Dome v. Honorable Governer of California et al

Filing 16

ORDER Granting 14 Motion to Dismiss With Leave to Amend: The complaint is DISMISSED WITHOUT PREJUDICE as to all Defendants other than the Governor. The service on the Governor is QUASHED. The time for Plaintiff to properly serve the Governor is her eby extended until August 16, 2010. The complaint is DISMISSED WITH LEAVE TO AMEND. If Plaintiff chooses to file an amended complaint, he must do so no later than August 6, 2010. Signed by Judge M. James Lorenz on 7/8/2010. (All non-registered users served via U.S. Mail Service)(mjj)

Dome v. Honorable Governer of California et al

Doc. 16

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

GREG DOME, vs. Plaintiff,

CASE NO. 08cv1759-L (NLS) ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

GOVERNOR OF CALIFORNIA, et al., Defendants. On September 24, 2008 Plaintiff Greg Dome, proceeding pro se, filed a complaint against the Governor of California and seven other Defendants claiming civil rights violations. On June 17, 2009 the court sua sponte set the case for an order to show cause hearing because Plaintiff failed to serve the complaint. Due to Plaintiff's hospitalization, the time to serve was twice extended by orders filed July 28 and September 8, 2009. Subsequently, Plaintiff did not attempt to serve any Defendant other than the Governor of the State of California. The Governor filed a motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), insufficient process pursuant to Rule 12(b)(4), insufficient service of process pursuant to Rule 12(b)(5), and failure to state a claim pursuant to Rule 12(b)(6). In the alternative, he seeks a more definite statement pursuant to Rule 12(e). Plaintiff did not file an opposition. The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 774 (9th Cir. 1986). It possesses only that power authorized by the
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Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). A federal court must satisfy itself of its jurisdiction over the subject matter before proceeding to the merits of the case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 583 (1999). The plaintiff bears the burden of demonstrating that jurisdiction is properly before the court. See Thornhill Publ'g Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). On the Civil Cover Sheet, but not in the complaint itself, Plaintiff indicated that the court has federal question jurisdiction and that this is a civil rights case involving housing and accommodations. The complaint itself lacks the requisite "short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ. P. 8(a)(1). The complaint consists almost entirely of an attached claim which was apparently unsuccessfully submitted to the Victim Compensation and Government Claims Board. While the claim lists the "Federal Civil Rights Act," "Privacy & Equal Protection Laws," "Federal Fair Housing Act," and "Americans with Disabilities Act," in a lengthy list of various statutes (attachment to the Complaint at 11), these federal statutes are not connected to any factual allegations. It is therefore not apparent how or whether this case arises under the Constitution or laws of the United States. See 28 U.S.C. § 1331. The Governor's motion to dismiss under Rule 12(b)(1) is therefore GRANTED. Pursuant to 28 U.S.C. Section 1653, Plaintiff is granted leave to file an amended complaint to provide the requisite jurisdictional allegations. The Governor also argues that service should be quashed for failure to properly serve Defendants with process and the complaint dismissed for failure to timely serve. Plaintiff did not attempt to serve any Defendant other than the Governor. Accordingly, pursuant to Rule 4(m) and the September 8, 2009 order of this court, the complaint is DISMISSED WITHOUT PREJUDICE as to all Defendants with the exception of the Governor for failure to timely serve. The service of process on the Governor was defective because the summons did not identify the Defendant being served as required by Rule 4(a)(1)(B) and because the summons was not accompanied by a copy of the complaint as required by Rule 4(c)(1).
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Accordingly, to the extent the Governor's motion is based on failure to properly serve him with process, the motion is GRANTED and the service of process is hereby QUASHED. The time under Rule 4(m) for Plaintiff to properly serve the Governor with process is extended until August 16, 2010. Last, the Governor argues that the complaint should be dismissed under Rule 12(b)(6) or Plaintiff ordered to provide a more definite statement under Rule 12(e). The entirety of the complaint consists of the following; "Per attached July 28, 2008 Claim Notice, Plaintiff requests appointment of counsel. Plaintiff requests leave to amend." The rest of the document consists of an attached claim which had been rejected by the Victim Compensation and Government Claim Board for failure to submit it on the claim form. Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." This means that, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Although this does not require that the complaint include all facts necessary to carry the plaintiff's burden, it must allege plausible grounds to infer the existence of a claim for relief. Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009). In addition, the complaint must contain "a demand for the relief sought." Fed. R. Civ. P. 8(a)(3). Plaintiff's complaint does not comply with either Rule 8(a)(2) or (3). While the court must liberally construe the pleadings of a pro se litigant, "a pro se litigant is not excused from knowing the most basic pleading requirements." Am. Ass'n of Neuropathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000). Because Plaintiff's complaint does not contain any factual allegations or state what relief is requested, the Governor's motion to dismiss for failure to state is claim is GRANTED and Plaintiff's complaint is DISMISSED. Next, the court must consider whether Plaintiff should be granted leave to amend. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 2004). Rule 15 advises the court that leave to amend shall be freely given when justice so
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requires. Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal quotation marks and citation omitted). In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given." Foman v. Davis, 371 U.S. 178, 182 (1962). Of the foregoing factors, the "prejudice to the opposing party . . . carries the greatest weight." Eminence Capital, 316 F.3d at 1052. Although the Governor opposes granting leave to amend, he has not indicated whether or how he would be prejudiced. Plaintiff is therefore granted leave to amend. Based on the foregoing, the Governor's motion is GRANTED as follows: 1. The complaint is DISMISSED WITHOUT PREJUDICE as to all Defendants other than the Governor. 2. The service on the Governor is QUASHED. The time for Plaintiff to properly serve the Governor is hereby extended until August 16, 2010. 3. The complaint is DISMISSED WITH LEAVE TO AMEND as stated above. 4. If Plaintiff chooses to file an amended complaint, he must do so no later than August 6, 2010. The remaining Defendant shall respond to the amended complaint within the time set forth in Federal Rule of Civil Procedure 15(a)(3). IT IS SO ORDERED.

DATED: July 8, 2010 M. James Lorenz United States District Court Judge

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