The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE [doc. #14] and DIRECTING ENTRY OF JUDGMENT
Plaintiff, initially appearing pro se, filed this action on November 23, 2005, alleging that his employment with the United States Air Force was wrongfully terminated because of his race and was discriminated against based upon his veteran status under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). Plaintiff paid the filing fee and a summons was issued on November 23, 2005.
In his amended complaint filed April 17, 2006, plaintiff brings claims for employment discrimination under Title VII; USERRA; conspiracy; disparate treatment; and intentional infliction of emotional distress. On March 29, 2006, filed a motion for appointment of counsel. On April 25, 2006, the Court denied plaintiff's request for appointment of counsel and noted that the record did not show that plaintiff had served defendant with the summons and complaint in conformity with the Federal Rules of Civil Procedure. The Court ordered plaintiff to show cause why this action should not be dismissed for failure to serve defendant properly.
On May 16, 2006, plaintiff, appearing pro se, filed a statement of good cause and a substitution of counsel: plaintiff is now represented by Joseph Giovanzzi.*fn1 The Court reviewed plaintiff's statement of cause and found that plaintiff's action should proceed. But by permitting this action to go forward, the Court did not foreclose defendant's right to challenge the timing and/or sufficiency of service of process or any other defense(s) that could be applicable.
Defendants now move to dismiss the amended complaint*fn2 for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1); failure to state a claim under Federal Rule of Civil Procedure 12(b)(6); and failure to effect proper service of process on the agency under Federal Rule of Civil Procedure 12(b)(5). Plaintiff opposes the motion. Having fully considered the matters presented, the Court enters the following decision.
The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of New , 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-94 (1998). "Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." . (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). Under Rule 12(b)(1), the Court can dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In this case, Plaintiff bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (stating that the burden of establishing jurisdiction rests on the party asserting it).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this Rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted under Rule 12(b)(6) when the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and matters of which the Court takes judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998).
A complaint is subject to dismissal pursuant to Rule 12(b)(5) for insufficiency of service of process. "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. Service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., , 484 U.S. 97, 104 (1987) (internal quotation marks and citation omitted).
Plaintiff contends he was discriminated against by the United States Air Force because of his race. (Complaint at 2, ¶ 4). Plaintiff was a Master Sergeant in the Air Force Reserves and also was employed full-time by the United States Postal Service. Plaintiff argues that he was forced to retire from the Air Force Reserves because of a disability that he incurred while in the Reserves. It appears that plaintiff seeks to have his voluntary retirement from the Air Force Reserves converted to a medical retirement. (Complaint at 3-4, ¶¶ 13-17).