Murillo-Esparza v. Bar 20 Dairy Farms LLC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JOSE MURILLO-ESPARZA, Case No. 1:24-cv-01354-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING 13 v. COMPLAINT FOR FAILURE TO STATE A CLAIM AND DISMISSING ACTION FOR BAR 20 DAIRY FARMS LLC, FAILURE TO COMPLY WITH COURT ORDER AND FAILURE TO PROSECUTE 15 Defendant.

ORDER DIRECTING CLERK OF THE 16 COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE (ECF Nos. 1, 4) FOURTEEN-DAY DEADLINE 20 Jose Murillo-Esparza (“Plaintiff”), proceeding pro se and in forma pauperis, initiated this action on November 6, 2024 against Defendant Bar 20 Dairy Farms LLC. On November 13, 2024, a screening order issued finding Plaintiff had failed to state any cognizable claims and granting Plaintiff leave to file a first amended complaint within thirty days. (ECF No. 4.) In the November 13, 2024 order, Plaintiff was advised that if he failed to file an amended complaint, it would be recommended that this action be dismissed for the reasons stated in the order. (Id. at 7.) More than thirty days have passed, and Plaintiff has not filed an amended complaint or otherwise responded to the screening order. For the following reasons, the Court recommends the action be dismissed for failure to state a cognizable claim, failure to prosecute this action, and failure to obey the Court’s order to file an amended complaint.

2 I.

3 SCREENING REQUIREMENT 4 Because Plaintiff is proceeding in forma pauperis, the Court may dismiss a case at any time if the Court determines the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim).

14 In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief…” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 20 544, 555 (2007)).

21 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (“[W]here the petitioner is pro se, particularly in civil rights cases, [courts should] construe the pleadings liberally and … afford the petitioner the benefit of any doubt” (quoting Hebbe v. Pliler, 627 F.3d 26 338, 342 (9th Cir. 2010)).). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 1 … ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Id. Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995).

6 II.

7 COMPLAINT ALLEGATIONS 8 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915.

10 Plaintiff names Bar 20 Dairy LLC as the sole defendant in this action. (ECF No. 1.)

11 Plaintiff states the basis for jurisdiction is federal question jurisdiction. (Id. at 5.) Plaintiff lists “wrongful termination, labor laws” as the federal statutes at issue in this action. (Id.) Despite indicating the case arises under federal question jurisdiction, Plaintiff also completes the amount in controversy form question for diversity jurisdiction. (Id. at 5.) Plaintiff states the amount in controversy is “$1.5 million worked for over 20+ years, + 1 year of no employment w/o employment.” (Id.) (unedited).

17 Under statement of claim, Plaintiff writes: “1) wrongful termination; 2) emotional distress[;] 3) pain and suffering job was given to a relative of supervisor with less experience, Racism.” (Id.) (unedited).

20 III.

21 DISCUSSION 22 A. Failure to State a Claim 23 1. Federal Rule of Civil Procedure 8 24 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citations and quotations of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. 2 at 678 (citation omitted). This is because, while factual allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss v. U.S. Secret Serv., 572 4 F.3d 962, 969 (9th Cir. 2009). Therefore, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

9 Plaintiff’s allegations consist of vague and conclusory statements of “wrongful termination” and racism. As currently pled, Plaintiff’s complaint does not contain enough factual details to permit the Court to draw the reasonable inference that Bar 20 Dairy LLC is liable for any misconduct alleged. Iqbal, 556 U.S. at 678. Significantly, after naming Bar 20 Dairy LLC as a defendant, Plaintiff does not state any specific action that the entity Defendant took relating to the alleged wrongful termination, violation of unspecified labor laws, racism, or other misconduct.1 For these reasons, Plaintiff's complaint does not comply with the requirements of Rule 8(a)(2).

17 2. Diversity Jurisdiction and Federal Question Jurisdiction 18 Rule 8(a)(1) requires a short and plain statement of the grounds for the Court’s jurisdiction. Fed. R. Civ. P. 8(a)(1). Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Federal courts are presumptively without jurisdiction over civil actions, and the burden to establish the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Generally, there are two bases for subject matter jurisdiction: federal question jurisdiction and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Here, Plaintiff indicates his claims arise under federal question jurisdiction. However, Plaintiff also partially completed the portion of the form complaint for claims proceeding under Plaintiff also alleges “emotional distress” and “pain and suffering”; however, it appears these allegations are diversity jurisdiction. The Court will therefore address each in turn.

2 a. Diversity Jurisdiction 3 District courts have original jurisdiction of all civil actions between citizens of different States in which “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). This requires complete diversity of citizenship and the presence “of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action.” Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted).

9 Here, Plaintiff alleges the amount in controversy is $1.5 million, which exceeds the $75,000 threshold requirement for diversity jurisdiction. (ECF No. 1 at 5.) However, Plaintiff alleges that he is a citizen of California and indicates that Bar 20 Dairy LLC is located in California.2 (Id. at 2.) As currently plead, diversity jurisdiction does not exist because Plaintiff and Defendant Bar 20 Dairy LLC are both alleged to be citizens of the same state.

14 b. Federal Question Jurisdiction 15 Plaintiff also indicates jurisdiction in this action is based on a federal question. Pursuant to 28 U.S. C. § 1331, federal courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States. “A case ‘arises under’ federal law either where federal law creates the cause of action or where the vindication of a right under state law necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd.

21 v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) (citations omitted)). “[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Republican Party of Guam, 277 F.3d at 25 1089 (citations omitted).

2 The Court notes that “a limited liability company ‘is a citizen of every state of which its owners/members are citizens,’ not the state in which it was formed or does business.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 612 (9th Cir. 2016) (quoting Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006)). Thus, 1 Here, Plaintiff generally alleges federal question jurisdiction arises under “wrongful termination, labor laws.” (ECF No. 1 at 4.) This falls far short of complying with the well- pleaded complaint rule. Because the complaint contains insufficient facts and does not state which federal right has been violated, the Court finds Plaintiff fails to state a cognizable claim against Defendant Bar 20 Dairy LLC.

6 B. Plaintiff’s Failure to Prosecute and Comply with a Court Order 7 Additionally, the Court should dismiss the action due to Plaintiff’s failure to comply with a Court order and failure to prosecute. Plaintiff has failed to comply with the November 13, 2024 order granting him leave to file an amended complaint. A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Serv., 833 16 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). Where a plaintiff fails to file an amended complaint after being provided with leave to amend to cure the failure to state a claim, a district court may dismiss the entire action. Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005).

21 In determining whether to dismiss an action for failure to comply with a pretrial order, the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

27 These factors guide a court in deciding what to do; they are not conditions that must be met in 1 In this instance, the public’s interest in expeditious resolution of the litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff was ordered to file an amended complaint to cure the deficiencies that were identified in his complaint within thirty days of November 13, 2024. Plaintiff has been provided with legal standards that may apply to his claims for “wrongful termination, labor laws” and the opportunity to file an amended complaint. Plaintiff has neither filed an amended complaint nor otherwise responded to the Court’s order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s ability to move this action towards disposition and indicates that Plaintiff does not intend to diligently litigate this action.

10 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal.

14 The public policy in favor of deciding cases on their merits is greatly outweighed by the factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This action can proceed no further without Plaintiff’s cooperation and compliance with the order at issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders.

19 Finally, a court’s warning to a party that their failure to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s November 13, 2024 order allowing Plaintiff the opportunity to file an amended complaint expressly stated: “If Plaintiff fails to file an amended complaint in compliance with this order, the Court will recommend to a District Judge that this action be dismissed consistent with the reasons stated in this order.”

25 (ECF No. 4 at 7.) Thus, Plaintiff had adequate warning that dismissal of this action would result from his noncompliance with the Court’s order and his failure to state a claim. Accordingly, Plaintiff’s noncompliance warrants dismissal.

1 IV.

2 CONCLUSION AND RECOMMENDATION 3 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED, without | prejudice, for Plaintiff's failure to state a claim, failure to prosecute, and failure to comply with a | court order.

6 These findings and recommendations are submitted to the district judge assigned to this | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen | (14) days of service of this recommendation, Plaintiff may file written objections to these | findings and recommendations with the Court limited to 15 pages in length, including any | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and | Recommendations.” The district judge will review the magistrate judge’s findings and | recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th | Cir. 1991)).

16 IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to randomly | assign this matter to a District Judge.

19 IT IS SO ORDERED. DAM Le | Dated: _December 18, 2024 _ oO ES STANLEY A. BOONE 21 United States Magistrate Judge