United States District Court, D. Montana, Great Falls Division
MORRIS UNITED STATES DISTRICT COURT JUDGE.
States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on April 17, 2019. (Doc. 33.)
Judge Johnston recommended as follows: that the Court grant
Defendant Robert Wilkie's Motion to Dismiss (Doc. 17);
that the Court deny as moot Plaintiff Elizabeth Ann
Bowen's Motion for Summary Judgment (Doc. 20); and that
the Court dismiss without prejudice the instant action. (Doc.
33 at 6-7.) Bowen, proceeding pro se, timely objected to
Judge Johnston's Findings and Recommendations on April
30, 2019. (Doc. 35.) Because the parties are familiar with
the facts, the Court will not recite them here.
seeks to have the Court reconsider Judge Johnston's
Findings and Recommendations, and to have the Court grant an
oral hearing so that Bowen can provide the Court with facts
supporting the instant action. (Doc. 35 at 1.) Bowen supports
her request by inquiring to Court as to how she is suppose to
allege, in writing, the various instances of discrimination
and harassment she faced throughout the course of her
employment with the Veterans Affairs. Id. The
questions that Bowen states in her objection provide the
Court with an abundance of facts.
Court acknowledges that Bowen admittedly has failed to lodge
proper objections to Judge Johnston's Findings and
Recommendations. See Montana Shooting Sports Ass'n v.
Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010)
(citation omitted). As a result, the Court ordinarily would
review Bowen's objections for clear error. See
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981). The facts that Bowen has
provided in her objection, however, may have allowed the
Court to reasonably infer that the misconduct that Bowen
alleges occurred if Bowen had alleged these same facts in her
amended complaint. The Court will recharacterize Bowen's
objections, however, as a motion for leave to amend her
Court freely will give a moving party leave to amend
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). “Indeed, under Rule 15, leave to amend should
be granted unless amendment would cause prejudice to the
opposing party, is sought in bad faith, is futile, or creates
undue delay.” United States v. Gila Valley
Irrigation District, 859 F.3d 789, 804 (9th Cir. 2017).
None of these factors support denying Bowen leave to file a
second amended complaint in light of the factual allegations
asserted as questions in Bowen's objections to Judge
Johnston's Findings and Recommendations and in light of
Bowen proceeding pro se. Bowen shall file a second amended
complaint within 30 days of the date of this Order.
Court warns Bowen that her failure to plead sufficiently her
causes of action in her second amended complaint will result
in the Court dismissing her case. The Court will remind Bowen
that she must comply fully with the requirements of Federal
Rule of Civil Procedure 8(a) in order to plead sufficiently a
cause of action. Rule 8(a) provides as follows:
(a) Claim for Relief. A pleading that state a claim for
relief must contain:
(1) a short and plaint statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) A demand for the relief sought, which may include relief
in the alternative or different types of relief.
Fed. R. Civ. P. 8(a).
and plain statement for purposes of Rule 8(a)(2) “does
not require detailed factual allegations, but it demands more
than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (internal quotations and citations omitted).
Statements that act as “labels and conclusions”
or otherwise constitute “a formulaic recitation of the
elements of the cause of action” fail to suffice.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Statements that constitute “naked assertion[s]
devoid of further factual enhancement” likewise fail to
suffice. Iqbal, 556 U.S. at 678 (internal quotations
and citations omitted).
other words, Bowen must plead sufficient factual content that
would allow the Court “to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). Bowen
attempts to allege the conduct that could support the
following ten causes of action in her amended complaint: (1)
employment discrimination; (2) employment discrimination
based on her race; (3) employment discrimination based on her
national origin; (4) discrimination; (5) harassment; (6)
hostile work environment; (7) retaliation; (8) a cause of
action in violation of the Prohibited Employment Policies and
Practices; (9) a cause of action in violation of the Age
Discrimination in Employment Act of 1967; and (10) a cause of
action based on the Americans with Disabilities Act of 1990.
(Doc. 16 at 2.) The Court urges Bowen to consider narrowing
the number of causes of action to reflect only those claims
that the facts could support.
must plead facts sufficient to allow the Court to draw
reasonable inferences that each of these alleged cause of
actions occurred. To do so, Bowen must determine whether she
can allege facts to establish the elements necessary to prove
each cause of action. Bowen must then tailor the alleged
facts to the elements of each of her causes of action. The
facts presented in ...