1 WO 2 3 4 5
9 Cynthia Elena Estrada, No. CV-23-00501-TUC-CKJ
10 Plaintiff, ORDER
11 v.
12 Odyssey Services Incorporated,
13 Defendant. 14 15 Plaintiff filed this action on November 9, 2023, alleging an employment 16 discrimination case against Defendant. On February 8, 2024, the Court allowed Plaintiff to 17 proceed informa pauperis without payment of filing fees. The Court explained pleading 18 deficiencies, dismissed the action sua sponte, with leave to amend the Complaint by March 19 1, 2024. On July 8, 2024, after Plaintiff failed to file an Amended Complaint, the Court 20 dismissed the action without prejudice pursuant to the February 8, 2024, Order and closed 21 the case. On July 24, 2024, Plaintiff filed a Motion to Reinstate the case. 22 The Court reinstates the case only because the motion for reinstatement is almost a 23 timely request for reconsideration. See LRCIV. 7.2(g)(2) (allowing 14 days to file motion 24 for reconsideration). The Court would normally allow the opposing party an opportunity 25 to be heard, id. but the case remains dismissed, until an Amended Complaint is filed in 26 accordance with the Court’s Order issued on February 8, 2024. Accordingly, Defendant 27 has not been served or answered in the action. There may also be reason to consider the 28 Motion for Reinstatement a motion under Fed. R. Civ. P. 60(b)(1) to set aside the Judgment 1 for excusable neglect if Plaintiff is able to document that her mental health condition during 2 the relevant time period precluded her from complying with the Court’s February 8 Order. 3 The Court finds this inquiry unnecessary, however, because it reinstates the action under 4 LRCIV 7.2(g)(2) and grants Plaintiff 30 days to file an Amended Complaint. 5 The Court warns Plaintiff that failing to file an Amended Complaint to cure the 6 pleading deficiencies as explained in the February 8, 2024, Order shall result in dismissal 7 of the action, with prejudice pursuant to Fed. R. Civ. P. 41(b). Continued failure to 8 prosecute this case and noncompliance with the directives of the Court will warrant 9 dismissal with prejudice meaning dismissal will be an adjudication on the merits. See 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 11 F.2d 1258, 1260-61 (9th Cir.1992) (determining whether to dismiss a claim for failure to 12 prosecute or failure to comply with a court order requires consideration of the following 13 factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need 14 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 15 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their 16 merits). This action has been pending without being served on Defendant. Fed. R. Civ. P 17 4(m) (requiring service within 90 days of filing the complaint). Without immediate 18 prosecution of the case by Plaintiff, the risk of prejudice to the Defendant, the public’s 19 interest in expeditious resolution of litigation, and the Court’s need to manage its docket 20 will outweigh the public’s interest favoring disposition of cases on their merits. 21 Accordingly, 22 IT IS ORDERED that the Motion for Reinstatement (Doc. 7) is GRANTED. 23 IT IS FURTHER ORDERED that the Order dismissing the action on July 8, 2024 24 (Doc. 6) is VACATED. 25 IT IS FURTHER ORDERED that the Clerk of the Court shall return this case to 26 the Court’s active docket. 27 IT IS FURTHER ORDERED that the Plaintiff shall have 30 days to comply with 28 the directives set out in the Court’s February 8, 2024, Order (attached). 1 IT IS FURTHER ORDERED that the Plaintiffs failure to file an Amended || Complaint by October 1, 2024, shall result in dismissal of this action with prejudice. NO 3 || FURTHER EXTENSIONS OF TIME SHALL BE GRANTED without medical evidence 4|| supporting any assertions of Plaintiff's mental health condition as a basis for exception. 5 Dated this 31st day of August, 2024. 6 Ce LE Aaegamses 8 Honorable Cin . Jofgenson United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 WO 2 3 4 5
9 Cynthia Elena Estrada, No. CV-23-00501-TUC-CKJ
10 Plaintiff, ORDER
11 v.
12 Odyssey Services Incorporated,
13 Defendant. 14 15 On November 9, 2023, Plaintiff lodged an affidavit of inability to pay costs or give 16 security for the commencement of this action, and it appears that she meets the in forma 17 pauperis requirements of 28 U.S.C. §1915. 18 Plaintiff's Complaint states that she seeks relief for violations of Title VII of the 19 Civil Rights Act of 1964 based on age discrimination. In order to prove a prima facie claim 20 of Title VII discrimination based on disparate treatment and satisfy the first step of the 21 McDonnell Douglas test,1 the plaintiff must show that: (a) she belonged to a protected 22 class; (b) she was qualified for her job; (c) she was subjected to an adverse employment 23
24 1 Disparate treatment occurs where an employer treats a particular person less favorably than others because of a protected trait. McDonnell Douglas Corp. v. Green, 411 U.S. 25 792, 802 (1973) created a burden shifting framework for making a case of discrimination: 26 “If established, the prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff.” Dominguez-Curry v. Nevada Transp. 27 Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005). Then, the burden shifts to the employer “to 28 articulate a legitimate, nondiscriminatory reason for its action.” Id. 1 action; and (d) similarly situated employees not in her protected class received more 2 favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) (citing Kang v. U. 3 Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002)). 4 Rule 8 of the Federal Rules of Civil Procedure provides that the pleading (the 5 Complaint) shall contain “a short and plain statement of the claim showing that the pleader 6 is entitled to relief.” Fed. R. Civ. P.8(a)(2). The purpose of Rule 8 is to prevent vague and 7 ambiguous claims and ensure that defendants will be able to frame a responsive pleading 8 (Answer). 9 It is Plaintiff's obligation to provide the grounds of her entitlement to relief, and this 10 requires more than labels and conclusions, and a formulaic recitation of the elements of a 11 cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). At 12 the pleading stage, the Plaintiff must allege enough facts, if taken as true, to suggest that a 13 claim exists.
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1 WO 2 3 4 5
9 Cynthia Elena Estrada, No. CV-23-00501-TUC-CKJ
10 Plaintiff, ORDER
11 v.
12 Odyssey Services Incorporated,
13 Defendant. 14 15 Plaintiff filed this action on November 9, 2023, alleging an employment 16 discrimination case against Defendant. On February 8, 2024, the Court allowed Plaintiff to 17 proceed informa pauperis without payment of filing fees. The Court explained pleading 18 deficiencies, dismissed the action sua sponte, with leave to amend the Complaint by March 19 1, 2024. On July 8, 2024, after Plaintiff failed to file an Amended Complaint, the Court 20 dismissed the action without prejudice pursuant to the February 8, 2024, Order and closed 21 the case. On July 24, 2024, Plaintiff filed a Motion to Reinstate the case. 22 The Court reinstates the case only because the motion for reinstatement is almost a 23 timely request for reconsideration. See LRCIV. 7.2(g)(2) (allowing 14 days to file motion 24 for reconsideration). The Court would normally allow the opposing party an opportunity 25 to be heard, id. but the case remains dismissed, until an Amended Complaint is filed in 26 accordance with the Court’s Order issued on February 8, 2024. Accordingly, Defendant 27 has not been served or answered in the action. There may also be reason to consider the 28 Motion for Reinstatement a motion under Fed. R. Civ. P. 60(b)(1) to set aside the Judgment 1 for excusable neglect if Plaintiff is able to document that her mental health condition during 2 the relevant time period precluded her from complying with the Court’s February 8 Order. 3 The Court finds this inquiry unnecessary, however, because it reinstates the action under 4 LRCIV 7.2(g)(2) and grants Plaintiff 30 days to file an Amended Complaint. 5 The Court warns Plaintiff that failing to file an Amended Complaint to cure the 6 pleading deficiencies as explained in the February 8, 2024, Order shall result in dismissal 7 of the action, with prejudice pursuant to Fed. R. Civ. P. 41(b). Continued failure to 8 prosecute this case and noncompliance with the directives of the Court will warrant 9 dismissal with prejudice meaning dismissal will be an adjudication on the merits. See 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 11 F.2d 1258, 1260-61 (9th Cir.1992) (determining whether to dismiss a claim for failure to 12 prosecute or failure to comply with a court order requires consideration of the following 13 factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need 14 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 15 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their 16 merits). This action has been pending without being served on Defendant. Fed. R. Civ. P 17 4(m) (requiring service within 90 days of filing the complaint). Without immediate 18 prosecution of the case by Plaintiff, the risk of prejudice to the Defendant, the public’s 19 interest in expeditious resolution of litigation, and the Court’s need to manage its docket 20 will outweigh the public’s interest favoring disposition of cases on their merits. 21 Accordingly, 22 IT IS ORDERED that the Motion for Reinstatement (Doc. 7) is GRANTED. 23 IT IS FURTHER ORDERED that the Order dismissing the action on July 8, 2024 24 (Doc. 6) is VACATED. 25 IT IS FURTHER ORDERED that the Clerk of the Court shall return this case to 26 the Court’s active docket. 27 IT IS FURTHER ORDERED that the Plaintiff shall have 30 days to comply with 28 the directives set out in the Court’s February 8, 2024, Order (attached). 1 IT IS FURTHER ORDERED that the Plaintiffs failure to file an Amended || Complaint by October 1, 2024, shall result in dismissal of this action with prejudice. NO 3 || FURTHER EXTENSIONS OF TIME SHALL BE GRANTED without medical evidence 4|| supporting any assertions of Plaintiff's mental health condition as a basis for exception. 5 Dated this 31st day of August, 2024. 6 Ce LE Aaegamses 8 Honorable Cin . Jofgenson United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 WO 2 3 4 5
9 Cynthia Elena Estrada, No. CV-23-00501-TUC-CKJ
10 Plaintiff, ORDER
11 v.
12 Odyssey Services Incorporated,
13 Defendant. 14 15 On November 9, 2023, Plaintiff lodged an affidavit of inability to pay costs or give 16 security for the commencement of this action, and it appears that she meets the in forma 17 pauperis requirements of 28 U.S.C. §1915. 18 Plaintiff's Complaint states that she seeks relief for violations of Title VII of the 19 Civil Rights Act of 1964 based on age discrimination. In order to prove a prima facie claim 20 of Title VII discrimination based on disparate treatment and satisfy the first step of the 21 McDonnell Douglas test,1 the plaintiff must show that: (a) she belonged to a protected 22 class; (b) she was qualified for her job; (c) she was subjected to an adverse employment 23
24 1 Disparate treatment occurs where an employer treats a particular person less favorably than others because of a protected trait. McDonnell Douglas Corp. v. Green, 411 U.S. 25 792, 802 (1973) created a burden shifting framework for making a case of discrimination: 26 “If established, the prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff.” Dominguez-Curry v. Nevada Transp. 27 Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005). Then, the burden shifts to the employer “to 28 articulate a legitimate, nondiscriminatory reason for its action.” Id. 1 action; and (d) similarly situated employees not in her protected class received more 2 favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) (citing Kang v. U. 3 Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002)). 4 Rule 8 of the Federal Rules of Civil Procedure provides that the pleading (the 5 Complaint) shall contain “a short and plain statement of the claim showing that the pleader 6 is entitled to relief.” Fed. R. Civ. P.8(a)(2). The purpose of Rule 8 is to prevent vague and 7 ambiguous claims and ensure that defendants will be able to frame a responsive pleading 8 (Answer). 9 It is Plaintiff's obligation to provide the grounds of her entitlement to relief, and this 10 requires more than labels and conclusions, and a formulaic recitation of the elements of a 11 cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). At 12 the pleading stage, the Plaintiff must allege enough facts, if taken as true, to suggest that a 13 claim exists. This does not impose a probability requirement at the pleading stage, it simply 14 calls for enough facts to raise a reasonable expectation that discovery will reveal evidence 15 to support the claim. Id. “[F]actual allegations must be enough to raise a right to relief 16 above the speculative level, on the assumption that all the allegations in the complaint are 17 true even if doubtful in fact.” Id. at 555-556. 18 Plaintiff alleges she was terminated, harassed, “not promoted” and suffered 19 “retaliation for reporting to corporate office.” She does not allege facts to support her claim 20 of age discrimination, such as her age or explain how younger employees were preferred. 21 She fails to factually support the claims of termination, failure to promote, or retaliation. 22 The Complaint is missing factual allegations as to who did what and when, and what 23 resulted from any such alleged conduct. The Court cannot discern what protected action 24 she took when she contacted “corporate offices” or what Defendant allegedly did in 25 retaliation for that conduct. She does not identify who did what, which is critical to hold a 26 corporate defendant liable under Title VII concepts of vicarious liability. See Vance v. Ball 27 State Univ., 570 U.S. 421, 424 (2013) (“[A]n employee is a ‘supervisor’ for purposes of 28 vicarious liability under Title VII if he or she is empowered by the employer to take 1 tangible employment actions against the victim.”) The administrative claim she filed with 2 the Equal Employment Opportunity Commission (EEOC) claim may not be incorporated 3 by reference.2 It too is missing critical factual allegations that are needed to state a claim 4 under Rule 8. 5 All factual allegations are taken as true and construed in the light most favorable to 6 the nonmoving party, Iolab Corp. v. Seaboard Sur. Co., 15 F.3d 1500, 1504 (9th Cir.1994), 7 and all reasonable inferences are to be drawn in favor of that party as well. Jacobsen v. 8 Hughes Aircraft, 105 F.3d 1288, 1296 (9th Cir.1997). Dismissal is appropriate if the facts 9 alleged do not state a claim that is “’plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 10 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility is not attained if the facts are 11 merely consistent with his claims. Twombly, 550 U.S. at 545, 557. “Where a complaint 12 pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the 13 line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 14 (quoting Twombly, 550 U.S. at 557). 15 “District judges have no obligation to act as counsel or paralegal to pro se litigants” 16 because this would undermine district judges’ role as impartial decisionmakers. Pliler v. 17 Ford, 542 U.S. 225, 231 (2004); see also Lopez v. Smith, 203 F.3d 1122, 1131 n.13 (9th 18 Cir. 2000) (declining to decide whether the court was required to inform a litigant of 19 pleading deficiencies under the PLRA, but noting that the pro se litigant, unskilled in the 20 law, is far more prone to making errors in pleading than the person who has the benefit of 21 being represented by counsel) (citing Noll, 809 F.2d at 1448). So, while the Court may not 22 serve as advocate for the pro se litigant nor act as legal advisor, the Court will explain the 23 pleading deficiencies and affords the pro se litigant an opportunity to amend the Complaint. 24 Noll at 1448. 25 In drafting her Amended Complaint, the Plaintiff must include sufficient factual 26 details so that this Court can determine each claim existing against the Defendant, and the
27 2 “Ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss, but there are some circumstances when written instruments attached to pleadings 28 may be considered part of the pleading. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003), see Fed.R.Civ.P. 10(c). 1 Defendant can determine the conduct it is being charged with responsibility for relevant to 2 each particular grievance. Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968). 3 Accordingly, 4 IT IS ORDERED granting the Application to Proceed In Forma Pauperis (Doc. 5 2), without prepayment of fees and costs or security therefor, and that the Complaint be 6 filed. 7 IT IS FURTHER ORDERED that the Clerk of the Court shall date the Complaint 8 as filed on the day that the Clerk of the Court received the petition. Cooper v. City of 9 Ashland, 871 F.2d 104, 105 (9th Cir. 1989). 10 IT IS FURTHER ORDERED dismissing the Complaint, sua sponte. 11 IT IS FURTHER ORDERED that Plaintiff has leave to file an Amended 12 Complaint by March 1, 2024. 13 IT IS FURTHER ORDERED that THE AMENDED COMPLAINT MUST BE 14 CLEARLY DESIGNATED AS "AMENDED COMPLAINT" ON THE FACE OF THE 15 DOCUMENT. The Amended Complaint must state specific allegations against a proper 16 named Defendant and identify who participated in which activities alleged in the 17 Complaint; and state what injury, if any, Plaintiff suffered as a result of the activities of 18 each Defendant. THE AMENDED COMPLAINT MUST BE RETYPED OR 19 REWRITTEN IN ITS ENTIRETY AND MAY NOT INCORPORATE ANY PART OF 20 THE ORIGINAL COMPLAINT OR ADMINISTRATIVE (EEOC) FILING BY 21 REFERENCE. Local Rule 7.1(c). 22 IT IS FURTHER ORDERED that the Clerk of the Court is directed to DISMISS 23 all claims and to close this case, without further notice to Plaintiff, if Plaintiff fails to file 24 the Amended Complaint by March 1, 2024. 25 ///// 26 ///// 27 ///// 28 ///// 1 IT IS FURTHER ORDERED that the Plaintiff shall not have any ex parte 2 || communications with this Court, including telephone calls and letters. 3 Dated this 7th day of February, 2024. 4 Ce LE Aaegamses 6 Honorable Cin . J6fgenson , United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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