Opinion
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND [re: docket no. 23]
This disposition is not designated for publication and may not be cited.
JEREMY FOGEL, District Judge.
Defendant San Jose Police Department ("SJPD") moves to dismiss the complaint filed by Plaintiff Dong Thanh Vo. The Court heard oral argument on January 12, 2007. For the reasons discussed below, the Court will dismiss the complaint with leave to amend.
I. BACKGROUND
Plaintiff filed the instant complaint on May 31, 2005, naming defendants SJPD, Delta Towing, Inc., and the Department of Motor Vehicles of the State of California. Plaintiff alleges that his vehicle was improperly impounded by the SJPD; he requests relief in the form of the release of his vehicle and compensation for "suffering and/or unspecific damage(s)."
On October 19, 2005, the Court denied without prejudice Plaintiff's first application to proceed in forma pauperis, concluded that it did not have subject matter jurisdiction. On March 1, 2006, the Court denied without prejudice Plaintiff's second application to proceed in forma pauperis, again concluding that it did not have subject matter jurisdiction. The Court instructed Plaintiff that it would not "grant any future application to proceed in forma pauperis if Plaintiff has not amended his complaint such that it states a non-frivolous claim over which this Court has jurisdiction." March 1, 2006 Order 2.
On September 29, 2006, Plaintiff filed an amended complaint. On October 3, 2006, Plaintiff filed an amendment to this amended complaint. On October 25, 2006, SJPD moved to dismiss the action against it for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction. Plaintiff filed opposition to the motion on January 12, 2007, the same day that oral argument occurred.
The Court has considered the papers untimely filed by Plaintiff. However, the Court directs Plaintiff that he must abide by the local rules in subsequent briefing. Civ. L.R. 7-3 requires that opposition be filed no later than 21 days before the hearing date.
II. DISCUSSION
The amended complaint does not state a discernible legal claim against the SJPD. It appears that the dispute stems from the impounding of Plaintiff's vehicle, but Plaintiff does not indicate what actions form the basis of his complaint against the SJPD. Nor does Plaintiff identify a basis for the Court's subject matter jurisdiction; the parties are not diverse, and the complaint does not identify a federal statute under which Plaintiff brings suit. Accordingly, the Court will dismiss the complaint.
Defendant argues in its opposition that, even if Plaintiff were to bring an action under 42 U.S.C. § 1983, Monell v. Department of Social Services, 436 U.S. 658 (1978) would bar such an action because it does not involve a municipal policy or custom. However, in the absence of any reference in the complaint to 42 U.S.C. § 1983, the Court will not assume that any such allegation would or would not claim the existence of an offensive municipal policy or custom. Accordingly, the Court cannot conclude that amendment of the complaint would be futile, and it will grant Plaintiff leave to amend the complaint. As Defendant suggests in its opposition, any amended complaint should name the proper governmental unit as the defendant. In addition, the Court strongly advises Plaintiff to seek legal advice, particularly a free consultation with the Santa Clara County Bar Association.
III. ORDER
Good cause therefore appearing, IT IS HEREBY ORDERED that the motion to dismiss is GRANTED with leave to amend. Plaintiff should file any amended complaint on or before January 12, 2007.