Opinion
3:20-cv-01660-HZ
11-14-2021
JENINE KRISTINA MACON, Plaintiff, v. PROUD GROUND ORGANIZATION, RYAN PARKER, KATIE ULLRICH, PEDRO CRUZ, Defendants.
OPINION & ORDER
MARCO A HERNÁNDEZ, United States District Judge
Pro Se Plaintiff Jenine Kristina Macon brings this action against Defendants Proud Ground Organization, Ryan Parker, Katie Ullrich (“Proud Ground Individual Defendants”), and Pedro Cruz. In her original complaint, Plaintiff brought claims under the Federal and Oregon Fair Housing Acts. Compl., ECF 1. All Defendants moved to dismiss the complaint pursuant to Federal Rule of Procedure (Rule) 12(b)(6) and Defendant Pedro Cruz moved to dismiss the complaint for lack of proper service. Def. Proud Ground Mot., ECF 16, Def. Cruz Mot., ECF 20. The Court granted the motion to dismiss pursuant to Rule 12(b)(6) and gave Plaintiff leave to amend to cure the deficiencies in the complaint. Op. & Order, ECF 26. The Court found that service of Defendant Cruz was ineffective, quashed service, and gave Plaintiff an additional 21 days after filing her amended complaint to complete service on Defendant Cruz. Id. Plaintiff later filed a First Amended Complaint. ECF 27. Defendant Proud Ground and the Proud Ground Individual Defendants moved to dismiss the First Amended Complaint for failure to state a claim, in which they contend that Plaintiff has failed to cure the deficiencies previously identified. Def. Proud Ground Mot. 2, ECF 29, Def. Cruz Mot.2, ECF 31. Defendant Cruz moved to dismiss the First Amended Complaint for improper service and for failure to state a claim. Def. Cruz Mot. 2. For the following reasons, the Court grants Defendants' motions.
Defendant Cruz argues Plaintiff's First Amended Complaint should be dismissed for deficient service of processes under Rule 12(b)(5). The purported service appears to be an attempt at office service under Oregon Rule of Civil Procedure 7D(2)(c), without the requisite mailing. Return of Service, ECF 30. However, because the Court dismisses Plaintiff's Complaint on the merits without leave to amend, it declines to rule on this motion.
BACKGROUND
Plaintiff's allegations in the First Amended Complaint largely track those asserted in her initial complaint. Plaintiff participated in Proud Ground's home buying program. First Am. Compl. (“FAC”) at 1, ECF 27. She received a $77,000 commitment grant from Proud Ground that required her to purchase a home in Beaverton and work with a real estate agent. Id. Plaintiff first hired Defendant Cruz as her real estate agent. Id. She alleges Defendant Cruz failed to provider her effective service. FAC at 1. She alleges that he did not help her search for houses and put in two offers on houses on her behalf that were rejected. FAC at 1-2. At this point, Plaintiff switched real estate agents. FAC at 2. She alleges this switch slowed her homebuying process. FAC at 2.
The first commitment grant required Plaintiff to purchase a home by April 15, 2020. FAC at 2. Proud Ground granted Plaintiff an extension due to her switching real estate agents and the pandemic but declined to grant her a second extension when she did not meet the new deadline. FAC at 2. Plaintiff alleges that Katie Ullrich, a Proud Ground employee, told her to still apply to purchase a home for sale on Vance Lane in Beaverton (Vance Home). FAC at 2.
Plaintiff applied to purchase the Vance Home for $230,000. FAC at 2-3. Plaintiff alleges that Ullrich notified her that she was the first to apply for the home and that per Proud Ground rules “the top buyer would be notified of their status for the house.” FAC at 2. Plaintiff never received notice that her offer was accepted and instead learned online that the house was sold to another buyer for $150,000. FAC at 3.
Plaintiff alleges that Ullrich told her that she would notify Plaintiff when another Beaverton grant became available. FAC at 3. According to Plaintiff, Ullrich never followed-up and notified her about the availability of a new $87,000 Beaverton grant and Plaintiff discovered it through her own online research. FAC at 3.
STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).
To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.
Courts must liberally construe pro se pleadings. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Additionally, a court cannot dismiss a pro se complaint without first explaining to the plaintiff the deficiencies of the complaint and providing an opportunity to amend. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies of the complaint could not be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
DISCUSSION
I. Motions to Dismiss for Failure to State a Claim
Defendant Proud Ground, the Individual Proud Ground Defendants, and Defendant Cruz move to dismiss Plaintiff's claims for failure to state a claim pursuant to Rule 12(b)(6). Defendants argue that the First Amended Complaint failed to cure the deficiencies previously identified, and thus that the action should be dismissed. According to Defendants, because Plaintiff has repeatedly failed to assert any viable claims, dismissal with prejudice is warranted. Plaintiff does not address Defendants' arguments in her responses or point to facts in the First Amended Complaint that support her claims. Pl. Resps., ECF 34, 35, 36.
In her responses to Defendants' motions to dismiss, Plaintiff asks the Court to reconsider its rulings on her motions for entry of default judgment. Pl. Mots. for Default J., ECF 13, 17. A motion for reconsideration can be granted if the court (1) is presented with new evidence, (2) committed clear error or the first decision was manifestly unjust, or (3) is aware of an intervening change in law. Sch. Dist. No 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Plaintiff has failed to meet this standard. The Court denies Plaintiff's Motion to Reconsider its July 2021 Opinion and Order, ECF 26.
In her initial complaint, Plaintiff appeared to bring claims for discrimination under the Federal and Oregon Fair Housing Acts and a claim for retaliation under the federal Fair Housing Act. Compl., ECF 1. In its July 2021 Opinion & Order, the Court laid out the elements of these claims, explained which elements Plaintiff failed to plead, and gave Plaintiff leave to amend her complaint. See Op. & Order at 11-12. Plaintiff filed an amended complaint on August 20, 2021. In her First Amended Complaint, Plaintiff makes no allegations related to discrimination on any basis or to retaliation. As a result, the Court considers these claims abandoned.
Even if Plaintiff intended to continue to pursue these claims, she again failed to allege sufficient facts to support a claim for discrimination or retaliation under the federal Fair Housing Act or Oregon law. As laid out in the July 2021 Opinion & Order, on the discrimination claims Plaintiff needed to allege facts showing Defendants acted with discriminatory intent, and on the retaliation claim, Plaintiff needed to allege facts showing she engaged in a protected activity. She alleges neither in her First Amended Complaint.
In her First Amended Complaint, Plaintiff essentially alleges Proud Ground violated its own rules and provided poor customer service by not notifying her that she made the top offer on the Vance house and not awarding her the $87,000 Beaverton grant. These allegations are not sufficient to state a claim for relief under the law. Plaintiff alleges that Proud Ground made a series of gratuitous promises to conduct its business in a certain manner. Nothing under the law obligated Proud Ground to follow through on those alleged promises. Plaintiff is understandably disappointed that her offer on the Vance House was not accepted and that she did not receive a second grant. However, these allegations do not support a legal claim against Proud Ground.
Plaintiff attaches many documents to her First Amended Complaint. One of these documents appears to be an agreement she and a Proud Ground representative signed. The Agreement lays out the terms of the Beaverton grant reservation Proud Ground offered Plaintiff. If Plaintiff attempts to state a claim for breach of contract based on the Signed Agreement attached to Plaintiff's First Amended Complaint, Plaintiff's claim fails as a matter of law. Nothing in the Agreement obligated Proud Ground to sell Plaintiff the Vance House or to offer her the second $ 87, 000 grant.
The same goes for Plaintiff's claims against Defendant Cruz. Plaintiff alleges Defendant Cruz provided ineffective and unreliable service. She does not allege he discriminated against her on any basis. Poor service alone is not an actionable legal claim and Plaintiff points to no other basis for her action against Defendant Cruz.
II. Leave to Amend
“Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment.” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (citation omitted). A district court's discretion to deny leave to amend is “particularly broad” where the court has previously provided the plaintiff an opportunity to cure the deficiencies. Id. (citation omitted).
The Court explained in detail how to cure the deficiencies in its July 2021 Opinion & Order and gave Plaintiff leave to amend. Rather than provide additional facts to support her claims of discrimination and retaliation, Plaintiff narrowed her focus to ineffective customer service. As discussed above, this is not a cognizable legal theory. Thus, the Court finds that additional facts that would entitle Plaintiff to relief under the law are not forthcoming. Accordingly, the Court dismisses Plaintiffs First Amended Complaint with prejudice and without leave to amend.
CONCLUSION
Defendant Proud Ground's Motion to Dismiss for Failure to State a Claim [29] and Defendant Pedro Cruz's Motion to Dismiss [31] are GRANTED without leave to amend.
IT IS SO ORDERED.