Baca v. Johnson & Johnson

• Court: District Court, D. Arizona
• Decided: November 2, 2020
• Docket: 2:20-cv-01036
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Gloria Baca, No. CV-20-01036-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Johnson & Johnson, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint 16 for Failure to State a Claim (Doc. 14). Plaintiff filed her Response (Doc. 18), and 17 Defendants filed their Reply (Doc. 22). The matter is fully briefed. 18 I. Background 19 This case is one of myriad similar cases in which plaintiffs allege defects in pelvic 20 repair systems developed by Defendants Johnson & Johnson and Ethicon, Inc.1 Before June 21 21, 2018, such cases would have been transferred to the Southern District of West Virginia 22 as part of the Multi-District Litigation, In re: Ethicon, Inc. Pelvic Repair System Products 23 Liability Litigation, MDL No. 2327 (“MDL”). (Doc. 26-1 at 2). The MDL has since 24 stopped accepting transfers, and so this case comes before this Court. (Id.) 25 Plaintiff’s Complaint alleges that she, an Arizona domiciliary, underwent an 26 “anterior/posterior repair cystoscopy surgery” in 2006 and was implanted with a Gynecare 27 TVT mesh (the “Product”), which was manufactured by Defendant Ethicon, Inc. (Doc. 1

28 1 A list of these cases may be found here: https://www.wvsd.uscourts.gov/caselist/caseviewlist.aspx?mdl=2327 1 at ¶¶ 1, 2). In 2019, “Plaintiff underwent vaginal mesh revision/excision, posterior repair, 2 and enterocele repair surgery . . . .” (Id. at ¶ 3). These first three allegations are the only 3 ones that appear tailored to Plaintiff Gloria Baca. Many of the Complaint’s remaining 244 4 allegations can be found, word-for-word, in other complaints filed in various federal 5 courts.2 See e.g., Complaint, Bauer v. Ethicon, Inc., (No. 5:20-cv-00133) (N.D. Fla. Apr. 6 30, 2020); Complaint, Curry v. PHC-Cleveland, (No. 4:20-cv-00058) (N.D. Miss. Apr. 2, 7 2020); Complaint, Pranger v. Johnson & Johnson, (No. 1:20-cv-00142) (N.D. Ind. Mar. 8 30, 2020). This Court, too, has encountered some of the same allegations in previous 9 complaints. See Hix v. Bos. Sci. Corp., 2019 WL 6003456 (D. Ariz. Nov. 14, 2019). 10 This Complaint brings sixteen causes of action.3 There are four strict liability 11 claims, four negligence claims, three fraud claims, one claim for violating consumer 12 protection laws, two breach of warranty claims, one claim for unjust enrichment, and one 13 final claim for punitive damages. (Doc. 1 at ¶¶ 89–242). Defendants move to dismiss them 14 all for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 14 15 at 1). 16 II. Pleading Standard 17 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. 18 Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and 19 plain statement showing that the pleader is entitled to relief for its claims. Fed. R. Civ. P. 20 8(a)(2). This standard does not require “‘detailed factual allegations,’ but it demands more 21 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 22 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 23 There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 24 While courts do not generally require “heightened fact pleading of specifics,” a plaintiff 25 must allege facts sufficient to “raise a right to relief above the speculative level.” See 26 2 The Court notes that the Complaint fails to comply with LRCiv 7.1’s formatting 27 requirements. It also contains many typographical oddities and errors, such as repeatedly referring to “Plaintiffs” when there is only one Plaintiff. 28 3 While the Complaint enumerates seventeen causes of action, it skips a sixteenth claim. 1 Twombly, 550 U.S. at 555. A complaint must “state a claim to relief that is plausible on its 2 face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 3 that allows the court to draw the reasonable inference that the defendant is liable for the 4 misconduct alleged.” Iqbal, 556 U.S. at 678. 5 If a complaint alleges fraud, then it “must state with particularity the circumstances 6 constituting fraud or mistake.” Fed. R. Civ. P. 9(b). To satisfy the particularity requirement, 7 a complaint must include “an account of the ‘time, place, and specific content of the false 8 representations as well as the identities of the parties to the misrepresentations.’” Swartz v. 9 KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam) (quoting Edwards v. Marin 10 Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). In other words, it “must ‘identify the who, 11 what, when, where, and how of the misconduct charged, as well as what is false or 12 misleading about the purportedly fraudulent statement, and why it is false.’” Salameh v. 13 Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (quoting United States ex rel. Cafasso 14 v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)). 15 Dismissal of a complaint for failure to state a claim can be based on either the “lack 16 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 17 legal theory.” Balistren v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In 18 reviewing a motion to dismiss, “all factual allegations set forth in the complaint ‘are taken 19 as true and construed in the light most favorable to the plaintiffs.’” Lee v. City of L.A., 250 20 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 21 (9th Cir. 1996)). But courts are not required “to accept as true a legal conclusion couched 22 as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 23 265, 286 (1986)). 24 III. Discussion 25 Defendants make several arguments why the Complaint fails to state a claim. The 26 first is that the Complaint is an example of an impermissible “shotgun” pleading. The rest 27 address the Complaint’s substance. The Court will address each in turn. 28 / / / 1 a. Shotgun Pleading 2 Defendants argue the Complaint’s construction forces them to “root through the 3 entire Complaint to ascertain which of the 247 paragraphs may apply to each Defendant 4 and each cause of action.” (Doc. 14 at 4). They argue this “shotgun” or “puzzle” style of 5 pleading is so unhelpful that the Court should dismiss the Complaint on those grounds 6 alone. (Id. at 3). “The key characteristic of a shotgun pleading is that it ‘fail[s] to one degree 7 or another, and in one way or another, to give the defendants adequate notice of the claims 8 against them and the grounds upon which each claim rests,’ which renders them disfavored 9 and usually subject to dismissal.” Casavelli v. Johanson, 2020 WL 4732145, at *9 (D. Ariz. 10 Aug. 14, 2020) (quoting Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1323 11 (11th Cir. 2015)). Upon review, the Court finds that the Complaint adequately gives notice 12 to Defendants to the extent that it cannot be characterized as a shotgun pleading. 13 b. Strict Liability 14 The Complaint’s strict liability claims include manufacturing defect, failure to warn, 15 defective product, and design defect. (Doc. 1 at ¶¶ 95–119). 16 i. Manufacturing Defect 17 Defendants argue the Complaint fails to state a claim for manufacturing defect 18 because it does not identify a flaw in the manufacturing process. (Doc. 14 at 6). Plaintiff 19 argues a manufacturing defect is evident by the fact that she suffered an injury from the 20 Product. (Doc. 18 at 4). 21 In Arizona, the crux of a manufacturing defect claim is that the defective product 22 differs from the manufacturer’s intended design or from other ostensibly identical units of 23 the same product line. See Spedale v. Constellation Pharm. Inc., 2019 WL 3858901, at *15 24 (D. Ariz. Aug. 16, 2019) (“A plaintiff should compare the injury-inducing product with 25 other non-defective products in the same line”); Hearn v. R.J. Reynolds Tobacco Co., 279 26 F. Supp. 2d 1096, 1115 (D. Ariz. 2003). Generally, a manufacturing defect claim posits 27 that the product is flawed as a result of something that went wrong during the 28 manufacturing process, whether or not a suitable design was in place. See Gomulka v. 1 Yavapai Mach. and Auto Parts, Inc., 745 P.2d 986, 988–989 (Ariz. Ct. App. 1987). A 2 plaintiff pursuing a manufacturing defect claim must identify or explain how the product 3 either deviated from the manufacturer’s intended result or how the product deviated from 4 other seemingly identical models; thus, a bare allegation that the product had a 5 manufacturing defect is an insufficient legal conclusion. See Enedina Coronado, et al., v. 6 Costco Wholesale Corp., 2019 WL 5448312, at *4 (D. Ariz. Oct. 24, 2019). 7 The Complaint certainly claims that the Product was defective. (Doc. 1 at ¶ 21). 8 However, the Complaint does not identify a specific manufacturing defect, either by failing 9 to manufacture the Product as designed, or by failing to manufacture the particular Product 10 in a similar way as other identical units. As this Court has said in other cases, Plaintiff’s 11 summary allegations that the Product “failed to perform as designed and intended, without 12 explanation as to how those defects are tied to the manufacturing process, do not 13 demonstrate that [the Product] had a manufacturing defect.” Hix, 2019 WL 6003456, at *4. 14 Plaintiff’s claim under a manufacturing defect theory, Count II, will be dismissed. 15 ii. Failure to Warn 16 Defendants argue the Complaint fails to adequately plead a failure to warn, also 17 known as an informational defect under Arizona law. (Doc. 14 at 7). They also argue that 18 Arizona’s learned intermediary doctrine applies to this case, with which Defendants would 19 have satisfied their duty to warn by providing an adequate warning to Plaintiff’s physicians. 20 (Id. at 7–8). Plaintiff argues that the Complaint shows the warnings were inadequate and 21 that the intermediary doctrine does not apply to this case. (Doc. 18 at 4–5). 22 A prima facie case of strict liability for informational defect requires a plaintiff to 23 show (1) that the defendant had a duty to warn, (2) that the missing warning made the 24 product defective and unreasonably dangerous, (3) that the warnings were absent when the 25 product left defendant’s control, and (4) that the failure to warn caused plaintiff’s injury. 26 Sw. Pet Prods., Inc. v. Koch Indus., Inc., 273 F. Supp. 2d 1041, 1060 (D. Ariz. 2003) (citing 27 Gosewisch v. Am. Honda Motor Co., Inc., 737 P.2d 376, 379 (Ariz. 1987) (superseded on 28 other grounds by A.R.S. § 12-2505)). 1 Under the learned intermediary doctrine, a medical device manufacturer satisfies its 2 duty to warn patients of the foreseeable risks involved with its products if it provides a 3 complete, accurate, and appropriate warning to the patient’s health-care provider. Watts v. 4 Medicis Pharm. Corp., 365 P.3d 944, 949 (Ariz. 2016) (adopting the Restatement (Third) 5 of Torts § 6(d)). While Plaintiff says the learned intermediary doctrine does not apply, she 6 cites no authority and makes no argument directly supporting this position. (Doc. 18 at 4). 7 This case involves a medical device sold by a manufacture to a health-care provider for use 8 by a patient, and the Court, therefore, finds that the learned intermediary doctrine applies. 9 With regards to the failure to warn claim, Defendants argue that the Complaint fails 10 to show how the alleged failure to warn Plaintiff’s physicians caused her injuries. (Doc. 14 11 at 8). Specifically, they argue that the Complaint fails to allege how the physicians would 12 have acted differently had they been provided with a different warning. (Id.) In response, 13 Plaintiff cites the Complaint, which provides a list of warnings that Defendants allegedly 14 failed to provide to Plaintiff and her physicians. (Docs. 18 at 7; 1 at ¶ 40). This response 15 misses the point. The Complaint needs to show how the alleged failure to warn caused the 16 injury, and simply alleging warnings that Defendants should have included does not satisfy 17 this element. See Sw. Pet Prods., 273 F. Supp. 2d at 1060. The Complaint does say that 18 Plaintiff would not have relied on the Product if she had known the “true facts” about the 19 risks. (Doc. 1 at ¶ 72). But because of the learned intermediary doctrine, a defendant’s duty 20 to warn ends once it provides an adequate warning to the healthcare provider. Watts, 365 21 P.3d at 947. Therefore, the focus of this failure to warn claim is on what Defendants told 22 the health-care provider and whether inadequacies in those warnings caused Plaintiff’s 23 injuries. On this point, the Complaint is silent. It does not name the treating physicians who 24 received the allegedly inadequate warning, nor does it state that these physicians would 25 have acted differently had they received a different warning. Therefore, the Court finds 26 that Complaint fails to allege facts raising a plausible failure to warn claim. See Twombly, 27 550 U.S. at 570. The failure to warn claim, Count III, will be dismissed. 28 / / / 1 iii. Defective Product 2 Defendants argue that Arizona law does not recognize a defective product claim. 3 (Doc. 14 at 16). Indeed, “[t]hree types of defects can result in an unreasonably dangerous 4 product: (1) design defects, (2) manufacturing defects, and (3) informational defects 5 encompassing instructions and warnings.” Gosewisch, 737 P.2d at 379. Plaintiff makes no 6 argument in response. The defective product claim, Count IV, will be dismissed. 7 iv. Design Defect 8 Defendants argue that the Complaint fails to adequately allege a design defect 9 because the Complaint does not allege how the Product caused Plaintiff’s injury. (Doc. 14 10 at 5). A claim of design defect entails a showing that a product’s design was defective, 11 unreasonably dangerous, and that the defect proximately caused the plaintiff’s injury. 12 Barnes v. Sandoz Crop Prot. Corp., 938 P.2d 95, 97 (Ariz. Ct. App. 1997); Vineyard v. 13 Empire Mach. Co., Inc., 581 P.2d 1152, 1155 (Ariz. Ct. App. 1978). 14 Plaintiff argues that the Complaint adequately pleads how the Product’s design 15 caused her injuries. (Doc. 18 at 3). She cites two paragraphs in the Complaint. One states 16 “a large subset of the population” that received the Product suffers from an adverse immune 17 response. (Doc. 1 at ¶ 21). The other states that the Product is prone to failure and caused 18 injury to Plaintiff. (Id. at ¶ 27). The Complaint does not, however, state that Plaintiff 19 suffered from an adverse immune response or otherwise describe how the Product 20 implanted in Plaintiff failed. The most detailed pleadings about Plaintiff, found in the first 21 three paragraphs, only show that the Plaintiff is domiciled in Arizona, that she was 22 implanted with the Product in 2006, and that in 2019 she “underwent vaginal mesh 23 revision/excision, posterior repair, and enterocele repair surgery, at Banner Gateway 24 Medical Center . . . .” (Id. at ¶¶ 2, 3). But these allegations, and all the rest, simply fail to 25 show how the Product caused this Plaintiff’s specific injury. The design defect claim, 26 Count V, will be dismissed. And with that, the Court notes, the Complaint fails to state any 27 of its strict liability claims. 28 / / / 1 c. Negligence 2 The Complaint’s negligence claims include counts of negligence, negligent 3 misrepresentation, negligent infliction of emotional distress, and gross negligence. (Doc. 1 4 at ¶¶ 89–94, 166–74, 217–21). Defendants argue that if the Complaint fails to state a claim 5 for strict liability, it necessarily cannot state a claim in negligence. (Doc. 14 at 9). The 6 Court agrees. See Gomulka v. Yavapai Mach. & Auto Parts, Inc., 745 P.2d 986, 990 (Ariz. 7 Ct. App. 1987) (“If [a plaintiff] cannot prove his case in strict liability, he cannot prove it 8 in negligence either.”). As explained above, the Complaint fails to allege causation: how 9 the Product, its design, or a failure to warn caused Plaintiff’s injury. Causation is an 10 essential element to negligence claims. Keck v. Jackson, 593 P.2d 668 (Airz. 1979) (noting 11 that a claim for negligent infliction of emotional distress requires a showing of causation); 12 Dinsmoor v. City of Phoenix, 468 P.3d 745, 749 (Ariz. Ct. App 2020) (stating that claims 13 for negligence and gross negligence require a causal connection between the alleged breach 14 and injury); KB Home Tucson, Inc. v. Charter Oak Fire Ins. Co., 340 P.3d 405, 411 (Ariz. 15 Ct. App. 2014) (stating that negligent misrepresentation claims are governed by the 16 principles of negligence). Therefore, all of the Complaint’s negligence claims, Counts I, 17 IX, X, and XIV, will be dismissed. 18 d. Fraud 19 The Complaint’s fraud claims include common law fraud, fraudulent concealment, 20 and constructive fraud. (Doc. 1 at ¶¶ 120–65). Defendants argue that the Complaint fails 21 to meet Federal Rule of Civil Procedure 9(b)’s heightened pleading standard for fraud 22 allegations. (Doc. 14 at 14). Plaintiff’s Response repeats her legal conclusion that 23 Defendants committed fraud, but she does not specifically argue that the Complaint alleges 24 fraud with particularity. (Doc. 18 at 11–14). 25 To state a fraud claim with particularity, a complaint must include “an account of 26 the ‘time, place, and specific content of the false representations as well as the identities of 27 the parties to the misrepresentations.’” Swartz, 476 F.3d at 764 (citation omitted). The 28 Complaint generally alleges that Defendants fraudulently misrepresented the Product’s 1 characteristics to Plaintiff, her physicians, healthcare providers, and the Food and Drug 2 Administration (“FDA”). (Doc. 1 at ¶¶ 67, 85). The only documents mentioned, the 3 Product’s brochures and instructions for use, are quoted as saying that the Product’s known 4 complications are “rare” and “small.” (Id. at ¶ 26). Beyond this, nothing in the Complaint 5 details the specific content of those documents, when they were made, nor the identities of 6 the key parties, such as Plaintiff’s physicians, who received the alleged misrepresentations. 7 It is enough to say that the Complaint fails to allege fraud with particularity, and so those 8 claims, Counts VI, VII, and VIII, will be dismissed. 9 e. Consumer Protection Laws 10 The Complaint alleges that Defendant violated Arizona’s consumer protection laws, 11 but it does not specify which laws in particular. (Doc. 1 at ¶¶ 198–216). Defendants note 12 this lack of specificity in their Motion. (Doc. 14 at 15). They argue that even under 13 Arizona’s Consumer Fraud Act, the claim would still fail to allege the circumstances giving 14 rise to fraud with particularity as Plaintiff would be required to do under Rule 9(b). (Id.) 15 Plaintiff confirms in its Response that it is bringing its claim under Arizona’s Consumer 16 Fraud Act. (Doc. 18 at 14). Because Count XIII is essentially a fraud claim, it will be 17 dismissed, just as the other fraud claims were dismissed, for failing to allege facts with 18 particularity. See Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003) (“It 19 is established law, in this circuit and elsewhere, that Rule 9(b)'s particularity requirement 20 applies to state-law causes of action.”). 21 f. Warranties 22 The Complaint alleges a breach of both implied and express warranty. (Id. at ¶¶ 23 175–97). Defendants argue that an implied warranty claim is not available under Arizona 24 products liability law when a complaint also brings a claim of strict liability. (Doc. 14 at 25 11–26) (citing Scheller v. Wilson Certified Foods, Inc., 559 P.2d 1074, 1076 (Ariz. Ct. 26 App. 1977) (“[In Arizona] the theory of liability under implied warranty has been merged 27 into the doctrine of strict liability in tort, so that it is on this latter doctrine that the plaintiff's 28 claim must stand or fall.”); Hearn v. R.J. Reynolds Tobacco Co., 279 F. Supp. 2d 1096, 1 1102 (D. Ariz. 2003)). The Court agrees. The implied warranty claim, Count XII, will be 2 dismissed. 3 An express warranty, under Arizona statute, is made when a seller makes an 4 affirmation or promise to the buyer which relates to the good being sold. A.R.S. § 47-2313. 5 Advertisements may give rise to express warranties. See Eck v. Helene Curtis Indus., Inc., 6 453 P.2d 366, 369 (Ariz. Ct. App. 1969). Still, the focus of the inquiry is on what 7 affirmations were specifically made from the seller to the buyer. Martin v. Medtronic, Inc., 8 63 F. Supp. 3d 1050, 1060 (D. Ariz. 2014); Arvizu v. Medtronic Inc., 41 F. Supp. 3d 783, 9 793 (D. Ariz. 2014); Ramirez v. Medtronic Inc., 961 F. Supp. 2d 977, 1001 (D. Ariz. 2013). 10 Defendants argue the Complaint’s express warranty claim fails because it does not 11 identify the affirmations made to Plaintiff. (Doc. 14 at 11). Plaintiff responds by citing to 12 where the Complaint alleges that Defendants marketed and promoted the Product as “safe” 13 and “minimally invasive,” thus creating an express warranty. (Docs. 18 at 11; 1 at ¶¶ 20, 14 23, 24). Plaintiff argues in her Response that, because the Product injured her, the Product 15 was not safe and so violated the express warranty. (Doc. 18 at 11). 16 The Complaint alleges that Defendants represented the Product’s potential 17 complications as “rare” and “small.” (Doc. 1 at ¶ 26). This shows Defendants did not 18 warrant that the Product would be perfectly safe. And, without further allegations 19 describing the facts of Plaintiff’s particular injuries, it is not clear whether the injuries fell 20 outside of the forewarned complications. Again, the Complaint does not explain what 21 injury Plaintiff suffered from the Product. It only states that she “underwent vaginal mesh 22 revision/excision, posterior repair, and enterocele repair surgery . . . .” (Id. at ¶ 3). Without 23 alleging facts showing the particular injury Plaintiff received from the Product, the 24 Complaint cannot show that Defendants breached its express warranty. Therefore, the 25 express warranty claim, Count XI, will be dismissed. 26 g. Unjust Enrichment 27 The Complaint brings a claim for unjust enrichment. (Doc. 1 at ¶¶ 222–26). Unjust 28 enrichment is an equitable remedy, and “[t]o recover on a claim for unjust enrichment, a 1 claimant must show (1) an enrichment, (2) an impoverishment, (3) a connection between 2 the two, (4) the absence of justification for the enrichment and impoverishment and (5) the 3 absence of any remedy at law.” Mousa v. Saba, 218 P.3d 1038, 1045 (Ariz. Ct. App. 2009). 4 As noted above, the Complaint fails to make factual allegations that the Product caused 5 Plaintiff’s injury. The Complaint, therefore, does not adequately allege a connection 6 between Defendants’ enrichment (profits from the Product) and Plaintiff’s impoverishment 7 (injuries from the Product). The unjust enrichment claim, Count XV, will be dismissed. 8 h. Punitive Damages 9 Finally, the Complaint brings a claim for punitive damages. (Doc. 1 at ¶¶ 227–42). 10 Under Arizona law, manufacturers are not liable for punitive damages if the product was 11 approved by a government agency. A.R.S. § 12-689(A)(1). Defendants argue that the 12 Product was subject to FDA approval, and, therefore, punitive damages are not available. 13 (Doc. 14 at 16). Plaintiff argue that, because she alleges Defendants fraudulently withheld 14 material information from the FDA, their claim for punitive damages falls under a statutory 15 exception. (Doc. 18 at 15). Under this exception, punitive damages are available if a 16 manufacturer “[i]ntentionally, and in violation of applicable regulations as determined by 17 final action of the government agency, withheld from or misrepresented to the government 18 agency information material to the approval or maintaining of approval of the product . . . 19 and the information is relevant to the harm that the claimant allegedly suffered.” A.R.S. § 20 12-689(B)(2). In addition to the fact that the Complaint fails to allege fraud with 21 particularity, the Complaint also fails to allege that the FDA determined by final action that 22 Defendants withheld or misrepresented information relevant to the Product’s approval. The 23 statutory exception does not apply, and the claim for punitive damages, Count XVII, will 24 be dismissed. 25 IV. Conclusion 26 Because the Complaint fails to state any cause of action, it will be dismissed in its 27 entirety. 28 / / / 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. 14) is 3|| GRANTED. 4 IT IS FURTHER ORDERED that Plaintiff's Complaint (Doc. 1) is dismissed 5 || with leave to file a First Amended Complaint within thirty (30) days of the date this Order □□ is entered; 7 IT IS FINALLY ORDERED that if Plaintiff does not file does not file a First 8 || Amended Complaint within thirty (30) days of the date this Order is entered, the Clerk of Court shall dismiss this action without further order of this Court. 10 Dated this 2nd day of November, 2020. 11 12 Ye □□ 13 norable' Diang4. Huretewa 14 United States District Fudge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-12-