The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding in this action pro se and has paid the filing fee. Presently pending before the court is defendant's*fn1 second motion to dismiss, filed June 25, 2010. Having reviewed the parties' papers, the court now issues the following findings and recommendations.
Plaintiff's complaint was previously dismissed after the first motion to dismiss and order of May 12, 2010, providing instructions for filing an amended complaint. Presently before the court is the amended complaint, filed June 17, 2010.
Plaintiff, a former Wal-Mart employee in Hawaii, filed this action against his former employer on November 30, 2009, claiming wrongful termination by defendant Wal-Mart. The amended complaint alleges that plaintiff applied for and received a transfer from the Kauai store where he worked as an overnight stocker to a Sacramento Wal-Mart store, but in the process Wal-Mart delayed in meeting with him so that his leave of absence expired. (Compl.¶¶ 5-8.) Plaintiff claims he immediately faxed and mailed a total of four letters to the Hawaii store, but they did not respond. (Id. at ¶¶ 8-10.) Plaintiff alleged that he eventually received a call from the Kauai store co-manager who informed him that his transfer to a California store was approved, but not to a particular store in California, despite plaintiff having already received his acceptance from the Sacramento store. (Id. at ¶ 13.) According to the amended complaint, Wal-Mart later explained that plaintiff was terminated on August 22, 2008, because he did not return to work after his leave of absence expired on June 30, 2008. (Id. at ¶ 11.) After plaintiff and his family moved to Sacramento, the Sacramento Wal-Mart informed him that he did not complete the process required for the job transfer. He states he could not complete the process because defendant kept telling him that he was not its employee. (Id. at ¶ 15.) Plaintiff claims that as a result of the wrongful termination, he lost his medical insurance, was therefore unable to take his daily insulin for diabetes, and was forced to go to the hospital emergency room for diabetic ketoacidosis. The amended complaint seeks compensatory and punitive damages.
Defendant makes a second motion to dismiss for failure to state a claim.
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.
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). The previous order directed plaintiff to allege diversity jurisdiction in his amended complaint. The amended complaint alleges only that the district court has jurisdiction because "damages are in excess of the jurisdictional minimum amount controversy for such, wrongful termination." (Am. Compl. at 1.) This allegation is considered insufficient as it does not allege that damages exceed $75,000 and does not allege the citizenship of each party. See W.W. Schwarzer, A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial § 2:541-547. Nevertheless, as defendant stipulates to the facts underlying diversity jurisdiction, and because the complaint must be dismissed for failure to state a claim in any event, the undersigned will not belabor the pleading issue.
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 ...