United States District Court, N.D. California
August 19, 2005.
Jo Whigham, Plaintiff(s),
Greyhound Lines, Inc., Defendant(s).
The opinion of the court was delivered by: BERNARD ZIMMERMAN, Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On June 6, 2005, I dismissed plaintiff Jo Whigham's complaint
against defendant Greyhound Lines, Inc. with leave to
amend.*fn1 On June 15, 2005, plaintiff filed a "Motion for
Response to Missive of Judge Zimmerman & Greyhound Lines Inc.,"
which I will deem to be her amended complaint. Now before me is
defendant's motion to dismiss plaintiff's entire action pursuant
to Federal Rules of Civil Procedure 8, 12(b), and/or 41(b).
Although plaintiff has filed no opposition to defendant's motion,
she appeared before me for a case management conference and
hearing on defendants' motion to strike on August 8, 2005, and
argued fervently, albeit in rambling fashion, in support of her claims. I therefore consider
her claims on the merits.
Plaintiff's amended complaint, construed liberally in her
favor, see Balistreri, 901 F.2d at 699, fails to state a
claim upon which relief may be granted.*fn2 See
Fed.R.Civ.P. 12(b)(6). As best as I understand, plaintiff contends
that she is a large stockholder in defendant, and that problems
with "air quality" at the Denver Station and on the bus from
Denver to Salt Lake City caused her to itch. She asserts that she
had "shortness of breath," and woke up from a sound sleep with
"violent coughing spasms." Finally, she appears to allege that a
Greyhound bus driver "ousted" her "from the company," and that
another driver lied to passengers about the temperature inside
While plaintiff purports to bring a claim under the Fourteenth
Amendment, she has not alleged any facts to show that Greyhound
or its employees were acting as agents of the state. Apao v.
Bank of New York, 324 F.3d 1091, 1093 (9th Cir. 2003) ("The
Fourteenth Amendment . . . shields citizens from unlawful
governmental actions, but does not affect conduct by private
entities."). Merely being open to the public is insufficient to
show state involvement for purposes of the Fourteenth Amendment.
Central Hardware Co. v. NLRB, 407 U.S. 539, 546-47 (1972);
Scott v. Eversole Mortuary, 522 F.2d 1110, 1116 (9th Cir. 1975) ("The fact that a private
business holds itself open to the public cannot be determinative
of the degree of state involvement in its activities.").
Plaintiff also appears to assert a claim under the
Comprehensive Environmental Response, Compensation, and Liability
Act ("CERCLA"), 42 U.S.C. § 9601 et seq. As I noted in my prior
order, "[t]o maintain a cause of action under CERCLA, a plaintiff
must establish: (1) the site in question is a `facility' as
defined in the statute, (2) the defendant is a responsible
person, (3) a release, or threatened release, of a hazardous
substance has occurred, and (4) such release or threatened
release caused the plaintiff to incur response costs." Combined
Counties Police Ass'n v. 55 South Partnership, 1996 WL 521285,
*3 (N.D. Ill. Sept. 11, 1996) (citing Acme Printing Co. v.
Menard, Inc., 881 F. Supp. 1237, 1248 (E.D. Wisc. 1995);
Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co.,
14 F.3d 321 (7th Cir. 1984)); see also U.S. v. Chapman,
146 F.3d 1166, 1169 (9th Cir. 1998). Although plaintiff has alleged that
the site or sites in question constitute a "facility," see
42 U.S.C. § 9601(9), she has failed to allege sufficient facts to
support the other elements of her CERCLA claim. In particular,
plaintiff has not alleged that a release or threatened release of
a "hazardous substance" within the meaning of CERCLA occurred.
See 42 U.S.C. § 9601(14). Nor has she alleged that she incurred
response costs as a result of such a release or threatened
release. See Romeo v. General Electric Corp., 922 F. Supp. 287, 289 (N.D. Cal. 1994) ("A CERCLA claim may not be
maintained absent allegations of at least one type of response
cost cognizable under CERCLA.") (citations and internal quotation
marks omitted). I therefore find that the amended complaint fails
to state a claim under CERCLA.
Plaintiff has not properly alleged any other claims that can be
addressed in federal court. As defendant's motion to dismiss is
unopposed, the amended complaint fails to state a claim upon
which relief may be granted, and my efforts in court to get Ms.
Whigham to articulate facts which might provide a basis for
relief were unsuccessful, IT IS HEREBY ORDERED that defendant's
motion to dismiss is GRANTED and plaintiff's complaint is
DISMISSED WITH PREJUDICE. The hearing currently scheduled for
September 7, 2005, is vacated. Plaintiff's motions to have a say
in policy if it's necessary (Docket Entry # 5); to order
Greyhound to have purer air quality (Docket Entry # 6); to be
able to fire if necessary (Docket Entry # 7); to strike Lombardi,
Loper & Conant, LLP as attorneys for Greyhound (Docket Entry #
10); to have the Chicago station remove that morbid artwork from
the premises and repaint the station (Docket Entry # 11); and to
have Greyhound Washington, D.C. station New York City check
passenger luggage(s) for a fee (Docket Entry # 19) are DENIED