Federico v. DeJoy ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lucille A Federico, No. CV-22-00706-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Louis DeJoy, 13 Defendant. 14 15 Defendant Louis Dejoy (“Defendant”) has filed his third Motion to Dismiss 16 (Doc. 27)1 Plaintiff Lucille A. Federico’s (“Plaintiff”) Second Amended Complaint 17 (“SAC”) (Doc. 26). The Court must determine whether Plaintiff has pled sufficient facts 18 under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) to state a claim for which 19 relief can be granted. For the following reasons, the Court grants Defendant’s Motion to 20 Dismiss but allows Plaintiff leave to amend her complaint. 21 I. Background2 22 This case involves allegations of employment discrimination. (Doc. 26 at ¶¶ 21– 23 29). Plaintiff is an Arizona resident above the age of forty (40) who was employed with 24 the United States Postal Service (“USPS”). (Id. at ¶ 5). Defendant is the Postmaster 25 General of USPS. 26 1 The matter is fully briefed. (Docs. 30; 33). 27 2 Unless otherwise noted, these facts are taken from Plaintiff’s SAC (Doc. 26). The Court 28 will assume the SAC’s factual allegations are true, as it must in evaluating a motion to dismiss. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). 1 A. Plaintiff’s Employment at USPS 2 Plaintiff is employed with the USPS3 but has been absent from her assignment since 3 October 2012. (See Doc. 27-1). Plaintiff does not explain or acknowledge this absence. 4 Plaintiff alleges that she is a “person with a disability due to on the job injuries sustained 5 while employed with the [USPS.]” (Id.) However, Plaintiff does not indicate what the 6 nature of her injuries were or what her disability is. 7 On April 28, 2021, USPS sent Plaintiff a Retirement Counseling Letter/Intent to 8 Separate-Disability (the “Letter”) (Doc. 27-1). (Doc. 26 at ¶ 9). The Letter informed 9 Plaintiff that because she “failed to provide any medical documentation in support of [her] 10 continued absence,” the USPS intended to “separate her from its rolls for disability 11 reasons.” (Doc. 27-1). The Letter stated that Plaintiff had the option to accept a 12 rehabilitation assignment determined to be suitable for her within thirty (30) days, or “in 13 lieu of separation, [she] may choose to apply for disability retirement.” (Id.) 14 Plaintiff alleges the Letter “communicated a clear threat of loss of employment with 15 [D]efendant” and a “loss of benefits for failure to submit a request/application for 16 retirement.” (Id.) She further alleges that Defendant had the specific intent to compel 17 disabled employees to remove themselves from employment and consequently terminate 18 all benefits. (Id.) Plaintiff also claims the Letter was sent with the intent to remove 19 employees over the age of forty (40) from employment at USPS. (Id. at ¶ 10). Plaintiff 20 does not claim to have responded to the Letter or that any other USPS employees received 21 the Letter. 22 On July 1, 2021, USPS sent a Notice of Separation – Disability to Plaintiff (the 23 “Notice”) (Doc. 27-2). (Doc. 26 at ¶ 11). The Notice informed Plaintiff that because she 24 did not accept the rehabilitation assignment, USPS was separating her from employment. 25 (Doc. 27-2). Plaintiff states that “[t]his seperation [sic] date was coerced, mandated and 26 an involuntary adverse action” which “constituted a constructive discharge due to 27 [P]laintiff’s disability[.]” (Doc. 26 at ¶ 11). Plaintiff further claims that “[a]ctive [USPS] 28 3 Neither of the parties indicate when Plaintiff began her employment with USPS. 1 employees with no disability … were not subjected to the adverse terms and conditions of 2 employment, treatment, or termination of benefits that [P]laintiff was subjected to.” 3 (Id. at ¶ 12). Plaintiff has not provided the Court with copies of the Letter or the Notice. 4 However, Defendant included copies of each with his Motion to Dismiss. (Docs. 27-1; 5 27-2). 6 B. Procedural History 7 On April 26, 2022, Plaintiff filed her original Complaint (Doc. 1) alleging age 8 discrimination, disability discrimination, retaliation, and constructive discharge by 9 Defendant. (Id.) Defendant filed his first Motion to Dismiss (Doc. 10) arguing that none 10 of Plaintiff’s claims contained sufficient factual allegations to state a claim for relief. (Id.) 11 Later, the parties filed a stipulated Joint Motion to Leave to File a First Amended 12 Complaint (Doc. 15), which the Court granted. (Doc. 16). This rendered moot Defendant’s 13 first Motion to Dismiss. (Id.) 14 On December 5, 2022, Plaintiff filed her First Amended Complaint (“FAC”) 15 (Doc. 19), again alleging age discrimination, disability discrimination, retaliation, and 16 constructive discharge. (Id.) Plaintiff added general allegations that Defendant had the 17 specific intent of removing employees based on their age and disability status. (Doc. 19-1 18 at ¶¶ 9–13). Defendant filed his second Motion to Dismiss (Doc. 20) arguing the 19 amendments in the FAC still did not provide sufficient factual allegations to state a claim 20 for relief. (Id.) Plaintiff filed a Motion for Leave to File Second Amended Complaint, 21 (Doc. 23) stating that “[c]ounsel for the parties had been in discussion to agree/stipulate to 22 the filing of a second amended complaint that addressed the issues raised in the pending 23 MTD,” which the Court granted. (Doc. 25). This rendered moot Defendant’s second 24 Motion to Dismiss. (Id.) 25 On February 6, 2023, Plaintiff filed her SAC, alleging Defendant: (1) violated the 26 Rehabilitation Act by discriminating against Plaintiff based on her disability under 29 27 U.S.C. §791, (2) violated the Age Discrimination Employment Act (“ADEA”) by 28 discriminating against Plaintiff based on her age under 29 U.S.C. §634, and (3) 1 constructively discharged Plaintiff.4 (Doc. 26). The Court now considers Defendant’s 2 third Motion to Dismiss. Defendant moves to dismiss all of Plaintiff’s claims under Rule 3 12(b)(6), arguing Plaintiff has not pled sufficient facts to support any of her claims. 4 (Doc. 27). 5 II. Legal Standard 6 A motion to dismiss under Rule 12(b)(6) addresses the legal sufficiency of a claim. 7 Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2001). A complaint may be dismissed for 8 failure to state a claim based on either the “lack of a cognizable legal theory or the absence 9 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 10 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When considering a motion to dismiss, a court 11 should “accept factual allegations in the complaint as true and construe the pleadings in the 12 light most favorable to the nonmoving party,” Manzarek v. St. Paul Fire & Marine Ins. 13 Co., 519 F.3d 1025, 1031 (9th Cir. 2008), but the court is not required to “accept as true a 14 legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 15 544, 555 (2007). Additionally, while the standard does not require “detailed factual 16 allegations,” the allegations must include more than “an unadorned, the-defendant- 17 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 18 complaint must state a claim that is “plausible on its face.” Twombly, 550 U.S. at 570. 19 As to employment discrimination complaints, the United States Supreme Court 20 clarified in Swierkiewicz v. Soremna N.A. that these complaints do not need to “contain 21 specific facts establishing a prima facie case of discrimination under the framework set 22 forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” 534 U.S. 506, 508 23 (2002). Thus, employment discrimination claims are not subject to a heightened pleading 24 standard. Id. at 512-13. Rather, they are subject to the same standard as all civil actions, 25 as set out in Federal Rule of Civil Procedure 8(a) and “must contain only ‘a short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Id. at 508 (citing Fed. 27 R. Civ. P. 8(a)(2)). 28 4 Plaintiff’s SAC does not include the retaliation claim. (See Doc. 26). 1 While Swierkiewicz clarifies that employment discrimination cases are not subject 2 to a heightened pleading standard, they are also not subject to a lesser pleading standard. 3 Id. at 513. Employment discrimination cases are still subject to the standards set out in 4 Twombly and Ashcroft. See Ting v. Adams & Assoc., Inc., 823 Fed. Appx. 519, 520 (9th 5 Cir. 2020). Consequently, while a plaintiff is not required to plead a prima facie case of 6 discrimination in order to survive a motion to dismiss, a court may still use the prima facie 7 case elements as guidance to determine if the complaint contains sufficient factual 8 allegations to survive a 12(b)(6) motion. See id. at 522; see also Drevaleva v. Department 9 of Veterans Affairs, 835 Fed. Appx. 221, 223 (9th Cir. 2020). 10 III. Discussion 11 Plaintiff’s SAC alleges (1) an employment discrimination claim based on disability, 12 (2) an employment discrimination claim based on age, and (3) a constructive discharge 13 claim. (Doc. 26 at ¶¶ 21–29). Defendant argues that Plaintiff has not sufficiently pled 14 facts to state a claim for relief on any of the counts. (Doc. 27). Defendant includes with 15 his Motion to Dismiss copies of the Retirement Counseling Letter and the Notice of 16 Separation attached as Exhibits A and B. (Docs. 27-1; 27-2). The Court will first consider 17 whether it is appropriate to incorporate Exhibits A and B into its reasoning for this Motion. 18 The Court will then address each of Plaintiff’s SAC claims in turn. 19 A. Documents Outside the Complaint 20 As a preliminary matter, the Court must determine whether it is appropriate to 21 consider the Letter and the Notice attached to Defendant’s Motion to Dismiss. (See Docs. 22 27-1; 27-2). Plaintiff argues the Court cannot consider these Exhibits without transforming 23 the motion into a Rule 56 motion for summary judgement because 12(b)(6) motions are 24 limited to allegations in the complaint. (Doc. 30 at 1–2). Defendant argues the Court may 25 consider the Exhibits because Plaintiff references the Exhibits in the SAC and the Exhibits 26 serve as the basis of Plaintiff’s claims. (Doc. 33 at 3). 27 Generally, a court may look only at the face of the complaint to rule on a motion to 28 dismiss. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). A 1 court may not consider evidence outside the pleadings without converting the motion to a 2 Rule 56 motion for summary judgement. See U.S. v. Ritchie, 342 F.3d 903, 907 (9th Cir. 3 2003). However, there are exceptions to this rule. For example, a court may consider 4 “material that the plaintiff properly submitted as part of the complaint or, even if not 5 physically attached to the complaint, material that is not contended to be inauthentic and 6 that is necessarily relied upon by the plaintiff’s complaint.” See San Francisco Patrol 7 Special Police Officers, 13 F.App’x 670, 675 (9th Cir. 2001). This scenario is referred to 8 as the “incorporation by reference” doctrine in the Ninth Circuit. See e.g., Van Buskirk, 9 284 F.3d at 980. The circuit court has “extended the ‘incorporation by reference’ doctrine 10 to situations in which the plaintiff’s claim depends on the contents of a document, the 11 defendant attaches the document to its motion to dismiss, and the parties do not dispute the 12 authenticity of the document, even though the plaintiff does not explicitly allege the 13 contents of that document in the complaint.” Ward v. Pima Animal Care Ctr. Officer Hinte, 14 2021 WL 4478401 at *4 (D. Ariz. Sept. 30, 2021) (quoting Knievel v. ESPN, 393 F.3d 15 1068, 1076 (9th Cir. 2005)). 16 Here, the documents in question are referenced heavily in the SAC and make up the 17 basis of Plaintiff’s claims. The parties also do not dispute the authenticity of the document. 18 Plaintiff does not allege that the documents are in any way inaccurate, misleading, or 19 forged. (Doc. 30 at 1–2). Therefore, the Court will consider the Letter and the Notice for 20 the purpose of this Order. 21 B. Disability Discrimination Claim 22 Count One of Plaintiff’s SAC alleges a discrimination claim under the 23 Rehabilitation Act. (Doc. 26 at ¶ 22). The Rehabilitation Act applies Title I of the 24 American with Disabilities Act (“ADA”) to federal employers. 29 U.S.C. § 791(f). 25 Consequently, federal employers cannot discriminate against its employees based on an 26 employee’s disability. See 42 USC § 12112(a). 27 To make out a prima facie case of discrimination under the Rehabilitation Act, a 28 plaintiff must allege that (1) she is disabled according to the ADA, (2) she is qualified to 1 perform the “essential functions” of her job, with or without reasonable accommodation, 2 and (3) she was terminated because of her disability. Kennedy v. Applause, Inc., 90 F.3d 3 1477, 1481 (9th Cir. 1996). 4 As to the first element, the ADA defines disability as an individual with “(A) a 5 physical or mental impairment that substantially limits one or more major life activities of 6 such individual; (B) a record of such an impairment; or (C) being regarded as having such 7 an impairment.” 49 U.S.C. § 12102(1). Courts have held that “merely labeling [oneself] 8 as ‘disabled’ in the Complaint is insufficient to explain what physical or mental disability 9 [Plaintiff] has.” Longariello v. Gompers Rehabilitation Center, 2010 WL 94113 at *3 (D. 10 Ariz. 2010). 11 As to the first element, Plaintiff alleges only that she “has a disability . . . due to on 12 the job injuries.” (Doc. 26 at ¶ 5). Plaintiff does not state the nature of her disability or 13 include any facts about how she sustained the injuries. 14 As to the second element, Plaintiff does not allege she was qualified to perform the 15 “essential functions” of her job. Nor does she explain what her position was at USPS. As 16 noted in the Letter, Plaintiff had been absent from her USPS assignment since October 17 2012. (Doc. 27-1). Thus, the SAC contains no allegations that Plaintiff was qualified to 18 perform the “essential functions” of her job, either with or without reasonable 19 accommodation. See Ali v. PayPal, Inc., 2019 WL 11691431 at *7 (N.D. Cal. July 26, 20 2019) (dismissing a claim of disability discrimination after finding plaintiff did not 21 “identify any of the essential functions of his position or plead any factual allegations 22 regarding his ability to perform them.”) 23 As to the third element, Plaintiff’s assertion that her termination was due to her 24 disability is conclusory and therefore insufficient. Plaintiff claims that Defendant 25 “maintained and utilized . . . a systematic system to separate/terminate employees who had 26 a disability[.]” (Doc. 26 at ¶ 14). Plaintiff does not include any facts supporting this 27 conclusion. Instead, the only support Plaintiff alleges for this conclusion is the Letter and 28 the Notice. Both documents indicate that Plaintiff’s termination was due to her nearly ten- 1 year absence from her assignment and not because of her disability. (See Docs. 27-1; 27- 2 2). Without any facts tending to show otherwise, it is not plausible to conclude that 3 Plaintiff’s termination was due to her unknown disability. See Ting v. Adams & Assoc., 4 Inc., 2018 WL 3769423 at *3 (E.D. Cal. 2018) (holding that the plaintiff’s claim that the 5 defendant used her “prior excused absences as a pretense to avoid rehiring her” was not 6 enough to “support an inference [d]efendant acted because of any disability” without 7 further facts alleging that she was treated differently than similarly situated individuals.) 8 In sum, Plaintiff has not sufficiently pled facts to state a claim for relief under the 9 Rehabilitation Act. Id. The Court will therefore dismiss Count One of the SAC. 10 C. Age Discrimination Claim 11 Count Two of Plaintiff’s SAC alleges a discrimination claim under the ADEA. 12 (Doc. 26 at ¶ 25). To state a claim of age discrimination under the ADEA, the Plaintiff 13 must show that “(1) she was at least 40 years old; (2) she was performing her job 14 satisfactorily; (3) [she was] discharged; and (4) [she was] either replaced by a substantially 15 younger employee with equal or inferior qualifications or discharged under circumstances 16 otherwise giving rise to an inference of age discrimination.” Sheppard v. David Evans & 17 Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (internal quotations omitted). 18 As to the first element, Plaintiff claims that she is above forty (40) years of age and 19 thus this element is satisfied. (Doc. 26 at ¶ 5). 20 As to the second element, Plaintiff does not provide the “essential functions” of her 21 job. See supra at Section III.B. Similarly, Plaintiff does not address whether or not she 22 performed her job satisfactorily. Nor does she dispute that she has been absent from her 23 assignment since October 2012. Thus, Plaintiff has not pled sufficient facts to satisfy the 24 second element. See Drevaleva v. U.S. Dept. of Veterans Affs., 2018 WL 6305612 at *3 25 (N.D. Cal. Dec. 3, 2018) (dismissing a claim for age discrimination after finding plaintiff 26 failed to “plead facts showing she was performing her job satisfactorily”). 27 As to the third element, it is somewhat unclear if Plaintiff has been separated from 28 her employment with USPS. Plaintiff claims that her “employment with defendant was in 1 fact terminated on an involuntary basis” (Doc. 26 at ¶ 12), but also claims that “Plaintiff is 2 employed with [USPS].” (Id. at ¶ 6) (emphasis added). Despite this inconsistency, the 3 Court will assume that Plaintiff has been terminated. 4 As to the fourth element, Plaintiff does not show that she was either replaced by a 5 substantially younger employee or that she was discharged under circumstances otherwise 6 giving rise to an inference of age discrimination. She does not allege the first option at all. 7 As for the second option, the facts presented in the SAC, Letter, and Notice do not give 8 rise to an inference of age discrimination. Neither the Letter nor the Notice mention 9 Plaintiff’s age at all. (Docs. 27-1; 27-2). Instead, the documents outline clear reasonings 10 for Defendant’s intent to separate and provide Plaintiff with multiple options going 11 forward. (Doc. 27-1). Plaintiff’s further claims that Defendant “knowingly and 12 intentionally imposed on [USPS] employees over the age of 40” the types of letters that 13 she received in order to remove them from employment. (Doc. 26 at ¶ 10). But there are 14 insufficient facts alleged to support this conclusion, as the allegations must include more 15 than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. 16 at 678. Thus, Plaintiff has not pled sufficient facts for the fourth element. 17 In sum, Plaintiff alleges facts to plausibly establish the first and third elements of a 18 case for age discrimination, but not the second and forth. Therefore, Plaintiff has not 19 sufficiently pled facts to support a claim for relief based on discrimination under the 20 ADEA. See Drevaleva, 2018 WL 6305612 at *3 (dismissing plaintiff’s age discrimination 21 claim where plaintiff satisfied the first and third elements for a case for age discrimination 22 but not the second and fourth). The Court will therefore dismiss Count Two of the SAC. 23 D. Constructive Discharge Claim 24 Last, Count Three of Plaintiff’s SAC alleges she was constructively discharged. 25 (Doc. 26 at ¶ 28). Plaintiff does not state the statutory basis for this claim. (See id.) A 26 constructive discharge claim may be brought under either state law or federal law. 27 A state law claim for constructive discharge under Arizona law is governed by 28 A.R.S. § 23-1502. Id. Under this statute, constructive discharge is established if there is 1 “[e]vidence of objectively difficult or unpleasant working conditions to the extent that a 2 reasonable employee would feel compelled to resign,” or “[e]vidence of outrageous 3 conduct by the employer, including sexual assault, threats of violence directed at the 4 employee, a continuous pattern of discriminatory harassment by the employer . . . or other 5 similar kinds of conduct, if the conduct would cause a reasonable employee to feel 6 compelled to resign.” Id. § 23-1502(A). The statute also contains preconditions regarding 7 notice to the employer that the plaintiff must satisfy in order to bring a claim of constructive 8 discharge. Id. § 23-1502(B). 9 However, constructive discharge under A.R.S. § 23-1502 is not in itself an 10 actionable claim. Ferren v. Westmed Inc., 2021 WL 778545 at *4 (D. Ariz. Mar. 1, 2021) 11 (citing Peterson v. City of Surprise, 418 P.3d 1020, 1023 (Ariz. App. 2018)). Rather, “[to] 12 prevail on a claim for constructive discharge, an employee must also prove a common-law 13 or statutory claim for wrongful termination.” Id. Therefore, to successfully plead a case 14 of constructive discharge under Arizona state law, Plaintiff would have to state a claim for 15 wrongful termination as well, which she has not. 16 A claim for constructive discharge may also be brought under relevant federal law. 17 The Court will assume Plaintiff is claiming constructive discharge under the Rehabilitation 18 Act, as the only other time Plaintiff mentions constructive discharge in the SAC is in 19 conjunction with her disability. (Doc. 26 at ¶ 11) (“This [separation] . . . constituted a 20 [constructive] discharge due to [P]laintiff’s disability resulting from an on the job injury[.]) 21 However, Plaintiff may also allege constructive discharge under the ADEA. See Arkens v. 22 County of Sutter, 2016 WL 4001057 at *5 (E.D. Cal. July 25, 2016). 23 Constructive discharge “occurs when the working conditions deteriorate, as a result 24 of discrimination, to the point that they become sufficiently extraordinary and egregious to 25 overcome the normal motivation of a competent, diligent, and reasonable employee to 26 remain on the job to earn a livelihood and to serve his or her employer.” Poland v. Chertoff, 27 494 F.3d 1174, 1184 (9th Cir. 2007) (quoting Brooks v. City of San Mateo, 220 F.3d 917, 28 930 (9th Cir. 2000)). The conduct described must be “severe and pervasive” to a higher 1 extent than that of a hostile work environment claim. Brooks, 229 F.3d at 930. Courts in 2 this circuit have continually dismissed constructive discharge claims for failing to plead 3 facts that demonstrate “objectively egregious working conditions.” See Bond v. Wells 4 Fargo Bank NA, 2023 WL 155857 at *3 (D. Ariz. Jan. 11, 2023); Cronk v. Reckitt 5 Benckiser Pharm., Inc., 2013 WL 4532036 at *3 (N.D. Cal. 2013); Cogan v. Maricopa, 6 Cnty. of., 2016 WL 627754 at *2 (D. Ariz. Feb. 17, 2016). 7 Here, Plaintiff only points to the Notice as evidence of constructive discharge based 8 on her disability. (Doc. 26 at ¶ 11). This alone does not give rise to “intolerable and 9 discriminatory working conditions” that were “severe and pervasive.” See Watson v. 10 Nationwide Ins. Co, 823 F.2d 360, 361 (9th Cir. 1987); see also Brooks, 229 F.3d at 930. 11 Plaintiff has only described a single, isolated instance, which is insufficient to support a 12 constructive discharge claim. Watson, 823 F.2d at 361. 13 Additionally, courts have held that, like constructive discharge under Arizona law, 14 constructive discharge under federal law is not a standalone claim. See Udd. v. City of 15 Phx., 2020 WL 1536326 at *30 (D. Ariz. Mar. 31, 2020). Therefore, Plaintiff cannot 16 prevail on a constructive discharge claim without successfully pleading a discrimination 17 claim. See id. Because the Court has dismissed Plaintiff’s discrimination claims, her 18 constructive discharge claim cannot suffice on its own. 19 Finally, to establish a constructive discharge claim, a plaintiff must allege that she 20 resigned due to the intolerable and discriminatory conditions. Arkens, 2016 WL 4001057 21 at *5. If the plaintiff did not resign, constructive discharge has not occurred. Id. Here, 22 Plaintiff does not allege that she resigned after receiving the Notice but implies that she 23 was terminated by Defendant. (Doc. 26 at ¶ 12). Under these facts, Plaintiff has not 24 sufficiently alleged that she was constructively discharged. 25 For the above stated reasons, the Court will dismiss Count Three of the SAC. 26 IV. Conclusion 27 In sum, the facts alleged in Plaintiff’s SAC do not sufficiently state a claim upon 28 which relief can be granted under Counts One, Two, or Three. Plaintiff does not allege 1 any facts regarding (1) the nature of her disability, (2) the essential duties of her job, (3) 2 whether she was performing those duties satisfactorily, or (4) whether Defendant was 3 systematically terminating employees based on their age or disabilities. Thus, Plaintiff’s 4 claims under the Rehabilitation Act and ADEA cannot go forward. Likewise, Plaintiff 5 does not allege sufficient facts regarding her work environment to sustain a constructive 6 discharge claim. 7 In her Response, Plaintiff asks the Court to allow her to file an amended complaint 8 should it find deficiencies in the SAC. (Doc. 30 at 16). Federal Rule of Civil Procedure 9 15(a)(2) states that “a party may amend its pleadings only with the opposing party’s written 10 consent or the court’s leave.” Id. “The court should freely give leave when justice so 11 requires.” Id. Generally, courts should grant leave to amend freely and liberally if the 12 complaint could be saved by amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 13 519 F.3d 1025, 1034 (9th Cir. 2008). However, courts may deny leave to amend due to 14 “[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated 15 failure to cure the deficiencies by amendments previously allowed, [4] undue prejudice to 16 the opposing party by virtue of allowance of the amendment, and [5] futility of 17 amendment.” Id. (internal quotations omitted). 18 Defendant opposes Plaintiff’s request for leave to amend, arguing Plaintiff has been 19 “on notice of the deficiencies in her pleadings since . . . Defendant filed his first Motion to 20 Dismiss” and “Plaintiff does not indicate what additional facts she intends to plead.” (Doc. 21 33 at 11). However, these issues do not embody any of the five circumstances under 22 Manzarek in which a court should deny leave to amend. While Plaintiff has been on notice 23 of deficiencies in the complaint from Defendant’s previous Motions to Dismiss, the Court 24 has yet to rule definitively on these deficiencies. Rather, the previous two amendments 25 were granted under agreements between the parties. (Docs. 16; 25). 26 Furthermore, Plaintiff need not indicate what facts she plans to add in a third 27 amended complaint. When a plaintiff’s complaint fails due to insufficient factual 28 allegations and not a lack of a cognizable legal theory, the court should grant leave to 1|| amend. See Parents for Privacy v. Barr, 949 F.3d 1210, 1239 (9th Cir. 2020) (affirming 2|| the district court’s ruling to deny leave to amend because the issue with plaintiffs || complaint was that the legal theories failed and not “the sufficiency of their factual 4|| allegations.”) Therefore, the Court will grant Plaintiffs request to file an amended 5 || complaint. 6 Accordingly, 7 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Second || Amended Complaint (Doc. 27) is GRANTED. The Second Amended Complaint 9|| (Doc. 26) is DISMISSED without prejudice. 10 IT IS FINALLY ORDERED that Plaintiffs request for leave to file an amended |} complaintis GRANTED. Plaintiff shall file a Third Amended Complaint within fourteen 12 || (14) days of the date this Order is entered. If Plaintiff fails to timely do so, the Clerk of 13 |} Court shall dismiss this action without further order of this Court. 14 Dated this 11th day of May, 2023. 15 16 fe SZ V7 norable' Diang/4. Hurfetewa 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 -13-