Razavi v. Coti

          ORDER SCREENING THIRD AMENDED COMPLAINT; AND DIRECTING SERVICE OF PROCESS BY U.S. MARSHAL

          BETH LAB SON FREEMAN, United States District Judge

         Plaintiff 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. § 1915(e)(2)(B).

         The 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).

         The 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. 12(b)(6)”).

         Having 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 Geico.

         I. BACKGROUND

         Ms. 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.

         In its 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.

         Razavi 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.

         II.DISCUSSION

         A. ADA Claim (Claim 4)

         “The 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.

         Title 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 ...