“In any event, the complainant may file a civil action if, after 180 days from the 18 filing of the charge or the appeal, the agency ... has not taken final action.”
How later courts described this case
- “In any event, the complainant may file a civil action if, after 180 days from the 18 filing of the charge or the appeal, the agency ... has not taken final action.”
- no 3 federal subject matter jurisdiction unless plaintiff alleges exhaustion of administrative 4 remedies in FTCA cases
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 PAULA A. ANDERSON, Case No.: 3:23-cv-01615-JES-KSC
12 Plaintiff,
ORDER GRANTING DEFENDANT’S
13 v. MOTION TO DISMISS THE
SECOND AMENDED COMPLAINT
14 CARLOS DEL TORO, Secretary of the
Navy,
15 [ECF No. 34]
Defendant.
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Plaintiff Paula A. Anderson (“Plaintiff”) brings this action against Defendant Carlos
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Del Toro, Secretary of the Navy (“Defendant”), alleging various violations related to her
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prior employment. ECF No. 28. Defendant moves to dismiss Plaintiff’s second amended
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complaint pursuant to Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). ECF No.
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34. For the reasons stated herein, Defendant’s motion is GRANTED.
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I. BACKGROUND
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Plaintiff filed her initial complaint in this matter on September 1, 2023. ECF No. 1.
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Concurrently with her initial complaint, Plaintiff filed a motion to appoint counsel and a
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1 motion to proceed in forma pauperis (“IFP”). ECF Nos. 2, 3. On September 13, 2023, this
2 Court denied those motions and dismissed the complaint pursuant to 28 U.S.C. § 1915(a).
3 ECF No. 4. Plaintiff was given until September 28, 2023, to file an amended complaint and
4 resubmit a motion for IFP or pay the filing fee. Id. at 6. On September 28, 2023, Plaintiff
5 filed motions addressing her IFP request and other related matters, but did not file an
6 amended complaint. See ECF Nos. 5, 6, 7. The Court construed Plaintiff’s filings as a
7 renewed motion for appointment of counsel, a motion for rescreening of the complaint
8 pursuant to 28 U.S.C. § 1915(a), a motion to admit evidence, and a motion to amend IFP.
9 ECF No. 8. Because Plaintiff did not file an amended complaint or submit any additional
10 arguments or facts, the Court denied Plaintiff’s motions. Id. at 2-3. The Court granted
11 Plaintiff leave to file an amended complaint in compliance with the Court’s Order and to
12 file a new IFP application or pay the filing fee. Id. at 3.
13 On October 4, 2023, Plaintiff paid the filing fee, and a summons was issued on
14 October 30, 2023. ECF Nos. 9, 10. On December 14, 2023, Plaintiff filed a third motion
15 for appointment of counsel, which was denied by this Court on December 22, 2023. ECF
16 Nos. 11, 12.
17 On January 8, 2024, Plaintiff served the dismissed initial complaint on the Office of
18 the United States Attorney for the Southern District of California. ECF No. 13. On January
19 19, 2024, Defendant filed a Notice of Plaintiff’s Failure to Comply with Court’s Orders.
20 ECF No. 14. On January 22, 2024, this Court struck the summons and Plaintiff’s proof of
21 service, as Plaintiff never filed an amended complaint. ECF No. 15. Plaintiff was directed
22 to file an amended complaint by February 13, 2024. Id. at 2.
23 On February 13, 2024, Plaintiff filed her first amended complaint (“FAC”). ECF No.
24 16. On March 28, 2024, Defendant moved to dismiss the FAC. ECF No. 20. Before an
25 order was issued on Defendant’s motion, Plaintiff filed a second amended complaint
26 (“SAC”) on July 18, 2024. ECF No. 28. On July 22, 2024, this Court denied Defendant’s
27 motion to dismiss the FAC as moot and without prejudice, in light of Plaintiff filing the
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1 SAC. ECF No. 32. On August 1, 2024, Defendant filed the present motion, moving to
2 dismiss Plaintiff’s SAC. ECF No. 34. Plaintiff did not file an opposition to the motion.
3 II. LEGAL STANDARD
4 A. Federal Rule of Civil Procedure 12(b)(1)
5 A motion to dismiss under Federal Rule of Civil Procedure (“FRCP”) 12(b)(1)
6 challenges the subject matter jurisdiction of the action. Fed. R. Civ. P. 12(b)(1). A Rule
7 12(b)(1) jurisdictional attack may be facial or factual. Safe Air for Everyone v. Meyer, 373
8 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the challenger asserts that the allegations
9 contained in a complaint are insufficient on their face to invoke federal jurisdiction. Id. By
10 contrast, in a factual attack, the challenger disputes the truth of the allegations that, by
11 themselves, would otherwise invoke federal jurisdiction. Id. Jurisdiction is not presumed,
12 and the party asserting jurisdiction has the burden to establish that it exists. Kokkonen v.
13 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
14 B. Federal Rule of Civil Procedure 8
15 Under FRCP 8, a complaint must contain a “short and plain statement of the claim
16 showing the pleader is entitled to relief,” and “[e]ach allegation must be simple, concise,
17 and direct.” Fed. R. Civ. P. 8(a), (d). While a pro se plaintiff’s complaint is construed
18 liberally, a plaintiff must still allege a minimum factual and legal basis for each claim
19 sufficient to give a defendant fair notice of what the claims are and the grounds upon which
20 they rest. Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995). To
21 this end, a complaint must be logically organized and clearly specify each claim, so that
22 the defendant would have “no difficulty in responding to the claims[.]” Hearns v. San
23 Bernadino Police Dep’t, 530 F.3d 1124, 1131-23 (9th Cir. 2008).
24 A district court may dismiss an entire complaint for lack of clarity when “one cannot
25 determine from the complaint who is being sued, for what relief, and on what theory, with
26 enough detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).
27 Such a dismissal is appropriate where a complaint's “true substance, if any, is well
28 disguised.” Hearns, 530 F.3d at 1131 (internal quotation marks omitted) (quoting Gillibeau
1 v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)). A district court may also dismiss
2 a complaint in which “‘each count ... adopts the allegations of all preceding counts’” such
3 that “‘[i]t is virtually impossible to know which allegations of fact are intended to support
4 which claim(s) for relief.’” Ewing v. Freedom Forever, LLC, No. 23-CV-1240 JLS (AHG),
5 2024 WL 221777, at *4 (S.D. Cal. Jan. 19, 2024) (quoting Paylor v. Hartford Fire Ins. Co.,
6 748 F.3d 1117, 1126 (11th Cir. 2014)).
7 III. DISCUSSION1
8 Dismissal of this action is justified under the Local Rules and FRCP for multiple
9 reasons. First, in no specific order, Plaintiff did not oppose the Motion to Dismiss. Second,
10 Plaintiff has not satisfied the service requirements set forth in FRCP 4. Third, this Court
11 lacks subject matter jurisdiction over this action. Finally, Plaintiff’s SAC fails to comply
12 with FRCP 8.
13 A. Civil Local Rule 7.1.f.3.c
14 The Motion to Dismiss seeks dismissal of the entire case with prejudice and without
15 leave to amend. Civil Local Rule 7.1.e.2 requires a party that opposes the relief sought by
16 a motion to file an opposition to that motion. Under Civil Local Rule 7.1.f.3.c, failure to
17 do so may be deemed consent to the granting of the motion. Plaintiff did not file an
18 opposition to Defendant’s Motion to Dismiss. Plaintiff’s failure to respond signifies her
19 consent to dismissal.
20 B. Federal Rule of Civil Procedure 4
21 “To serve a United States agency or corporation, or a United States officer or
22 employee sued only in an official capacity, a party must serve the United States and also
23 send a copy of the summons and of the complaint by registered or certified mail to the
24 agency, corporation, officer, or employee.” Fed. R. Civ. P. 4(i)(2). To date, Plaintiff has
25 not served a complaint on the Department of the Navy. Although courts broadly construe
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1 Because the Court dismisses the SAC under FRCP 4, 8, and 12(b)(1), the Court will not address
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1 pleadings filed by pro se litigants to give such plaintiffs “the benefit of the doubt,” even
2 pro se litigants must comply with the Federal Rules of Civil Procedure. Bretz v. Kelman,
3 773 F.2d 1026, 1027 n.1 (9th Cir. 1985); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
4 The Court finds that Plaintiff did not satisfy the requirements of FRCP 4 to effect service
5 of process for this action.
6 C. Jurisdiction and Exhaustion of Administrative Remedies
7 The SAC, like its previous iterations, fails to establish jurisdiction on the face of the
8 complaint. Construing the SAC most favorable to Plaintiff, she appears to allege racial and
9 disability discrimination claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e,
10 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.,
11 the Rehabilitation Act (“Rehab Act”), 29 U.S.C. § 791, et seq., the Genetic Information
12 Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., and Executive Order 13154,
13 and generally alleges wrongful termination, harassment, and negligence. SAC ¶¶ 7, 10, 11,
14 12. For some of the statutes and general allegations, however, Plaintiff fails to identify the
15 precise provisions she is suing under or whether she is suing under federal or state law.
16 This lack of specificity fails to establish that the United States has waived its sovereign
17 immunity. Under sovereign immunity, the United States is immune from suit unless it
18 consents to be sued. McGuire v. United States, 550 F.3d 903, 913 (9th Cir. 2008). For
19 example, for discrimination claims, Congress has waived the federal government’s
20 sovereign immunity under the provisions of Title VII for alleging discrimination by federal
21 employees on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e-
22 16. For common law tort claims, such as negligence, the Federal Tort Claims Act
23 (“FTCA”) waives federal government immunity as well. However, other federal and state
24 statutes do not waive immunity. Without knowing the precise provisions that Plaintiff is
25 suing under, she fails to state claims that may be brought against the federal government,
26 and thus, fails to establish subject matter jurisdiction.
27 Moreover, Plaintiff must also establish administrative exhaustion to state a claim
28 under Title VII, FTCA, ADEA, or the Rehab Act. Sommatino v. United States, 255 F.3d
1 704, 709 (9th Cir. 2001) (discrimination claims under Title VII must first be presented to
2 an appropriate agency); Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992) (no
3 federal subject matter jurisdiction unless plaintiff alleges exhaustion of administrative
4 remedies in FTCA cases); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985)
5 (holding “the requirement of exhaustion of administrative remedies applicable to federal
6 employees under Title VII … was imported into claims brought under [the Rehab Act].”).
7 While ADEA does not require exhaustion of administrative remedies, “an employee who
8 wishes to file [an ADEA] suit without pursuing administrative remedies must give the
9 [Equal Employment Opportunity Commission (“EEOC”)] notice of intent to sue at least
10 30 days before filing suit.” Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003).
11 A federal employee may bring these claims in a district court but must first exhaust
12 administrative remedies by filing a timely charge with the EEOC. Sommatino, 255 F.3d at
13 707 (citing 42 U.S.C. § 2000e-16). A civil action in federal court may be filed within ninety
14 days of receipt of the agency final action or after 180 days from the date of filing an
15 individual complaint if agency final action has not been taken. 42 U.S.C. § 2000e-16(c);
16 29 C.F.R. § 1614.407(a)&(b); see Brown v. General Servs. Admin., 425 U.S. 820, 832
17 (1976) (“In any event, the complainant may file a civil action if, after 180 days from the
18 filing of the charge or the appeal, the agency ... has not taken final action.”).
19 In the present case, Plaintiff alleges that she filed a charge with the EEOC and “filed
20 this complaint within 90 days after receiving a notice of the right to sue from the EEOC.”
21 SAC ¶ 6. Plaintiff references a copy of the right to sue notice “attached as [an] Exhibit” in
22 ECF No. 6. Id. ECF No. 6, couched as a “Motion of Admissible Evidence,” was denied by
23 this Court on September 29, 2023. See ECF No. 8. Under Civil Local Rule 15.1.a, “Every
24 pleading to which an amendment is permitted…must be complete in itself without
25 reference to the superseded pleading.” Consequently, for the right to sue notice to be
26 considered, it must be attached to the complaint itself, not ECF No. 6. Accordingly, the
27 Court finds that the SAC does not comply with the pre-suit administrative processes
28 applicable to Title VII, FTCA, ADEA, or the Rehab Act.
1 D. Federal Rule of Civil Procedure 8
2 Plaintiff’s SAC fails to comply with the requirements set forth in FRCP 8. Plaintiff
3 fails to plead the general elements of each claim, logically organize or allege factual
4 allegations in support of each claim and connect the factual allegations with the elements
5 required to make each claim facially plausible. While, as discussed above, Plaintiff
6 references a variety of statutes and legal terms, the SAC is devoid of factual allegations.
7 Instead, Plaintiff’s allegations are conclusory and fail to set forth the specific conduct
8 complained of and the specific time period in which the conduct occurred. For example,
9 Plaintiff alleges that:
10 “[P]laintiff born descendant[] of African Americans, was competent to
perform their job with or without reasonable accommodation, suffered a
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materially adverse employment action like being fired immediately after
12 requested reasonable accommodation and circumstances give rise to an
inference of discrimination.”
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14 SAC ¶ 8. In this example, Plaintiff alleges a plausible adverse action, i.e., termination, and
15 alleges a protected activity, i.e., requesting a reasonable accommodation, but fails to allege
16 exactly what kind of accommodation she requested, when she requested that
17 accommodation, and whether Defendant knew of her engagement in the protected activity
18 or of her disability. The SAC, moreover, fails to even allege exactly what disability Plaintiff
19 suffers from.
20 While the SAC gives Defendant some notice of the nature of the claims, i.e.,
21 violations of Title VII, the Rehab Act, and ADEA, it does not give Defendant fair notice
22 of “the grounds upon which [such claims] rest [].” Mendiondo v. Centinela Hosp. Med.
23 Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Plaintiff must clearly state how Defendant is
24 alleged to have violated her legal rights and link those allegations to her actual legal claims,
25 and she must do so within the actual complaint. Accordingly, Defendant’s motion to
26 dismiss the SAC as incomprehensible under FRCP 8 is GRANTED.
27 In view of the foregoing, the Court will give Plaintiff one final opportunity to amend
28 her complaint in accordance with this Order and FRCP 8. The Court cautions Plaintiff that
1 facts or legal claims alleged in prior complaints or denied motions will not be
2 || considered in an amended complaint. Thus, if Plaintiff chooses to amend her complaint, all
3 factual allegations, legal claims, and supporting documents must be set forth and/or
4 || attached in the amended complaint.
5 IV. CONCLUSION
6 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss, ECF
7 || No. 34, and dismisses the second amended complaint with leave to amend. In the event
8 || that Plaintiff elects to file an amended complaint, she must do so within thirty (30) days
9 this Order. Plaintiff will have one final opportunity to amend her complaint in
10 || accordance with this Order, Civil Local Rule 7.1.f.3.c and Federal Rules of Civil Procedure
11 |} 12(b)(1) and 8. Plaintiff must also comply with the service requirements set forth in Federal
12 || Rule of Civil Procedure 4(1)(2). Failure to do so will result in dismissal of this case.
13 IT IS SO ORDERED.
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15 Dated: November 12, 2024 = 4,
16 Honorable James E. Sunmons Jr.
7 United States District Judge
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