United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
Veer Singh is proceeding in this action pro se. This matter
was, therefore, referred to the undersigned in accordance
with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On
June 17, 2019, the undersigned took under submission
defendant's motion to dismiss or for a more definitive
statement. (ECF No. 16.) For the reasons stated below,
defendant's motion to dismiss will be granted and
plaintiff will be granted leave to file an amended complaint.
proceeding pro se, commenced this action on November 7, 2018,
by filing a complaint and a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.) The complaint alleges that
plaintiff previously “applied I-130 2 times” but
defendant denied those applications. (Compl. (ECF No. 1) at
Plaintiff seeks an order for defendant to “fix [the]
issue” so that plaintiff's spouse and child, who
are “stuck in India, ” can “join”
plaintiff in the United States. (Id. at 6.) The
previously assigned magistrate judge granted plaintiff's
motion to proceed in forma pauperis and ordered service of
process on the defendant. (ECF Nos. 3 & 5.)
April 25, 2019, defendant filed the pending motion to dismiss
or for a more definitive statement. (ECF No. 12.) Plaintiff
filed an opposition on May 2, 2019. (ECF No. 14.) Defendant
filed a reply on June 11, 2019. (ECF No. 15.) The undersigned
took defendant's motion under submission on June 17,
2019. (ECF No. 16.) Plaintiff filed a sur-reply on June 17,
2019. (ECF No. 18.)
20, 2019, the undersigned entered the parties'
stipulation granting plaintiff twenty-eight days to retain
counsel. (ECF No. 19.) On August 2, 2019, plaintiff filed a
notice stating that plaintiff could not retain
counsel. (ECF No. 20.)
Legal Standards Applicable to Motions to Dismiss Pursuant to
purpose of a motion to dismiss pursuant to Rule 12(b)(6) 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 lack of
a cognizable legal theory or 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). A plaintiff is required to allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In
general, pro se complaints are held to less stringent
standards than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations.
United States ex rel. Chunie v. Ringrose, 788 F.2d
638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
pleading is insufficient if it offers mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555; see also Iqbal, 556 U.S. at 676
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). Moreover, it is inappropriate to assume
that the plaintiff “can prove facts which it has not
alleged or that the defendants have violated the . . . laws
in ways that have not been alleged.” Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court is permitted to consider material which
is properly submitted as part of the complaint, documents
that are not physically attached to the complaint if their
authenticity is not contested and the plaintiff's
complaint necessarily relies on them, and matters of public
record. Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001).
Legal Standards Applicable to Motions For a More Definite
Statement Pursuant to Rule 12(e)
Rule of Civil Procedure 12(e) provides:
A party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a
response. The motion must be made before filing a responsive
pleading and must point out the defects complained of and the
details desired. If the court orders a more definite
statement and the order is not obeyed within 14 days after
notice of the order ...