United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
(DOC. NO. 29)
A. Houston United States District Judge
before the Court is Defendant Transdev Services, Inc.'s
("Defendant") motion to dismiss Plaintiff Lisa
Anderson's ("Plaintiff) First Amended Complaint (the
"FAC"). Doc. No. 29. The motion is unopposed. After
careful consideration of the pleadings, and for the reasons
set forth below, Defendant's Motion to Dismiss is
September 14, 2018, pro se Plaintiff Lisa Anderson
filed an action against Defendants Does 1-6, Mark Held,
Metropolitan Transit System-S.D.T.C, Gregory Williams, and
Transdev Service, Inc., alleging "deprivation of civil
rights secured by the First, First, and Fourteenth
Amendment" and intentional infliction of emotional
distress (the "Complaint"). Doc. No. 1. Plaintiff
claims that unidentified bus drivers mocked her, made noises
at her while she was on the street or on the bus, and used
excessive force on the Plaintiff. Id. at pg. 3. On
January 2, 2019, Defendant filed a motion to dismiss the
Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Doc. No. 11. On March 4,
2019, this Court granted Defendant's motion, with leave
to amend within thirty (30) days. Doc. No. 17.
filed the FAC on April 4, 2019. Doc. No. 18. Defendant filed
a motion to dismiss the FAC pursuant to Rule 12(b)(1) and
Rule 12(b)(6) of the Federal Rules of Civil Procedure on May
31, 2019. Doc. No. 29. Plaintiff has not responded to
Federal Rule of Civil Procedure 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 plaintiffs 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).
effectively state a claim for a civil rights violation under
Section 1983, the claimant must allege: (1) that a right
secured by the Constitution or laws of the United States was
violated, and (2) the alleged violation was committed by a
person acting under the color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). A person "acting
under the color of state law" in violation of Section
1983 requires a defendant to exercise power "possessed
by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law."
Id. at 49.
a pro se complaint will be liberally construed and will be
dismissed only if it appears 'beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief" Pena v.
Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (internal
quotes omitted). However, "[v]ague and conclusory
allegations of official participation in civil rights
violations are not sufficient to withstand a motion to
dismiss." Ivey v. Board of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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 defendant 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 plaintiff to
relief." Moss v. U.S. Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009) (citing Iqbal, 556 ...