Briah v. Overstreet

Motion to Dismiss for Failure to State a Claim .

D. Or.October 14, 2016

PAGE 1 Renewed Motion to Dismiss for Failure to State a Claim Briah v. Overstreet, 3:16-cv-00635-SI BILLY J. WILLIAMS, OSB #901366 United States Attorney District of Oregon JARED D. HAGER, WSB #38961 Assistant United States Attorney 1000 SW Third Ave, Suite 600 Portland, OR 97204-2902 Email: jared.hager@usdoj.gov Telephone: (503) 727-1120 Fax: (503) 727-1117 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION RAZIEL BRIAH, Plaintiff, v. SIRI OVERSTREET, Defendant. Case No.: 3:16-CV-00635-SI RENEWED MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Fed. R. Civ. P. 8(a)(2) Fed. R. Civ. P. 12(b)(6) MOTION Defendant, Siri Overstreet, by Billy J. Williams, United States Attorney for the District of Oregon, and through Jared D. Hager, Assistant United States Attorney, hereby renews the motion to dismiss this case for failure to state a claim. See ECF 7. The first amended complaint is incomprehensible, stringing together the names of a number of claims but offering zero supporting factual allegations. See ECF 13. Given Plaintiff’s apparent failure to communicate with appointed pro bono counsel to prosecute this case in a timely manner consistent with the Court’s order, see ECF Case 3:16-cv-00635-SI Document 35 Filed 10/14/16 Page 1 of 4 PAGE 2 Renewed Motion to Dismiss for Failure to State a Claim Brian v. Overstreet, 3:16-cv-00635-SI 31 and ECF 32, Overstreet respectfully asks the Court to grant the motion and dismiss this case. Pursuant to LR 7-1, counsel tried to resolve this matter with Raziel Briah, but was unable to do so. FACTS Overstreet submits this renewed motion to dismiss based on the following facts. 1. On May 25, 2016, Overstreet filed a motion to dismiss Briah’s original, pro se complaint as fatally vague and incomplete. See ECF 7. 2. On May 27, the Court denied the motion without prejudice, and ordered Briah to file an amended complaint within 30 days of appointment of pro bono counsel. See ECF 10. 3. On May 27, Briah, still acting pro se, filed a first amended complaint. See ECF 13. Like the original complaint, the amended complaint is vague and conclusory. It lacks any factual allegations. Instead, it simply lists 20 or so “complaints” by name only. See id. 4. On July 5, lawyers from the firm Miller Nash agreed to represent Briah pro bono. See ECF 27; ECF 28. 5. On August 2, Briah’s counsel asked for more time to gather additional information necessary to file a second amended complaint. Overstreet did not object. See ECF 30. 6. The Court granted the motion to extend time, setting a due date of September 9, 2016. ECF 31. 7. On September 2, Briah’s counsel filed a motion to withdraw, citing Briah’s failure to communicate with counsel. See ECF 32; ECF 32-1, at ¶¶ 3-4. 8. On September 6, 2016, the Court granted the motion to withdraw. ECF 33. 9. A second amended complaint was not filed by the Court’s September 9, 2016 deadline. Case 3:16-cv-00635-SI Document 35 Filed 10/14/16 Page 2 of 4 PAGE 3 Renewed Motion to Dismiss for Failure to State a Claim Brian v. Overstreet, 3:16-cv-00635-SI ARGUMENT The grounds for this motion were laid out, in part, in the initial motion to dismiss. See ECF 7, at 7-8. The Federal Rules of Civil Procedure require complaints contain “a short and plain statement of the claim” that gives a defendant fair notice of what the plaintiff’s claim is and the grounds on which it rests. See Fed. R. Civ. P. 8(a)(2); see also Powers v. U.S. Dept. of Justice, 646 F. Supp. 2d 153, 155 (D.D.C. 2009) (dismissing pro se complaint that lacked sufficient allegations to put defendants on notice as to the legal and factual bases for relief). The Rules also require sufficient factual allegations to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The first amended complaint runs afoul of both requirements. While the initial complaint appeared to seek $9,789 for property losses caused by Overstreet’s allegedly negligent job performance, see ECF 1, at 4, the amended complaint is entirely unclear as to the nature and basis of Briah’s claim for damages (now totaling $50,000,000). Having failed to allege a single fact, including any purported act or omission by the defendant, Briah has left Overstreet to guess how she could be involved with his alleged losses. Because the first amended complaint sets forth no facts, but only labels and conclusions, it does not meet pleading requirements and should be dismissed pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6). Dated this 14th day of October 2016. Respectfully submitted, BILLY J. WILLIAMS United States Attorney /s/ Jared D. Hager__________ JARED D. HAGER Assistant United States Attorney Case 3:16-cv-00635-SI Document 35 Filed 10/14/16 Page 3 of 4 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Renewed Motion to Dismiss was placed within a first class postage prepaid envelope, and deposited in the United States Mail within the offices of the United States Attorney according to established office practice at Portland, Oregon, on October 14, 2016 addressed to: Raziel Briah a/k/a Scott Smith 1824 SE Lewthwaite Street West Linn, OR 97068 Plaintiff, pro se /s/ Jared D. Hager JARED D. HAGER Assistant United States Attorney Case 3:16-cv-00635-SI Document 35 Filed 10/14/16 Page 4 of 4