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White v. Relay Resource

United States District Court, W.D. Washington, Seattle

October 31, 2019

DEBRA VANESSA WHITE, Plaintiff,
v.
RELAY RESOURCES and GENERAL SERVICES ADMINISTRATION, Defendants.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE

         This 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 as moot.

         I. BACKGROUND

         The 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).

         II. DISCUSSION

         A. The Court's Treatment of Plaintiff's Amended Complaint

         As the 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).

         Rule 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).[1] 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.

         B. The Merits of Plaintiff's New Claims

         Plaintiff proposes to add 10 claims against ZVRS. For the reasons explained below, the Court finds that those claims are futile.

         1. Count I

         In 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.

         2. Count II

         For 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, ...


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