(PS) Rubang v. NAF-Human Resources, No. 2:2015cv02195 - Document 9 (E.D. Cal. 2016)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 01/20/16 ORDERING the Clerk to send Pro Se Form No. 1 and 7. It is hereby RECOMMENDED that the 6 Motion to Dismiss is GRANTED with leave to amend and Plaintiff be GRANTED 30 days from the date of service of the presiding district judge's order to file an amended complaint. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these Findings and Recommendations. (Jackson, T)
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(PS) Rubang v. NAF-Human Resources Doc. 9 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 TEODORO G. RUBANG, 13 14 15 16 No. 2:15-cv-02195-KJM-AC Plaintiff, v. ORDER & FINDINGS AND RECOMMENDATIONS NAF-HUMAN RESOURCES, Defendant. 17 18 On January 20, 2016, the court held a hearing on defendant NAF-Human Resources’ 19 motion to dismiss. Plaintiff appeared pro se via telephone and Bobbie Montoya appeared on 20 behalf of defendant. On review of the motions, the documents filed in support and opposition, 21 upon hearing the arguments of plaintiff and counsel, and good cause appearing therefor, THE 22 COURT FINDS AS FOLLOWS: 23 24 PROCEDURAL HISTORY On September 21, 2015, plaintiff filed a form complaint in the Solano County Superior 25 Court, which defendant removed to district court on October 22, 2015. ECF No. 1; ECF No. 1-1. 26 Along with its notice of removal, defendant filed an ex parte application for an extension of time 27 to respond to plaintiff’s complaint. ECF No. 3. The court granted defendant’s application on 28 October 27, 2015. ECF No. 5. On November 30, 2015, defendant filed a motion to dismiss 1 Dockets.Justia.com 1 plaintiff’s complaint. ECF No. 6. On January 13, 2016, defendant filed a “reply” that attached a 2 letter from plaintiff to defendant. ECF No. 7. Plaintiff’s letter purported to be “in respond [sic] 3 to Defendant’s Counsel letter motion of Dismissal dated 30Nov’2015 [sic].” ECF No. 7-1 at 2. 4 Based on this language defendant posited in its reply that plaintiff likely intended the document to 5 be an opposition to its motion to dismiss, despite the fact that it was mailed to defendant and not 6 filed with the court. ECF No. 7 at 1. Accordingly, court staff contacted plaintiff via telephone to 7 inquire whether he intended the letter to be an opposition. Although apparently confused as to 8 how documents are filed with the court, plaintiff confirmed that he did indeed intend the 9 document to be his opposition. Accordingly, the court will construe the letter from plaintiff to 10 11 12 defendant, dated December 8, 2015, as his opposition. ECF No. 7-1 at 2–3. ANALYSIS Defendant’s motion to dismiss should be granted because plaintiff’s complaint does not 13 comply with Rule 8(a). Rule 8(a) requires that a pleading contain “a short and plain statement of 14 the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such a 15 statement must simply give the defendant fair notice of what the plaintiff's claim is and the 16 grounds upon which it rests.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). 17 Plaintiff’s complaint does not comply with Rule 8 because it is does not give defendant 18 fair notice of the claims that are being asserted. Plaintiff’s complaint asks for “damages for 19 discrimination and disrespect to a U.S. military veteran.” ECF No. 1-1 at 3. Plaintiff alleges that 20 defendant discriminated against him by terminating him for an “unintentional mistake,” and that 21 he is disabled. ECF No. 1-1 at 4. Plaintiff also alleges that at one point a co-worker of his at 22 Travis Air Force Base intentionally “poked” his eardrum, causing him to have a panic attack. Id. 23 Based on these allegations, it is unclear on what basis plaintiff believes he has been discriminated 24 against. Although it is possible he means to claim discrimination based on disability, he may also 25 mean to claim discrimination based on his status as a military veteran, or even some other reason 26 entirely. Nor is it clear under what legal authority plaintiff is attempting to assert a claim or 27 claims. Finally, even if it could be determined what claims plaintiff was trying to bring, he does 28 not allege any facts that would support a discrimination claim. It is impossible for defendant to 2 1 draft a response to such a complaint and accordingly, the court will recommend that the motion to 2 dismiss for failure to comply with Rule 8(a) be granted. 3 Because plaintiff is proceeding pro se, the court will recommend that defendant’s motion 4 to dismiss be granted with leave to amend. See Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 5 1987) (“Rule 15’s policy of favoring amendments to pleadings should be applied with extreme 6 liberality . . . . This policy is applied even more liberally to pro se litigants.” (citations and 7 internal quotation marks omitted)). Plaintiff is cautioned that any amended complaint must 8 include a short and plain statement in accordance with Federal Rule 8(a) pointing to some 9 cognizable legal theory that entitles him to relief. This means that plaintiff must point to a 10 specific law giving him the right to sue defendant for the conduct alleged. Plaintiff must 11 also include allegations explaining how he was discriminated against: why defendant told 12 him he was being terminated and why he was, in fact, terminated. General allegations that 13 plaintiff has been wronged and that he wishes to restore his good name are simply not enough to 14 state a legal claim. Any amended complaint must also show that the federal court has 15 jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if his 16 allegations are true. The amended complaint should contain separately numbered, clearly 17 identified claims. 18 In addition, the allegations of the amended complaint must be set forth in sequentially 19 numbered paragraphs, with each paragraph number being one greater than the one before, each 20 paragraph having its own number, and no paragraph number being repeated anywhere in the 21 complaint. Each paragraph should be limited “to a single set of circumstances” where possible. 22 Fed. R. Civ. P. 10(b). Plaintiff must avoid excessive repetition of the same allegations. Plaintiff 23 must avoid narrative and storytelling. That is, the complaint should not include every detail of 24 what happened, nor recount the details of conversations (unless necessary to establish the claim), 25 nor give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint 26 should contain only those facts needed to show how the defendant legally wronged the plaintiff. 27 Local Rule 220 requires that an amended complaint be complete in itself without 28 reference to any prior pleading. This is because, as a general rule, an amended complaint 3 1 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once 2 plaintiff files an amended complaint, the original pleading no longer serves any function in the 3 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 4 involvement of each defendant must be sufficiently alleged. Lastly, the court reminds plaintiff 5 that his amended complaint must be filed in this court, not sent to defendant or filed in state court. 6 CONCLUSION 7 In accordance with the foregoing, THE COURT HEREBY ORDERS that: 8 The Clerk of the Court is directed to send plaintiff a copy of Pro Se Form No. 7, 9 Complaint for Employment Discrimination, available at http://www.uscourts.gov/forms/pro-se- 10 forms/complaint-employment-discrimination, and Pro Se Form No. 1, Complaint for a Civil 11 Case, available at http://www.uscourts.gov/forms/pro-se-forms/complaint-civil-case. Plaintiff 12 may, but is not required to, use the form to organize his amended complaint in the proper way. 13 THE COURT FURTHER RECOMMENDS that: 14 1. Defendant’s motion to dismiss, ECF No. 6, be GRANTED with leave to amend; and 15 2. Plaintiff be granted thirty days from the date of service of the presiding district judge’s 16 order to file an amended complaint that complies with the requirements of the Federal Rules of 17 Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket 18 number assigned this case and must be labeled “First Amended Complaint;” plaintiff must file an 19 original and two copies of the amended complaint; failure to file an amended complaint in 20 accordance with this order will result in a recommendation that this action be dismissed. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 25 Findings and Recommendations.” Any reply to the objections shall be served and filed within 26 fourteen (14) days after service of the objections. The parties are advised that failure to file 27 //// 28 //// 4 1 objections within the specified time may waive the right to appeal the District Court’s order. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: January 20, 2016 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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