Jasic v. Kara

Filing 6

ORDER that the 5 Amended Complaint is DISMISSED without prejudice. Plaintiff shall have 30 days to file an Amended Complaint. Amended Complaint deadline: 1/2/2014. Signed by Magistrate Judge Carl W. Hoffman on 12/03/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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EDITA JASIC,
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Plaintiff,
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vs.
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MARY KORA,
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Defendant.
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____________________________________)

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Case No. 2:13-cv-01747-JAD-CWH
ORDER

This matter is before the Court on Plaintiff’s Amended Complaint (#5), filed on November 26,

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2013. On October 30, 2013, the Court granted Plaintiff’s Second Motion/Application for Leave to

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Proceed in forma pauperis and dismissed her Complaint without prejudice. See Order #4. In addition,

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the Court granted Plaintiff thirty days to submit an amended complaint. Plaintiff timely submitted

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Amended Complaint (#5), which the Court will now screen.

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DISCUSSION

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I.

Screening the Amended Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen the

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complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action is

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legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Allegations

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of a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium). When a court dismisses a complaint under §

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1915(a), the plaintiff should be given leave to amend the complaint with directions as to curing its

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deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by

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amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for

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failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a

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ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir.

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2000). A properly pled complaint must provide a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombley, 550 U.S. 544,

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555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more than labels

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and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as

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true all well-pled factual allegations contained in the complaint, but the same requirement does not

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apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action,

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supported only by conclusory allegations, do not suffice. Id. at 678. Secondly, where the claims in the

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complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed.

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Twombly, 550 U.S. at 570.

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Additionally, the court cannot refer to a prior pleading in order to make an amended complaint

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complete. Local Rule 15-1 requires that an amended complaint be complete in itself without reference

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to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended

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complaint, the original pleading no longer serves any function in this case. Therefore, in an amended

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complaint, each claim and the involvement of the defendant must be sufficiently alleged.

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A.

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Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil actions

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in diversity cases “where the matter in controversy exceeds the sum or value of $75,000” and where the

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matter is between “citizens of different states.” Plaintiff and Defendant appear to be Nevada citizens

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and Plaintiff requests approximately $40,000 in damages so there is no diversity jurisdiction in this

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case.

Diversity Jurisdiction

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B.

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As a general matter, federal courts are courts of limited jurisdiction and possess only that power

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authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Pursuant to 28

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U.S.C. § 1331, federal district courts have original jurisdiction over “all civil actions arising under the

Federal Question Jurisdiction

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Constitution, laws, or treaties of the United States.” “A case ‘arises under’ federal law either where

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federal law creates the cause of action or ‘where the vindication of a right under state law necessarily

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turn[s] on some construction of federal law.’” Republican Party of Guam v. Gutierrez, 277 F.3d 1086,

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1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S.

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1, 8-9 (1983)). The presence or absence of federal-question jurisdiction is governed by the “well-

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pleaded complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the well-

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pleaded complaint rule, “federal jurisdiction exists only when a federal question is presented on the face

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of the plaintiff’s properly pleaded complaint.” Id.

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Here, Plaintiff makes a general allegation that Mary Kara, the owner of Psychic Eye Book Shop,

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did not protect her safety and unfairly treated her when she worked at that business. In addition,

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Plaintiff alleges that Joan Curry, store manager, committed battery and perjury on October 5, 2012.

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Also, Plaintiff claims that Johnny Dee, psychic reader, sexually harassed her around October 5, 2012

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and other unknown dates. Plaintiff requests that her belongings be returned and wages for October 5,

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2012 be paid.

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The Court finds that Plaintiff has failed to provide sufficient facts to state a claim for relief.

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Plaintiff’s Amended Complaint (#5) lists battery, sexual harassment, and perjury as claim one. These

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claims must be stated separately and be supported by a short and plain statement showing that Plaintiff

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is entitled to relief. In addition, Plaintiff fails to provide even a bare recitation of the elements of the

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cause of action, must less sufficient facts to satisfy Rule 8's standard. The Court finds that subject

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matter jurisdiction does not exist over these claims at this time and will grant Plaintiff one more

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opportunity to amend her complaint regarding these claims.

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Further, Plaintiff’s Amended Complaint (#5) lists wrongful termination due to national origin as

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claim two. The Court previously noted that Plaintiff generally alleged that she was discriminated

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against based on her national origin and may have intended to file a claim for discrimination based

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national origin in violation of Title VII of the Civil Rights Act (“Title VII”). 42 U.S.C. §

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2000e–2(a)(1). In addition, the Court specified that Title VII allows a person to sue an employer for

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discrimination on the basis of national origin if she has exhausted both state and EEOC administrative

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procedures. To establish federal subject matter jurisdiction, Title VII requires a plaintiff to exhaust her
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administrative remedies before filing suit. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir.

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2002). Once a plaintiff files a charge with the EEOC, the Commission will investigate the charges,

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attempt to reach a settlement, and decide whether to sue the employer. Id. If the EEOC decides not to

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sue and if there is no settlement satisfactory to plaintiff, the EEOC will issue plaintiff a right-to-sue

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letter and plaintiff will have exhausted her remedies with the EEOC. See 42 U.S.C. § 2000e–5(f)(1).

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After receipt of the right-to-sue letter, plaintiff may sue in federal or state court. Id. Here, Plaintiff has

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provided no evidence that she has exhausted her administrative remedies.

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In addition, Plaintiff has not provided adequate factual support for her claim. In order to prove a

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prima facie case of discrimination in violation of Title VII, Plaintiff must establish the following: (a)she

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belonged to a protected class; (b) she was qualified for his job; (c) she was subjected to adverse

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employment action; and (d) similarly situated employees not in her protected class received more

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favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) (citing Kang v. U. Lim Am., Inc.,

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296 F.3d 810, 818 (9th Cir. 2002)). Plaintiff did not provide the dates of the alleged incidents of

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discrimination based on national origin, state how she was qualified for the job, and describe any

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similarly situated employees. Similarly, Plaintiff did not provide any evidence that she timely filed an

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administrative charge with the EEOC. Therefore, the Court finds for the second time that Plaintiff

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failed to exhaust her administrative remedies and provide sufficient facts to state a claim for relief

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under Title VII.

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Finally, Plaintiff also generally alleges that she was not paid wages. She cites no authority and

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provides no facts to support this allegation. The Court notes that this is a matter to be determined under

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state law rather than under the federal wage and hour law, the Fair Labor Standards Act (FLSA”), 29

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U.S.C. § 201, et seq. See, e.g., Lucas v. Bell Trans, 2009 WL 2424557 (D. Nev. June 24, 2009) (noting

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private right of action to recover unpaid wages exists in Nevada state statutes); Brown v. Precision

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Opinion, 2011 WL 1257210 (D. Nev. April 4, 2011) (noting no support for proposition that employers’

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failure to pay unpaid wages at termination constitutes a violation of FLSA). The Court previously

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dismissed Plaintiff’s claim for unpaid wages with leave to amend; given that Plaintiff is proceeding pro

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se, the Court will grant her one additional opportunity to amend her complaint to state a claim for relief.

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In conclusion, absent sufficient factual allegations to correct the above-noted subject-matter
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jurisdiction deficiencies, Plaintiff’s claims cannot survive. As Plaintiff is proceeding pro se, the Court

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will provide Plaintiff with one more opportunity of thirty days to amend the complaint. The Court

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notes that it cannot refer to a prior pleading in order to make a complaint complete. Local Rule 15-1

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requires that an amended complaint be complete in itself without reference to any prior pleading. This

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is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading

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no longer serves any function in this case. Therefore, in an amended complaint, each claim and the

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involvement of the defendant must be sufficiently alleged.

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Based on the foregoing and good cause appearing therefore,
IT IS ORDERED that the Amended Complaint (#5) is dismissed without prejudice for failure

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to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have thirty (30)

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days, until January 2, 2014, to file an Amended Complaint, if she believes she can correct the noted

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deficiencies. Failure to comply with this Order may result in the Court recommending that this action

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be dismissed.

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Dated this 3rd day of December, 2013.

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________________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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