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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MABLE STEINER,

Plaintiff,

v.

VERIZON WIRELESS et al.,

Defendants.

No. 2:13-cv-1457-JAM-KJN PS

ORDER

Presently pending before the court is defendant Cellco Partnership d/b/a Verizon 

Wireless‟s (“Verizon Wireless”) motion to dismiss plaintiff Mable Steiner‟s third amended 

complaint, which was noticed for hearing on January 16, 2014. (ECF No. 14.)1 On December 

30, 2013, plaintiff filed a “fourth amended complaint,” which the court, in light of plaintiff‟s pro 

se status, liberally construes as an opposition to Verizon Wireless‟s motion to dismiss. (ECF No. 

20.) Thereafter, on January 9, 2014, Verizon Wireless filed a reply brief. (ECF No. 23.)

At the January 16, 2014 hearing, plaintiff appeared representing herself, and attorney 

Anne Dahlgren appeared on behalf of defendant Verizon Wireless. After considering the parties‟ 

briefing, the parties‟ oral argument, and the applicable law, the court grants Verizon Wireless‟s 

 

1

This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. 

§ 636(b)(1).

Case 2:13-cv-01457-KJN Document 25 Filed 01/17/14 Page 1 of 10
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motion to dismiss, but with leave to amend along the terms outlined in this order. 

BACKGROUND

The background facts are generally taken from the operative third amended complaint, 

unless otherwise noted. The third amended complaint is somewhat confusing and scattered with 

facts that are not necessarily in a chronological order. However, plaintiff appears to allege that 

she is a former employee of Verizon Wireless who suffered a workplace injury sometime in 2009, 

for which a workers‟ compensation claim was filed.2 It is not clear exactly what injury plaintiff 

suffered, but the complaint references left knee, spine, and neck problems; carpal tunnel 

syndrome; and depression, and also includes snapshots of medical opinions and payment 

decisions related to her workers‟ compensation case. According to plaintiff, as a result of her 

injury, Verizon Wireless ultimately terminated her on December 3, 2010, without training 

plaintiff for another position or otherwise reasonably accommodating her disability in violation of 

the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”). Plaintiff seeks 

$25,000,000.00 in resulting damages. (See generally ECF No. 10.) 

Plaintiff commenced this action by filing her original complaint on July 19, 2013. (ECF 

No. 1.) After the court denied without prejudice her application to proceed in forma pauperis, 

plaintiff paid the filing fee. (ECF No. 3.) Subsequently, plaintiff filed a first amended complaint 

and then an unauthorized second amended complaint on September 19, 2013, and October 2, 

2013, respectively. (ECF Nos. 6, 7.) Thereafter, on October 11, 2013, plaintiff filed a motion to

further amend her complaint. (ECF No. 8.) In an October 17, 2013 order, the court granted 

plaintiff‟s motion, but cautioned her that a plaintiff is only permitted one amendment as a matter 

of course, that plaintiff must seek leave of court pursuant to the Federal Rules of Civil Procedure 

 

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The court takes judicial notice of plaintiff‟s “Amended Petition Re Discrimination Pursuant to 

Labor Code § 132a” filed before the California Workers‟ Compensation Appeals Board, which 

was attached to Verizon Wireless‟s motion to dismiss, pursuant to Federal Rule of Evidence 

201(b). (ECF No. 14-1.) The amended petition is a public record that is “not subject to 

reasonable dispute” and its existence is a fact that “can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). In any 

event, plaintiff does not dispute the existence of her workers‟ compensation case and Labor Code 

section 132a claim (ECF No. 20 at 3), and the court only takes judicial notice of the existence of 

the claim and not the truth of the matters contained in the claim. 

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and the court‟s Local Rules prior to amending her complaint in the future, and that future 

unauthorized amended complaints may be summarily stricken. (ECF No. 9.)

On October 23, 2013, plaintiff filed the operative third amended complaint, which was 

then served on Verizon Wireless.3 (ECF No. 10.) The instant motion followed. (ECF No. 14.) 

DISCUSSION

Plaintiff‟s “Fourth Amended Complaint”

Before turning to the pending motion to dismiss by Verizon Wireless, which challenges

plaintiff‟s third amended complaint, the court briefly addresses the import of the “fourth amended 

complaint” filed on December 30, 2013. (ECF No. 20.) 

Plaintiff‟s “fourth amended complaint” is unauthorized pursuant to Federal Rule of Civil 

Procedure 15, and must be stricken on that basis. As the court previously explained to plaintiff, 

Rule 15(a) states, in relevant part, that “(1)...[a] party may amend its pleading once as a matter of 

course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive 

pleading is required, 21 days after service of a responsive pleading or 21 days after service of a 

motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). If these 

requirements are not satisfied, “a party may amend its pleading only with the opposing party‟s 

written consent or the court‟s leave.” Fed. R. Civ. P. 15(a)(2). 

In this case, as outlined above, plaintiff had already amended her complaint once as a 

matter of course. Therefore, plaintiff was required to obtain Verizon Wireless‟s written consent 

or leave of court (by a properly-noticed motion in compliance with Local Rule 230) to file a 

fourth amended complaint. Because plaintiff failed to do so, the “fourth amended complaint” is 

stricken. However, in light of plaintiff‟s pro se status, and as noted above, the court has 

construed the “fourth amended complaint” as an opposition to Verizon Wireless‟s motion to 

dismiss, and has considered any factual allegations and arguments made in that document with 

 

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The third amended complaint names Verizon Wireless (VAW) LLC and Cellco Partnership 

d/b/a/ Verizon Wireless as defendants. (ECF No. 10.) However, defendant represented that its 

proper entity name is Cellco Partnership d/b/a Verizon Wireless and that the other entity was 

erroneously named. As such, the only true defendant in this case is Cellco Partnership d/b/a 

Verizon Wireless (“Verizon Wireless”). 

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respect to whether further leave to amend should be granted. 

The court now proceeds to the substance of Verizon Wireless‟s motion to dismiss 

pursuant to Federal Rule of Civil Procedure 12(b)(6). 

Verizon Wireless‟s Motion to Dismiss

Legal Standard

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 

challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 

Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard 

of the Federal Rules of Civil Procedure, a plaintiff‟s complaint must provide, in part, a “short and 

plain statement” of plaintiff‟s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see 

also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). “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) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. 

In considering a motion to dismiss for failure to state a claim, the court accepts all of the 

facts alleged in the complaint as true and construes them in the light most favorable to the 

plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is “not, 

however, required to accept as true conclusory allegations that are contradicted by documents 

referred to in the complaint, and [the court does] not necessarily assume the truth of legal 

conclusions merely because they are cast in the form of factual allegations.” Paulsen, 559 F.3d at 

1071. The court must construe a pro se pleading liberally to determine if it states a claim and, 

prior to dismissal, tell a plaintiff of deficiencies in her complaint and give plaintiff an opportunity 

to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. 

Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police 

Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990) (stating that “pro se pleadings are liberally construed, 

particularly where civil rights claims are involved”); see also Hebbe v. Pliler, 627 F.3d 338, 342 

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& n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when 

evaluating them under the standard announced in Iqbal). 

In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally 

consider only allegations contained in the pleadings, exhibits attached to the complaint, and 

matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 

F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not 

consider a memorandum in opposition to a defendant‟s motion to dismiss to determine the 

propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep‟t of Corrections, 151 F.3d 1194, 

1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding 

whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 

2003).

Analysis

As an initial matter, Verizon Wireless correctly notes that this court lacks jurisdiction over 

any claim or dispute concerning the handling and payment of plaintiff‟s workers‟ compensation 

claim, which would generally fall under the exclusive jurisdiction of the Workers‟ Compensation 

Appeals Board. “[I]t is well established that disputes which arise over the handling of 

compensation claims „fall within the scope of the [workers‟ compensation] exclusive remedy 

provisions because this process is tethered to a compensable injury.‟” Gomes v. Michaels Stores, 

Inc., 2006 WL 3348205, at *3 (E.D. Cal. Nov. 16, 2006) (unpublished) (citing Charles J. Vacanti, 

M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 813 (2001)); see also Marsh & McLennan, 

Inc. v. Superior Court, 49 Cal. 3d 1, 8 (1989) (explaining that the workers‟ compensation system 

“encompasses all disputes over coverage and payment,” whether they result from actions taken by 

the employer or the employer‟s insurance carrier). 

Furthermore, to the extent that the third amended complaint can be construed as asserting 

a California Labor Code section 132a claim alleging that plaintiff was terminated because she 

filed for workers‟ compensation benefits or because she suffered a work-related injury, such a 

claim likewise falls under the exclusive jurisdiction of the Workers‟ Compensation Appeals 

Board. Cal. Lab. Code § 132a (“The appeals board is vested with full power, authority, and 

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jurisdiction to try and determine finally all matters specified in this section subject only to judicial 

review”); Charles J. Vacanti, M.D., Inc., 24 Cal. 4th at 817 (holding that the Workers‟ 

Compensation Appeals Board is “the exclusive forum for pursuing a section 132a claim”); Dutra 

v. Mercy Medical Center Mt. Shasta, 209 Cal. App. 4th 750, 755 (2012) (“Obviously, a trial court 

has no jurisdiction to hear a civil cause of action for an employer‟s breach of Labor Code section 

132a.”).

4

Given the inclusion of snapshots of medical opinions and payment decisions related to 

plaintiff‟s workers‟ compensation case in the third amended complaint, it was not unreasonable 

for Verizon Wireless to infer that plaintiff was attempting to assert claims concerning the 

handling of her workers‟ compensation claim or a violation of California Labor Code section 

132a. However, in plaintiff‟s “fourth amended complaint,” construed as an opposition to the 

motion to dismiss, plaintiff emphasized that her workers‟ compensation case and/or California 

Labor Code section 132a claim are being handled by her workers‟ compensation attorney and 

have no bearing on this federal case. (ECF No. 20 at 3.) Plaintiff confirmed as much at the 

hearing. In particular, plaintiff clarified that she is asserting an ADA claim in this action based on 

Verizon Wireless‟s purported failure to give reasonable accommodations for her alleged disability 

resulting from her workplace injury. (Id. at 2.) Courts have held that federal ADA claims are not

subject to the exclusive remedy provision of California‟s workers‟ compensation scheme. 

Dunlap v. Assoc. of Bay Area Gov‟ts, 996 F. Supp. 962, 967 (N.D. Cal. 1998); Wood v. Cnty. of 

Alameda, 875 F. Supp. 659, 665-66 (N.D. Cal. 1995).

Nevertheless, Verizon Wireless also argues that plaintiff‟s third amended complaint fails 

to state a plausible claim under the ADA. That argument has merit.

The ADA prohibits employers from “discriminat[ing] against a qualified individual on the 

basis of disability in regard to job application procedures, the hiring, advancement, or discharge 

of employees, employee compensation, job training, and other terms, conditions, and privileges of 

 

4

In light of the court‟s conclusion that it lacks jurisdiction over any California Labor Code 

section 132a claim, it is unnecessary to consider Verizon Wireless‟s additional arguments that 

such a claim is barred by the rule of comity and the applicable statute of limitations. 

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employment.” 42 U.S.C. § 12112(a). Such discrimination includes “not making reasonable 

accommodations to the known physical or mental limitations of an otherwise qualified individual 

with a disability who is an applicant or employee, unless such covered entity can demonstrate that 

the accommodation would impose an undue hardship on the operation of the business of such 

covered entity....” 42 U.S.C. § 12112(b)(5)(A). A disability, with respect to an individual, is 

defined as: “(A) a physical or mental impairment that substantially limits one or more major life 

activities of such individual; (B) a record of such an impairment; or (C) being regarded as having 

such an impairment....” 42 U.S.C. § 12102(1). A disabled individual is otherwise “qualified” if 

he or she, “with or without reasonable accommodation, can perform the essential functions of the 

employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A 

“reasonable accommodation” may include “(A) making existing facilities used by employees 

readily accessible to and usable by individuals with disabilities; and (B) job restructuring, parttime or modified work schedules, reassignment to a vacant position, acquisition or modification 

of equipment or devices, appropriate adjustment or modifications of examinations, training 

materials or policies, the provision of qualified readers or interpreters, and other similar 

accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9). 

To establish a prima facie claim under Title I of the ADA, an employee must establish (1) 

that she is a disabled person within the meaning of the ADA; (2) that she is qualified, with or 

without reasonable accommodation, to perform the essential functions of the job that she holds or 

seeks; and (3) that she has suffered an adverse employment decision because of her disability. 

See Gomez v. American Bldg. Maintenance, 940 F. Supp. 255, 257 (N.D. Cal. 1996) (citing 

Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996)). To withstand a motion to 

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff need not prove, or submit 

evidence in support of, her prima facie case – she need only allege facts that, if accepted as true,

state a plausible ADA claim. Iqbal, 556 U.S. at 678.

In this case, although plaintiff alleges that she was terminated due to a disability resulting 

from a workplace injury, plaintiff fails to plead sufficient facts in support of each of the elements 

of her ADA claim. 

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As to the first element, plaintiff fails to allege that she suffers from a disability within the 

meaning of the ADA. Although the third amended complaint contains vague references to 

various medical conditions, plaintiff fails to allege which particular conditions render her disabled 

and how they substantially limit one or more of her major life activities. 

As to the second element, plaintiff fails to allege that she was qualified, with or without a 

reasonable accommodation, to perform the essential functions of her job for Verizon Wireless 

around the time of her termination. To be sure, the third amended complaint alleges that Verizon 

Wireless “did not set up work status according to Dr Reddy‟s orders (three days a week-two to 

three hours per week) given date of 9/15/2011 by Dr. Reddy.” (ECF No. 10 at 2.) However, this

allegation potentially suggests that plaintiff was only released to return to some limited amount of 

work several months after she was already terminated on December 3, 2010, and thus does not 

show that plaintiff was qualified to perform the essential functions of her job, with or without 

reasonable accommodation, around the time of her termination. 

As to the third element, even though plaintiff claims that Verizon Wireless failed to 

reasonably accommodate her disability and terminated her based on that disability, plaintiff does 

not allege (a) whether and when she requested accommodations from Verizon Wireless during 

her employment, (b) what such requested accommodations were, (c) whether and for what stated 

reasons such accommodations were denied by Verizon Wireless, and (d) how such requested

accommodations would have allowed plaintiff to perform the essential functions of her position. 

While plaintiff need not necessarily provide detailed factual allegations at this early juncture, she 

must provide at least some factual allegations in support of each element of her ADA claim,

thereby allowing the court to draw the reasonable inference that Verizon Wireless is liable under 

that statute. 

For these reasons, the court concludes that plaintiff‟s third amended complaint fails to 

allege sufficient facts that, if accepted as true, state a plausible ADA claim. Accordingly, the 

court grants Verizon Wireless‟s motion to dismiss. 

Leave to Amend

Although plaintiff has already amended her complaint several times, those amendments 

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were on plaintiff‟s own initiative and without substantive screening by the court. Indeed, this is 

the first time that plaintiff‟s pleading has been challenged by a motion to dismiss. The court finds 

that plaintiff, having now been notified of the specific deficiencies of her ADA claim by virtue of 

this order, is entitled to an additional opportunity to cure them, if she can do so. However, 

plaintiff is cautioned that the court would be disinclined to allow any further amendments. 

Plaintiff shall file any amended complaint within 28 days of this order. If plaintiff elects 

to file an amended complaint, it shall be captioned “Fifth Amended Complaint”; shall only name 

defendant Cellco Partnership d/b/a Verizon Wireless as a defendant; shall only assert a claim for 

disability discrimination under the ADA based on Verizon Wireless‟s alleged failure to 

reasonably accommodate plaintiff‟s disability; and shall not include any claims concerning the 

handling and payment of plaintiff‟s workers‟ compensation claim, or any claim under California 

Labor Code section 132a.5 Plaintiff shall use her best efforts to set forth any background facts in 

a chronological order, and plead sufficient factual allegations in support of each required element 

of her ADA claim. 

Additionally, plaintiff should not attach excessive exhibits to any fifth amended 

complaint. The fifth amended complaint need only set forth the alleged facts in support of 

plaintiff‟s ADA claim and need not include any documentary evidence, which may be presented 

at a later point in the case. While plaintiff may attach some limited, relevant exhibits to her 

complaint, such as any related administrative petitions and right-to-sue letters, plaintiff shall not 

attach evidentiary material (e.g. medical records, e-mails, letters etc.) or other irrelevant 

documents.6 Importantly, defendant Verizon Wireless and the court should be able to understand 

plaintiff‟s claim and the facts in support of that claim from reading the main body of plaintiff‟s 

 

5 As such, plaintiff should avoid including facts related to plaintiff‟s workers‟ compensation case 

that have no direct bearing on plaintiff‟s ADA claim against her employer Verizon Wireless, such 

as facts related to the processing of the workers‟ compensation claim, payment decisions by the 

insurance carriers, etc. 

 

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Instead, if, for example, an evidentiary document (such as a letter) contains an important fact, 

plaintiff should attempt to include that fact in her allegations as part of the main body of the fifth 

amended complaint, instead of attaching the entire document to the complaint as an exhibit. 

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fifth amended complaint, and without having to review numerous exhibits to the complaint.

Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 

to make plaintiff‟s fifth amended complaint complete. Local Rule 220 requires that an amended 

complaint be complete in itself without reference to any prior pleading. As a general rule, an 

amended complaint supersedes the original complaint, and once the fifth amended complaint is 

filed, the prior versions of plaintiff‟s complaint no longer serve any function in the case. 

Finally, nothing in this order requires plaintiff to file a fifth amended complaint. If 

plaintiff determines that she is unable to amend her complaint in compliance with the court‟s 

order and Federal Rule of Civil Procedure 11, she may alternatively file a notice of voluntary 

dismissal of her claims without prejudice pursuant to Federal Rule of Civil Procedure 

41(a)(1)(A)(i) within 28 days.

CONCLUSION

Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

1. Plaintiff‟s “fourth amended complaint” (ECF No. 20) is STRICKEN.

2. Verizon Wireless‟s motion to dismiss (ECF No. 14) is GRANTED, but with leave to 

amend along the terms outlined in this order. 

3. Within 28 days of this order, plaintiff shall file either a fifth amended complaint in 

compliance with this order or a notice of voluntary dismissal of the action without 

prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

4. Defendant Verizon Wireless shall file a response to any fifth amended complaint 

within 28 days of its filing.

5. Failure to file either a fifth amended complaint in compliance with this order or a 

notice of voluntary dismissal by the required deadline may result in a recommendation 

that the action be dismissed with prejudice pursuant to Federal Rule of Civil 

Procedure 41(b).

IT IS SO ORDERED. 

Dated: January 17, 2014 

 

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