McInerney v. United States Department of Education

Filing 17

ORDER that Defendant's Motion to Dismiss Plaintiff's AmendedComplaint ECF No. 10 is granted; Plaintiff may file a Second Amended Complaint within (30) days of this order; Plaintiff's Motion for Injunction ECF No. 6 and Motion for Summary Judgment ECF No. 9 are denied as moot. Signed by Judge Miranda M. Du on 10/11/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL McINERNEY,
Plaintiff,

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Case No. 3:17-cv-00346-MMD-WGC
ORDER

v.
UNITED STATES DEPARTMENT OF
EDUCATION,
Defendant.

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I.

SUMMARY

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Before the Court is Plaintiff Michael McInerney’s Request for Injunction (“PI

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Motion”) (ECF No. 6), Plaintiff’s Motion for Summary Judgment (“MSJ”) (ECF No. 9), and

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Defendant Department of Education’s Motion to Dismiss Plaintiff’s Amended Complaint

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(“MTD”) (ECF No. 10). The Court has reviewed Defendant’s response to Plaintiff’s MSJ

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(ECF No. 16), response to Plaintiff’s PI Motion (ECF No. 11) and reply in support of its

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MTD (ECF No. 15), as well as Plaintiff’s response to Defendant’s MTD (ECF No. 14) and

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reply regarding his PI Motion (ECF No. 13).
For the reasons stated, the MTD is granted, and the PI Motion and MSJ are denied

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as moot. Plaintiff will be given leave to file an amended complaint.

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II.

BACKGROUND

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A.

Procedural History

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Plaintiff filed a complaint under seal on June 5, 2017 (ECF No. 4), appealing the

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Department of Education’s decision regarding the amount of his wage garnishment.

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Simultaneously, on June 5, 2017, Plaintiff filed a form entitled “Complaint and Motion for

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Injunction” (ECF No. 6) making the same allegations against Defendant in which he

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requested an emergency order directing Defendant to cease garnishment of Plaintiff’s

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wages. Plaintiff requested that the motion for injunction be considered on an emergency

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basis, which the Court declined to do in a minute order issued on July 7, 2017. (ECF No.

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8.)

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On June 12, 2017, Plaintiff filed an executed summons, which stated that a

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representative of the Department of Education had been served with a copy of the first

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complaint. (ECF No. 7.) However, on July 7, in issuing its minute order regarding the

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Complaint and Motion for Injunction, the Court instructed the Clerk to send a copy of the

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document along with the minute order by certified mail to the Office of General Counsel

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of the Department of Education and gave Defendant 30 days from the date of mailing to

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file a response.1 (ECF No. 8.) Therefore, the Court treats the latter filed document—

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Complaint and Request for Injunction (ECF No.6)—as the operative complaint in this

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case.

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B.

Facts

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In his Amended Complaint, Plaintiff brings one count for a 14th amendment due

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process violation and requests that the Court “immediately [stop] the Department of

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Education from garnishing” 15 percent of his wages. (See ECF No. 6 at 4-5, 9.) Plaintiff

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alleges that his student loan is invalid because at the time he took out the loan he was

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getting social security and had a condition that prevented him from meeting the state

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requirements of the occupation for which the school trained him.2 (See id. at 5, 9.) He

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also states that he currently makes approximately $17,000 per year, yet Defendant claims

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that he makes over $4000 per month (or roughly $36,000 per year). 3 (See id.)

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1Under

Federal Rule of Civil Procedure 12(a)(2), the Department of Education is
permitted 60 days to file an answer to a complaint or to file a motion to dismiss.
2Based on the Garnishment Hearing Decision, which is attached to Plaintiff’s
Amended Complaint (ECF No. 6 at 8-12), the Department of Education denied Plaintiff’s
request for loan discharge in 2009 (id. at 9).
3The Garnishment Hearing Decision states that Plaintiff’s monthly disposable
income is $3,159.04. (ECF No. 6 at 9.)

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III.

MTD (ECF No. 10)

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In its MTD, Defendant argues that Plaintiff’s Amended Complaint should be

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dismissed pursuant to Rules 12(b)(6) and 8(a)(2) because the 14th Amendment does not

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apply to the federal government and the Amended Complaint fails to state plausible

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claims for relief. (ECF No. 10 at 2-3.) The Court agrees that Plaintiff’s allegations do not

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state a legally cognizable claim under the 14th Amendment.

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A.

Legal Standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide

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“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule

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8 does not require detailed factual allegations, it demands more than “labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555.) In other words,

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“[f]actual allegations must be enough to rise above the speculative level.” Twombly, 550

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U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient

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factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678

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(internal citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pleaded factual allegations in the complaint; however, legal conclusions are not

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entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause

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of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a

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district court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s

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complaint alleges facts that allow a court to draw a reasonable inference that the

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defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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United States Constitution).5 Because Plaintiff fails to present a legally cognizable claim,

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the Court grants Defendant’s MTD.

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C.

Leave to Amend

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Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its

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complaint only by leave of the court once responsive pleadings have been filed and in the

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absence of the adverse party=s written consent. The court has discretion to grant leave

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and should freely do so Awhen justice so requires.@ Allen v. City of Beverly Hills, 911 F.2d

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367, 373 (9th Cir. 1990) (quoting Fed. R. Civ. P. 15(a)).

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After review of the attached exhibits to Plaintiff’s Amended Complaint (ECF Nos.

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6-1 and 6-2), the Court finds that amendment would not be futile as to Plaintiff’s contention

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that Defendant improperly calculated his income for purposes of wage garnishment. See

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Bowles v. Reade, 198 F.3d 752, 758-79 (9th Cir. 1999). Thus, Plaintiff may be able to

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challenge the agency’s decision as arbitrary and capricious or contrary to law under the

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APA. See 5 U.S.C. § 706(2)(A).

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The Court therefore grants Plaintiff leave to file an amended complaint that alleges

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sufficient facts to present plausible claims for relief.

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IV.

MSJ (ECF No. 9)
On August 2, 2017, Plaintiff filed a Motion for Summary Judgment. 6 (ECF No. 9.)

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Because the MTD has been granted, Plaintiff’s MSJ is denied as moot.

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5Generally,

when challenging the decision of a federal government agency,
plaintiffs bring suit under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706 et
seq., for claims that an agency’s decision was arbitrary and capricious. See Native Vill.
of Point Hope v. Salazar, 680 F.3d 1123, 1129-30 (9th Cir. 2012).
6Plaintiff’s basis for summary judgment is that Defendant failed to file a response
to the initial complaint by June 27, 2017. (ECF No. 9 at 1.) However, pursuant to Federal
Rule of Civil Procedure 12(a)(2), a federal government agency has 60 days to file a
responsive pleading. See infra n.1. Therefore, despite the statement that an answer was
due by June 27, 2017 (ECF No. 7), Defendant filed its responsive pleading within the 60day limit provided by the federal rules. In addition, a failure to file an answer in the allotted
time requires a motion for entry of default and default judgment, not a motion for summary
judgment. See Fed. R. Civ. P. 55(b) & (d).

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V.

Because the MTD is granted, Plaintiff’s PI Motion is denied as moot.

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PI MOTION (ECF No. 6)

VI.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion or reconsideration as they do not affect

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the outcome of motions before the Court.

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It is therefore ordered that Defendant’s Motion to Dismiss Plaintiff’s Amended

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Complaint (ECF No. 10) is granted. Plaintiff may file a Second Amended Complaint within

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thirty (30) days of this order to cure the deficiencies of the Amended Complaint. Failure

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to file an amended complaint within thirty (30) days will result in dismissal of this action

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with prejudice.

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It is further ordered that Plaintiff’s Motion for Injunction (ECF No. 6) and Motion for
Summary Judgment (ECF No. 9) are denied as moot.
DATED THIS 11th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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