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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


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 verdict.

(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 19 OSC.



  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 cancelling.
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) at 2:4-28.

  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 appropriate.

  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 following paragraph:

  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.



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