

an insufficient connection between the claimed discriminatory conduct and an actual physical

24

place. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000)

25

(interpreting the term “place of public accommodation” to “suggest[] that some connection

26

between the good or service complained of and an actual physical place is required.”). However,

27

Weyer is factually distinguishable from the present case, and it is not clear that it would apply.

28

Under those circumstances, the Court finds it appropriate to grant Ms. Razavi a final opportunity
4

1

to amend her ADA claim, with the benefit of the specific guidance provided herein. In order to

2

move forward on that claim, Ms. Razavi must identify a discriminatory policy or practice

3

employed by Geico. She also must allege specific facts demonstrating that Geico discriminated

4

against her by refusing her request for a reasonable modification of that policy or practice, and that

5

such requested modification was necessary to accommodate her disability. Finally, Ms. Razavi

6

must allege facts showing that Geico’s discriminatory conduct deprived her of a good or service

7

offered by Geico.
Based on the foregoing, Ms. Razavi’s ADA claim (Claim 4) is DISMISSED WITH

8
9

LEAVE TO AMEND.
State Law Claims (Claims 1, 2, and 3)

11
United States District Court
Northern District of California

10

Unless and until Ms. Razavi alleges a viable ADA claim, the Court declines to exercise

12

supplemental jurisdiction over Ms. Razavi’s state law claims. See Sanford v. MemberWorks, Inc.,

13

625 F.3d 550, 561 (9th Cir. 2010) (“A district court ‘may decline to exercise supplemental

14

jurisdiction’ if it ‘has dismissed all claims over which it has original jurisdiction.’” (quoting 28

15

U.S.C. § 1367(c)(3)). Accordingly, the Court declines to address the state law claims at this time.

16

III.

ORDER

17

(1)

Ms. Razavi’s ADA claim (Claim 4) is DISMISSED WITH LEAVE TO AMEND;

18

(2)

Absent a viable federal claim, the Court DECLINES to exercise supplemental
jurisdiction over Ms. Razavi’s state law claims (Claims 1, 2, and 3);

19
20

(3)

Any amended complaint shall be filed on or before July 2, 2018;

21

(4)

Ms. 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

22
23

(5)

Ms. Razavi is advised that failure to amend her complaint or failure to allege facts

24

sufficient to state a claim under the ADA may result in dismissal of her case with

25

prejudice.

26
27
28

Dated: June 11, 2018

______________________________________
BETH LABSON FREEMAN
United States District Judge
5