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Tatyana Vogel v. Oceanside Unified School Dist

March 22, 2013

TATYANA VOGEL,
PLAINTIFF,
v.
OCEANSIDE UNIFIED SCHOOL DIST.,
DEFENDANT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DISMISSING AMENDED OMPLAINT WITHOUT PREJUDICE; AND ORDER DENYING REQUEST TO STRIKE

Plaintiff Tatyana Vogel, who is proceeding pro se and in forma pauperis, filed her complaint bringing employment discrimination claims against multiple Defendants. When her motion to proceed in forma pauperis, her original complaint was also dismissed but she was given leave to file an amended complaint if she either filed a renewed motion to proceed in forma pauperis or paid the filing fee.

When Vogel's renewed motion to proceed in forma pauperis was granted, the Court ordered her amended complaint (the "FAC") served on the sole Defendant, Oceanside Unified School District ("Oceanside").

Oceanside has now moved to dismiss the FAC for failure to state a claim, or in the alternative, for a more definite statement. Oceanside's motion (the "Motion") argues the FAC's claims are vague and incomprehensible, and fails to give notice of what her claims are. The Motion, in the alternative, points out particular defects in the pleading, depending on what her theories are. Some of this discussion cites authority showing what the elements of particular claims are.

Oceanside, in its reply brief, argues Vogel never served her with her opposition, and asks that it be stricken.

Request to Strike

Whether Oceanside was ever served with process is unclear. After the Court granted Vogel's motion to proceed in forma pauperis and directed the Marshals to serve Oceanside, Vogel then directed the Marshals to serve twenty non-Defendants with process, which they did. The Court quickly put a stop to this and quashed service on everyone except Oceanside. (Docket no. 31). Although no proof of service on Oceanside was ever filed, Oceanside made a general appearance by filing the Motion. It did so without first obtaining a hearing date as required by local rule. The Court nevertheless set a briefing schedule, directing Vogel to file her opposition and setting a time for Oceanside to file its reply.

At that time, Oceanside's attorneys were required to register for Electronic Case Filing at that time. See Civil Local rule 5.4. Had they done so, this would have meant they received electronic notice of Vogel's filing of her opposition. Instead, they say, they waited for the opposition to be served on them and only found out about it when they checked the docket.

Although Vogel may not have served her opposition, Oceanside had constructive notice of it. First, Oceanside says it knew about the briefing schedule. If Oceanside for any reason wasn't receiving electronic notices of filed documents (which are sent automatically by the CM/ECF system), it was obligated to remedy this, and also to check the docket regularly in the meantime. Because Oceanside knew the Court had set a briefing schedule, its attorneys knew to check the docket for her opposition.

The fact that Oceanside didn't receive actual notice of Vogel's opposition was its own doing. Because Oceanside had constructive notice, the request to strike Vogel's opposition is DENIED.

Legal Standards for Motion to Dismiss

When deciding whether a complaint adequately states a claim, the Court must generally accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The Court construes the alleged facts in the light most favorable to the plaintiff, Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1988), and draws all reasonable inferences in her favor. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). But the Court does not draw unreasonable inferences, W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981), nor will it supply facts a plaintiff has not pleaded. See Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The Court may consider material submitted as part of the complaint. See Lee v. City of Los Angeles, 250 F.3d 668, 688--69 (9th Cir.2001). While the Court liberally construes the pleadings of pro se litigants such as Vogel, Karim--Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir.1988), it is not the Court's role to serve as an attorney for either litigant, and the Court will not review exhibits and create arguments for her. See Jacobsen v. Filler, 790 F.2d 1362, 1364--66 (9th Cir.1986) (holding that the court must remain a "referee" in the adversarial process, and cannot serve as legal counsel for a party, even if that party is a pro se litigant). The fact that Plaintiff is representing herself and may not understand the law well does not excuse him from following the same rules that apply to all other litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987).

To survive a motion to dismiss, the complaint must contain more than just a statement of facts that creates the possibility or suspicion of a valid claim. Twombly, at 555. It must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Iqbal, 556 U.S. at 678. In other words, the complaint must plead facts that show Vogel is entitled to relief. If the Court, when reading the complaint, has to insert facts to show why Vogel would be entitled to relief, ...


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