United States District Court, E.D. California
ALLISON CLAIRE MAGISTRATE JUDGE
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.
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.
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.
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.
MOTION TO DISMISS STANDARD
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).
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).
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)).
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.
asks for indulgence because he is “a stroke
survivor.” Plaintiff’s Opposition