Emrit v. Secretary of State of Hawaii et al

Filing 23

ORDER (1) DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND; AND (2) DENYING PENDING MOTIONS AS MOOT re 10 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 - Signed by JUDGE DERRICK K. WATSON on 11/20/2017. "Base d upon the foregoing, the First Amended Complaint is DISMISSED with limited leave to amend (Dkt. No. 10 ), and all pending Motions are DENIED as moot (Dkt. Nos. 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 ). Emrit is granted limited l eave to file an amended complaint in accordance with the terms of this order by December 22, 2017. The Court CAUTIONS Emrit that failure to file an amended complaint by December 22, 2017 will result in the automatic dismissal of thi s action without prejudice." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Ronald Satish Emrit served by first class mail to the address of record on November 20, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

RONALD SATISH EMRIT,
Plaintiff,
vs.
SECRETARY OF STATE OF
HAWAII, et al.,

CIVIL NO. 17-00504 DKW-RLP
ORDER (1) DISMISSING FIRST
AMENDED COMPLAINT WITH
LEAVE TO AMEND; AND
(2) DENYING PENDING MOTIONS
AS MOOT

Defendants.

INTRODUCTION
On November 13, 2017, Ronald Satish Emrit, proceeding pro se, filed a First
Amended Complaint (Dkt. No. 10) that once again attempts to assert federal civil
rights claims against the Secretary of State of Hawaii and the Democratic Party of
Hawaii, alleging that he was unlawfully denied placement on the ballot for the
presidential election in 2016. This action is one of the numerous, identical lawsuits
Emrit has filed this year alone. The First Amended Complaint, however, suffers
from many of the same deficiencies as Emrit’s initial Complaint, previously
identified in the October 17, 2017 Findings and Recommendation, adopted by the
Court on November 6, 2017. Dkt. Nos. 4 (10/17/17 F&R) and 6 (11/6/17 Order

Adopting F&R).1 Because Emrit once more fails to state a claim for relief, the First
Amended Complaint is DISMISSED with leave to amend pursuant to 28 U.S.C.
§ 1915(e). The Court also DENIES as moot all pending motions, as discussed more
fully below.2
DISCUSSION
Because Emrit is appearing pro se, the Court liberally construes his filings.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to
liberally construe the ‘inartful pleading’ of pro se litigants.”) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that
“[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977–78 (9th Cir.

1

Although the Court granted Emrit’s Application to proceed in forma pauperis and permitted him
to file an amended complaint, the Court must screen the First Amended Complaint before it may
be served. 28 U.S.C. § 1915(e)(2). Section 1915(e) “not only permits but requires a district
court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000).
2
Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
hearing.
2

2013). Although he is proceeding pro se, Emrit is more than familiar with his
federal court filing and pleading responsibilities, given his numerous prior actions.3
I.

The FAC Is Dismissed For Failure To State A Claim
Upon review of the FAC, the Court finds that Emrit again fails to state a claim

upon which relief may be granted.4
A.

Standard of Review

The Court subjects each civil action commenced pursuant to 28 U.S.C.
§ 1915(a) to mandatory screening and can order the dismissal of any claims it finds
“frivolous, malicious, failing to state a claim upon which relief may be granted, or
seeking monetary relief from a defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B).
3

The Court takes judicial notice of Emrit’s extensive record of filing in districts nationwide,
including those in which he has been deemed a vexatious litigant or subjected to prefiling
requirements. See, e.g., Emrit v. Arizona Supreme Court, 2016 WL 910151, at *4 (D. Ariz. Mar.
9, 2016) (finding “that there is an adequate record to support the issuance of a vexatious litigant
order against Plaintiff” and citing cases); Emrit v. Nat’l Academy of Recording Arts & Sciences,
No. 1:14-cv-00392-SS (W.D. Tex. Feb. 5, 2015), Dkt. No. 35 (discussing forty-seven meritless
federal lawsuits filed by Emrit since March 2013 and entering a vexatious litigant order against
Plaintiff); Emrit v. Soc. Sec. Admin., 2:14-cv-01760-GMN-PAL (D. Nev. July 29, 2015), Dkt. No.
36 (entering vexatious litigant order against Emrit); Emrit v. Continuum Legal, 2017 WL 2622368,
*2 (E.D. Va. Jan. 31, 2017) (“Plaintiff is a serial pro se litigant who is subject to pre-filing
injunctions in at least two courts.”); Emrit v. Sec. of State, 2017 WL 3209449 (D.R.I. Jan. 9, 2017)
(noting that plaintiff has been declared a “vexatious filer” in several districts and enjoined from
further filings without leave of court). See also Emrit v. Am. Commc’ns Network, Inc., 583 F.
App’x 46, 47 (4th Cir. 2014) (cautioning Emrit “that federal courts, including this court, are
authorized to impose sanctions upon vexatious and repetitive litigants for frivolous filings [and
warning him that] [f]urther frivolous filings by Emrit may result in this court sanctioning him,
including by ordering a prefiling injunction that limits his access to the court”) (citation omitted).
4
Although the FAC mentions in passing this Court’s decisions in an unrelated case, see FAC
¶¶ 15–16, 30–31, those references are unrelated to Emrit’s claims and raise no issues implicating
any bias or impartiality.
3

Dismissal is proper when there is either a “‘lack of a cognizable legal theory
or the absence of sufficient facts alleged.’” UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). A plaintiff must allege
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans
Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet – that the court must accept
as true all of the allegations contained in the complaint – “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party to
defend itself effectively.”).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Factual allegations that only permit the Court to infer “the mere possibility of
4

misconduct” do not show that the pleader is entitled to relief as required by Rule 8.
Id. at 679.
B.

The FAC Fails To State A Claim For Relief

As a preliminary matter, the Court observes that Emrit has filed identical
actions against other states, which have been summarily dismissed pursuant to the
district courts’ Section 1915 screening.5 For example, the District Court for the
Southern District of Indiana dismissed his claims against the Secretary of State of
Indiana and the Democratic Party of Indiana, finding that Emrit’s allegations that
“his constitutional rights were violated when the defendants refused to place him on
the ballot for the primary and general presidential election in 2016,” failed to state a
claim for violation of his equal protection and due process rights, under Title VII or
5

See, e.g., Emrit v. Wyoming Sec. of State, 2:17-cv-00174-SWS (D. Wyo. Oct. 31, 2017), Dkt. No.
3 (“Finally, it should be noted that Wyoming does not hold a Presidential primary election. No
candidates were placed on the ballot for the Presidential primary in 2016, because there was no
Presidential primary election in Wyoming.”); Emrit v. Johnson, 2:17-cv-13337 GCS-RSW (E.D.
Mich. Oct. 19, 2017), Dkt. No. 4 (dismissing with prejudice identical claims against Michigan
Secretary of State as frivolous); Emrit v. Simon, 17-cv-04605 SRN-SER (D. Minn. Nov. 14, 2017),
Dkt. No. 4 (recommending dismissal with prejudice of Emrit’s identical claims against Minnesota
Secretary of State, and that Emrit be restricted from filing new cases in the district unless
represented by licensed counsel or with prior written authorization from a judicial officer, while
noting that Emrit has initiated approximately 150 federal lawsuits since 2013).
Several other identical actions remain pending as of the date of this order. See, e.g., Emrit
v. Hammond, 3:17-CV-2736-JFA (D.S.C. filed Oct. 10, 2017); Emrit v. Oliver, 1:17-CV-1024
JCH-GBW (D.N.M. filed October 10, 2017); Emrit v. Gale, 4:17-CV- 3133-RGK-PRSE (D. Neb.
filed Oct. 10, 2017); Emrit v. Silrum, 1:17-CV-0212-CSM (D.N.D. filed Oct. 10, 2017); Emrit v.
Stapleton, 1:17-CV-0136 (D. Mont. filed Oct. 10, 2017); Emrit v. Kansas Sec. of State,
2:17-CV-2593-CM-GLR (D. Kan. filed Oct. 10, 2017); Emrit v. Denney, 1:17-CV-0411-CWD (D.
Idaho filed Oct. 10, 2017); Emrit v. Dunlap, 1:17-CV- 0402-CZS (D. Maine filed Oct. 11, 2017);
Emrit v. Sec. of State of Alaska, 5:17-CV-6- SLG (D. Alaska filed Oct. 11, 2017); Emrit v. Krebs,
1:17-CV-1027-CBK (D.S.D. filed Oct. 12, 2017); Emrit v. NH Sec. of State, 1:17-CV-0489-PB
(D.N.H. filed Oct. 13, 2017); Emrit v. Condos, 5:17-CV-0204-GWE (D. Ver. filed Oct. 11, 2017).
5

the ADA, and for breach of contract or negligence. Emrit v. Lawson, 2017 WL
4699279, at *1 (S.D. Ind. Oct. 19, 2017). Likewise here, Emrit’s allegation that
“there is no compelling government objective in requiring him to obtain a minimum
number of petitions/signatures such that he can be placed on the ballot in this state
for the primary and general elections in 2016 (already passed) and again in 2020 (in
the future of course),” FAC ¶ 79, fails to state a claim and “is frivolous.” Lawson,
2017 WL 4699279, at *2. First, Emrit fails to include any relevant facts or legal
authority in support of his claim, such as the applicable Hawai‘i regulation or party
rule requiring petitions or signatures, whether he even attempted to comply with the
requirements previously, and who excluded him from participation.6 Second,
Emrit’s vague constitutional claim fails as a matter of law. See Lawson, 2017 WL
4699279, at *2 (“Emrit does not challenge the number of petitions or any other
specific requirement other than he apparently disagrees with having to submit any
petitions because he believes there is no good reason for the requirement. To the
contrary, the Constitution confers upon the states broad authority to regulate the
conduct of elections.”) (internal citation and quotation marks omitted). Indeed, as
6

For example, Plaintiff has not alleged any facts to demonstrate that the “Secretary of State of
Hawaii” or the Democratic Party of Hawaii have any authority to place him on a primary and
general ballot for the presidential election. Under the “Statement of Facts,” he does not mention
either party, nor does he allege any factual basis for a claim against them. FAC at 4-12. While
Plaintiff’s claims for relief suggest that Defendants have violated his rights, these are, in fact, bare
legal conclusions. Emrit does not allege any factual basis giving rise to a claim against the
Democratic Party of Hawaii. Moreover, the Secretary of State of Hawaii, named in the caption of
the FAC, does not exist.
6

noted by several courts, notwithstanding Emrit’s claims, signature and petition
requirements are “not only constitutional but [also] make[] common sense that the
government must put in place a structure for elections.” Lawson, 2017 WL
4699279, at *2 (“Emrit’s allegation that there is no compelling governmental
justification for the requirement that prospective candidates must file a certain
number of petitions signed by voters of the state along with a declaration of
candidacy is frivolous.”).
Beyond these core deficiencies, the FAC suffers from several of the same
deficiencies identified in the original Complaint. First, the FAC yet again fails to
comply with Rule 8, which mandates that a complaint include a “short and plain
statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be
simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so
confusing that its “‘true substance, if any, is well disguised’” may be dismissed sua
sponte for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep’t, 530
F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d
426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th
Cir. 1996) (affirming dismissal of complaint where “one cannot determine from the
complaint who is being sued, for what relief, and on what theory, with enough detail
to guide discovery”). That is the case here. Even applying the most liberal
pleading standard, the Court cannot discern the conduct of any party in Hawai‘i
7

upon which any claim is based, other than Emrit’s dissatisfaction at his omission
from the 2016 presidential ballot. See FAC ¶¶ 15–75 (setting forth an incoherent
factual recitation of no plausible relevance to Emrit’s causes of action).
Second, to the extent Emrit attempts to bring a Title VII cause of action, he
once again fails to state a claim. The allegation that “both of the defendants have
violated Title VII of the Civil Rights Act of 1964 by failing to place him on the 2016
ballot for the primary and general presidential election,” FAC ¶ 88, is deficient on its
face. As Emrit himself states in the prior paragraph, “Title VII of the Civil Rights
Act of 1964 is a federal law that prohibits employers from discriminating against
employees on the basis of sex, race, color, national origin, and religion.” FAC ¶ 87
(emphasis added).7 Because Emrit alleges no claims relating to employment
discrimination, he fails to state a claim under Title VII, 42 U.S.C. § 2000e et seq.
7

Moreover, to the extent he attempts to allege Title VII violations or an ADA violation based upon
his alleged disability against any Defendant, Emrit has not established that he even attempted to
exhaust his administrative remedies before filing the instant civil action. Title VII of the Civil
Rights Act of 1964 and Title I of the ADA “contain[] the identical requirements for filing an
administrative charge of discrimination[.]” See Sumner v. Sacred Heart Medical Center, 2005
WL 2415969, at *2 (E.D. Wash. Sept. 30, 2005) (citations omitted); 42 U.S.C. § 2000e; see also
B.K.B. v. Maui Police Department, 276 F.3d 1091, 1099 (9th Cir. 2002); Leorna v. United States
Department of State, 105 F.3d 548, 550 (9th Cir. 1997). Under both statutes, a plaintiff exhausts
his administrative remedies by timely filing a charge with the EEOC or the appropriate state
agency within the statutorily prescribed time limits. The purpose of the exhaustion requirement is
twofold: to give notice of the alleged violation so as to allow the agency to fix the problem if
applicable, and to give the EEOC and/or agency a chance to investigate and possibly informally
resolve the claim. Sager v. McHugh, 942 F. Supp. 2d 1137, 1142 (W.D. Wash. 2013); see also
Ong v. Cleland, 642 F.2d 316, 318–20 (9th Cir. 1981). Where a plaintiff, for instance, does not
timely file such a charge, the Court lacks subject matter jurisdiction to consider such claims.
Accordingly, even if such claims were factually supported, Emrit fails to establish that he
exhausted his administrative remedies as a prerequisite generally necessary to establish the
Court’s jurisdiction.
8

Emrit was previously notified of the shortcomings of this particular claim, but has
neglected to cure the deficiencies in his FAC. See 10/17/17 F&R at 5 (“[T]here are
no allegations in the Complaint that plaintiff was employed by Defendants or sought
employment from Defendants.”). Because the Court concludes that further
attempts to amend this claim would be futile, the dismissal of Emrit’s Title VII claim
is with prejudice.
Third, insofar as he seeks damages for violations of his federal constitutional
rights, Emrit fails to state a Section 1983 claim.8 In order to state a claim under
Section 1983, a plaintiff must allege: (1) that a right secured by the Constitution or
laws of the United States was violated, and (2) that the alleged violation was
committed by a person acting under color of law. West v. Atkins, 487 U.S. 42, 48
(1988). Emrit states only that his rights to due process and equal protection were
violated because defendants “exclude[ed] him from the primary and general election
ballots in 2016,” FAC ¶¶ 80, 84, 85, but fails to allege plausible facts that any
violation was committed by a person acting under color of law. Although pro se
pleadings are liberally construed, a plaintiff must allege that he or she suffered a

8

Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation,
custom, or usage . . . subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress. . . .
9

specific injury as a result of specific conduct of a defendant and show an affirmative
link between the injury and the conduct of that defendant, which the FAC fails to do.
See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). Accordingly, Emrit’s
Section 1983 claims must be dismissed.
Finally, the Court again dismisses the claims for damages against the State of
Hawaii or any unnamed state officials acting in their official capacities as barred by
the Eleventh Amendment. See Will v. Mich. Dep’t State Police, 491 U.S. 58, 71
(1989); Papasan v. Allain, 478 U.S. 265, 275 (1986); Kentucky v. Graham, 473 U.S.
159, 166-67 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99
(1984); see also Linville v. Hawaii, 874 F. Supp. 1095, 1103 (D. Haw. 1994) (State
of Hawaii has not waived its sovereign immunity for civil rights actions brought in
federal court); Sherez v. Haw. Dep’t of Educ., 396 F. Supp. 2d 1138, 1142-43 (D.
Haw. 2005) (dismissing claims against state agency and state official in his official
capacity based on Eleventh Amendment immunity).
In sum, because Emrit again fails to state a plausible claim for relief, the FAC
is DISMISSED. Because amendment of some claims may be possible, Emrit is
granted leave to attempt to cure the deficiencies noted in this order, with instructions
below.

10

II.

The Pending Motions Are Denied As Moot
Because the Court has dismissed the FAC and granted leave to amend in

accordance with the terms of this order, Emrit’s Motion for Leave to Amend (Dkt.
No. 13) is denied as moot. In light of the absence of a pending complaint, the
following premature filings are also summarily denied as moot: Motion to Compel
Discovery (Dkt. No. 14); Motion to Request a Rule 16 Hearing (Dkt. No. 15);
Motion to Subpoena Witnesses (Dkt. No. 16); Motion for a Default Judgment (Dkt.
No. 17); Motion for a Preliminary Injunction (Dkt. No. 18); Motion for a Summary
Judgment (Dkt. No. 19);9 Motion for a Declaratory Judgment (Dkt. No. 20); Motion
in Limine (Dkt. No. 20); and Motion for a Directed Verdict (Dkt. No. 22).
In view of these filings, the Court CAUTIONS Emrit that no further motions
shall be entertained in this matter until an amended complaint is determined to state
a claim pursuant to the Court’s mandatory Section 1915 screening.10

9

The Court likewise denies as moot Emrit’s request for service of the FAC embeded within his
Motion for a Summary Judgment. In the event that Emrit files an amended complaint in
accordance with this order, the Court will revisit his request for service by the United States
Marshal, as needed.
10
The Court takes judicial notice of similar admonishments to Emrit:
In his previous cases filed in this Court, Plaintiff was Ordered to “cease from using
the e-mail address of the Court, any member of the Court or court employee” due to
the voluminous emails being sent to the Court. Additionally, he was Ordered to
refrain from filing any motions in his other case, “in view of [his] penchant for
filing numerous frivolous motions.” These are unusual but relatively minor
sanctions.

11

III.

Limited Leave To Amend Is Granted
The dismissal of portions of the FAC is without prejudice, and Emrit is

granted limited leave to amend to attempt to cure the deficiencies identified above.
If Emrit chooses to file an amended complaint, he must write short, plain statements
telling the Court: (1) the specific basis of this Court’s jurisdiction; (2) the
constitutional or statutory right Plaintiff believes was violated; (3) the name of the
defendant who violated that right; (4) exactly what that defendant did or failed to do;
(5) how the action or inaction of that defendant is connected to the violation of
Plaintiff’s rights; and (6) what specific injury Plaintiff suffered because of that
defendant’s conduct. Plaintiff must repeat this process for each person or entity
that he names as a defendant. If Emrit fails to affirmatively link the conduct of each
named defendant with the specific injury he suffered, the allegation against that
defendant will be dismissed for failure to state a claim.
An amended complaint generally supersedes a prior complaint, and must be
complete in itself without reference to the prior superseded pleading. King v.

Emrit v. Providence Hous. Auth., WL 7638117, at *3 (D.R.I. Oct. 25, 2016), report and
recommendation adopted, 2017 WL 52572 (D.R.I. Jan. 4, 2017), aff’d, 2017 WL 3254898 (1st Cir.
May 23, 2017) (citations omitted). This Court has similarly cautioned Emrit regarding his
repeated inappropriate attempts to communicate with the Court via email. See Dkt. No. 8
(11/8/17 Order) (“Emrit may neither seek relief nor attempt to communicate with the Court by way
of email. The Court’s orders inbox email address, which is the means Emrit has used for his
communications, is for the receipt of proposed orders and stipulations for the Court’s signature
only and ‘shall not be used for submitting correspondence to the court.’ Local Rule 100.8.3.
Thus, the Court will not respond to these communications or any similar future
communications.”).
12

Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled in part by Lacey v. Maricopa
Cty., 693 F.3d 896 (9th Cir. 2012) (en banc). Claims dismissed without prejudice
that are not re-alleged in an amended complaint may be deemed voluntarily
dismissed. See Lacey, 693 F.3d at 928 (stating that claims dismissed with prejudice
need not be realleged in an amended complaint to preserve them for appeal, but
claims that are voluntarily dismissed are considered waived if they are not re-pled).
The amended complaint must designate that it is the “Second Amended
Complaint” and may not incorporate any part of the prior complaints. Rather, any
specific allegations must be retyped or rewritten in their entirety. Emrit may
include only one claim per count. Failure to file an amended complaint by
December 22, 2017 will result in the automatic dismissal of this action without
prejudice.
CONCLUSION
Based upon the foregoing, the First Amended Complaint is DISMISSED with
limited leave to amend (Dkt. No. 10), and all pending Motions are DENIED as moot
(Dkt. Nos. 13, 14, 15, 16, 17, 18, 19, 20, 21, 22).
Emrit is granted limited leave to file an amended complaint in accordance
with the terms of this order by December 22, 2017. The Court CAUTIONS Emrit

13

that failure to file an amended complaint by December 22, 2017 will result in the
automatic dismissal of this action without prejudice.
IT IS SO ORDERED.
Dated: November 20, 2017 at Honolulu, Hawai‘i.

Emrit v. Secretary of State of Hawaii, et al.; Civil No. 17-00504 DKW-RLP;
ORDER (1) DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND; AND (2) DENYING PENDING MOTIONS AS MOOT

14