Marshall-Birdsong v. Shriners Hospitals for Children ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 CONSTANCE (“CONNIE” - 9-93-ey- - | CONS ANGE Cisbe ON 6? CASE NO.: 2:23-cv-02971-MCE-DB 0 [Assigned to the Hon. Morrison C. Plaintiff, England, Jr., Courtroom 7] 13 4 VS. ORDER GRANTING DEFENDANT SHRINERS HOSPITALS FOR SHRINERS HOSPITALS FOR 16 30, inclusive, DISMISS PLAINTIFF’S FIRST Defendant. AMENDED COMPLAINT 17 Date: March 7, 2024 18 Time: 10:00 a.m. 19 Place: Courtroom 7 Action Filed: October 17, 2023 20 Date of Removal: December 20, 2023 21 Good causing having been shown, Defendant’s Motion to Dismiss □□□□□□□□□□□ 22 || First Amended Complaint (ECF No. 16) is GRANTED with leave to amend. 23 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 24 || Procedure (“Rule”) 12(b)(6), all allegations of material fact must be accepted as 25 || true and construed in the light most favorable to the nonmoving party. 26 /// 27 WY /// 28 HWS ACTIVELLP:14028782.1 1 || Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) 2 || “requires only ‘a short and plain statement of the claim showing that the pleader is 3 || entitled to relief in order to ‘give the defendant fair notice of what the . . . claim is 4 || and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 5 || 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint 6 || attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual 7 || allegations. However, “a plaintiff's obligation to provide the grounds of his 8 || entitlement to relief requires more than labels and conclusions, and a formulaic 9 || recitation of the elements of a cause of action will not do.” Id. (internal citations 10 || and quotations omitted). A court is not required to accept as true a “legal 11 || conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 || (2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough 13 || to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 14 || (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 15 || 1216 (3d ed. 2004) (stating that the pleading must contain something more than “a 16 || statement of facts that merely creates a suspicion [of] a legally cognizable right of 17 || action’’)). 18 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 19 || assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations 20 || and quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, 21 || itis hard to see how a claimant could satisfy the requirement of providing not only 22 || ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” 23 || Id. (citing Wright & Miller, supra, at 94, 95). A pleading must contain “only 24 || enough facts to state a claim to relief that is plausible on its face.” Id. at 570. If the 25 || “plaintiffs... have not nudged their claims across the line from conceivable to 26 || plausible, their complaint must be dismissed.” Id. 27 | /// 28 |} /// ON |] WSACTIVELLP:14028782.1 1 || However, “a well-pleaded complaint may proceed even if it strikes a savvy judge 2 || that actual proof of those facts is improbable, and ‘that a recovery is very remote 3 || and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 4 A court granting a motion to dismiss a complaint must then decide whether 5 || to grant leave to amend. Leave to amend should be “freely given” where there is no 6 || “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue 7 || prejudice to the opposing party by virtue of allowance of the amendment, [or] 8 || futility of [the] amendment... .” Foman v. Davis, 371 U.S. 178, 182 (1962); 9 || Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) 10 || (listing the Foman factors as those to be considered when deciding whether to grant 11 || leave to amend). Not all of these factors merit equal weight. Rather, “the 12 || consideration of prejudice to the opposing party . .. carries the greatest weight.” Id. 13 || (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). 14 || Dismissal without leave to amend is proper only if it is clear that “the complaint 15 || could not be saved by any amendment.” Intri-Plex Techs., Inc. v. Crest Group, 16 || Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 17 | 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 18 || 1160 (9th Cir. 1989) (“Leave need not be granted where the amendment of the 19 || complaint .. . constitutes an exercise in futility ....”)). 20 Plaintiff's factual allegations are entirely conclusory and are not capable of 21 || stating a claim as to any of her causes of action. For example, Plaintiff does not 22 || allege how her religious beliefs prevented her from receiving the COVID vaccine, 23 || how she formulated her request for a religious exemption, why her request for such 24 || an exemption was denied, how being unvaccinated qualifies as a medical condition 25 || or disability, how she was denied meal and rest breaks, whether she ever requested 26 || reimbursement for business expenses, and how and when her request for her 27 || personnel records was made. 28 |} /// ON |] WSACTIVELLP:14028782.1 1 Accordingly, Defendant’s Motion to Dismiss (ECF No. 16) is GRANTED 2 || with leave to amend. Not later than twenty (20) days following the date this Order 3 |] is electronically filed, Plaintiff may, but is not required to, file a second amended 4 |} complaint (“SAC”). Ifno SAC 1s timely filed, this action will be dismissed without 5 || leave to amend upon no further notice to the parties. 6 7 || Dated: February 21, 2024 Eo { lots rf LEK. 9 SENIOR UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HWS ACTIVELLP:14028782.1