Heuvel v. Expedia Travel

          ORDER

          ALLISON CLAIRE MAGISTRATE JUDGE

         This lawsuit was removed from the Sacramento County Superior Court on the basis of diversity jurisdiction. See ECF No. 1; 28 U.S.C. § 1332(a). Plaintiff is proceeding in pro per, and the matter was accordingly referred to the magistrate judge by E.D. Cal. R. (“Local Rule”) 302(c)(21). On May 19, 2016, the court granted defendant British Airways’ (“BA”) motion to dismiss the complaint, and granted plaintiff leave to amend. ECF No. 15.

         BA has now filed a motion to dismiss the amended complaint, asserting that the complaint fails to state a claim against it. ECF No. 19. Plaintiff timely filed an opposition (ECF No. 20), but failed to appear at the hearing on July 27, 2016. Plaintiff is cautioned that going forward, his unexplained failure to appear at any scheduled hearing or conference may result in a recommendation that this action be dismissed for lack of prosecution.

         For the reasons that follow, the complaint will be dismissed for failure to state a claim, and plaintiff will be granted 30 days to file an amended complaint.

         I. THE COMPLAINT

         The amended complaint, although improved over the original complaint in that it alleges facts, is still not a model of clarity. As best the court can tell, plaintiff is attempting to get a refund of the $1, 500 cost of a plane ticket to Belgium, plus $200, 000 in damages. See First Amended Complaint (“Complaint”) (ECF No. 18) ¶ III. “The travel agency” mislead plaintiff into believing that he could get the refund. Id. However, BA and defendant Expedia never intended to refund the money, causing plaintiff to file this lawsuit. Id. It is not clear if BA or Expedia, or both, are the “travel agency” the complaint refers to, or if “travel agency” refers to a different entity.

         II. MOTION TO DISMISS STANDARD

         “The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on . . . the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

         “In ruling on a motion to dismiss under Rule 12(b)(6), we determine whether the complaint contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” O'Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016) (emphasis added) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (some internal quotation marks omitted).

         “Rule 12(b)(6), which tests the legal sufficiency of the claims asserted in the complaint, must be read in conjunction with Rule 8, which requires a ‘short and plain statement showing that the pleader is entitled to relief’ and ‘contains a powerful presumption against rejecting pleadings for failure to state a claim.’” Ileto v. Glock Inc., 349 F.3d 1191, 1199-200 (9th Cir. 2003) (quoting Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248-49 (9th Cir.1997)).

         III. ARGUMENTS

         BA argues that the complaint contains “no substantive facts . . . against British Airways, ” and therefore must be dismissed as against BA without leave to amend. Motion To Dismiss (“MTD”) (ECF No. 19-1 at 2. BA also argues that the complaint is one for breach of contract, but it fails to state a claim for breach. Id. at 5.

         Plaintiff asks for indulgence because he is “a stroke survivor.” Plaintiff’s Opposition ...