Alvarez v. Morris Shea Bridge Company, Inc.

Opinion

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11 SERGIO ALVAREZ, ) Case No.: 1:24-cv-0723 JLT BAM ) 12 Plaintiff, ) ORDER ADOPTING IN PART THE FINDINGS ) AND RECOMMENDATIONS, GRANTING 13 v. ) DEFENDANT’S MOTION TO DISMISS WITH ) LEAVE TO AMEND ) (Docs. 22, 41) 15 Defendant. ) ) ORDER DIRECTING PLAINTIFF TO FILE A 16 ) SECOND AMENDED COMPLAINT WITHIN 30 ) DAYS 17 )

18 Sergio Alvarez seeks to hold Morris-Shea Bridge Company liable, suggesting the company 19 retaliated against him. (See Docs. 1-3, 20.) Defendant moved to dismiss the amended complaint 20 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting Plaintiff “fails to state 21 facts sufficient to establish any claim upon which relief can be granted.” (Doc. 22 at 2.) 22 The magistrate judge found Plaintiff failed “to include sufficient factual allegations identifying 23 what happened, when it happened, or who was involved.” (Doc. 41 at 5.) In addition, the magistrate 24 judge determined Plaintiff failed to identify Defendant’s “alleged actions and how those actions 25 constitute a legal violation entitling Plaintiff to relief.” (Id.) The magistrate judge observed that the 26 Court previously provided its pleading standards, “a prior opportunity to amend his complaint, and an 27 additional opportunity to identify the facts and legal theories underlying this action.” (Id. at 6.) 28 Because Plaintiff failed to state a cognizable claim, the magistrate judge determined “further leave to 1 amend is not warranted.” (Id.) The magistrate judge recommended the Court grant the motion to 2 dismiss and dismiss the amended complaint with prejudice. (Id.) 3 Plaintiff filed objections to the Findings and Recommendations, in which he contends that he 4 was “laid off” by Defendant “because they had to pay late penalties [to] everyone because [their] 5 checks were late.” (Doc. 44 at 1.) Plaintiff asserts that a supervisor, Chris, said at a meeting that 6 Defendant “paid a lot of money.” (Id.) He alleges someone said that Plaintiff “was the one that started 7 everything” and he was laid off two weeks later. (Id.) Plaintiff reports that he filed a complaint with 8 the Labor Commissioner two weeks after he was fired, and he has “been turning in evidence from 9 witnesses there working with [him].” (Id.) Plaintiff asserts that he was hoping the Court would “look 10 at the real true [case] and not bs without no evidence or witnesses.” (Id.) The new allegations Plaintiff 11 makes do not undermine the findings of the magistrate judge related to the pleading deficiencies of the 12 amended complaint. See Ajaelo v. Carrillo, 2022 WL 35659, at *3 (S.D. Cal. Jan. 3, 2022) (“The new 13 allegations and documents submitted by Plaintiff with [the] Objections are not a substitute for factual 14 allegations in the Complaint.”). Moreover, Plaintiff does not identify any specific information 15 regarding what occurred or when, or who specifically was involved in his termination. Thus, Plaintiff 16 fails to identify facts in his amended complaint or the objections that support a claim for relief. 17 Without such basic allegations, the Court is unable to find Plaintiff states a cognizable claim. 18 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 19 Having carefully reviewed the matter, the Court concludes the finding that Plaintiff fails to state a 20 cognizable claim is supported by the record and proper analysis. However, it is unclear whether leave 21 to amend would be futile, or whether Plaintiff may allege additional facts sufficient to support a claim 22 for retaliation. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“[u]nless it is absolutely 23 clear that no amendment can cure the defect … a pro se litigant is entitled to notice of the complaint's 24 deficiencies and an opportunity to amend prior to dismissal of the action”). For this reason, the Court 25 will grant Plaintiff one final opportunity to amend and allege facts sufficient to support a claim 26 against Defendant. 27 Plaintiff is advised that an amended complaint supersedes any previously filed complaint. See 28 Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th 1 || Cir. 1987). Thus, once the second amended complaint is filed, the other pleadings no longer serve an 2 || function in the case. Local Rule 220 requires and amended complaint be “complete in itself without 3 || reference to the prior or superseded pleading.” The Court will not again refer to Plaintiff's initial 4 || complaint—or the amended complaint—to determine the nature of his claim(s) against Defendant. 5 || The second amended complaint must give fair notice and state the elements of the plaintiff's claim in 6 || plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). 7 || Plaintiff SHALL clearly allege any facts surround his termination or the alleged retaliatory act(s) of 8 || Defendant, including what happened, when it happened, or who was involved. Failure to do so will 9 || result in the Court finding he is unable to support any claim against Defendant. 10 1. The Findings and Recommendations dated December 4, 2024 (Doc. 41) are 11 ADOPTED in part. 12 2. Defendant’s motion to dismiss (Doc. 22) is GRANTED, with leave to amend. 13 3. Plaintiff SHALL file a second amended complaint within 30 days of the date of servic 14 of this order. 15 Failure to file a second amended complaint within the specified timeframe will result in 16 the action being dismissed without prejudice for failure to prosecute and failure to 17 comply with the Court’s order. 18 20 || Dated: _ January 7, 2025 ( LAW pA LU. wan TED STATES DISTRICT JUDGE 22 23 24 25 26 27 28