Anderson v. Del Toro

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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:

13 v. (1) GRANTING IN PART AND

DENYING IN PART

14 JOHN PHELAN, Secretary of the Navy,

DEFENDANT’S MOTION TO

15 Defendant. DISMISS THE THIRD AMENDED

COMPLAINT;

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17 (2) DENYING PLAINTIFF’S

MOTION TO DENY

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DEFENDANT’S MOTION TO

19 DISMISS THE THIRD AMENDED

COMPLAINT AS MOOT;

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21 (3) DENYING PLAINTIFF’S

MOTION FOR DEFAULT

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JUDGMENT.

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[ECF Nos. 43, 46, 54]

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Plaintiff Paula A. Anderson (“Plaintiff”), proceeding pro se, brings this action

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against Defendant John Phelan (“Defendant”), Secretary of the Navy, alleging various

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violations related to her prior employment. Defendant moves to dismiss Plaintiff’s third

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1 amended complaint (“TAC”) pursuant to Federal Rules of Civil Procedure (“FRCP”) 8,

2 12(b)(1), 12(b)(5), and 12(b)(6). ECF No. 43. For the reasons stated herein, Defendant’s

3 motion is GRANTED in part and DENIED in part.

4 In response to Defendant’s motion, and on a separate basis, Plaintiff filed a motion

5 to deny Defendant’s motion, ECF No. 46, and a motion for default judgment, ECF No. 54.

6 For the reasons stated herein, both motions are DENIED.

7 I. BACKGROUND

8 Plaintiff filed her initial complaint in this matter on September 1, 2023. ECF No. 1.

9 Concurrently with her initial complaint, Plaintiff filed a motion to appoint counsel and a

10 motion to proceed in forma pauperis (“IFP”). ECF Nos. 2, 3. On September 13, 2023, this

11 Court denied those motions and dismissed the complaint pursuant to 28 U.S.C. § 1915(a).

12 ECF No. 4. Plaintiff was given until September 28, 2023, to file an amended complaint and

13 resubmit a motion for IFP or pay the filing fee. Id. at 6. On September 28, 2023, Plaintiff

14 filed motions addressing her IFP request and other related matters, but did not file an

15 amended complaint. See ECF Nos. 5, 6, 7. The Court construed Plaintiff’s filings as a

16 renewed motion for appointment of counsel, a motion for rescreening of the complaint

17 pursuant to 28 U.S.C. § 1915(a), a motion to admit evidence, and a motion to amend IFP.

18 ECF No. 8. Because Plaintiff did not file an amended complaint or submit any additional

19 arguments or facts, the Court denied Plaintiff’s motions. Id. at 2-3. The Court granted

20 Plaintiff leave to file an amended complaint in compliance with the Court’s Order and to

21 file a new IFP application or pay the filing fee. Id. at 3.

22 On October 4, 2023, Plaintiff paid the filing fee, and a summons was issued on

23 October 30, 2023. ECF Nos. 9, 10. On December 14, 2023, Plaintiff filed a third motion

24 for appointment of counsel, which was denied by this Court on December 22, 2023. ECF

25 Nos. 11, 12.

26 On January 8, 2024, Plaintiff served the dismissed initial complaint on the Office of

27 the United States Attorney for the Southern District of California. ECF No. 13. On January

28 19, 2024, Defendant filed a Notice of Plaintiff’s Failure to Comply with Court’s Orders.

1 ECF No. 14. On January 22, 2024, this Court struck the summons and Plaintiff’s proof of

2 service, as Plaintiff never filed an amended complaint. ECF No. 15. Plaintiff was directed

3 to file an amended complaint by February 13, 2024. Id. at 2.

4 On February 13, 2024, Plaintiff filed her first amended complaint (“FAC”). ECF No.

5 16. Defendant then moved to dismiss the FAC. ECF No. 20. Before an order was issued

6 on Defendant’s motion, Plaintiff filed a second amended complaint (“SAC”) on July 18,

7 2024. ECF No. 28. On July 22, 2024, this Court denied Defendant’s motion to dismiss the

8 FAC as moot and without prejudice, in light of Plaintiff filing the SAC. ECF No. 32.

9 Defendant moved to dismiss the SAC on August 1, 2024. ECF No. 34.

10 On November 12, 2024, the Court granted Defendant’s motion, finding that Plaintiff

11 failed to oppose the motion, had not satisfied service requirements under FRCP 4, failed to

12 comply with FRCP 8, and failed to establish that the Court had subject matter jurisdiction.

13 ECF No. 41 at 4-7. On December 3, 2024, Plaintiff filed the TAC. ECF No. 42. In response,

14 Defendant filed the present motion. ECF No. 43.

15 On January 22, 2025, the Court held a hearing on Defendant’s motion to dismiss.

16 ECF No. 49. At the hearing, the Court noted that the amended summons for the TAC was

17 inadvertently issued after Plaintiff’s TAC and Defendant’s motion to dismiss were filed.

18 Given that Defendant moved for dismissal based, inter alia, on insufficient service of

19 process of the TAC, the Court provided Plaintiff until March 3, 2025 to accomplish service,

20 set a supplemental briefing schedule, and continued the hearing to May 7, 2025. Id.

21 Plaintiff subsequently filed proof of service on February 26, 2025. ECF No. 50.

22 II. LEGAL STANDARD1

23 A. Federal Rule of Civil Procedure 12(b)(1)

24 A motion to dismiss under FRCP 12(b)(1) challenges the subject matter jurisdiction

25 of the action. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) jurisdictional attack may be facial

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1 Because the Court finds that the TAC fails under FRCP 12(b)(6), it will not address Defendant’s motion

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1 or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial

2 attack, the challenger asserts that the allegations contained in a complaint are insufficient

3 on their face to invoke federal jurisdiction. Id. By contrast, in a factual attack, the

4 challenger disputes the truth of the allegations that, by themselves, would otherwise invoke

5 federal jurisdiction. Id. Jurisdiction is not presumed, and the party asserting jurisdiction

6 has the burden to establish that it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511

7 U.S. 375, 377 (1994).

8 B. Federal Rule of Civil Procedure 12(b)(6)

9 A motion to dismiss for failure to state a claim should be granted when the

10 allegations do not “state a claim to relief that is plausible on its face.” Aschroft v. Iqbal,

11 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

12 “A claim has facial plausibility when the plaintiff pleads factual content that allows the

13 court to draw the reasonable inference that the defendant is liable for the misconduct

14 alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard ... asks

15 for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten

16 Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted).

17 When evaluating the sufficiency of a complaint's factual allegations, the court must

18 accept as true all well-pleaded material facts alleged in the complaint and construe them in

19 the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d

20 1136, 1140 (9th Cir. 2012); see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th

21 Cir. 2010). Allegations in a complaint “may not simply recite the elements of a cause of

22 action, but must contain sufficient allegations of underlying facts to give fair notice and to

23 enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216

24 (9th Cir. 2011). While the court must draw all reasonable inferences from the factual

25 allegations in favor of the plaintiff, Newcal Industries, Inc. v. Ikon Office Solution, 513

26 F.3d 1038, 1043 n.2 (9th Cir. 2008), the court need not credit legal conclusions that are

27 couched as factual allegations, Iqbal, 556 U.S. at 678-79.

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1 When a court dismisses a complaint under FRCP 12(b)(6), it must then decide

2 whether to grant leave to amend. FRCP 15(a) provides that a district court should “freely

3 give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). A district court has

4 discretion to deny leave to amend when a proposed amendment would be futile. Chappel

5 v. Lab. Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000). Dismissal without leave

6 to amend is appropriate only when the Court is satisfied that the deficiencies of the

7 complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758

8 (9th Cir. 2003). In other words, if allowing a party to amend its pleading would be futile,

9 district courts properly decline to grant leave to amend. Thinket Ink Info. Res., Inc. v. Sun

10 Microsys., Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (citing Saul v. United States, 928 F.2d

11 829, 843 (9th Cir. 1991)).

12 III. DISCUSSION

13 A. Defendant’s Motion to Dismiss

14 Plaintiff asserts two causes of action for failure to accommodate under the

15 Rehabilitation Act (“Rehab Act”) and the Americans with Disabilities Act (“ADA”). See

16 TAC ¶¶ 9-14. The Rehab Act, 29 U.S.C. § 791, prohibits employment discrimination by

17 the federal government against those with disabilities, applying the standards of Title I of

18 the ADA. 29 U.S.C. § 791(f). Both Title II of the ADA and the Rehab Act prohibit

19 discrimination on the basis of disability, though the ADA applies only to public entities,

20 while the Rehab Act applies to all federally funded programs. Lovell v. Chandler, 303 F.3d

21 1039, 1052 (9th Cir. 2002). The ADA, therefore, is not the proper avenue for Plaintiff’s

22 disability discrimination claim against Defendant, a federal employer. On this basis alone,

23 the Court DISMISSES Plaintiff’s ADA claim with prejudice.

24 Defendant provides several bases for dismissal. First, in no specific order, Defendant

25 moves to dismiss for noncompliance with FRCP 4. Second, Defendant moves to dismiss

26 for lack of subject matter jurisdiction. Finally, Defendant moves to dismiss Plaintiff’s

27 Rehab Act claim as insufficiently pleaded. The Court addresses each argument in turn.

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1 1. Federal Rule of Civil Procedure 4

2 Defendant argues that Plaintiff, despite multiple opportunities, has failed to comply

3 with FRCP 4. To date, Plaintiff has not served a complaint on the U.S. Attorney General.

4 “To serve a United States agency or corporation, or a United States officer or

5 employee sued only in an official capacity, a party must serve the United States and also

6 send a copy of the summons and of the complaint by registered or certified mail to the

7 agency, corporation, officer, or employee.” Fed. R. Civ. P. 4(i)(2). To serve the United

8 States, a party must serve: (1) the U.S. Attorney’s Office by delivering a copy of the

9 summons and complaint to the U.S. Attorney or by sending a copy of each by registered

10 or certified mail to the U.S. Attorney’s civil process clerk; and (2) the U.S. Attorney

11 General by registered or certified mail. Fed. R. Civ. P. 4(i)(1)(A)(i)-(ii).

12 FRCP 4 “is a flexible rule that should be liberally construed so long as a party

13 receives sufficient notice of the complaint.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.

14 1986) (internal citation omitted); see also Borzeka v. Heckler, 739 F.2d 444, 448 n.2 (9th

15 Cir. 1984) (“[Courts] are generally more solicitous of the rights of pro se litigants,

16 particularly when technical jurisdictional requirements are involved.”). However, even

17 under a liberal construction, “neither actual notice nor simply naming the defendant in the

18 complaint will provide personal jurisdiction without ‘substantial compliance with Rule 4.’”

19 Benny, 799 F.2d at 492 (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.

20 1982)).

21 FRCP 4 requirements may be excused if “(a) the party that had to be served

22 personally received actual notice, (b) the defendant would suffer no prejudice from the

23 defect in service, (c) there is a justifiable excuse for the failure to serve properly, and (d)

24 the plaintiff would be severely prejudiced if his complaint were dismissed.” Id. at 448.

25 The Court finds good cause to excuse Plaintiff’s service requirements on the U.S.

26 Attorney General. First, Plaintiff has made good faith attempts to, and has, substantially

27 complied with FRCP 4. See ECF Nos. 13, 15, 30, 48, 50. For example, in the Court’s prior

28 Order, ECF No. 41 at 7-8, and at the motion hearing, the Court ordered Plaintiff to comply

1 with FRCP 4’s service requirements, and explicitly noted Plaintiff’s failure to serve a

2 complaint on the Department of the Navy. Plaintiff complied with the Court’s orders within

3 the instructed time period. See ECF No. 50. Second, Defendant had actual notice of this

4 action, and the Court cannot find, nor has Defendant attempted to establish, prejudice to

5 Defendant as a result of the technical defect in service. Finally, the Court concludes that

6 Plaintiff would be prejudiced if the Court were to demand that Plaintiff continue to try to

7 serve the U.S. Attorney General given this action has already been substantially delayed

8 due to the many service issues. Therefore, the Borzeka factors counsel in favor of excusing

9 the technical defect in service and holding that Plaintiff has substantially complied with

10 FRCP 4.

11 2. Subject-Matter Jurisdiction

12 Defendant argues that the TAC, like its previous iterations, fails to establish

13 jurisdiction on the face of the complaint. Plaintiff generally brings a claim under the Rehab

14 Act but fails to identify the precise provision she is suing under. This lack of specificity,

15 Defendant argues, fails to establish that the United States has waived its sovereign

16 immunity,2 and thus, that the Court has jurisdiction over the TAC. The Court disagrees.

17 Plaintiff’s lack of specificity is not fatal to her complaint. Plaintiff’s TAC clearly

18 establishes the federal government’s waiver of sovereign immunity, and clearly falls under

19 the Court’s federal-question jurisdiction. Plaintiff alleges that she suffered disability

20 discrimination while working at a federal agency, and that the Defendant is the head of that

21 agency. See TAC, ¶ 5, 12-14. Section 501 of the Rehab Act permits claims by federal

22 employees for employment discrimination. Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir.

23 2003) (“The duty on federal employers thus goes beyond mere non-discrimination; the

24 regulations promulgated under section 501 emphasize the affirmative obligation to

25 accommodate.” (quoting Buckingham v. United States, 998 F.2d 735, 739 (9th Cir. 1993)

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2 Under sovereign immunity, the United States is immune from suit unless it consents to be sued. McGuire

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1 (alterations omitted)). Thus, the Court will not dismiss the TAC merely because Plaintiff

2 has not specifically alleged the basis of jurisdiction or explicitly established waiver of

3 sovereign immunity. See Elton v. McDonough, No. 1:19-cv-01723-NONE-HBK (PS),

4 2021 WL 2322474, at *4 (E.D. Cal. June 7, 2021) (“[T]he court will not merely dismiss

5 the SAC because plaintiff has not specifically alleged the basis of jurisdiction.”); Arndt v.

6 Bank of Am., 48 F. Supp. 961, 964 (N.D. Cal. 1943) (“It is true that ‘a short and complete

7 statement of the grounds upon which the court's jurisdiction depends’ must be set forth in

8 the complaint. Strictly speaking, plaintiffs have not done this. However, I have not been

9 put to great effort to ascertain the matters upon which the jurisdiction depends and see no

10 point in requiring the plaintiffs to further amend.”).3

11 3. Disability Discrimination under the Rehab Act

12 Plaintiff’s TAC fails to set forth plausible factual allegations to support her failure

13 to accommodate claim under the Rehab Act. To state a claim under the Rehab Act, a

14 plaintiff must allege that “(1) she is a person with a disability, (2) who is otherwise qualified

15 for employment, and (3) suffered discrimination because of her disability.” Walton v. U.S.

16 Marshals Servs., 492 F.3d 998, 1005 (9th Cir. 2007), superseded on other grounds by

17 statute. “Once an employee requests an accommodation, ‘the employer must engage in an

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3 Defendant also points to Plaintiff’s failure to allege administrative exhaustion as a basis for dismissal of

21 her Rehab Act claim. Failure to exhaust administrative remedies at the Equal Employment Opportunity

Commission is non-jurisdictional in Title VII actions, and consequently, Rehab Act actions. See Fort Bend

22 Cty. v. Davis, 587 U.S. 541, 551 (2019) (“Title VII's charge-filing requirement is a processing rule, albeit

a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”); see

23 also Channel v. Wilkie, No. 2:18-cv-02414-MCE-AC (PS), 2019 WL 5720311, at *5 (E.D. Cal. Nov. 5,

2019), report and recommendation adopted, 2020 WL 589340 (E.D. Cal. Feb. 6, 2020) (“Exhaustion of

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administrative remedies is generally—unless the applicable statute provides otherwise, which the

25 Rehabilitation Act does not—considered a non-jurisdictional claims processing requirement, and thus an

affirmative defense rather than an element plaintiff must plead and prove.”); Minamoto v. Harker, No. CV

26 20-00043 HG-KJM, 2021 WL 1618456, at *5 (D. Haw. Apr. 26, 2021) (holding that exhaustion of

administrative remedies in connection with a § 501 lawsuit was non-jurisdictional). Thus, Plaintiff’s

27 failure to allege administrative exhaustion is not fatal to the TAC.

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1 interactive process with the employee to determine the appropriate reasonable

2 accommodation.’” Weeks v. Union Pac. Railroad Co., 137 F. Supp. 3d 1204, 1217 (E.D.

3 Cal. 2015) (quoting EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1110 (9th Cir.

4 2010)). “An employer who fails to engage in such an interactive process in good faith may

5 incur liability if a reasonable accommodation would have been possible.” Vinson v.

6 Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). The plaintiff bears the initial burden of

7 showing that a reasonable accommodation was possible. Id. If the plaintiff can establish a

8 prima facia case, the burden “then shifts to the employer to articulate some legitimate,

9 nondiscriminatory reason for the challenged action.” Chuang v. Univ. of Cal. Davis, Bd. of

10 Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000).

11 Here, Plaintiff alleges that she “has a temporary disability as defined by the…[Rehab

12 Act],” and that she “requested an accommodation…in the form of one or two additional

13 five-minute sit-down breaks during the work shift” to “alleviate discomfort and strain.”

14 TAC ¶¶ 6, 7. Defendant, however, “did not respond to [her] request for reasonable

15 accommodation, violating the…[Rehab Act].” Id. ¶ 8. Such conclusory allegations are

16 insufficient to state a plausible claim under the Rehab Act. See Jones v. Del Toro, No. 3:24-

17 cv-00989-L-SBC, 2025 WL 509302, at * 2-3 (S. D. Cal. Feb. 14, 2025) (dismissing Rehab

18 Act claims where plaintiff alleges to be “a disabled veteran” and “is known to have anxiety

19 symptoms”). While the Court acknowledges Plaintiff’s attempt to follow its prior Order4,

20 Plaintiff still fails to allege exactly what disability she suffers from, whether Defendant

21 knew of her disability, or any plausible allegations that she suffered discrimination because

22 of her disability. Accordingly, the Court DISMISSES Plaintiff’s Rehab Act claim.

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25 4 The Court’s prior Order noted that Plaintiff “fail[ed] to allege exactly what kind of accommodation she

requested, when she requested that accommodation, and whether Defendant knew of her engagement in

26 the protected activity or of her disability. The SAC, moreover, fail[ed] to even allege exactly what

disability Plaintiff suffers from.” ECF No. 41 at 7. The TAC, however, alleges when Plaintiff requested

27 an accommodation, what kind of accommodation was requested, and Defendant’s knowledge of a

requested accommodation. TAC ¶¶ 7, 8.

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1 While the Court has provided Plaintiff multiple opportunities to amend her

2 complaint, the Court is inclined to do so again one final time. See Fed. R. Civ. P. 15(a)(2)

3 (“The court should freely give leave [to amend] when justice so requires.”). First, the

4 Court’s prior Orders have mostly dismissed Plaintiff’s complaints on jurisdictional

5 grounds, rather than deficiencies within Plaintiff’s factual allegations. See generally ECF

6 Nos. 4, 41. Second, as stated above, Plaintiff’s TAC attempts to comply with the Court’s

7 prior Order. Finally, amendment would not be futile as Plaintiff’s oppositional briefing

8 shows additional facts that might cure the deficiencies within the TAC.

9 The Court cautions Plaintiff that any facts or legal claims alleged in prior complaints

10 or denied motions will not be considered in an amended complaint. Thus, if Plaintiff

11 chooses to amend her complaint, all factual allegations, legal claims, and supporting

12 documents must be set forth and/or attached in the amended complaint.

13 B. Plaintiff’s Motions

14 Plaintiff brings a Motion to Deny Defendant’s Motion to Dismiss the TAC, ECF No.

15 46, and a Motion for Default Judgment, ECF No. 54. The Court construes Plaintiff’s

16 motion to deny Defendant’s motion as an opposition to Defendant’s motion, and thus,

17 DISMISSES it as moot.

18 Plaintiff’s motion for default judgment is improper. A court may enter default

19 judgment against a defendant “who has failed to plead or otherwise defend against an

20 action.” Fed. R. Civ. P. 55; McGee v. Milpitas Police Dep’t, No. 23-3670, 2025 WL

21 869305, at *1 (9th Cir. Mar. 20, 2025) (affirming denial of motions for entry of default and

22 default judgment because defendants filed a timely motion to dismiss); Direct Mail

23 Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir. 1988) (a

24 default judgment is inappropriate if defendant indicates its intent to defend the action);

25 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard of review

26 and factors for determining whether to enter default judgment and explaining that “default

27 judgments are ordinarily disfavored”). Here, Defendant has continuously defended himself

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1 || against this action. See ECF Nos. 14, 17, 20, 24, 25, 34, 43, 49, 52, 55, 56. Accordingly,

2 || Plaintiff's motion for default judgment is DENIED.

3 IV. CONCLUSION

4 For the foregoing reasons, the Court GRANTS in part and DENIES in part

5 ||Defendant’s Motion to Dismiss the Third Amended Complaint, ECF No. 43, and

6 || DISMISSES the third amended complaint with leave to amend. In the event that Plaintiff

7 || elects to file an amended complaint, she must do so within thirty (30) days of this Order.

8 || Plaintiff will have one final opportunity to amend her complaint in accordance with this

9 || Order. The Court further DENIES as moot Plaintiff's Motion to Deny Defendant’s Motion

10 Dismiss the TAC, ECF No. 46, and Plaintiff's Motion for Default Judgment, ECF No.

11 || 54.

12 IT IS SO ORDERED.

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14 Dated: June 25, 2025 A □□ ae 4,

15 Honorable James E. Sunmons Jr.

16 United States District Judge

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