Rashidiasl v. MEP (ESIS/ Arch/ Chubb)

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 FARIBA RASHIDIASL, Case No.: 23-CV-0325-GPC-DEB 11 Plaintiff, ORDER REJECTING DOCUMENTS 12 v. AND STRIKING THEM FROM THE DOCKET AND GRANTING 13 MEP (ESIS/ARCH/CHUBB); IQARUS PLAINTIFF LEAVE TO FILE AN (international SOS), 14 AMENDED COMPLAINT Defendants. 15 [Dkt. Nos. 17, 18.] 16 17 On February 17, 2023, Plaintiff Fariba Rashidiasl (“Plaintiff”), proceeding pro se, 18 filed a complaint against Defendants MEP (ESIS/ARCH/CHUBB) and Iqarus 19 (International SOS) along with a motion to proceed in forma pauperis (“IFP”) and motion 20 to appoint counsel. (Dkt. Nos. 1, Compl.; Dkt. Nos. 2, 3.) On May 30, 2023, the Court 21 denied Plaintiff’s motion to proceed in forma pauperis1, sua sponte dismissed the 22 complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(a) and denied the 23 motion to appoint counsel as moot. (Dkt. No. 12.) The Court granted Plaintiff leave to 24 file an amended complaint to cure the deficiencies noted in the order no later than June 25 26 1 The Court recognizes there was an error in the introductory paragraph of its order stating that the 27 motion to proceed in forma pauperis (“IFP”) was granted; however, the caption, the analysis of the IFP 28 motion explaining why it was denied, and the conclusion confirm that the Court denied Plaintiff’s 1 30, 2023. (Id. at 7.) 2 On June 29, 2023, Plaintiff mailed a motion for extension of time to file an appeal 3 of the Court’s order. (Dkt. No. 15.) On July 6, 2023, the Court denied her motion 4 because the Ninth Circuit would not have jurisdiction over an order that granted Plaintiff 5 leave to amend. (Dkt. No. 16 (citing WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 6 (9th Cir. 1997) (en banc) (“We now specifically rule that a plaintiff, who has been given 7 leave to amend, may not file a notice of appeal simply because he does not choose to file 8 an amended complaint. A further district court determination must be obtained.”).) 9 Instead, the Court granted her an extension of time to file an amended complaint and an 10 amended motion to proceed IFP by August 4, 2023. (Id.) 11 However, Plaintiff did not file an amended complaint. Instead, around August 3, 12 2023, she wrote two letters to the Court. One letter complains about the procedures 13 undertaken in this case by the Court as well as presenting facts underlying her grievance 14 against the defendants and attaching her medical records as well as documents from her 15 claim for benefits under the Longshore and harbor Workers’ Compensation Act, 16 (“LHWCA”), as extended by the Defense Base Act, (“DBA”) and proceedings with the 17 Office of Workers’ Compensation Program.2 The second letter is addressed to the 18 “Honorable Chief Judge” complaining about how her cases have been handled in this 19 Court. 20 Despite proceeding pro se, the Court cannot construe these letters as an amended 21 complaint. To the extent she was attempting to file an amended complaint, it must 22 comply with the Federal Rule of Civil Procedure as well as the Southern District of 23 California Civil Local Rules. As the Court explained in its prior order, a complaint 24 cannot merely include a narrative as to what happened but must plausibly allege facts to 25 26 2 As noted in the Court’s prior order, Plaintiff’s Workers’ Compensation claim was subject to litigation 27 in Mission Essential Personnel, LLC et al. v. Rashidiasl, Case No. 23cv384-CAB(NLS) in this district. 28 That case was dismissed with prejudice after Plaintiff failed to appear for a hearing and judgment was 1 support the elements of each cause of action. See Bautista v. Los Angeles Cnty., 216 F.3d 2 837, 840 (9th Cir. 2000) (Rule 8 requires a plaintiff to “plead a short and plain statement 3 of the elements of his or her claim, identifying the transaction or occurrence giving rise to 4 the claim and the elements of the prima facie case.”). Additionally, Plaintiff does not 5 specify which claims she is making against which defendant. See Dougherty v. Bank of 6 America, N.A., 177 F. Supp. 3d 1230, 1253 (E.D. Cal. 2016) (where there are multiple 7 defendants, the complaint “must allege the basis of [her] claim against each defendant to 8 satisfy” Rule 8). Finally, the S.D. Civil Local Rules provide guidance and requirements 9 on the form of pleadings as well as procedures on how to file an IFP application. See 10 S.D. Cal. CivLR 3.2 & 5.1. 11 Accordingly, the Court REJECTS AND STRIKES the two documents from the 12 docket and GRANTS Plaintiff one final opportunity to file an amended complaint and 13 amended motion to proceed IFP or pay the filing fee on or before September 15, 2023. 14 The amended complaint must be complete by itself without reference to her previous 15 pleading. Defendants not named and any claim not re-alleged in the Amended 16 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, 17 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 18 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 19 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 20 amended pleading may be “considered waived if not repled.”). 21 If Plaintiff fails or decides not to file an amended complaint and amended motion 22 to proceed IFP or pay the filing fee by September 15, 2023, the Court will enter a final 23 Order dismissing the entire action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 24 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 25 district court may convert the dismissal of the complaint into dismissal of the entire 26 / / / 27 / / / 28 / / / 1 action.”). In this event, once the Order dismissing the entire action is filed, Plaintiff may 2 || file a notice of appeal with the Ninth Circuit. 3 IT IS SO ORDERED. 4 || Dated: August 17, 2023 (22h (0 5 Hon. Gonzalo P. Curiel ~ 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28