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Taylor v. O'Sullivan

United States District Court, Ninth Circuit

December 20, 2013

MARYLIN TAYLOR, Plaintiff,
v.
DULCIE O'SULLIVAN, et al., Defendants.

ORDER

JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Defendant's motion to dismiss (Dkt. No. 11) and Plaintiff's motion to strike (Dkt. No. 10), motion for default (Dkt. No. 12) and motion for default judgment (Dkt. No. 13). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS Defendant's motion to dismiss without prejudice, DENIES Plaintiff's motions to strike and for default, and terminates Plaintiff's two other motions (Dkt. Nos. 19, 20) for the reasons explained herein.

I. BACKGROUND

On August 19, 2013, Plaintiff filed a motion for leave to proceed in forma pauperis. (Dkt. No. 1.) Magistrate Judge Tsuchida granted the motion and recommended that the complaint be reviewed under 28 U.S.C. § 1915(e) before issuance of summons. (Dkt. No. 3.) After reviewing the complaint, which made state-law claims and claims under 42 U.S.C. §§ 1983 and 1985, this Court dismissed the complaint on September 16, 2013, for failing to provide any details about the alleged violations. (Dkt. No. 6.) Plaintiff was granted leave to amend within twenty days. ( Id. )

On October 10, 2013-three days after the Court's deadline for amending-Plaintiff filed an Amended Complaint. (Dkt. No. 8.) The Amended Complaint states claims for breach of contract and negligence, and also refers to the First Amendment and Fourteenth Amendment. (Dkt. No. 8.) Defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

II. DISCUSSION

A. Pleading Standard and Leave to Amend

A party may move to dismiss a complaint that fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 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. Id. at 678. A claim that fails to present a "cognizable legal theory" or sufficient facts to support a cognizable claim will be dismissed under Rule 12(b)(6). Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

A court should "freely give" leave to amend "when justice so requires." Fed.R.Civ.P. 15(a)(2). "Dismissal without leave to amend is appropriate only when the Court is satisfied that an amendment could not cure the deficiency." Harris v. Cnty. of Orange, 682 F.3d 1126, 1135 (9th Cir. 2012).

B. Motions to Strike and for Default

Plaintiff argues that all submissions from Defendant's attorneys must be stricken because they did not ask this Court's permission to intervene under Fed.R.Civ.P. 24. (Dkt. No. 10.) But Rule 24 governs intervention by third parties, not submissions from a party's attorneys. Attorney Vanessa Lee has made all submissions for Defendants and she properly entered her notice of appearance. (Dkt. No. 9.) The Court therefore denies Plaintiff's motion to strike.

Plaintiff also moves for entry of a default judgment on the basis that Defendants have failed to defend the lawsuit. But Defendants timely filed a motion to dismiss, which tolls the deadline for Defendants to file an answer to the complaint. See, e.g., Sample v. O'Hara, 481 Fed.App'x 319, 320 (9th Cir. 2012). The Court therefore denies Plaintiff's motions for a default and a default judgment.

C. Procedural Irregularities

Defendants state briefly that Plaintiff's Amended Complaint should be dismissed because it was filed late. (Dkt. No. 11 at 5.) Defendants do not argue that they have suffered any prejudice, and the Ninth Circuit has recognized that "[c]ases should be decided upon their merits whenever reasonably possible." Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). Plaintiff is proceeding pro se and filed the Amended Complaint only a few days late. Without condoning this ...


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