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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 MAI-TRANG THI NGUYEN, Case No. 20-CV-08755-LHK

13 Plaintiff, ORDER DISMISSING SECOND AMENDED COMPLAINT WITH 14 v. LEAVE TO AMEND

15 NANCY PELOSI, Speaker of the United Re: Dkt. No. 11, 19, 20 16 States House of Representatives, and MITCH MCCONNELL, Minority Leader of 17 the United States Senate, 18 Defendants. 19 Plaintiff’s pro se Second Amended Complaint (“SAC”) claims that Speaker Nancy Pelosi 20 and Senator Mitch McConnell (together, “Defendants”) have violated the U.S. Constitution’s 21 Treason Clause, Art. III, § 3, cl. 1. See SAC at 3, ECF No. 11. The crux of Plaintiff’s SAC is that 22 Defendants negligently “fail[ed] to do their jobs as top government officials to vindicate the 23 results of the coronavirus-infected [p]resident[ial] [e]lection of 2020.” Id. at 6.1 Thus, as Plaintiff 24

25 1 In denying Plaintiff’s application to proceed in forma pauperis, the Court held that Plaintiff’s 26 original complaint (ECF No. 1) and first amended complaint (ECF No. 6) were frivolous. ECF Nos. 5, 9 (denying application and motion for reconsideration). Plaintiff then paid her filing fee 27 and filed the operative SAC. The SAC is substantially alike the prior frivolous complaints. 1 recognizes, her suit must fall within the Federal Tort Claims Act’s (“FTCA”) waiver of sovereign 2 immunity to proceed. See SAC at 3 (citing FTCA as basis for jurisdiction); accord 28 U.S.C. 3 § 1346(b)(1) (waiving sovereign immunity for “the negligent or wrongful act or omission of any 4 employee of the Government while acting within the scope of his office or employment”). 5 Yet sovereign immunity bars Plaintiff’s suit because the SAC names the wrong defendants 6 under the FTCA. “A suit under the FTCA must be ‘against the United States,’ and the United 7 States is the only proper defendant in a suit under the FTCA.” 14 Wright & Miller, Federal 8 Practice & Procedure: Jurisdiction § 3658 (4th ed. Apr. 2021 update) (collecting cases). The SAC 9 fails to name the United States as a defendant, let alone the sole defendant. This failure warrants 10 dismissal of the SAC. See, e.g., Allen v. Veterans Admin.,

(9th Cir. 1984) 11 (Kennedy, J.) (affirming dismissal because United States was not sole defendant); Banks v. 12 Roberts,

(3d Cir. 2007) (per curiam) (same). 13 Moreover, the Court may dismiss the SAC sua sponte because sovereign immunity “goes 14 to a court’s jurisdiction.” Dep’t of Treasury-I.R.S. v. Fed. Lab. Rels. Auth.,

, 1152 15 (9th Cir. 2008). As court of appeals have instructed in FTCA cases, a district court should “sua 16 sponte dismiss[] the claim on jurisdictional grounds” if plaintiff “did not sue the United States, the 17 only proper defendant under the Federal Tort Claims Act.” Galvin v. Occupational Safety & 18 Health Admin.,

(5th Cir. 1988); see also, e.g., Summa v. United States,

(10th Cir. 1991) (holding that the district court should have sua sponte dismissed for lack of 20 jurisdiction under the FTCA). 21 Accordingly, the Court DISMISSES the SAC with leave to amend. Should Plaintiff elect 22 to file a third amended complaint curing the deficiencies identified herein, Plaintiffs shall do so 23 within 30 days of the date of this order. Failure to meet the 30-day deadline to file a third amended 24 complaint or failure to cure the deficiencies identified in the Court’s orders will result in dismissal 25 of the deficient claims with prejudice. 26 Finally, the Court (1) DENIES as moot Plaintiff’s petition to change name of the 27 Defendants, ECF No. 19; (2) CONTINUES the June 23, 2021 case management conference to 1 August 25, 2021 at 2:00 p.m.; and (3) DENIES as moot Plaintiff's motion to reschedule the initial 2 case management conference, ECF No. 20. 3 || ITISSO ORDERED. 4 5 Dated: June 17, 2021 6 . LUCY d KOH 7 United States District Judge 8 9 10 11 12

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Z 18 19 20 21 22 23 24 25 26 27 28 Case No. 20-CV-08755-LHK