United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(DOC. NO. 20)
A. HOUSTON UNITED STATES DISTRICT JUDGE.
before the Court is Defendants Mark Held, San Diego
Metropolitan Transit System, and San Diego Transit
Corporation's (collectively “Defendants”)
Motion to Dismiss (“Motion”) pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure
Plaintiff Lisa Anderson's First Amended Complaint
(“FAC”) (Doc. No. 18). See Doc. No. 20.
Plaintiff filed a response in opposition. See Doc.
No. 22. The Motion is fully briefed. After careful
consideration of the pleadings filed by both parties, and for
the reasons set forth below, the Court
GRANTS Defendants' Motion.
Plaintiff's First Amended Complaint (“FAC”)
is dismissed with prejudice.
is pro se and filed her initial complaint on
September 14, 2018 against city bus drivers alleging
intentional infliction of emotional distress. See
Doc. No. 1. On October 18, 2018, the Court granted
Plaintiff's motion to proceed in forma pauperis.
See Doc. No. 5. Defendants filed a motion to dismiss
on January 2, 2019. See Doc. No. 11. On February 4,
2019, Plaintiff filed a motion to appoint counsel.
See Doc. No. 13. On February 11, 2019, the Court
issued an order denying Plaintiff's request. See
Doc. No. 14. On March 4, 2019, the Court issued an order
granting Defendants' motion to dismiss. See Doc.
No. 17. The Court dismissed Plaintiff's complaint (Doc.
No.1) without prejudice, and Plaintiff had thirty days to
file an amended complaint. Id. Plaintiff filed the
FAC on April 3, 2019. See Doc. No. 18. On April 18,
2019, Defendants filed a Motion to Dismiss for failure to
state a claim and lack of subject matter jurisdiction.
See Doc. No. 20. Plaintiff filed a response in
opposition on May 15, 2019. See Doc. No. 22.
Defendants filed a reply on May 24, 2019. See Doc.
Federal Rule of Civil Procedure Rule 12(b)(1)
12(b)(1) of the Federal Rules of Civil Procedure, a defendant
may seek to dismiss a complaint for lack of jurisdiction over
the subject matter. The federal court is one of limited
jurisdiction. See Gould v. Mutual Life Ins. Co. v. New
York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it
cannot reach the merits of any dispute until it confirms its
own subject matter jurisdiction. See Steel Co. v.
Citizens for a Better Environ., 523 U.S. 83, 95 (1998).
When considering a Rule 12(b)(1) motion to dismiss, the
district court is free to hear evidence regarding
jurisdiction and to rule on that issue prior to trial,
resolving factual disputes where necessary. See Augustine
v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
In such circumstances, “[n]o presumptive truthfulness
attaches to plaintiff's allegations, and the existence of
disputed facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Id. (quoting Thornhill
Publishing Co. v. General Telephone & Electronic
Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Plaintiff, as
the party seeking to invoke jurisdiction, has the burden of
establishing that jurisdiction exists. See Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint. Navarro v. Block, 250 F.3d 729,
732 (9th Cir. 2001). Dismissal is warranted under Rule
12(b)(6) where the complaint lacks a cognizable legal theory
or fails to allege sufficient facts to support a cognizable
legal theory. Li v. Kerry, 710 F.3d 995, 999 (9th
Cir. 2013). “To survive a motion to dismiss, 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, 556 U.S.
662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the factual allegations permit “the
court to draw the reasonable inference that the Guild is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. In other words, “the non-conclusory
‘factual content,' and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the Dougherty to relief.” Moss v. U.S.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing
Iqbal, 556 U.S. at 678). “Determining whether
a complaint states a plausible claim for relief
will…be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
reviewing a motion to dismiss under Rule 12(b)(6), a court
must assume the truth of all factual allegations and construe
the factual allegations in the light most favorable to the
nonmoving party. Cahil v. Liberty Mut. Ins. Co., 80
F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions
need not be taken as true merely because they are “cast
in the form of factual allegations.” Ileto v. Glock
Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). “Nor
does a complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 557). The court may
consider facts alleged in the complaint, documents attached
to the complaint, documents relied upon but not attached to
the complaint when authenticity is not contested, and matters
of which the court takes judicial notice. Lee v. City of
Los Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001). If a court determines that a complaint fails to state
a claim, the court should grant leave to amend unless it
determines that the pleading could not possibly be cured by
the allegation of other facts. Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995).
argue that Plaintiff's intentional infliction of
emotional distress claim fails because Plaintiff fails to
plead coherent facts. Doc. No. 20-1 at pg. 13. In support,
Defendants refer to Plaintiff's allegation of how
“menacing conduct” of the bus drivers
“greatly disturbed her, causing her great mental
suffering and emotional distress…and sustained
anxiety, anger, upset, worry, humiliation, imbarassment
[sic], irritability and lost tremendous interest in taking
the bus…” Id. Defendants contend that
Plaintiff's allegations do not describe extreme and
outrageous conduct as a matter of law, but rather describes
“mere insults.” Id. at pg. 14.
Defendants refer to Plaintiff's allegations of bus driver
comments ranging from Plaintiff “wasn't ...