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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 AMANDA JOHNSON, CASE NO. 2:23-cv-01813-LK 11 Plaintiff, ORDER VACATING THE 12 v. JUDGMENT, DISMISSING THE AMENDED COMPLAINT, AND 13 NORDSTROM, GRANTING LEAVE TO AMEND 14 Defendant. 15
16 This matter comes before the Court on Plaintiff Amanda Johnson’s amended complaint, 17 Dkt. No. 9, which she filed after the Court dismissed this case and entered judgment, Dkt. Nos. 7– 18 8. For the reasons set forth below, the Court vacates the judgment, considers and dismisses Ms. 19 Johnson’s amended complaint for lack of subject matter jurisdiction, and grants Ms. Johnson leave 20 to file a second amended complaint. 21 I. BACKGROUND 22 Ms. Johnson filed her complaint in November 2023, alleging a breach of contract claim 23 against Nordstrom and two of its employees based on their alleged failure to issue her a refund for 24 three pairs of returned shoes. Dkt. No. 3 at 5–7. The complaint alleged jurisdiction based on 1 diversity. Id. at 4. On January 19, 2024, the Court dismissed Ms. Johnson’s complaint without 2 prejudice for failure to establish subject matter jurisdiction because the complaint did not show 3 that the parties were diverse or that the requisite amount in controversy was met. Dkt. No. 4 at 2– 4 3. Because Ms. Johnson is proceeding pro se, the Court allowed her leave to amend and stated that
5 unless a proper amended complaint was filed “within twenty-one (21) days of the date of this 6 Order, this action will be dismissed with prejudice.” Id. at 4. The 21-day period expired on 7 February 9, 2024. 8 On February 14, 2024, the Court dismissed the action with prejudice because Ms. Johnson 9 did not file an amended complaint or request an extension of time to do so. Dkt. No. 7 at 1–2. The 10 Court entered judgment on February 15, 2024, Dkt. No. 8, then received an amended complaint 11 from Ms. Johnson on February 20, 2024, Dkt. No. 9 at 1. Ms. Johnson states that she did not 12 receive the Court’s order until February 2, 2024, and her amended complaint was postmarked 13 February 9, 2024. Id. at 6, 12. Ms. Johnson filed a notice of appeal to the Ninth Circuit Court of 14 Appeals, which the Court received on February 27, 2024. Dkt. No. 10 at 1–2.
15 II. DISCUSSION 16 A. The Court Vacates the Judgment under Rule 60(b)(1) 17 “The Supreme Court has instructed the federal courts to liberally construe the ‘inartful 18 pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting 19 Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). Following that instruction, the Court 20 liberally construes Ms. Johnson’s amended complaint and her assertion that she belatedly received 21 the Court’s order as a motion for relief from the judgment under Federal Rule of Civil Procedure 22 60(b)(1). See, e.g., Navarrette v. Wren, No. 3:22-cv-0006-LL-AHG, 2023 WL 5154508, *4 at n.1 23
24 1 (S.D. Cal. Aug. 9, 2023) (liberally construing pro se filing as a Rule 60 motion for relief from 2 judgment), report and recommendation adopted, 2023 WL 8434023 (Dec. 5, 2023).1 3 “Rule 60(b)(1) of [the Federal Rules of] Civil Procedure provides that a court may relieve 4 a party or a party’s legal representative from a final judgment on the basis of mistake, inadvertence,
5 surprise, or excusable neglect.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000). 6 “Excusable neglect ‘encompass[es] situations in which the failure to comply with a filing deadline 7 is attributable to negligence,’ and includes ‘omissions caused by carelessness.’” Lemoge v. United 8 States, 587 F.3d 1188, 1192 (9th Cir. 2009) (internal citations omitted) (quoting Pioneer Inv. Serv. 9 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388, 394 (1993)). “[T]he determination of 10 whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger 11 of prejudice to the opposing party; (2) the length of the delay and its potential impact on the 12 proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” 13 Bateman, 231 F.3d at 1223–24. “These four enumerated factors, while not an exclusive list, 14 provide a framework with which to determine whether missing a filing deadline constitutes
15 ‘excusable’ neglect.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). 16 When this case was dismissed, it was still in the screening stage, the Court had not yet 17 entered a case schedule, and Defendant Nordstrom had not been served.2 Under these 18 circumstances, Nordstrom will not suffer any prejudice if the case were reopened. Although 19 reopening the case and allowing Ms. Johnson one more chance to establish the Court’s subject 20 21
22 1 Under Federal Rule of Appellate Procedure 4(a)(4), if a party files a notice of appeal after the court enters a judgment but before it disposes of a motion for relief from the judgment under Rule 60, “the notice becomes effective to appeal 23 a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.” 2 The amended complaint dismisses the claims against the individual employees, leaving only Nordstrom as a 24 defendant. Dkt. No. 9 at 1, 11. 1 matter jurisdiction as set forth below will delay the case’s resolution, “[p]rejudice requires greater 2 harm than simply that relief would delay resolution of the case.” Lemoge, 587 F.3d at 1196. 3 Ms. Johnson filed her amended complaint less than a week after the Court entered judgment 4 and less than two weeks after the lapsed filing deadline, Dkt. Nos. 8–9, so the delay and impact on
5 the proceedings is minimal. See, e.g., Navarrette, 2023 WL 5154508, at *3 (finding that the delay 6 was “minimal” when the plaintiff filed a motion to set aside the judgment one day after the court 7 dismissed the case and eight days after the missed objections deadline). There is no evidence of 8 bad faith; Ms. Johnson—who lives in Alabama—avers that she did not receive the Court’s order 9 until February 2, 2024, and she then acted quickly and mailed her amended complaint one week 10 later. Dkt. No. 9 at 6. Although Ms. Johnson was careless in mailing her amended complaint on 11 February 9, 2024 rather than filing it on that date as required, the short delay does not show bad 12 faith in light of her pro se status and the time needed to draft her amended complaint. The Court 13 therefore finds that the factors weigh in favoring of granting relief under Rule 60(b)(1), and that 14 the delay in filing the amended complaint was the result of excusable neglect. Finally, the Court
15 notes that “[p]ublic policy favors disposition of cases on their merits[.]” Odegaard v. VCA Crown 16 Hill Animal Hosp., No. C09-0740-JLR, 2010 WL 1875807, at *3 (W.D. Wash. May 10, 2010). 17 Accordingly, the Court vacates the judgment and order dismissing this case. Dkt. Nos. 7–8. 18 B. Ms. Johnson Still Fails to Establish this Court’s Subject Matter Jurisdiction 19 Having vacated the judgment, the Court considers Ms.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 AMANDA JOHNSON, CASE NO. 2:23-cv-01813-LK 11 Plaintiff, ORDER VACATING THE 12 v. JUDGMENT, DISMISSING THE AMENDED COMPLAINT, AND 13 NORDSTROM, GRANTING LEAVE TO AMEND 14 Defendant. 15
16 This matter comes before the Court on Plaintiff Amanda Johnson’s amended complaint, 17 Dkt. No. 9, which she filed after the Court dismissed this case and entered judgment, Dkt. Nos. 7– 18 8. For the reasons set forth below, the Court vacates the judgment, considers and dismisses Ms. 19 Johnson’s amended complaint for lack of subject matter jurisdiction, and grants Ms. Johnson leave 20 to file a second amended complaint. 21 I. BACKGROUND 22 Ms. Johnson filed her complaint in November 2023, alleging a breach of contract claim 23 against Nordstrom and two of its employees based on their alleged failure to issue her a refund for 24 three pairs of returned shoes. Dkt. No. 3 at 5–7. The complaint alleged jurisdiction based on 1 diversity. Id. at 4. On January 19, 2024, the Court dismissed Ms. Johnson’s complaint without 2 prejudice for failure to establish subject matter jurisdiction because the complaint did not show 3 that the parties were diverse or that the requisite amount in controversy was met. Dkt. No. 4 at 2– 4 3. Because Ms. Johnson is proceeding pro se, the Court allowed her leave to amend and stated that
5 unless a proper amended complaint was filed “within twenty-one (21) days of the date of this 6 Order, this action will be dismissed with prejudice.” Id. at 4. The 21-day period expired on 7 February 9, 2024. 8 On February 14, 2024, the Court dismissed the action with prejudice because Ms. Johnson 9 did not file an amended complaint or request an extension of time to do so. Dkt. No. 7 at 1–2. The 10 Court entered judgment on February 15, 2024, Dkt. No. 8, then received an amended complaint 11 from Ms. Johnson on February 20, 2024, Dkt. No. 9 at 1. Ms. Johnson states that she did not 12 receive the Court’s order until February 2, 2024, and her amended complaint was postmarked 13 February 9, 2024. Id. at 6, 12. Ms. Johnson filed a notice of appeal to the Ninth Circuit Court of 14 Appeals, which the Court received on February 27, 2024. Dkt. No. 10 at 1–2.
15 II. DISCUSSION 16 A. The Court Vacates the Judgment under Rule 60(b)(1) 17 “The Supreme Court has instructed the federal courts to liberally construe the ‘inartful 18 pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting 19 Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). Following that instruction, the Court 20 liberally construes Ms. Johnson’s amended complaint and her assertion that she belatedly received 21 the Court’s order as a motion for relief from the judgment under Federal Rule of Civil Procedure 22 60(b)(1). See, e.g., Navarrette v. Wren, No. 3:22-cv-0006-LL-AHG, 2023 WL 5154508, *4 at n.1 23
24 1 (S.D. Cal. Aug. 9, 2023) (liberally construing pro se filing as a Rule 60 motion for relief from 2 judgment), report and recommendation adopted, 2023 WL 8434023 (Dec. 5, 2023).1 3 “Rule 60(b)(1) of [the Federal Rules of] Civil Procedure provides that a court may relieve 4 a party or a party’s legal representative from a final judgment on the basis of mistake, inadvertence,
5 surprise, or excusable neglect.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000). 6 “Excusable neglect ‘encompass[es] situations in which the failure to comply with a filing deadline 7 is attributable to negligence,’ and includes ‘omissions caused by carelessness.’” Lemoge v. United 8 States, 587 F.3d 1188, 1192 (9th Cir. 2009) (internal citations omitted) (quoting Pioneer Inv. Serv. 9 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388, 394 (1993)). “[T]he determination of 10 whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger 11 of prejudice to the opposing party; (2) the length of the delay and its potential impact on the 12 proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” 13 Bateman, 231 F.3d at 1223–24. “These four enumerated factors, while not an exclusive list, 14 provide a framework with which to determine whether missing a filing deadline constitutes
15 ‘excusable’ neglect.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). 16 When this case was dismissed, it was still in the screening stage, the Court had not yet 17 entered a case schedule, and Defendant Nordstrom had not been served.2 Under these 18 circumstances, Nordstrom will not suffer any prejudice if the case were reopened. Although 19 reopening the case and allowing Ms. Johnson one more chance to establish the Court’s subject 20 21
22 1 Under Federal Rule of Appellate Procedure 4(a)(4), if a party files a notice of appeal after the court enters a judgment but before it disposes of a motion for relief from the judgment under Rule 60, “the notice becomes effective to appeal 23 a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.” 2 The amended complaint dismisses the claims against the individual employees, leaving only Nordstrom as a 24 defendant. Dkt. No. 9 at 1, 11. 1 matter jurisdiction as set forth below will delay the case’s resolution, “[p]rejudice requires greater 2 harm than simply that relief would delay resolution of the case.” Lemoge, 587 F.3d at 1196. 3 Ms. Johnson filed her amended complaint less than a week after the Court entered judgment 4 and less than two weeks after the lapsed filing deadline, Dkt. Nos. 8–9, so the delay and impact on
5 the proceedings is minimal. See, e.g., Navarrette, 2023 WL 5154508, at *3 (finding that the delay 6 was “minimal” when the plaintiff filed a motion to set aside the judgment one day after the court 7 dismissed the case and eight days after the missed objections deadline). There is no evidence of 8 bad faith; Ms. Johnson—who lives in Alabama—avers that she did not receive the Court’s order 9 until February 2, 2024, and she then acted quickly and mailed her amended complaint one week 10 later. Dkt. No. 9 at 6. Although Ms. Johnson was careless in mailing her amended complaint on 11 February 9, 2024 rather than filing it on that date as required, the short delay does not show bad 12 faith in light of her pro se status and the time needed to draft her amended complaint. The Court 13 therefore finds that the factors weigh in favoring of granting relief under Rule 60(b)(1), and that 14 the delay in filing the amended complaint was the result of excusable neglect. Finally, the Court
15 notes that “[p]ublic policy favors disposition of cases on their merits[.]” Odegaard v. VCA Crown 16 Hill Animal Hosp., No. C09-0740-JLR, 2010 WL 1875807, at *3 (W.D. Wash. May 10, 2010). 17 Accordingly, the Court vacates the judgment and order dismissing this case. Dkt. Nos. 7–8. 18 B. Ms. Johnson Still Fails to Establish this Court’s Subject Matter Jurisdiction 19 Having vacated the judgment, the Court considers Ms. Johnson’s amended complaint and 20 whether it establishes the Court’s subject matter jurisdiction. Ms. Johnson has abandoned her 21 breach of contract claim and now asserts a claim for violation of the Equal Credit Opportunity Act 22 (“ECOA”). Dkt. No. 9 at 8 (alleging that Nordstrom employees discriminated against her based 23 on her race by refusing to issue her a “complete refund for the remaining shoes” she returned to
24 Nordstrom). The ECOA prohibits creditors from discriminating against “any applicant” in credit 1 transactions on the basis of race and other protected categories. 15 U.S.C. § 1691(a). An 2 “applicant” is “any person who applies to a creditor directly for an extension, renewal, or 3 continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an 4 amount exceeding a previously established credit limit.” 15 U.S.C. § 1691a(b).
5 This Court liberally construes pleadings filed by pro se litigants and holds them “to less 6 stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 7 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Still, a court “should 8 ‘not supply essential elements of the claim that were not initially pled.’” Henderson v. Anderson, 9 No. C19-00789-RAJ, 2019 WL 3996859, at *1 (W.D. Wash. Aug. 23, 2019) (quoting Bruns v. 10 Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)). Here, even construing the 11 amended complaint liberally, it does not allege that Ms. Johnson was an applicant for credit with 12 Nordstrom. The claim is wholly insubstantial and frivolous and is alleged solely for the purposes 13 of obtaining jurisdiction, and it thus does not confer subject matter jurisdiction. See Leeson v. 14 Transamerica Disability Income Plan, 671 F.3d 969, 975 (9th Cir. 2012) (noting that courts may
15 dismiss a federal question claim for lack of subject matter jurisdiction when the claim “clearly 16 appears to be immaterial and made solely for the purpose of obtaining jurisdiction” or it is “wholly 17 insubstantial and frivolous” (quoting Bell v. Hood, 327 U.S. 678, 682–83 (1946)). 18 The amended complaint does not establish diversity jurisdiction either. When, as here, the 19 plaintiff files her complaint in federal court, “the sum claimed by the plaintiff controls if the claim 20 is apparently made in good faith.” Naffe v. Frey, 789 F.3d 1030, 1040 (9th Cir. 2015). “It must 21 appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify 22 dismissal.” Id. Ms. Johnson asserts that “the parties are from different states, and the amount in 23 controversy exceeds $400,000.” Dkt. No. 9 at 3. However, she does not explain that amount or
24 provide any basis to believe that the value of the three pairs of shoes in question satisfies the 1 amount in controversy requirement. And although Ms. Johnson asserts that she was “traumatized” 2 by her interactions with Nordstrom employees and suffered resulting health consequences, id. at 3 4–6, she has not stated a claim that would allow her to recover those damages. Therefore, it does 4 not appear that the allegation regarding the amount in controversy is made in good faith. See
5 Christensen v. Nw. Airlines, Inc., 633 F.2d 529, 530-31 (9th Cir. 1980) (per curiam); Young v. 6 Bank of Am., N.A., No. 2:21-CV-9541-SVW-E, 2022 WL 1288224, at *1 (C.D. Cal. Mar. 31, 7 2022), adhered to on reconsideration, No. 2:21-CV-9541-SVW-E, 2022 WL 3013096 (C.D. Cal. 8 May 26, 2022), and appeal dismissed sub nom. Young v. Bank of Am., N.A., No. 22-55428, 2023 9 WL 3124880 (9th Cir. Feb. 8, 2023). The Court thus dismisses the complaint for lack of subject 10 matter jurisdiction. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks 11 subject-matter jurisdiction, the court must dismiss the action.”). 12 Because Ms. Johnson is proceeding pro se and it is not “absolutely clear” that she cannot 13 cure the deficiencies in her amended complaint, the Court grants her one final opportunity to file 14 a complaint that establishes the Court’s subject matter jurisdiction. See Akhtar v. Mesa, 698 F.3d
15 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without leave 16 to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by 17 amendment.” (cleaned up)); Yuzhou Peng v. Microsoft Corp., No. 2:19-CV-639-RAJ, 2019 WL 18 6310558, at *2 (W.D. Wash. Nov. 25, 2019) (leave to amend “must be granted with extreme 19 liberality”). If she fails to timely file an amended complaint correcting the identified deficiencies, 20 the Court will dismiss this action. 21 III. CONCLUSION 22 For the foregoing reasons, the Court VACATES the judgment and order dismissing this 23 case, Dkt. Nos. 7–8, and DISMISSES Ms. Johnson’s amended complaint, Dkt. No. 9, without
24 prejudice for lack of subject matter jurisdiction and with leave to amend. 1 If Ms. Johnson wishes to pursue this matter, she must file a second amended complaint that 2 establishes this Court’s jurisdiction within thirty (30) days of the date of this Order. Ms. Johnson 3 is advised that an amended complaint operates as a complete substitute for an original pleading. 4 See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). For that reason, any amended
5 complaint must clearly identify the defendant(s), the claim(s) asserted, the specific facts that Ms. 6 Johnson believes support each claim, the citizenship of all defendants, and the specific relief 7 requested. If a proper amended complaint is not filed within thirty (30) days of the date of this 8 Order, the Court will dismiss this action and close the case. 9 10 Dated this 8th day of March, 2024. 11 A 12 Lauren King United States District Judge 13 14 15 16 17 18 19 20 21 22 23