United States District Court, N.D. California
August 5, 2004.
BETSY P. ELGAR, Plaintiff,
ALAMEDA HOUSING AUTH., et al., Defendant.
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
JUDGMENT IN A CIVIL CASE
O Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury has rendered its
(x) Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that judgment is entered in
favor defendants and against plaintiff. ORDER
Defendant Harbor Island Apartments (Harbor Island) has moved to
dismiss or strike pro se plaintiff Betsy P. Elgar's second amended
complaint. Doc # 33. For the following reasons, Harbor Island's
motion is GRANTED. The court DISMISSES this action against all
defendants and closes the case.
On November 22, 2002, pro se plaintiff Betsy P. Elgar filed a
complaint against defendants "Alameda Housing Authority" and
Harbor Island, alleging harassment and discrimination. Doc # 1. Due to an apparent confusion on plaintiff's part regarding the
appropriate agency to name in the complaint, summons were issued
to both the Alameda County Housing Authority (the County) and the
Housing Authority of the City of Alameda (the City). The City
answered the complaint, while the County moved to dismiss
pursuant to Rule 12(b)(6). Docs ## 6, 9. Plaintiff failed to
oppose the motion in a timely fashion, so the court issued an
order to show cause (OSC) why the court should not treat the
motion as unopposed. Doc # 15. Plaintiff responded to the OSC by
letter, and the court granted her additional time in which to
file an opposition. Docs ## 16, 17. After receipt of plaintiff's
opposition (Doc # 20), the court granted the County's motion on
the basis that plaintiff's complaint contained no allegations of
misconduct on the County's part. Doc # 22.
Subsequently, plaintiff filed her first amended complaint (FAC)
on July 21, 2003. Doc # 23. Little activity took place for
several months, with the exception of plaintiff's filing of
several letters. See Docs ## 24, 25. On April 7, 2004, plaintiff
filed a second amended complaint (SAC). Doc # 27. The SAC is
identical in every way to the FAC, with the exception of a letter
attached to the SAC in which plaintiff apparently seeks to remind
the court about the existence of the complaint. Plaintiff also
continued to file letters with the court. Docs ## 28, 29, 30, 31.
The City filed an answer to the SAC on June 2, 2004. Doc # 32.
On June 10, 2004, Harbor Island filed a motion to dismiss or to
strike the SAC, which was noticed for an August 5, 2004, hearing.
Doc # 33.
Throughout the months of June and July, the court continued to receive letters from plaintiff. Docs ## 35, 36, 37.
The court, however, failed to receive a timely opposition or
statement of nonopposition from plaintiff. On July 19, 2004,
therefore, the court issued an order to show cause (OSC) why
Harbor Island's motion to dismiss should not be treated as
unopposed. Doc # 38. On August 3, 2004, the court received a
letter from plaintiff that appears to be responsive to the July
As a threshold matter, plaintiff's August 2 letter is
insufficient to discharge the OSC why Harbor Island's motion
should not be treated as unopposed. Initially, the court notes
that plaintiff did not file the letter as a document in her case
file, nor did she attach any proof of service of the letter upon
opposing counsel. Plaintiff must officially file documents such
as pleadings and responses to court orders, rather than simply
mailing them to the court's chambers. Plaintiff must also serve
copies of such documents on defendants and should provide proof
of such service to the court.
Even assuming that plaintiff's response to the OSC had been
served and filed in an appropriate fashion, the substance of that
response is insufficient. The court specifically instructed
plaintiff in the July 19 OSC that her response should address the
reasons she failed to comply with the local rules. 7/19/04 OSC
(Doc # 38) at 2:24-26. The court also instructed plaintiff to address the arguments raised by Harbor Island in its motion,
including whether: (1) plaintiff was authorized to file the SAC;
(2) the SAC contains proper jurisdictional allegations; and (3)
the SAC fails to state a claim or is hopelessly uncertain. Id at
2:26-3:3. The court cautioned plaintiff that if her response did
not address these matters, the court would treat Harbor Island's
motion as unopposed. Id at 3:3-7.
Plaintiff's August 2 letter does not address the areas of
concern the court articulated in the July 19 OSC. Plaintiff fails
to provide any intelligible explanation for her failure to
respond to the motion to dismiss in a timely fashion. The only
excuse that plaintiff seems to give is the following:
I know the Harbor Island Apartments had extension of
respond [sic]. Because it sound wrongful and seems a
lie [sic]. I apoliginized [sic] but I misunderstood
the letter. I thought that I would get my hearing
this August 5, 2004 at 2:00 pm definitely without
No, I as a plaintiff's [sic] does not mean to a
motion to dismiss [sic] because it is overdue.
8/2/04 OSC Response at 1. The court is not certain exactly what
plaintiff means by this, but it appears that her excuse is that
she misunderstood her obligation to oppose the motion. This is an
insufficient excuse, especially in light of the fact that the
court has twice advised plaintiff regarding her obligations under
Civ LR 7-3. See 7/19/04 OSC at 1:28-2:18; 3/26/03 OSC (Doc # 15)
Plaintiff also fails to address in any meaningful fashion the
three alleged weakness in the SAC. Plaintiff uses most of her
letter to describe various activities that she asserts were
wrongful. But despite the court's instructions in the July 19
OSC, plaintiff does not respond at all to Harbor Island's substantive
arguments regarding the sufficiency of her SAC. Plaintiff's
descriptions of the allegedly wrongful behavior simply are not
responsive to the court's July 19 OSC.
Accordingly, the court finds that plaintiff has failed to
discharge the July 19 OSC. Harbor Island's motion will thus be
treated as unopposed.
The court now proceeds to the merits of Harbor Island's motion.
Harbor Island points out a number of flaws in plaintiff's SAC,
all of which lead the court to conclude that dismissal is
As a preliminary matter, the court notes that plaintiff did not
have leave from court to file her SAC. FRCP 15(a) allows a party
to amend her pleadings once as a matter of right at any time
before a responsive pleading is served; otherwise, the party may
amend only when given leave by the court to do so or when given
written consent by the adverse party to do so. On January 14,
2003, the City answered plaintiff's original complaint. Doc # 9.
Plaintiff also filed her FAC (with the court's permission) on
July 21, 2003. Doc # 23. Plaintiff has thus exhausted her right
to amend as a matter of right and must obtain leave either from
the court or from defendants to file further amendments. As
plaintiff obtained no such leave, the filing of the SAC was
procedurally improper. Of course, this makes little practical
difference, as the SAC is identical to the FAC, with the
exception of the letter attached to the SAC.
In any event, plaintiff's SAC suffers from much graver defects
than her procedural violation of Rule 15(a). First, plaintiff's
complaint does not include adequate jurisdictional allegations.
Plaintiff predicates jurisdiction in this case on 28 U.S.C. § 1332,
which outlines the requirements for diversity jurisdiction. When
a plaintiff premises jurisdiction on diversity, the complaint
must include allegations regarding both the diversity of
citizenship and the proper amount in controversy. See Rilling v.
Burlington Northern RR Co, 909 F.2d 399, 400-01 (9th Cir 1990).
The court will not infer allegations supporting federal
jurisdiction. Shipping Financial Services Corp v. Drakos,
140 F.3d 129, 131 (2d Cir 1998).
Judged by this standard, there are several problems with
plaintiff's jurisdictional allegations. First, plaintiff alleges
that the amount in controversy exceeds $50,000, in excess of
interest and costs. SAC at 2 ¶ 2. The diversity jurisdiction
statute, however, presently requires that the amount in
controversy exceed $75,000, exclusive of interest and costs.
See § 1332(a). Second, plaintiff appears to allege that
defendants are all citizens of California, as she alleges that
they are corporations incorporated in and having their principal
places of business in California. SAC at 1-2 ¶ 2. Plaintiff also
alleges, however, that she too is a citizen of California. Id at
1 ¶ 1. Because diversity jurisdiction requires that plaintiff be
from a different state from defendants (see § 1332(a)(1)),
plaintiff therefore cannot allege diversity as a basis for
federal subject matter jurisdiction. Given these infirmities, the court does not appear to have
jurisdiction over this case at this present time. Subject matter
jurisdiction is an issue the court may raise sua sponte (see
Rule 12(h)(3)), and plaintiff's failure adequately to plead diversity
jurisdiction undermines her complaint as to all defendants.
Accordingly, the appropriate course of action is to dismiss
plaintiff's action with respect to all defendants.
Furthermore, as Harbor Island points out, plaintiff's complaint
fails to state a claim on which relief can be granted. FRCP 8(a),
which states that plaintiff's pleadings must contain "a short and
plain statement of the claim showing that the pleader is entitled
to relief," provides the standard for judging whether such a
cognizable claim exists. Lee v. City of Los Angeles,
250 F.3d 668, 679 (9th Cir 2001). This standard is a liberal one that does
not require plaintiff to set forth all the factual details of his
claim; rather, all that the standard requires is that plaintiff
give defendant fair notice of the claim and the grounds for
making that claim. Leatherman v. Tarrant County Narcotics Intell
& Coord Unit, 507 U.S. 163, 168 (1993) (citing Conley v. Gibson,
355 U.S. 41, 47 (1957)). To this end, plaintiff's complaint should
set forth "either direct or inferential allegations with respect
to all the material elements of the claim". Wittstock v. Van
Sile, Inc, 330 F.3d 899, 902 (6th Cir 2003). It is improper "[to]
assume that [plaintiff] can prove facts that [she] has not
alleged." Associated General Contractors of California, Inc v.
California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Under even the most liberal interpretation of Rule 8(a),
plaintiff's SAC is woefully insufficient. After her allegations regarding jurisdiction and venue, plaintiff includes the
4. ff. (CHARGING ALLEGATIONS)
SAC at 2 ¶ 4. No factual allegations or causes of actions are
listed. In the next paragraph, plaintiff proceeds to pray for
$2,000,000 in damages. Id at 2, Prayer.
Plaintiff's failure to allege any facts whatsoever, much less
to list the cause of action upon which she seeks relief,
certainly deprives defendants of any meaningful notice of the
claim or the grounds on which the claim is based. Even were the
court to treat Harbor Island's motion as opposed, the allegations
of wrongful behavior in plaintiff's August 2 letter would not
remedy this infirmity. The court may not consider statements in
an opposition when such statements do not appear as allegations
in the complaint. See Car Carriers v. Ford Motor Co,
745 F.2d 1101, 1107 (9th Cir 1984). Plaintiff's SAC must be dismissed on
this basis as well.
The court must also determine whether plaintiff should be given
leave to amend her complaint to remedy the above-mentioned
defects. Although leave to amend should ordinarily be granted
freely, the court does not believe leave to amend is proper in
this instance. When a complaint is dismissed on jurisdictional
grounds, leave to amend may be granted if the defect may be cured
by remedying jurisdictional allegations. See Whitmire v. Vitcus
Ltd, 212 F.3d 885, 888 (5th Cir 1991). But a plaintiff should not
be allowed to amend to cure defects in jurisdictional facts or to
substitute a new cause of action on which to premise
jurisdiction. Id at 887-88; see also Schwarzer, Tashima &
Wagstaffe, Federal Civil Procedure Before Trial (2004) at §
8.101. Given that the lack of jurisdiction is premised on
inadequate jurisdictional facts with respect to diversity,
plaintiff does not appear to have a basis upon which to amend.
Nor should plaintiff be permitted at this point to add a federal
cause of action for purposes of obtaining jurisdiction. See
Whitmire, 212 F.3d at 888. Granting plaintiff leave to amend her
complaint would not be proper.
For the foregoing reasons, the court GRANTS Harbor Island's
motion to dismiss (Doc # 33). Accordingly, plaintiff's complaint
is DISMISSED without leave to amend. The clerk is ordered to
close the file and terminate all pending motions.
IT IS SO ORDERED.
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