The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is proceeding in this action pro se and has paid the filing fee. Presently before the court is defendant's*fn1 motion to dismiss, filed February 1, 2010. Having reviewed the parties' papers, the court now issues the following order.
Plaintiff, a former Wal-Mart employee in Hawaii, filed this action against his former employer on November 30, 2009, claiming wrongful termination. Although the complaint itself states no facts other than that the wrongful termination caused plaintiff suffering because he became uninsured as a result and underwent surgery, the attachments to the complaint elucidate the circumstances. It appears that plaintiff was employed by Wal-Mart in Hawaii from 2000 to 2008. He claims he requested a transfer to California in 2008 and during those negotiations he claims he was terminated, while Wal-Mart claims he did not complete the process required for the job transfer. (Compl., Ex. 1A.) The complaint seeks $5,000,000 for the wrongful termination and $10,000,000 for his suffering.
SUBJECT MATTER JURISDICTION
Defendant moves to dismiss this action for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The complaint as pled, does not contain a basis for federal subject matter jurisdiction.
A district court has an independent duty to examine its own jurisdiction, which is ordinarily determined from the face of the complaint. Sparta Surgical Corp. v. National Ass'n. of Securities Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998), quoting Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 43, 118 S.Ct. 956, 966 (1998), and Ultramar America Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990).
Defendant appears to have stipulated to the facts underlying diversity jurisdiction. (Def.'s Mot. at 2.) Defective pleading can be cured where diversity is defectively pled. 28 U.S.C. § 1653; Snell v. Cleveland, 316 F.3d 822, 824, 828 (9th Cir. 2002) ("complaint inadequately alleged facts necessary to establish diversity jurisdiction" but actual diversity existed so amendment was permitted). Therefore, when plaintiff amends the complaint, he shall allege diversity jurisdiction.
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, 550 U.S. 544, 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). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
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 ...