Viray v. Bedolla et al, No. 5:2018cv04900 - Document 17 (N.D. Cal. 2018)
Court Description: AMENDED ORDER DENYING IN PART AND GRANTING IN PART 5 THE UNITED STATES MOTION TO DISMISS WITH LEAVE TO AMEND; SETTING DEADLINE TO FILE AMENDED COMPLAINT ON OR BEFORE OCTOBER 26, 2018. Signed by Judge Beth Labson Freeman on 10/9/2018. (blflc2S, COURT STAFF) (Filed on 10/9/2018)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 WILLIAM CASTANARES VIRAY, 8 Plaintiff, 9 10 United States District Court Northern District of California 11 12 13 14 15 v. MOE BEDOLLA, et al., Defendants. Case No. 18-cv-04900-BLF AMENDED ORDER DENYING IN PART AND GRANTING IN PART THE UNITED STATES’ MOTION TO DISMISS WITH LEAVE TO AMEND; SETTING DEADLINE TO FILE AMENDED COMPLAINT ON OR BEFORE OCTOBER 26, 2018 [Re: ECF 5] On September 4, 2018, this Court denied in part and granted in part the government’s motion to dismiss Plaintiff William Viray’s (“Plaintiff”) Complaint with leave to amend. See ECF 16 11. On September 6, 2018, a letter from Mr. Viray was entered into the record, but it was timely 17 filed on September 4. See ECF 14. The letter constituted an opposition by Mr. Viray to the 18 government’s motion that the Court did not consider in issuing its order granting the government’s 19 motion to dismiss. The Court has now considered the opposition and finds that it does not affect 20 21 22 any of the order’s analysis because most of the allegations contained in the opposition are not actually pled in Plaintiff’s Complaint. However, the Court finds it appropriate to provide Plaintiff with an additional 14 days to file an amended complaint. As such, Plaintiff’s amended complaint 23 is due on or before October 26, 2018 (14 days plus 3 days for service by mail). 24 On July 6, 2018, Plaintiff William Viray (“Plaintiff”), proceeding pro se, filed an action in 25 Small Claims Court in Alameda County Superior Court against Defendants Moe Bedolla, Aftim 26 Amin Saba, Stanley Halfacre, Eric Thomas, James Kim, Laurie Duarte, Tina Balcazar, Izamary 27 28 Zamora, and John L/N/U (collectively, “Defendants”). See ECF 1, Exhs. A & B (collectively, United States District Court Northern District of California 1 “Compl.”). The United States then removed the action to federal court under the Federal Tort 2 Claims Act (“FTCA”), 28 U.S.C. § 2679(d)(2) and 28 U.S.C. § 1442(a)(1) because this is a tort 3 action against an officer or employee of a federal agency (namely, the United States Postal 4 Service). See Not. of Removal, ECF 1, ¶ 5. The United States also substituted itself as Defendant 5 under 28 U.S.C. § 2679(d) for all Defendants except Moe Bedolla and Stanley Halfacre because 6 the United States has no record of either individual working for the United States Post Office. Id. 7 ¶¶ 6–7; Mot., ECF 5, at 2 n.1. 8 Presently before the Court is the United States’ motion to dismiss the complaint. ECF 5. 9 The United States brings this motion under Federal Rule of Civil Procedure 12(b)(1) for lack of 10 subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim. The United States also 11 notes that it has not been served as required under Fed. R. Civ. P. 4(i), and that it has no evidence 12 that any defendant has been properly served. See Mot. at 2 n.1; Cormier Decl., ECF 5-1, ¶ 4; see 13 also Not. of Removal ¶ 3. The Court construes this argument to constitute a motion to dismiss 14 under Rule 12(b)(5) for insufficient service of process. Plaintiff filed a letter in response, stating 15 that he wished to oppose the motion to dismiss. See ECF 6. The Court construes this letter to be 16 Plaintiff’s opposition. Pursuant to Civil L.R. 7-1(b), the Court finds Defendant’s motion to 17 dismiss suitable for submission without oral argument and hereby VACATES the hearing 18 scheduled for November 29, 2018. The Case Management Conference scheduled for November 19 29, 2018 is also VACATED, and the Court will separately issue a scheduling order. For the reasons set forth herein, the Court DENIES IN PART AND GRANTS IN PART 20 21 22 23 Defendant’s motion to dismiss the complaint WITH LEAVE TO AMEND. I. LEGAL STANDARD “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 24 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 25 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 26 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 27 as true all well-pled factual allegations and construes them in the light most favorable to the 28 plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a 2 1 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 2 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 3 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 4 facially plausible when it “allows the court to draw the reasonable inference that the defendant is 5 liable for the misconduct alleged.” Id. “The doctrine of res judicata provides that ‘a final judgment on the merits bars further United States District Court Northern District of California 6 7 claims by parties or their privies based on the same cause of action.’” In re Schimmels, 127 F.3d 8 875, 881 (9th Cir.1997) (quoting Montana v. United States, 440 U.S. 147, 153–54 (1979)). Under 9 Federal Rule of Civil Procedure 8(c), res judicata may be raised as an affirmative defense in 10 response to a pleading. To establish the defense of res judicata, a party must prove three elements: 11 “(1) an identity of claims, (2) a final judgment on the merits, and (3) [identity or] privity between 12 parties.” Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 13 (9th Cir. 2003); see also Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313 (1971). 14 Although res judicata is a defense, a party may assert it in a motion to dismiss where “the defense 15 raises no disputed issues of fact.” Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). Like res judicata, a statute-of-limitations assertion is an affirmative defense. However, a 16 17 defendant may still raise a motion to dismiss based on this defense if the running of the limitations 18 period is apparent on the face of the complaint. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 19 (9th Cir. 1980). “When a motion to dismiss is based on the running of the statute of limitations, it 20 can be granted only if the assertions of the complaint, read with the required liberality, would not 21 permit the plaintiff to prove that the statute was tolled.” Id.; see also Supermail Cargo, Inc. v. 22 United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (“[A] complaint cannot be dismissed unless it 23 appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness 24 of the claim”). 25 26 II. DISCUSSION The United States moves to dismiss the complaint on five grounds: (1) Plaintiff’s claims 27 are barred by res judicata; (2) Plaintiff’s complaint fails to comply with the pleading standards of 28 Fed. R. Civ. P. 8; (3) this Court lacks subject matter jurisdiction to hear Plaintiff’s tort claim under 3 1 the FTCA; (4) the claims are barred by any applicable statute of limitations because the underlying 2 incidents are alleged to have occurred in August 2009; and (5) Plaintiff has not properly served 3 Defendants or the United States. See ECF 5. The Court discusses each ground in turn. 4 A. 5 The United States argues that Plaintiff’s action is barred by res judicata because this case is 6 “substantively analogous” to a previous action brought by Plaintiff against the United States Postal 7 Service (“USPS”), which this Court dismissed with prejudice. See Viray v. United States Postal 8 Service (Viray I), No. 18-cv-99-BLF, Order on Mot. to Dismiss, ECF 36 (Apr. 25, 2018).1 In addition to numerous claims, the Viray I Amended Complaint raised allegations relating 9 United States District Court Northern District of California Res Judicata 10 to stolen signatures, the death of Plaintiff’s grandmother, appropriation of “unconsented forms,” 11 lost wages, loss of consortium, and defamation. See ECF 5-2, Ex. C at 1–3. The Complaint 12 mentioned the time period of August 2009. Id. Plaintiff also alleged that several of the 13 Defendants here had committed various torts against him, though he did not name them as 14 defendants in that action. 15 The United States argues that res judicata’s three requirements are met here because there 16 is identity of the claims, a final decision on the merits of those claims, and identity of the parties. 17 The Court disagrees. Even assuming the first two requirements are met, the United States has not 18 adequately shown identity of the parties—namely identity between the USPS and any defendant. 19 In support of its argument, the United States claims that privity exists because each of the 20 Defendants was once an employee of the USPS and were each mentioned in the Viray I 21 Complaint. See Mot. at 7. But the United States does not cite any specific cases to support these 22 arguments. As the United States recognizes, the privity inquiry is fact-intensive, see id. at 6, and 23 thus requires this Court to consider whether other courts have found similar relationships as the 24 one at issue here to be in privity. Because the United States points to no such cases, the Court 25 must hold that res judicata does not bar this action. 26 27 28 1 After the present action was removed to federal court, the United States moved to relate this action to the previously dismissed Viray I action. See Viray I, No. 18-cv-99-BLF, ECF 42. This Court granted the motion to relate on August 27, 2018. See Viray I, No. 18-cv-99-BLF, ECF 43. 4 1 2 3 4 5 B. Notice Pleading The United States next argues that Plaintiff’s complaint does not provide sufficient notice under Fed. R. Civ. P. 8. That Rule requires the complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement “gives the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration 6 in original). 7 The Court agrees with the United States that the complaint fails to meet those requirements 8 9 here. The only discernible allegation in the complaint states that Defendant “los[t] wages” and “consortium and other expenses” worth over $10,000 and seeks punitive damages, for an event 10 that occurred in August 2009, or perhaps August 2009 to the present. Compl. at 2. Nowhere in 11 United States District Court Northern District of California this allegation does Plaintiff provide sufficient information for Defendants to have fair notice of 12 the nature of Plaintiff’s claims under Rule 8(a). For this reason, the motion to dismiss is 13 GRANTED WITH LEAVE TO AMEND. 14 15 C. Subject Matter Jurisdiction The United States next argues that this Court lacks subject matter jurisdiction to hear 16 17 18 Plaintiff’s claim concerning “loss of consortium” because the Federal Tort Claims Act bars suits alleging tort claims against the government “unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .” 28 U.S.C. § 2401(b). If the 19 plaintiff does not meet this requirement, the claims must be dismissed for lack of subject matter 20 jurisdiction. McNeil v. United States, 508 U.S. 106, 113 (1993). 21 The Court agrees with the United States. Plaintiff’s potential tort claim fails because the 22 Complaint provides no allegations demonstrating that Plaintiff properly exhausted the necessary 23 administrative avenues within two years of his claim accruing. See Mot. at 8. The Complaint 24 contains no allegations that Plaintiff presented these issues to an appropriate federal agency, much 25 less that he did so within two years of the claim accruing, which seemingly occurred in August 26 2009. Thus, the Court does not have subject matter over Plaintiff’s tort claim as alleged. 27 28 5 D. 1 Statute of Limitations As to the United States’ statute of limitations defense, the Court cannot reach this 2 argument because Plaintiff does not provide sufficient notice of his claims. As such, the Court 3 cannot determine whether they are barred by any applicable statute of limitations. 4 E. 5 Service on Defendants Finally, the United States argues the complaint must be dismissed because neither it nor 6 Defendants have been properly served. See Mot. at 2 n.1; Cormier Decl., ECF 5-1, ¶ 4; see also 7 Not. of Removal ¶ 3. However, under Fed. R. Civ. P. 4(m), Plaintiff has 90 days to serve 8 Defendants after the complaint is filed. In a case removed from state court, this deadline runs 9 from the date of removal. See 28 U.S.C. 1448 (“In all cases removed from any State court . . . in 10 which any one or more of the defendants has not been [properly] served . . . such process or 11 United States District Court Northern District of California service may be completed or new process issued in the same manner as in cases originally filed in 12 such district court”); accord Whidbee v. Pierce Cty., 857 F.3d 1019, 1023 (9th Cir. 2017). This 13 case was removed on August 13, 2018. Plaintiff thus has until November 12, 2018 to properly 14 serve the United States and Defendants. As such, the United States’ Motion to Dismiss is 15 DENIED on this basis. 16 17 III. CONCLUSION For the foregoing reasons, the Court DENIES IN PART AND GRANTS IN PART the 18 United States’ Motion to Dismiss. Because leave to amend should be freely given when justice so 19 requires, the Court grants Plaintiff LEAVE TO AMEND. The November 29, 2018 hearing on 20 Defendant’s Motion to Dismiss is VACATED. 21 If Plaintiff wishes to amend his claims, Plaintiff must file an amended complaint on or 22 before October 26, 2018. Failure to meet the deadline to file an amended complaint or failure to 23 cure the deficiencies identified in this Order will result in a dismissal of Plaintiff’s claims with 24 prejudice. 25 26 27 28 6 1 IT IS SO ORDERED. 2 3 4 5 Dated: October 9, 2018 ______________________________________ BETH LABSON FREEMAN United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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