The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Presently before the court is defendant's motion to dismiss, filed August 17, 2012,*fn1 to which plaintiff has filed an opposition. Also before the court is plaintiff's motion to amend the amended complaint, filed June 22, 2012.
Plaintiff filed this action on January 31, 2012. The second amended complaint ("SAC") is presently before the court. It alleges that plaintiff was a Caucasian male with a service connected disability who was 54 years old at the time he was terminated from his employment. (SAC at ¶ 135.) The SAC alleges that plaintiff's former employer, the Corporation for National and Community Service ("CNCS"), discriminated against him, created a hostile work environment, retaliated against him, and exacerbated his service connected disability during his employment there which began in June, 2002, until plaintiff's termination on June 1, 2006. (SAC at ¶ 177.) Defendant Wendy Spencer is Chief Executive Officer of CNCS. Claims are for violation of the Age Discrimination in Employment Act (29 U.S.C. § 621, et seq.), Title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq.), the Rehabilitation Act (29 U.S.C. § 791 et seq.), "pattern and practice of retaliation for participating and or opposing unlawful discrimination, ADEA, Title VII, Rehabilitation Act" (Claim Four), and violation of civil service retention rights (5 U.S.C. § 8151). Plaintiff seeks monetary damages.
I. PLAINTIFF'S MOTION TO AMEND
As defendant filed an amended motion to dismiss to specifically address the second amended complaint filed June 28, 2012, the court construes the amended motion as a waiver of opposition to plaintiff's motion to amend, filed June 22, 2012. There being no opposition, plaintiff's motion to amend is granted.
II. DEFENDANT'S MOTION TO DISMISS OR FOR MORE DEFINITE STATEMENT Turning to defendant's motion, it raises numerous grounds for dismissal, including the failure to plead a short and plain statement pursuant to Fed. R. Civ. P. 8(a), failure to state a claim under the ADEA, Title VII, the Rehabilitation Act, and in regard to the Fourth and Fifth claims for relief, and lack of jurisdiction for the Title VII claim based on failure to exhaust administrative remedies.
In the alternative, defendant seeks an order requiring a more definite statement because the claims are so disorganized, confusing and unintelligible that defendant is unable to respond.
Rule 12(b)(1) - Subject Matter Jurisdiction
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendant must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).
Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn2
Rule 12(b)(6) - Failure to State a Claim
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 his 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 & 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).
The difficulty in unraveling plaintiff's allegations arises from plaintiff's having failed to provide, as required by Fed. R. Civ. P. 8(a)(2), "a short and plain statement of the claim showing that the pleader is entitled to relief . . .."
Fed. R. Civ. P 8 sets forth general rules of pleading in the federal courts. Complaints are required to set a forth (1) the grounds upon which the court's jurisdiction rests, (2) a short and plain statement of the claim showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. The complaint's allegations are not sufficient to put defendant fairly on notice of its alleged misconduct. See Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (amended complaint with vague and scanty allegations fails to satisfy the notice requirement of Rule 8); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1202 (2d ed. 1990).
Here, the SAC contains 323 paragraphs in 63 pages, which do not constitute a short and plain statement. The allegations are for the most part out of chronological order. For example, plaintiff has included factual allegations both separately (¶¶ 6-22), and within each claim for relief. The first claim, for age discrimination, contains 42 paragraphs, which are subdivided into smaller sections, each with their own internal chronological order, separate from the other sections and the introductory factual allegations. (SAC ¶¶ 22-66.) The second claim, for Title VII violations, is not in any chronological order. (Id. at ¶¶ 67-160.)
The fourth claim contains its own set of problems, as its heading references most of the other separately enumerated claims but the allegations provide facts which do not lend themselves to any claim for relief. For example, the SAC alleges "[t]he Plaintiff's service connected disability was further exacerbated after Mr. Caudle sent a broadcast email to the staff praising and supporting Mr. Eaglin's class, knowing the Plaintiff was libeled by Mr. Eaglin and offended by his class." (Id. at ¶ 210.)
As pointed out by defendant, there are many allegations which do not appear to concern plaintiff at all, but relate to other CNCS employees. (Id. at ¶¶ 7-22.) By way of example, plaintiff alleges:
The Director of the Projects and Training Department, Ms.
Morioka-Estrada was the de-facto Pacific Region Director. Mr. Caudle protected and authorized Ms. Morioka-Estrada to direct the entire staff which resulted in a convoluted chain of command and an adversarial relationship between her, and the plaintiff's two supervisors, Mr. Statz and Mr. Dougherty. (Id. at ¶ 8.)
Such allegations are not relevant to claims plaintiff is attempting to allege for violations against himself. This is not to say that plaintiff should eliminate on amendment those facts pertaining to other employees where plaintiff spoke out against ...