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McCarthy v. Brennan

United States District Court, N.D. California

July 6, 2016

KIAN R. MCCARTHY, Plaintiff,
v.
MEGAN J. BRENNAN, Defendant.

          ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND AND GRANTING MOTION TO APPOINT COUNSEL RE: DKT. NOS. 26, 28, 29, 30, 35, 37, 38

          JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Kian McCarthy ("Plaintiff"), proceeding pro se, brings this action against his former employer, the United States Postal Service ("Post Office"), through Postmaster General Megan J. Brennan ("Defendant") arising from the termination of his employment. His First Amended Complaint ("FAC") alleges causes of action for: (1) disability discrimination; (2) failure to accommodate; (3) retaliation; and (4) age discrimination. (Dkt. No. 26 at 1, 4-5.[1])

         Now pending before the Court is Defendant's motion to dismiss Plaintiff's FAC. (Dkt. No. 30.) After carefully considering the arguments and briefing submitted, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS Defendant's motion to dismiss with leave to amend. Because Plaintiff failed to file a standalone, operative amended complaint and instead treated the FAC as an addendum to the original complaint, the FAC is unclear and makes it difficult for Defendant to respond fully; therefore, Defendant's motion for a more definite statement is GRANTED. Plaintiff's renewed motion for appointment of counsel, seeking a referral to the Federal Pro Bono Project (Dkt. No. 38) is GRANTED. The Court grants Plaintiff forty-five (45) days from the appointment of counsel to file a Second Amended Complaint.

         BACKGROUND

         The Court previously discussed the factual background of this case in a previous order and incorporates that discussion here. (See Dkt. No. 25 at 2-4.) Following the Court's dismissal of Plaintiff's initial Complaint with leave to amend, Plaintiff filed the FAC. The FAC withdrew Plaintiff's prior claims for race, sex, and gender discrimination and instead makes the following claims: (1) disability discrimination under the Rehabilitation Act, Section 501, 29 U.S.C. § 791; (2) failure to accommodate under the Rehabilitation Act; (3) retaliation; and (4) age discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 633a.[2] (Dkt. No. 26.) Notably, the FAC does not restate the allegations from Plaintiff's original Complaint; instead, Plaintiff appears to have treated the FAC as a supplement to his Complaint. The FAC appears to provide more background information supporting his claims, including that his disability for purposes of the lack of accommodation claim is Asperger's Disorder. (Dkt. No. 26 at 15.) He has also attached 37 exhibits to the FAC, although they do not include the exhibits attached to the initial Complaint.[3] (See Dkt. Nos. 26, 28, 29.) Defendant moves to dismiss the FAC for a variety of different reasons. (Dkt. No. 30.)

         DISCUSSION

         Defendant makes six separate arguments as to why Plaintiff's FAC should be dismissed: (1) the FAC is unclear and Plaintiff should be required to provide a more definite statement; (2) the FAC should be dismissed for lack of subject matter jurisdiction because Plaintiff does not allege administrative exhaustion in the FAC; (3) Plaintiff's claims based on pre-September 2010 events should be dismissed as time-barred; (4) Plaintiff's failure to accommodate claim should be dismissed because the FAC fails to establish a prima facie case; (5) Plaintiff's retaliation claim should be dismissed because the FAC fails to address the deficiencies that the Court previously identified; and (6) the claim for attorneys' fees should be dismissed because Plaintiff is appearing pro se. (Dkt. No. 30 at 2.)

         I. Rule 12(e) Motion for a More Definite Statement

         Rule 12(e) provides that a party may move for a more definite statement of a pleading that is "so vague or ambiguous that the party cannot reasonably prepare a response." Fed.R.Civ.P. 12(e). "A Rule 12(e) motion should be granted when the complaint is so vague that the defendant cannot discern the nature of the plaintiff's claims and thus cannot frame a response." Brown v. Brown, No. 13-03318 SI, 2013 WL 5947032, at *9 (N.D. Cal. Nov. 5, 2013) (citations omitted). The motion should be considered in light of the liberal pleading standards of Rule 8(a). See Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D. Cal. 1996) (citing Sagan v. Apple Comp., Inc., 874 F.Supp. 1072, 1077 (C.D. Cal. 1994)) ("Motions for a more definite statement are viewed with disfavor and are rarely granted because of the minimal pleading requirements of the Federal Rules."). If the complaint is specific enough to notify the defendant of the substance of the plaintiff's claim, a 12(e) motion should not be granted. See QTL Corp. v. Kaplan, No. C-97-20531 EAI, 1998 WL 303296, at *2 (N.D. Cal. Feb. 2, 1998); see also San Bernardino Pub. Emps. Ass'n v. Stout, 946 F.Supp. 790, 804 (C.D. Cal. 1996) ("A motion for a more definite statement is used to attack unintelligibility, not mere lack of detail, and a complaint is sufficient if it is specific enough to apprise the defendant of the substance of the claim asserted against him or her.").

         Plaintiff's FAC is too bare to enable Defendant to respond fully and properly or to proceed to discovery, so a more definite statement is required. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002). While the FAC caption and Paragraph 5(b) identify four causes of action, the remainder of the FAC consists of numerous factual recitations, 37 attached exhibits, and a prayer for relief. The FAC does not contain separate claims for relief that clearly indicate the factual basis for each particular cause of action and thus does not enable Defendant or the Court to understand the claims with any reasonable certainty. See Bautista v. Los Angeles Cnty., 216 F.3d 837, 840 (9th Cir. 2000) (noting that the Federal Rules require separate counts "to enable the defendant to frame a responsive pleading"); Powers v. AT&T, No. 15-cv-01024-JSC, 2015 WL 5188714, at *4 (N.D. Cal. Sept. 4, 2015). Further, "the general rule is that an amended complaint supercedes the original complaint and renders it without legal effect . . . ." Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Plaintiff's failure to restate in the FAC many of the factual allegations and exhibits set forth in the Complaint means that Defendant does not know which factual allegations Plaintiff is still alleging and as to which causes of action.

         The Court therefore GRANTS Defendant's motion for a more definite statement and GRANTS Plaintiff leave to file a Second Amended Complaint. The amended complaint must include a section that sets forth each cause of action and the factual basis therefor. The Second Amended Complaint itself must contain the relevant factual allegations and exhibits upon which Plaintiff relies, as the initial Complaint and FAC will no longer have any legal effect. See Lacey, 693 F.3d at 927. Because the Court is dismissing the entire complaint with leave to amend on this basis, it does not address Defendant's other arguments for dismissal.

         II. Motion for Appointment of Counsel

         The Court previously denied Plaintiff's initial motion for appointment of counsel because he had failed to provide sufficient justification. (Dkt. No. 7.) However, Plaintiff has since adequately shown that his case is appropriate for referral to a volunteer attorney for full representation. The Court therefore GRANTS Plaintiff's Motion for Appointment of Counsel and refers the case to the Federal Pro Bono Project for appointment of counsel. If an attorney can be found to represent Plaintiff, that attorney shall be appointed as counsel for Plaintiff in this matter until further order of the ...


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