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William J. Whitsitt v. Ramball

January 10, 2013

WILLIAM J. WHITSITT, PLAINTIFF,
v.
RAMBALL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

This civil rights action alleges employment discrimination and retaliation claims under the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964 ("Title VII") and various state laws. Dkt. 4. Before the undersigned is defendant Manpower Group, Inc.'s ("Manpower" or "defendant") motion to dismiss the First Amended Complaint ("complaint") pursuant to Fed. R. Civ. Pro. 12(b)(6). Dkt. 10. Plaintiff opposed the motion on December 14, 2012 (dkt. 20) and defendant replied on January 2, 2013 (dkt. 21).

Defendant's motion to dismiss came on for hearing on January 9, 2013. Christopher Killens appeared before the court on behalf of defendant. Plaintiff, who proceeds pro se, failed to appear before the court.*fn1 Upon review of the documents in support of and in opposition to the motions, upon hearing the argument of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

BACKGROUND

The original complaint was filed in this court on February 3, 2012. Dkt. 1. The court dismissed the complaint sua sponte on February 24, 2012, for failure to comply with the pleading requirements of Fed. R. Civ. Pro. 8(a)(2). Dkt. 3 at 3. Plaintiff filed his First Amended Complaint on March 20, 2012. Dkt. 4. The court struck portions of the complaint which did not comply with the February 24, 2012 order but directed service of the complaint. Dkt. 5.

Defendant moved to dismiss the complaint on September 4, 2012. Dkt. 10. A motion for an extension of time to respond was granted on October 10, 2012, allowing plaintiff an additional 28 days to respond to the defendant's motion. Dkt. 14. On November 29, 2012 plaintiff filed a motion styled as an Opposition to Defendant's Motion to Dismiss. Dkt. 18. In it, plaintiff sought an additional ten days in which to file an opposition, which was granted. Id. The matter was set for hearing on January 9, 2013. Plaintiff filed his opposition to the motion to dismiss on December 14, 2012, and defendant filed a reply on January 2, 2013. Dkts. 20, 21.

Plaintiff, who is 56 years old, appears to allege that defendants Taylor Farms Inc. ("Taylor Farms") (a potential employer) and Manpower (a staffing company) failed to hire plaintiff for a position at Taylor Farms despite his years of relevant work experience due to his age and because they were purportedly only hiring Mexican American bilingual applicants.

See Dkt. 4. He further alleges that he has been blacklisted in a conspiracy among staffing companies and employment agencies as a result of his prior discrimination complaints made to Manpower and other agencies. Id Defendant moves to dismiss all of the claims against it for (1) failure to exhaust administrative remedies under Title VII, and (2) failure to state a claim under 12(b)(6) with respect to the retaliation, discrimination and state law claims.*fn2

DISCUSSION

In considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949.

Non-Served Defendants

In addition to Manpower, plaintiff names Pamela Ramball, Christy, and Taylor Farms, Inc. as defendants to this action. See Dkt. 4. A review of the docket reveals that none of these defendants have been served despite the operative complaint having been filed on March 20, 2012. Plaintiff had 120 days in which to properly serve all defendants. See Fed. R. Civ. Pro. 4(m). That time has long since passed and the non-served defendants should be dismissed.

Additionally, because all of plaintiff's claims fail as a matter of law, the motion to dismiss will apply equally to these defendants who stand in the same position of liability as Manpower. See Abagninin v. AMVAC Chemical Corp., 545 F.3d 733, 742-43 (9th Cir. 2008) (dismissing with prejudice non-served defendants who were in a similar position to other defendants and ...


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