Delacruz v. Tanimura & Antle, Inc.

Opinion

1 2 3 7 8 DANIEL DELACRUZ, Case No. 23-cv-03034-VKD

9 Plaintiff, ORDER GRANTING DEFENDANT 10 v. QUIRARTE'S MOTION TO DISMISS SECOND AMENDED COMPLAINT 11 TANIMURA & ANTLE, INC., et al., Re: Dkt. No. 56 Defendants. 12

13 14 Plaintiff Daniel Delacruz, who is representing himself, filed this action against defendants 15 Tanimura & Antle, Inc. (“TAI”), Mike Antle, and Carmen Ponce (collectively, “TAI defendants”) 16 and Claudia Quirarte, asserting, among other things, unlawful disability discrimination under the 17 Americans with Disabilities Act (“ADA”). Dkt. No. 1. Since the filing of this lawsuit, the Court 18 has granted defendants’ respective motions to dismiss Mr. Delacruz’s claims (Dkt. Nos. 28, 29, 19 52, 53), and Mr. Delacruz has amended his complaint twice, asserting federal claims only against 20 Ms. Quirarte (Dkt. Nos. 34, 55). In its most recent order, the Court dismissed the federal claims 21 asserted against Ms. Quirarte, with leave to amend only as to Mr. Delacruz’s claim under the 22 Rehabilitation Act. Dkt. No. 52. The Court declined to exercise supplemental jurisdiction over 23 any of Mr. Delacruz’s state law claims, unless and until he pleads a viable federal claim for relief. 24 Id. 25 Ms. Quirarte now moves pursuant to Rule 12(b)(6) to dismiss Mr. Delacruz’s second 26 amended complaint (“SAC”).1 Dkt. Nos. 56, 61. Mr. Delacruz opposes the motion. Dkt. No. 59. 27 1 The Court deemed the motion suitable for determination without oral argument. See Civil L.R. 7- 2 1(b); Dkt. No. 63. Upon consideration of the moving and responding papers, the Court grants Ms. 3 Quirarte’s motion to dismiss the Rehabilitation Act claim without leave to amend.2 5 According to the SAC, Mr. Delacruz was diagnosed in 1992 with Fabry Disease, a rare 6 hereditary enzyme deficiency disorder, for which he receives enzyme replacement therapy 7 (“ERT”) “on a regular basis to prevent chronic organ failure and death.” Dkt. No. 55 ¶¶ 13, 15. 8 Ms. Quirarte is identified as a registered nurse employed by Central Coast Nephrology, the 9 medical facility where Mr. Delacruz received ERT. Id. ¶¶ 6, 23, 37. Defendant TAI is a produce 10 company that employed Mr. Delacruz from about April 1988 to July 1996. See Dkt. No. 55 ¶¶ 7, 11 13 & Ex. 1 at ECF 2. Defendant Mike Antle is identified as an “owner, employee, and a Vice 12 President” of TAI. Dkt. No. 55 ¶ 8. Defendant Carmen Ponce is identified as TAI’s “Vice 13 President of Human Resources and Assistant General Counsel[.]” Id. ¶ 9. 14 In 1998, Mr. Delacruz sued TAI and Mr. Antle in state court for race discrimination. Id. 15 ¶ 14. The parties resolved the matter and entered into a settlement agreement. Id. & Ex. 1. 16 According to Mr. Delacruz, as part of that settlement, the TAI defendants agreed not to harass 17 him. Id. Mr. Delacruz claims that the TAI defendants have breached that agreement by, among 18 other things, “disseminat[ing] to various people, including Claudia Quirarte, falsehoods including 19 that [he] ‘filed a lot of complaints that went nowhere’ and that [he] is ‘not disabled.’” Dkt. No. 55 20 ¶ 29. 21 Mr. Delacruz alleges that his “hereditary disorder was well known to [Mr.] Antle and [Ms.] 22 Ponce.” Id. ¶ 19. For example, he says that on one occasion during his employment with TAI, 23 Rick Antle (identified as TAI’s president, now deceased) was in a break room eating one of TAI’s 24 salad products with heavy dressing. See id. ¶ 21. When Mr. Delacruz commented, “[B]e careful, 25 that stuff can give you a heart attack,” Rick Antle reportedly replied, “[Y]ou’re the one that needs 26 to worry about that stuff!” Dkt. No. 34 ¶¶ 21, 22. According to Mr. Delacruz, Rick Antle’s 27 1 response was a gloating reference to his enzyme deficiency disorder and an indication that Rick 2 Antle believed that he would outlive Mr. Delacruz. Id. ¶ 22. 3 The SAC further alleges that years later, in 2018, Rick Antle passed away. Id. ¶ 22. In 4 2019, during one of Mr. Delacruz’s ERT procedures, Mr. Delacruz “recited Rick Antle’s 5 malevolent gloat made towards [Mr. Delacruz] and the irony of Rick Antle’s death[.]” Id. ¶ 23. 6 Ms. Quirarte allegedly overheard Mr. Delacruz’s comment and repeated it to defendants Mike 7 Antle and Ms. Ponce. Id. Mr. Delacruz alleges that this “further enraged the visceral contempt 8 that [Mr.] Antle and [Ms.] Ponce have towards [him]” and caused them “to interfere with [Mr. 9 Delacruz]’s health services to fulfill the death threats that [he] had been receiving from TAI’s 10 employees[.]” Id. ¶ 24. 11 Mr. Delacruz alleges that, in addition to telling Ms. Quirarte falsehoods about him, Mr. 12 Antle and Ms. Ponce “solicited [Ms.] Quirarte to obtain a sample of [Mr. Delacruz]’s blood for 13 nefarious purposes,” e.g., “for analysis to fraudulently dispute [Mr. Delacruz]’s disability of Fabry 14 Disease.” Id. ¶ 29. Mr. Antle and Ms. Ponce allegedly “also solicited [Ms.] Quirarte to interfere 15 with [Mr. Delacruz]’s ERT procedures by deceitfully leaving out the medication from [his] 16 [intravenous] IV bags,” “caus[ing] [Mr. Delacruz]’s various organ functions to deteriorate over 17 time including his central nervous system resulting in tremors to his hands and loss of dexterity.” 18 Id. ¶ 32. 19 The SAC alleges “[i]n the alternative,” that Mr. Antle’s and Ms. Ponce’s “reckless 20 dissemination of falsehoods . . . motivated [Ms.] Quirarte to interfere sua sponte with [Mr. 21 Delacruz]’s ERT medication” and “to obtain a sample of [Mr. Delacruz]’s blood and deliver it to 22 [Mr.] Antle and [Ms.] Ponce sua sponte to dispute [Mr. Delacruz]’s disability.” Id. ¶ 33. Mr. 23 Delacruz says that during one of his medical procedures, in which Ms. Quirarte removed an IV 24 needle from his arm, she “deliberately released the pressure from [his] vein over the injection site 25 and maneuvered the needle out in an exaggerated arching path causing the needle to drip a stream 26 of blood onto the medical pillow” that was supporting his arm. Id. ¶ 39. Ms. Quirarte reportedly 27 never did this before. Id. ¶ 40. Rather than comply with protocols requiring that the pillow 1 in plain view of [Mr. Delacruz],” Ms. Quirarte reportedly “took the disposable pillow case stained 2 with [Mr. Delacruz]’s blood back to her work area located in a small room about twenty feet 3 opposite to where [Mr. Delacruz] was seated and placed it on a shelf.” Id. ¶ 41. According to the 4 complaint, Ms. Quirarte previously “never deviated from the proper disposal protocol of used 5 disposable medical pillow cases.” Id. The SAC further alleges that Ms. Quirarte violated Mr. 6 Delacruz’s privacy rights by giving the blood-stained pillowcase “to [Mr.] Antle and [Ms.] Ponce 7 to use for their nefarious purpose of fraudulently disputing [Mr. Delacruz]’s disability.” Id. ¶ 42. 8 Additionally, the SAC alleges that “[Ms.] Quirarte would harass [Mr. Delacruz] with 9 contemptuous and snide remarks including ‘[Y]ou don’t look disabled.’” Id. ¶ 37. During an 10 April 2021 ERT procedure, Ms. Quirarte reportedly “contemptuously star[ed]” at Mr. Delacruz 11 and “snidely remarked . . . ‘Look, he’s going to start complaining!’” Id. ¶ 38. Mr. Delacruz says 12 that “[w]henever possible, [he] would change his schedule for his ERT procedures so that a 13 different nurse would prepare his medication in an attempt to avoid [Ms.] Quirarte.” Id. Ms. 14 Quirarte, however, allegedly “would also adjust her work schedule to remain as [Mr. Delacruz]’s 15 nurse.” Id. 16 The SAC further alleges that after Mr. Antle and Ms. Ponce “disseminated to [Ms.] 17 Quirarte their fraudulent dispute” regarding his disability, and Ms. Quirarte made a “snide 18 comment to [Mr. Delacruz] that he did not look disabled,” Ms. Quirarte “deceitfully left out the 19 ERT medication from [his] IV bags,” “caus[ing] [his] various organ functions to deteriorate over 20 time including his central nervous system resulting in tremors to his hands and loss of dexterity.” 21 Id. ¶ 43. Additionally, Mr. Delacruz alleges that around June 26, 2019, Ms. Quirarte prepared his 22 IV bag “that appeared abnormal and foamy, which had never occurred in over 600 ERT treatments 23 that [he] has received over the past 25 years.” Id. ¶ 44. But when Mr. Delacruz inquired about it, 24 Ms. Quirarte reportedly “responded with an excuse that ‘it just needs to settle.’” Id. ¶¶ 44, 45. 25 Suspicious that Ms. Quirarte had “tampered [with] or adulterated his medication,” Mr. Delacruz 26 says that he photographed the IV bag and later showed it to a nephrologist at the facility who is 27 familiar with ERT medication, as well as to a representative of the company that developed the 1 appeared abnormal. Id. ¶¶ 48-50. He asserts that “[n]umerous months later, [his] blood labs 2 began to show discrepancies in his organ function levels,” which “perplexed” his nephrologist “as 3 to what was causing the downward trend because the ERT had stabilized [his] organ functions for 4 over twenty years.” Id. ¶ 47. 5 Mr. Delacruz says that in the meantime, he became more suspicious of Ms. Quirarte and 6 began to seat himself closer to her work area so he could observe her while she prepared his 7 medication. Id. ¶ 48. However, Mr. Delacruz says that his view was partially blocked by Ms. 8 Quirarte’s back, and she “took notice of [his] new seating arrangement and would constantly look 9 over her shoulder and use her peripheral vision to see if [he] was observing her prepare [his] ERT 10 medication.” Id. 11 Mr. Delacruz says that he told his nephrologist about Ms. Quirarte’s “suspicious behavior,” 12 “insisted on changing nurses for his ERT medical procedures,” and later “changed his medical 13 services provider as an added precaution.” Id. ¶¶ 51, 52. However, Ms. Quirarte allegedly 14 accessed Mr. Delacruz’s medical file to obtain the name of his new medical services provider and 15 then “telephoned [Mr. Delacruz] to inform him that she was seeking employment with the same 16 medical services provider and wanted to continue as [his] nurse.” Id. ¶ 53. Mr. Delacruz says he 17 was “alarmed” and changed his medical services provider yet again “so that [Ms.] Quirarte would 18 not be able to continue as his nurse and to prevent [her] from accessing his medical file from his 19 new medical services provider.” Id. 20 In his original complaint, Mr. Delacruz asserted six claims for relief against all defendants, 21 four of which were based on federal law: disability discrimination and retaliation under the ADA, 22 42 U.S.C. § 12101, et seq. and various implementing regulations (claim 1); civil rights violations, 23 42 U.S.C. § 1983 (claim 2); breach of contract, 42 U.S.C. § 1981 (claim 3); and request for “Order 24 to Show Cause re Specific Performance and Injunctive Relief,” 42 U.S.C. § 1981 (claim 4). See 25 Dkt. No. 1. The remaining two claims for relief were based on California state law: disability 26 discrimination under the California Unruh Civil Rights Act (Cal. Civ. Code § 51, et seq.) and the 27 Disabled Persons Act (Cal. Govt. Code § 12948) (claim 5); and violation of Article I, § 1 of the 1 The Court granted Ms. Quirarte’s Rule 12(b)(6) motion to dismiss Mr. Delacruz’s 2 complaint. All of Mr. Delacruz’s federal claims for relief were dismissed, and he was given leave 3 to amend only his ADA claim. See Dkt. No. 29. The Court declined to exercise supplemental 4 jurisdiction over Mr. Delacruz’s state law claims “unless and until a viable federal ADA claim is 5 adequately pled.” Id. at 11. Those state law claims were dismissed without prejudice. 6 Mr. Delacruz filed his first amended complaint, asserting claims against Ms. Quirarte for 7 disability discrimination under ADA Title II (claim 1), disability discrimination under Section 504 8 of the Rehabilitation Act of 1973 (claim 2), and violation of his privacy rights under Article I, § 1 9 of the California Constitution (claim 3). The Court granted Ms. Quirarte’s Rule 12(b)(6) motion 10 to dismiss the ADA claim without leave to amend. Dkt. No. 52. The Court dismissed Mr. 11 Delacruz’s Rehabilitation Act claim with leave to amend. Id. The Court declined to exercise 12 supplemental jurisdiction over Mr. Delacruz’s state law claim “unless and until a viable federal 13 Rehabilitation Act claim is adequately pled” and dismissed the state law claim without prejudice. 14 Id. at 10. 15 In his SAC, Mr. Delacruz reasserts two claims against Ms. Quirarte: (1) a claim for 16 disability discrimination under the Rehabilitation Act and (2) a state law claim for violation of his 17 constitutional right to privacy. Dkt. No. 55. 18 Ms. Quirarte moves to dismiss all of Mr. Delacruz’s claims, arguing that the SAC fails to 19 state sufficient facts to support any plausible claim for relief. 21 A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal 22 sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 23 Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts 24 alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 25 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be 26 taken as true and construed in the light most favorable to the claimant. Id. 27 However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 1 allegations must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Moreover, the Court is not required to 3 “‘assume the truth of legal conclusions merely because they are cast in the form of factual 4 allegations.’” Prager Univ. v. Google LLC (“Prager I”), No. 17-CV-06064-LHK, 2018 WL 5 1471939, at *3 (N.D. Cal. Mar. 26, 2018) (quoting Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th 6 Cir. 2011) (per curiam)). Nor does the Court accept allegations that contradict documents attached 7 to the complaint or incorporated by reference, Gonzalez v. Planned Parenthood of L.A., 759 F.3d 8 1112, 1115 (9th Cir. 2014), or that rest on “allegations that are merely conclusory, unwarranted 9 deductions of fact, or unreasonable inferences,” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 10 (9th Cir. 2008). Although pro se pleadings are liberally construed and held to a less stringent 11 standard than those drafted by lawyers, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a 12 complaint (or portion thereof) should be dismissed for failure to state a claim if it fails to set forth 13 “enough facts to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570. 14 Documents appended to or incorporated into the complaint or which properly are the 15 subject of judicial notice may be considered along with the complaint when deciding a Rule 16 12(b)(6) motion. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018); Coto 17 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). A court may take judicial notice of 18 facts that are “not subject to reasonable dispute” because they are “generally known” or “can be 19 accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” 20 Fed. R. Evid. 201(b); see also Khoja, 899 F.3d at 999. Thus, a court properly may take judicial 21 notice of matters of public record, but cannot take judicial notice of disputed facts contained 22 within such records. Khoja, 899 F.3d at 999 (citing Lee v. City of Los Angeles, 250 F.3d 668, 689 23 (9th Cir. 2001)). 25 A. Section 504 of the Rehabilitation Act 26 The Rehabilitation Act prohibits discrimination in federally-funded programs and 27 provides, in relevant part, that “[n]o otherwise qualified individual with a disability . . . shall, 1 benefits of, or be subjected to discrimination under any program or activity receiving Federal 2 financial assistance[.]” 29 U.S.C. § 794(a). To state a claim under section 504 of the 3 Rehabilitation Act, a plaintiff must allege facts showing that “(1) he is an ‘individual with a 4 disability’; (2) he is ‘otherwise qualified’ to receive the benefit; (3) he was denied the benefits of 5 the program solely by reason of his disability; and (4) the program receives federal financial 6 assistance.” Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 7 1997) (cleaned up). 8 Ms. Quirarte’s motion to dismiss focuses on the third and fourth elements of a 9 Rehabilitation Act claim. She argues that Mr. Delacruz’s claim must be dismissed because the 10 SAC fails to state sufficient facts supporting a plausible claim that he experienced discrimination 11 “solely by reason of” his disability. She also argues that Mr. Delacruz’s Rehabilitation Act claim 12 fails, in any event, because the Rehabilitation Act applies only to programs and entities and does 13 not apply to individuals. Dkt. No. 56 at 5-6; Dkt. No. 61 at 2-3. 14 With respect to the third element, Mr. Delacruz responds by pointing to the SAC’s 15 allegations regarding Ms. Quirarte’s comments about his disability (or lack thereof) and her 16 handling of his ERT medication, suggesting that it may reasonably be inferred that his disability 17 was the sole reason he was deprived of the benefits of receiving health services. Dkt. No. 59 at 3. 18 For purposes of this motion, the Court assumes, without deciding, that the SAC’s allegations are 19 sufficient to support an inference that the alleged discrimination was “solely” based on Mr. 20 Delacruz’s Fabry Disease. However, his Rehabilitation Act claim fails because the SAC does not 21 allege any facts demonstrating that Ms. Quirarte is a “recipient” of federal financial assistance 22 within the meaning of the Rehabilitation Act. See 29 U.S.C. § 794(a). 23 “Congress limited the scope of § 504 to those who actually ‘receive’ federal financial 24 assistance because it sought to impose § 504 coverage as a form of contractual cost of the 25 recipient’s agreement to accept the federal funds.” U.S. Dep’t of Transp. v. Paralyzed Veterans of 26 Am., 477 U.S. 597, 605 (1986). “By limiting coverage to recipients, Congress imposes the 27 obligations of § 504 upon those who are in a position to accept or reject those obligations as a part 1 those who receive the aid, but does not extend as far as those who benefit from it.” Id. at 607. 2 The SAC alleges that Central Coast Nephrology received federal financing through various 3 sources—namely, health insurance payments (i.e., Medicare and the Affordable Care Act) and the 4 Paycheck Protection Program. See Dkt. No. 55 ¶¶ 68-70. The SAC further alleges that as a nurse 5 working at Central Coast Nephrology, Ms. Quirarte “was financially compensated from the 6 payments received” by Central Coast Nephrology from each of these sources. See id. ¶¶ 71-72. 7 Mr. Delacruz argues that these allegations are sufficient to plead the fourth element of a 8 Rehabilitation Act claim regarding receipt of federal financial assistance. See Dkt. No. 59 at 8-9. 9 However, Mr. Delacruz has not sued Central Coast Nephrology. The Rehabilitation Act only 10 prohibits discrimination by a “program or activity” receiving “Federal financial assistance.” 29 11 U.S.C. § 794(a). The Rehabilitation Act’s definitions of “program or activity” do not include 12 individuals. See id. § 794(b). Courts have held that individuals do not receive financial assistance 13 for purposes of the Rehabilitation Act. See Becker v. Oregon, 170 F. Supp. 2d 1061, 1067 (D. Or. 14 2001) (“The overwhelming majority of reported cases addressing this issue, including cases from 15 this district, have held that because individuals do not ‘receive financial assistance for purposes of 16 the Rehabilitation Act,’ there is no individual liability under the RA.”) (citing cases); see also Doe 17 v. Wirta, No. 19-cv-00587-JCS, 2019 WL 13472128, at *4 (N.D. Cal. Apr. 10, 2019), report and 18 recommendation adopted, 2019 WL 13472129 (N.D. Cal. May 1, 2019) (same). 19 While the SAC purports to name Ms. Quirarte “in her individual and official capacity” 20 (Dkt. No. 55 ¶ 6), Mr. Delacruz’s allegations indicate that he is suing her personally in her 21 capacity as a nurse employed by Central Coast Nephrology. See Dkt. No. 55 ¶¶ 23, 37, 71, 72. 22 For purposes of the Rehabilitation Act, “[e]mployees of the recipients of federal financial 23 assistance are not in themselves the recipients of such assistance.” Grzan v. Charter Hosp. of Nw. 24 Indiana, 104 F.3d 116, 120 (7th Cir. 1997), abrogated on other grounds as stated in Amundson v. 25 Wisc. Dep’t of Health Servs., 721 F.3d 871, 874 (7th Cir. 2013). Employment by a “program or 26 activity” that is itself “the recipient of federal funds through the Medicaid and Medicare programs 27 . . . . is not enough to implicate [the employee] under section 504” of the Rehabilitation Act. Id. at 1 2123690, at *2 (N.D. Cal. July 23, 2007) (“Section 504(a) places obligations only on those who 2 actually receive federal funding. Those merely receiving a salary from a federal agency are not 3 included.”). Even assuming, without deciding, that the federal Paycheck Protection Program 4 constitutes “Federal financial assistance” within the meaning of the Rehabilitation Act, the 5 purpose of that Program (implemented by the Small Business Administration) was to provide 6 loans to small businesses.3 See generally Ramey & Schwaller, LLP v. Zions Bancorp. N.A., 71 7 F.4th 257, 258 (5th Cir. 2023) (stating that “Congress enacted the Paycheck Protection Program 8 (PPP) to help small businesses keep workers employed during the crisis” by providing loans 9 “made by participating private lenders but guaranteed by the federal government.”); In re Gateway 10 Radiology Consultants, P.A., 983 F.3d 1239, 1247 (11th Cir. 2020) (stating that Paycheck 11 Protection Program “is directed at small businesses” and “is designed to give loans to eligible 12 businesses[.]”); In re Vestavia Hills, Ltd., 630 B.R. 816, 839 (S.D. Cal. Apr. 6, 2021) (recognizing 13 “that the broad purpose of the CARES Act and the P[aycheck] P[rotection] P[rogram] was to 14 quickly deliver funds to businesses struggling as a result of the pandemic so that they could 15 continue to operate and pay their employees[.]”). There are no facts alleged indicating that Ms. 16 Quirarte was anything other than an employee who was paid a wage or salary, or that she was in a 17 position to either accept or reject any “Federal financial assistance” reportedly received by Central 18 Coast Nephrology. See Grzan, 104 F.3d at 120 (“Absent specific allegations to the contrary, we 19 can only assume that as an employee who merely was paid a wage or salary, Greer was never in 20 such a position and thus was never a recipient of federal funds.”). 21 Even liberally construing the SAC, none of Mr. Delacruz’s allegations plausibly establish 22 that Ms. Quirarte may be sued under the Rehabilitation Act. Accordingly, Ms. Quirarte’s motion 23 to dismiss the Rehabilitation Act claim is granted. 24 B. Leave to Amend 25 Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “should be 26

27 3 While an individual meeting certain requirements could be eligible to receive a Paycheck 1 freely given when justice so requires,” and “the court must remain guided by the underlying 2 purpose of Rule 15 . . . to facilitate decision on the merits, rather than on the pleadings or 3 technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotations and 4 citations omitted). “The decision of whether to grant leave to amend nevertheless remains within 5 the discretion of the district court,” which may deny leave to amend if allowing amendment would 6 unduly prejudice the opposing party, cause undue delay, or be futile, or if the party seeking 7 amendment has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th 8 Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 9 Mr. Delacruz has already amended his complaint twice. The allegations of the SAC are 10 not materially different from those in his prior pleadings. The Court finds no basis to conclude 11 that there are additional facts that could be alleged in a further amendment to cure the deficiency 12 in his Rehabilitation Act claim. Accordingly, the Court finds that further amendment would be 13 futile and dismisses the Rehabilitation Act claim without leave to amend. 14 C. State Law Claims 15 Where a federal court has original jurisdiction over a claim pursuant to federal law, it also 16 has supplemental jurisdiction over related state law claims. 28 U.S.C. § 1367(a). A district court 17 “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it 18 has original jurisdiction.” 28 U.S.C. § 1367(c)(3). As Mr. Delacruz’s sole federal claim is 19 dismissed without leave to amend, the Court declines to exercise supplemental jurisdiction over 20 any of the state law claims asserted in the SAC. Those claims are dismissed without prejudice to 21 Mr. Delacruz asserting them in an appropriate state court. 23 Based on the foregoing, Ms. Quirarte’s motion to dismiss the SAC is granted as follows: 24 1. Mr. Delacruz’s Rehabilitation Act claim is dismissed, without leave to amend. 25 2. Mr. Delacruz’s state law claim against Ms. Quirarte is dismissed, without prejudice to 26 assert the claim in an appropriate state court. 27 /// 1 3. The Clerk shall enter judgment accordingly and close this file. 3 Dated: July 25, 2024 4

Virginia K. DeMarchi 6 United States Magistrate Judge 7 8 9 10 11 12

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