Anderson v. Del Toro

• Court: District Court, S.D. California
• Decided: June 26, 2025
• Docket: 3:23-cv-01615
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 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; 16

17 (2) DENYING PLAINTIFF’S MOTION TO DENY 18 DEFENDANT’S MOTION TO 19 DISMISS THE THIRD AMENDED COMPLAINT AS MOOT; 20

21 (3) DENYING PLAINTIFF’S MOTION FOR DEFAULT 22 JUDGMENT. 23 [ECF Nos. 43, 46, 54] 24

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

26 against Defendant John Phelan (“Defendant”), Secretary of the Navy, alleging various 27 violations related to her prior employment. Defendant moves to dismiss Plaintiff’s third 28 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 26

27 1 Because the Court finds that the TAC fails under FRCP 12(b)(6), it will not address Defendant’s motion 28 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. 28 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. 28 / / / 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) 26

27 2 Under sovereign immunity, the United States is immune from suit unless it consents to be sued. McGuire 28 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 18 19 20 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 24 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.

28 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. 23

24 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. 28 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 28 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. 13 14 Dated: June 25, 2025 A □□ ae 4, 15 Honorable James E. Sunmons Jr. 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28