United States District Court, N.D. California, San Jose Division
ORDER SCREENING THIRD AMENDED COMPLAINT; AND
DIRECTING SERVICE OF PROCESS BY U.S. MARSHAL
LAB SON FREEMAN, United States District Judge
Melina Razavi (“Razavi”), proceeding pro
se, filed this action after being involved in an
automobile accident. She sues the other driver, Carlos Coti
(“Coti”), and her own insurer, Geico Insurance
Company (“Geico”). Because Razavi is proceeding
in forma pauperis, her pleadings are subject to
initial screening by the Court. See 28 U.S.C. §
Court must dismiss an action brought in forma
pauperis if it “(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). Where the Court determines that the operative
pleading is “sufficient to meet the low threshold for
proceeding past the screening stage, ” the Court will
order service of process by the U.S. Marshal. Wilhelm v.
Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); see
also Fed. R. Civ. P. 4(c)(3).
Court dismissed Razavi's complaint, first amended
complaint, and second amended complaint with leave to amend.
Upon screening the operative third amended complaint
(“TAC”) pursuant to § 1915, the Court
concludes that Razavi's claims now “appear to be
colorable for the purposes of that statute.” Rounds
v. Woodford, 298 Fed.Appx. 683, 684 (9th Cir. 2008). The
Court expresses no opinion whether the TAC would survive a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). See Id. (vacating dismissal of action
after concluding that claims satisfied “the very low
threshold requirements of 28 U.S.C. § 1915, ” but
“express[ing] no opinion whether this case would
survive a motion for dismissal under Fed.R.Civ.P.
concluded that the operative TAC meets the “low
threshold” of § 1915, the Court ORDERS that
service of process be effected by the U.S. Marshal. Razavi
SHALL provide the Clerk of Court with the information
necessary for the U.S. Marshal to serve Defendants Coti and
Razavi filed the complaint in this action alleging state law
claims arising out of the automobile accident and insurance
claims process. Compl., ECF 1. Magistrate Judge Howard R.
Lloyd, to whom the case initially was assigned, granted
Razavi leave to proceed in forma pauperis, directed
that the case be reassigned to a district judge, and
recommended that the complaint be dismissed. HRL Order, ECF
4. Following reassignment of the case to the undersigned
judge (“the Court”), the Court screened the
complaint and dismissed it with leave to amend. Order
Dismissing Complaint, ECF 7. The Court likewise screened and
dismissed Razavi's first amended complaint and second
amended complaint (“SAC”) with leave to amend.
See Order Dismissing SAC, ECF 18.
order dismissing the SAC, the Court concluded that although
Razavi had alleged subject matter jurisdiction based on both
diversity of citizenship and federal question, she had not
alleged facts giving rise to diversity jurisdiction.
See Order Dismissing SAC at 2. However, the Court
concluded that Razavi's assertion of a claim under Title
III of the Americans with Disabilities Act
(“ADA”) (Claim 4) was sufficient to confer
federal question jurisdiction over that claim and
supplemental jurisdiction over her state law claims for
negligence, breach of contract, and insurance bad faith
(Claims 1-3). See Id. at 2-3. The Court indicated
that it would not exercise supplemental jurisdiction over the
state law claims absent a viable federal claim, and therefore
it addressed the ADA claim first. See Id. at 3.
Razavi alleged that Geico had failed to provide reasonable
modification for her disability in the insurance claims
process. See Id. at 3-4. However, the Court
determined that Razavi had not alleged facts sufficient to
state a claim under the ADA. Id. at 4. The Court
dismissed the ADA claim with leave to amend and declined to
address the state law claims unless and until Razavi alleged
a viable ADA claim. Id. at 5.
has filed a TAC addressing these deficiencies. The Court
conducts the requisite screening of the TAC below, first
addressing the federal ADA claim and then turning to the
state law claims.
ADA Claim (Claim 4)
ADA includes three main sections - Title I, which concerns
employment discrimination, 42 U.S.C. § 12111 et
seq.; Title II, which governs access to public services,
id. § 12131 et seq.; and Title III,
which governs access to privately operated public
accommodations, such as restaurants and movie theaters,
id. § 12181 et seq.”
Gilstrap v. United Air Lines, Inc., 709 F.3d 995,
1002 (9th Cir. 2013). Ms. Razavi's claim is asserted
under Title III. TAC ¶ 49, ECF 19.
III of the ADA states that “[n]o individual shall be
discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or
leases to), or operates a place of public
accommodation.” 42 U.S.C. § 12182(a). The ADA
defines discrimination to include:
[A] failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with
disabilities, unless the entity can demonstrate that making
such modifications would fundamentally alter the nature ...