The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently pending before this court is defendant's motion to dismiss filed July 18, 2008, and the application of plaintiff, who proceeds in pro se, for waiver of court fees and costs filed July 29, 2008. The court submitted both matters for decision on the papers by order filed August 8, 2008. For the following reasons, this court recommends that defendant's motion to dismiss be granted and this case be remanded to state court for further consideration of plaintiff's state claims. This court does not reach plaintiff's request for waiver of fees and costs.
Defendant removed this action from the San Joaquin County Superior Court on July 11, 2008, premised on this court's subject matter jurisdiction over plaintiff's federal claims.
The complaint alleges that on the afternoon of May 22, 2008, pursuant to appointment, plaintiff drove a rental car to defendant's Tracy business location for the purpose of obtaining or "redeeming" her own vehicle which had been previously repossessed. A friend accompanied plaintiff. As plaintiff proceeded with her rental car through defendant's front gate, a man wrote numbers on the car. When plaintiff objected, the man stated that the writing would come off with "a little water and a razor blade." He directed plaintiff to "the front of the building" where another employee assured plaintiff someone would remove the writing from her rental car, but no one did.
After being directed to the "back of the building" to pick up her vehicle, and while walking past the security desk, a "temporary employee" whistled in "cat call" fashion to plaintiff and her friend, both of whom were offended and reported the action to security.
When it was time to pick up her own car, plaintiff sought first to drive and park her rental car off the premises so that she could comply with defendant's requirement that she drive her own car from the premises. At this juncture, some of defendant's employees "impeded" plaintiff's driving and "held" plaintiff and her friend "behind the lines and under duress." The employees insisted that they check the trunk of plaintiff's rental car before it vacated the premises.
Based on these alleged facts, plaintiff makes the following claims: (1) "property damage with intent to deface rental and personal property," in violation of Cal. Penal Code § 594; (2) "sexual harassment and lewd conduct with intentions to harass and arouse," in violation of Cal. Penal Code § 647(a), and "sexual harassment" in violation of "Title VII;" and (3) "illegal search and seizure, including but [not] limited to false imprisonment, and interference with driver operations," in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution, Cal. Penal Code § 236, and Cal. Vehicle Code § 21701. Plaintiff seeks $11,500,000.00 in damages.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...