ORDER RE DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

(Doc. No. 8)

ANTHONY W. ISHII, Senior District Judge.

Plaintiff Jessica Palma ("Plaintiff") filed suit against Defendant County of Stanislaus ("Defendant") alleging disability discrimination and violation of consumer reporting requirements arising out of her application to work for Defendant. Doc. No. 2. Both of Plaintiff's claims are based on California statutes, although a reference to "Title VII" appears on the caption page of Plaintiff's complaint. Id. Defendant now moves to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. For the reasons that follow, the Court will deny Defendant's motion and will direct Plaintiff to amend her complaint, as she has requested to do in her opposition brief.1

DEFENDANT'S MOTION PURSUANT TO RULE 12(b)(1)

Defendant argues, inter alia, that Plaintiff's entire complaint should be dismissed under Rule 12(b)(1) because her claims rely solely on California law, and the absence of a federal question deprives the Court of subject matter jurisdiction.

Plaintiff does not dispute that she failed to allege a violation of federal law in her complaint. However, Plaintiff asks the Court for leave to amend her complaint to add an allegation that Defendant violated the Americans with Disabilities Act, 42 U.S.C. § 1201 et seq. ("ADA") in regards to her disability discrimination claim, which would provide the Court with subject matter jurisdiction.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(1) tests the subject matter jurisdiction of the Court. See Fed R. Civ. P. 12(b)(1). Because subject matter jurisdiction is a threshold issue which goes to the power of the court to hear the case, a Rule 12(b)(1) motion must be decided before other motions. 5B Wright & Miller, Fed. Prac. & Proc. Civ. § 1350 (3d ed.).

ANALYSIS

In this case, there is no argument that Plaintiff's current complaint lacks a federal question which would provide the Court with subject matter jurisdiction.2 However, Plaintiff maintains that she can amend her complaint to obtain subject matter jurisdiction by stating a claim under the ADA. An analogous situation arose in Stromberg v. Ocwen Loan Servicing, LLC, 2017 WL 2686540 (N.D. Cal. June 22, 2017), in which the court held that "Even if the jurisdictional allegations in [plaintiff's] complaint are `not sufficient' on their own, `the district court may deny the [Rule 12(b)(1)] motion and direct the pleader to amend the pleading' if `the pleader's affidavits or other evidence show either that the court actually has subject matter jurisdiction over the case or that the nonmoving party might be able to amend to allege jurisdiction.'" Id. at *7 (citing Wright & Miller, 5B Fed. Prac. & Proc. Civ. § 1350 (3d ed.)). The Stromberg court denied the motion to dismiss for lack of subject matter jurisdiction and instructed the plaintiff to amend her complaint. Stromberg, 2017 WL 2686540 at *7; see also In re Parkway Sales & Leasing, Inc., 411 B.R. 337, 348 (Bankr. E.D. Tex. 2009) ("The Court is not compelled to dismiss the case under these circumstances, but may deny the Defendants' Motion to Dismiss under Rule 12(b)(1) and direct [plaintiff] to amend the complaint, or dismiss with leave to amend.")

Here, based on Plaintiff's opposition brief, it appears she can amend her complaint to allege jurisdiction by adding a claim under the ADA for disability discrimination, and requests leave from the Court to do so. The Court will therefore deny Defendant's motion to dismiss and will direct Plaintiff to amend her complaint.

ORDER

Accordingly, IT IS HEREBY ORDERED that:

1. Defendant's motion to dismiss is DENIED; and

2. Plaintiff must file a first amended complaint within 30 days of the date of this order.

IT IS SO ORDERED.