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STEPHANIE YONEKURA
Acting United States Attorney
LEO}V W. WEIDMAN
Assistant United States Attorney
Chief, Civil Division
JASON K. AXE
Assistant [Jnited States AttomeY
California Bar Number 187101 "
Federal Building,
Iecleral
uurlcllng. Surte
i ) Io
Suite 7516
Ahseles Street
300 North
JUU
Nofin Los Angeles
LoF Angeles,_ Cqlifrrnia g_0_0 I 2
Telephone : (213 ) 894- 8827
Facsimile: (213 ) 894 -7819
E-mail : Jason. Axe@usdoj
.gov
Attorneys for Defendant

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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OLIVE.R B. MITCHELL, III,

Plaintift
V.

SECRETARY, I.JNITED STATES


DE,PARTMENT OF' VETERANS
AFFAIRS,
Defendant.

No. CV l3-06030 ODw (Cw)


(1) NTOTTCE OF MOTTO1Y ANn
MOTIONI TO DISMISS FOR FAILURE
TO STATE A CLAIM, OR IT{ THE
ALTERNATIVE, FOR A MORE
DEFII{ITE STATEMENT;

(2) MEMORANDUM OF POTNTS ANn


AUTHORITIES

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[Fed. R. Civ. P. 8, 12(bX 6), and 12(e)]

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Date: April 28,2015


Time: 1d:00 a.in.
Ctrm: Hon. Carla Woehrle

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.LL

an

LL

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NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED

COMPLAINT FOR FAILURE TO STATE A CLAIM. OR IN THE

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ALTERNATIYE" FOR A MORE DEFINITE STATEMENT

PLEASE TAKE NOTICE that on April 28, 2015, at 10:00 a.m., or as soon

thereafter as the parties may be heard, defendant Robert A. McDonald, Secretary, United

States Department of Veterans Affairs,

Plainti{f s Second Amended Complaint ("Complaint"), or in the altemative, for a more

definite statement. The hearing will take place before the Honorable Carla Woehrle,

United States Magistrate Judge, in her Courtroom, Roybal Federal Building, 255 E.

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Temple Street, Los Angeles,

CA

will bring on for hearing a motion to dismiss

90012.

Defendant respectfully moves this Court to dismiss Plaintiff s Complaint, without

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prejudice, pursuant to Rules I 2(b) (6) and 8(a) of the Federal Rules of Civil Procedure

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for failure to state a claim upon which relief can be granted and failure to contain a short

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and plain statement of claims showing that Plaintiff is entitled to

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alternative, Defendant moves this Court to compel Plaintiff to make a more definite

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statement of the claims against him pursuant to Rules 12(e) and 8 of the Federal Rules

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Civil Procedure on the grounds that Plaintifls complaint fails to contain

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plain statement of his claims showing that Plaintiff is entitled to relief, and the averments

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of the Complaint are vague and ambiguous, thus preventing Defendant from interposing

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a responsive pleading.

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relief. In the

a short and

This Motion is based on the Notice, the Memorandum of Points and Authorities,

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all of the pleadings on file with the Court, and upon such other and further arguments,

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documents, and grounds as may be advanced in the future.

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Pursuant to L.R. 7-3, counsel for Defendant attempted to contact Plaintiff in pro se

for a conference ofcounsel, however, the telephone number listed on Plaintiffs

Complaint did not allow for messages, and counsel for Defendant was ultimately unable

to reach Plaintiff.

Respectful

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Dated: March 23,2015

ly submitted,

STEPHANIE YONEKURA
Acting United States Attorney
LEOI{W. WEIDMAN
Assistant [Jnited States Attorney
Chief, Civil Division

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lsl Jason K. Axe


JASON K. AXE
Assistant lJnited States Attorney
Attornevs for Defbndant

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MEMORANDUM OF POII{TS AND AUTHORITIES

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I.

INTRODUCTION
On December 22,2014,9959 plaintiff Oliver B. Mitchell

III filed a 130-paragaph

Second Amended Complaint ("Complaint") against the Secretary of the United States

Department of Veterans Affairs.r (DN #40.) Although the Complaint contains a long

statement of facts, it does not contain any actual claims against Defendant. Therefore,

Defendant moves for dismissal of the Complaint because Plaintiff has failed to state a

claim against him upon which relief can be granted. Due to the nature of Plaintiff

Complaint, Defendant cannot discem exactly which claims Plaintiff is pursuing against

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him. If Defendant's motion to dismiss is not granted in its entirety, Plaintiff should

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compelled to amend his complaint in a manner that

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meaningfully to the complaint.

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II.

be

will permit Defendant to respond

PLATNTIFF'S COMPLAINT SHOULD BE DISMISSED, OR IN THE

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ALTER]\ATIVE. PLAINTIFF SHOULD BE COMPELLED TO MAKE A


MORE DEFII{ITE STATEMEI{T

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A.

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Plai+tiff

s Complaint Shoul4 B,e Dismissed

For Failure to State a Claim

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Upon Which Relief Can Be Gf4nted a{rd for Failqre to Contain a Short

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and Plain Statement of His Claims

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A court may dismiss a plaintiffs complaint for "failure to state a claim upon which

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relief can be granted." Fed. R. Civ. P. 12(b)(6). Rule 8(a) of the Federal Rules of Civil

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Procedure requires "a short and plain statement of the claim showing that the pleader is

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entitled to

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544,555 (2007). Rule 8(e) provides that "each averment ofa pleading shall be simple,

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concise, and direct." See Fed. R. Civ. P. 8(e). When a pleading fails to comply with the

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pleading requirements of Rule 8, a defendant may "move for a more definite statement

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under Rule 12(e) before responding." Swierkiewicz v. Sorema N.A., 534 U.S. 506,514

relief."

See Fed. R. Civ. P. 8(a);

Bell Atlantic Corp. v. Twombly, 550 U.S.

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' The current Secretary is Robert A. McDonald.

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(2002). A complaint must contain either direct or inferential allegations conceming "all

the material elements necessary to sustain recovery under some viable legal theory."

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Twombly, 550 U.S. at 562.

Plaintiff s allegations

are not simple, concise, or

direct. Plaintiff has filed a 130-

of

paragraph complaint consisting mostly of a long stateinent of facts with no causes

action. (DN #40.) Plaintiff

"shotgun pleading," although here, rather than set forth multiple counts, Plaintiffhas set

forth a string of "facts" dating back to February 2008 without identiffing any "counts"

or specific claims against Defendant. Cf Stratesic Income Fund v. Spear. Leeds. &

Complaint is similar to what courts have characterized as a

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Kelloeg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) ("The typical shotgun complaint

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contains several counts, each one incorporating by reference the allegations of its

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predecessors, leading to a situation where most of the counts (i.e., all but the first)

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contain irrelevant factual allegations and legal conclusions. Consequently, in ruling on

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the sufficiency of a claim, the trial court must sift out the irrelevancies,

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quite onerous.") Shotgun pleadings impede the due administration ofjustice and amount

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to obstruction of justice. ld. at 1295 nn.9- 1 0; see also Magluta v. Samples , 256 F .3d
1282, 1284 (1 lth Cir. 2001) (appropriate way to deal with shotgun complaint is to order

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plaintiffto replead).

task that can be

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"Length may make a complaint unintelligible, by scattering and concealing in a

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morass of irrelevancies the few allegations that matter." United States ex rel. Garst v.

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Lockheed-Martin Corp., 328 F.3d 374,378 (7th Cir. 2003). "[U]nless cases are pled

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clearly and precisely, issues are not joined,, discovery is not controlled, the trial court's

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docket becomes unmanageable, the litigants suffer, and society loses confidence in the

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courl's ability to administer justice." Id. (citing Anderson v. District Bd. of Trustees, 77

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F.3d364,367 (1lth Cir. 1996)).

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In Anderson, the I 1th Circuit noted that a defendant faced with a lengthy

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"shotgun" complaint is "expected to move" for a more definite statement rather than file

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an answer, and

if the defendant fails to do

so, the trial.court should sua sponte require a

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more definite statement. Anderson, 77 F.3d at 366; see also McHenry v. Renne, 84 F.3d

1172,1177-78 (9th Cir. 1996) (affirming dismissal of a 53-page third amended

complaint that was 'oargumentative, prolix, replete with redundancy, and largely

irrelevant"); Hatch v. Reliance Insurance Co.,758F.2d 409,415 (9th Cir. 1985)

(affirming dismissal of complaints, "which, including attachments, exceeded 70 pages in

length, were confusing and conclusory and not in compliance with Rule 8"); Nevijel v.

North Coast Life Insurance Co. , 651 F .2d 67 1 , 673-7 4 (9th Cir. I 981) (affirming a

dismissal of a23-page amended complaint with24 pages of addenda found to be

verbose, confusing and conclusory); Corcoran v. Yorty ,347

.2d 222,223 (9th Cir.

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1964) (per curiam) (affirming dismissal of complaint for alleged fraud and conspiracy in

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violation of civil rights, where complaint was'oso verbose, confused and redundant that

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its true substance, if any, is well disguised"); Agnew v. Mood),, 330 F.2d 868, 870 (9th

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Cir. 1964) (court was justified in forcing plaintiff to replead where, although elements

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and factual context of claim for relief were simple, complaint extended over fifty-five

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pages, excluding the prayer and exhibits).

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"Rule 8(a) requires parties to make their pleadings straightforward, so that judges

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and adverse parties need not try to fish a gold coin from a bucket of mud." ljnited States

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ex rel. Garst v. Lockheed-Martin Corp.,328 F.3d 374,378 (7th Cir. 2003).

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Plaintiffls Complaint fails to comply with the pleading requirements of Rule 8 and

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makes it impossible for Defendant to frame a meaningful responsive pleading. Plaintiff

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has attached to his Complaint an exhibit that represents the Final Agency Decision of the

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VA regarding claims for discrimination for which Plaintiff initiated contact with

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EEO counselor in March 2013. (DN #40 at 18.) However, the body of his Complaint

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consists mostly of a long statement of facts that date back to February 2008 without

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identifoing any speciflc claims against Defendant. Moreover, the Final Agency Decision

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indicates that Plaintiff withdrew his claims of discrimination in July 2013, leaving

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Defendant further unclear as to exactly what claims (if any) Plaintiff has against

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Defendant in his complaint. (DN #40 at20). Therefore, because the complaint fails to

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satistz the requirements of Rules 12(bX6) and B, the Court should dismiss Plaintiff

Complaint with leave to amend.

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B.

Alternativelv. Plaintiff Should Be Compelled to Mahe a More Definite


Statement of his Claim

Pursuant to Rule I 2(e) of the Federal Rules of Civil Procedure:

A party may move for

responsive pleading is allowed but which is so vague or ambiguous that the

party cannot reasonably prepare a response. The motion must be made

before filing a responsive pleading and must point out the defects

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a more definite statement of a pleading to which a

complained of and the details desired.

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Fed. R. Civ. P. 12(e). As noted above, Rule 8(a) requires "a short and plain

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statement of the claim showing that the pleader is entitled to relief," and Rule 8(e)

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requires that "each averment

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Plaintifls allegations are not simple, concise, or direct.

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complaint fails to comply with the requirements of Rule 8, it is impossible for

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Defendant to prepare a meaningful, responsive pleading to the complaint.

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ofa pleading shall

be simple. concise, and direct."


Because

Plaintiff

If Defendant's motion to dismiss is not granted, Plaintiff should be compelled to

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amend his complaint in a manner that

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the complaint.

will permit Defendant to respond meaningfully to

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III.

COI{CLUSIOI{
For the reasons

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forth herein, Defendant respectfully requests that his motion to

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dismi ss be granted, or in the alternativ e, that Plaintiff be compelled to amend his

comp laint.

Respectful ly submitted,

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Dated: March 23,2015

STEPHANIE YONEKURA
Acting United States Attorney
LEO}V W. WEIDMAN
Assistant [Jnited States Attorney
Chief, Civil Division

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lsl Jason K. Axe


JASONI K. AXE
Assistant United States Attorney
Attorneys for Defendant

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/a

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PROOF OF SERVICE BY MAILII{G

I am over the age of 18 and not

a party to the

within action. I am employed by the

Office of United States Attomey, Central District of Califomia, and am readily familiar

with the practice of this office for collection and processing collection and mailing. My

business address is 300 North Los Angeles Street, Suite 75 16, Los Angeles, Califomia

90012.

On March 23.2015 I served a copy of

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. OR IN THE

ALTERN,dTIYE. FOR A MORE DEFINITE STATEMENT: (2)

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MEMORANDUM OF POINTS AND AUTHORITIES on persons or entities named

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below by enclosing a copy in a sealed envelope with postage fully prepaid and addressed

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as shown below and placing the envelope for collection and mailing with the United

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States Postal Service on the date and at the place shown below following our ordinary

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office practices.

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Date of mailing:Mar.ch23.2015. Place of mailing: Los Angeles, California.


Person(s) and/or Entity(s) To Whom Mailed:

Oliver B Mitchell, III


P O Box 2705
Long Beach, CA 90801

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I declare under penalty of perjury under the lar.l,s of the United States of America

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that the forgoing is true and correct. I declare that I am employed in the office of a

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member of the bar of this Court at whose direction the service was made.

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Executed on March 23. 2015 at Los Angeles, Califomia.

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2B

lsl Leah A. Welch


LEAH A. WELCH

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