United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant CSDVRS, LLC's
(“ZVRS”) motion to dismiss (Dkt. No. 59). Having
considered the parties' briefing and the relevant record,
the Court STRIKES Plaintiff's amended complaint (Dkt. No.
47) in its entirety and DENIES ZVRS's motion to dismiss
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 Defendants General Services
Administration (“GSA”) and Relay Resources.
(See Dkt. Nos. 40-41.) In doing so, the Court
granted Plaintiff leave to amend her breach of contract
claim. (See Dkt. Nos. 40 at 5-7, 41 at 7.) Plaintiff
subsequently filed an amended complaint, but she did not
amend her breach of contract claim. (See Dkt. No.
47.) Instead, Plaintiff added several new defendants,
including ZVRS, and asserted 10 new claims. (See
id.) ZVRS now moves to dismiss Plaintiff's claims
against it on the grounds that (1) the amended complaint
fails to state a claim against ZVRS, (see Dkt. No.
59 at 5-9), and (2) Plaintiff failed to properly serve ZVRS,
(see Id. at 4-5).
The Court's Treatment of Plaintiff's Amended
Court previously explained in a different order, the Court
will construe Plaintiff's amended complaint as a motion
for leave to amend. (See Dkt. No. 80 at 2-4).
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)(6). See
Nordyke, 644 at 788 n.12 (citing Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).
Accordingly, Plaintiff must 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 each defendant is liable for the
misconduct alleged. Id. at 678.
The Merits of Plaintiff's New Claims
proposes to add 10 claims against ZVRS. For the reasons
explained below, the Court finds that those claims are
Count I, Plaintiff brings a claim under 18 U.S.C. § 371
for “Defrauding the United States.” (See
Dkt. No. 47 at 8.) But Plaintiff fails to allege how ZVRS
defrauded the United States. Plaintiff's amended
complaint mentions ZVRS only three times: once to provide
information about the company, (see Dkt. No. 47 at
3); once to state that “Vanessa White” is
“the name used at . . . ZVRS, ” (see
id.); and once to explain that ZVRS provides
telecommunications services for federal agencies, including
GSA, (see Id. at 6). These fleeting references do
not establish that ZVRS engaged in any type of fraud. 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. 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 1089, ...