The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Doc. No. 30]
On August 13, 2007, Defendant Donald C. Winter's ("Defendant") motion to dismiss second amended complaint or in the alternative for summary judgment, came on regularly for oral argument. Dennis M. Grady, appeared for Essie L. Saints ("Plaintiff"), along with Cindy Cipriani on behalf of Defendant. This Court, after hearing the oral argument of counsel, ordered that the parties provide supplemental briefing, which was filed on August 20, 2007 by Plaintiff and August 24, 2007 by Defendant. After careful consideration of the pleadings and relevant exhibits, this Court GRANTS Defendant's motion to dismiss second amended complaint.
Plaintiff, appearing pro se, filed this action on April 15, 2005, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and breach of contract common law claims. Plaintiff alleged racial discrimination and EEO retaliation, as well as breach of a previous settlement agreement. Cplt. at 2.
On February 7, 2006, this Court issued an order to show cause for dismissal under Civ.LR 41.1. Doc. No. 4. No action had taken place since Plaintiff's filing of a return of service of summons on June 17, 2005. Doc. No. 3. Plaintiff personally appeared at the hearing, and explained why she had not proceeded further on her case. This Court, after hearing Plaintiff's arguments, found good cause, and allowed Plaintiff an extension of time to determine how to properly proceed further in the case. Doc. No. 5.
On May 9, 2006, Plaintiff requested entry of default in the matter. The Clerk of Court denied Plaintiff's request, finding service of the summons and complaint improper. Doc. No. 7. On September 11, 2006, Plaintiff renewed her request for entry of default in the matter. Doc. No. 13. The Clerk of Court again denied Plaintiff's request, citing that the summons and complaint continued to be improperly served. Doc. No. 13. On September 12, 2006, Donald C. Winter, substituting for Defendant Gordon England, filed a "Notice to the Court Regarding Plaintiff's Failure to Accomplish Proper Service on Defendant." Doc. No. 12. In the notice, Defendant asked this Court to dismiss the action for failure to prosecute. Id. at 3. This Court denied Defendant's request, and allowed Plaintiff an additional extension to properly serve her complaint. Doc. No. 15.
On September 28, 2006, Plaintiff filed a first amended complaint, naming Donald C. Winter as defendant. Doc. No. 16. Plaintiff subsequently personally served the United States Attorney, the Attorney General, as well as the Secretary of the Navy, and filed affidavits of service on October 12, 2006. Doc. Nos. 18-20. This Court vacated its order to show cause hearing on October 20, 2006. Doc. No. 21.
On December 4, 2006, Defendant filed a motion to dismiss the first amended complaint. Doc. No. 22. Plaintiff did not file a response to Defendant's motion. A hearing on Defendant's motion to dismiss took place on February 1, 2007. Doc. No. 23. At the hearing, the Court granted Defendant's motion to dismiss for lack of jurisdiction over Plaintiff's appeal to the MSPB ruling and Plaintiff's 42 U.S.C. § 1981 claim. The Court also found that, as a matter of law, the Court could not grant Defendant's motion to dismiss Plaintiff's breach of contract claim because the record was not complete as to the settlement agreement at issue. Finally, the Court ordered Defendant to provide supplemental briefing to this Court regarding the issue of equitable tolling as to Plaintiff's Title VII claims.
On February 16, 2007, Defendant provided this Court with a supplemental brief on the equitable tolling issue, as well as a complete copy of the settlement agreement. Doc. No. 2; Exhibit I to Defendant's original Motion to Dismiss. Plaintiff filed an opposition on March 2, 2007. Doc. No. 25. Defendant filed a reply on March 7, 2007. Doc. No. 26. This Court entertained oral argument on March 15, 2007, on the supplemental brief issues only. Doc. No.
On March 23, 207, this Court entered order granting Defendant's Motion to Dismiss. Doc. No. 28. The Court dismissed Plaintiff's 42 U.S.C. § 1981, appeal of the MSPB ruling, and Title VII claims with prejudice. This Court dismissed Plaintiff's breach of claim without prejudice, granting Plaintiff leave to amend her breach of contract claim only. Plaintiff's request for attorney fees was denied. The Court held that if Plaintiff's amended complaint fails to establish jurisdiction for this Court, it will be dismissed with prejudice and without any further leave to amend.
Plaintiff filed a second amended complaint ("SAC") for 1) breach of contract; 2) specific performance; 3) reinstatement of 00cv2210 IEG (AJB). Case number 00cv2210 IEG (AJB) was previously filed by Plaintiff, settled pursuant to a settlement agreement signed by Plaintiff on April 13, 2001, and dismissed with prejudice on April 20, 2001. This Court will not entertain Plaintiff's Title VII claim as it was dismissed with prejudice on March 23, 2007. Doc. No. 28.