United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Relay
Resources' motion to dismiss (Dkt. No. 52). Having
considered the parties' briefing and the relevant record,
the Court STRIKES the claims against the Relay Resources'
in Plaintiff's amended complaint (Dkt. No. 47) and DENIES
Relay Resources' motion to dismiss as moot.
Court previously set forth the underlying facts of this case
and will not repeat them here. (See Dkt. No. 40 at
1-3.) On July 9, 2019, the Court dismissed all but one of
Plaintiff's claims against Relay Resources. (See
Id. at 6-7.) In doing so, the Court granted Plaintiff
leave to amend her breach of contract claim. (See
Id. at 5-7.) Plaintiff subsequently filed an amended
complaint, but she did not amend her breach of contract
claim. (See generally Dkt. No. 47.) Instead,
Plaintiff added several new defendants and asserted 10 new
claims against Relay Resources. (See generally id.)
Relay Resources now moves to dismiss all but one of
Plaintiff's new claims on the grounds that (1) Plaintiff
did not comply with the Court's July 9 order,
(see Dkt. No. 52 at 2-3), and (2) the amended
complaint fails to state claims for which relief can be
granted, (see Id. at 4-11). In the alternative,
Relay Resources asks the Court to direct Plaintiff to file a
more definitive statement of her claims. (See Id. at
Plaintiff's Compliance with the Court's
Court previously set forth in a different order, Relay
Resources incorrectly construes the Court's July 9 order
as having barred Plaintiff from seeking to amend her
complaint by adding new claims. (See Dkt. No. 80 at
2.) Because Plaintiff may still seek leave to amend her
complaint but must request the Court's permission to do
so in a motion, the Court will construe Plaintiff's
amended complaint as a motion for leave to amend. (See
Id. at 2-4) (citing Fed. R. Civ. Pro. 7(b)(1), 15(a)).
Accordingly, the Court must analyze Plaintiff's implied
“motion” under Rule 15(a) instead of Rule 12(b).
15(a)(2) states that “[the] court should freely give
leave [to amend] when justice so requires.” However,
leave “need not be granted where the proposed amendment
is futile.” Nordyke v. King, 644 F.3d 776, 788
n.12 (9th Cir. 2011). A proposed amendment is futile if it
would be “subject to dismissal.” Steckman v.
Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).
The test for whether a proposed amendment is futile is,
therefore, identical to the test for whether a pleading
survives a challenge under Rule 12(b)(1) or
See Nordyke, 644 at 788 n.12 (citing Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).
Accordingly, Plaintiff must establish that the Court has
subject matter jurisdiction over each of her new claims.
Stock West, Inc. v. Confederated Tribes, 873 F.2d
1221, 1225 (9th Cir. 1989). Plaintiff must also allege
sufficient facts, 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 a plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id.
The Merits of Plaintiff's New Claims
proposes to add 10 claims against Relay Resources. For the
reasons explained below, the Court finds that except for her
sixth claim, all of Plaintiff's proposed claims are
futile. The Court further finds that Plaintiff's sixth
claim is redundant with claims in her original complaint.
Count I, Plaintiff brings a claim under 18 U.S.C. § 371
for “Defrauding the United States.” (See
Dkt. No. 47 at 8.) It is unclear, however, how Relay
Resources allegedly defrauded the United States;
Plaintiff's factual allegations relate only to her
inability to “use the computer” or access other
information. (See id.) More importantly, 18 U.S.C.
§ 371 “do[es] not provide for a private right of
action.” Henry v. Universal Tech. Inst., 559
Fed. App'x 648, 650 (9th Cir. 2014). Count I therefore
fails to state a claim.
Count II, Plaintiff brings a claim under 18 U.S.C. Chapter
47. (See Dkt. No. 47 at 8- 9.) Chapter 47, like the
rest of the United States Criminal Code, “provide[s] no
basis for civil liability.” See Aldabe v.
Aldabe, 616 F.2d ...