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Demarkoff v. Superior Court of California, County of Tulare

United States District Court, Ninth Circuit

May 6, 2013

ALEXANDER J. DE MARKOFF, Plaintiff,
v.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF TULARE, LARAYNE CLEEK, DOREEN VITALE, KERRIE SCALIA, DEANNA JASSO, DOES 1 through 20, Defendant.

ORDER RE MOTION TO STRIKE AND MOTION TO DISMISS (DOCS. 12, 14)

ANTHONY W. ISHII, Senior District Judge.

INTRODUCTION

Plaintiff, Alexander J. DeMarkoff, (hereinafter "Plaintiff") filed a complaint alleging eight causes of action: First, Racial Discrimination in violation of 42 U.S.C. section 2000e-2; Second, Racial Discrimination in violation of 42 U.S.C. section 1983; Third, Sexual Discrimination in violation of 42 U.S.C. section 2000e-2; Fourth, Sexual Discrimination in Violation of 42 U.S.C. 1983; Fifth, Retaliation in violation of 42 U.S.C. section 2000e-3; Sixth, Retaliation in violation of 42 U.S.C. section 1983; Seventh, a Monell claim against the Tulare County Superior Court alleging a violation of 42 U.S.C. section 1983; and Eighth, Violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution.

Defendants, Superior Court of California, County of Tulare, Larayne Cleek, Doreen Vitale, Kerrie Scalia, and Deanna Jasso, (hereinafter collectively "Defendants") seek an order dismissing 1) all causes of action claiming violations of 42 U.S.C. 1983 filed against the Superior Court and the Defendants in their official capacities, 2) all causes of action claiming violation of Title VII of the Civil Rights Act of 1964 against the Defendants in their individual capacities, and 3) Plaintiff's eighth cause of action for violation of the Equal Protection Clause of the Fourteenth Amendment, all pursuant to Federal Rule of Civil Procedure, Rule 12(b). Further, Defendants seek an order striking the allegedly time barred portions of the complaint pursuant to Federal Rule of Civil Procedure, Rule 12(f).

FACTUAL AND LEGAL BACKGROUND

Plaintiff, an employee of the Tulare County Superior Court, alleges to have been victim of racial and sex based[1] discrimination at the hands of the Tulare County Superior Court and its employees who acted under color of law. Plaintiff identified in his complaint four members of the Tulare County Court staff, specifically Court Executive Officer, LaRayne Cleek (hereinafter individually "Cleek"), Human Resources Manager, Doreen Vitale (hereinafter individually "Vitale"), Court Financial Officer, Kerrie Scalia (hereinafter individually "Scalia"), Court Administrative Manager, and Deanna Jasso (hereinafter individually "Jasso"), as the perpetrators of the alleged discrimination. (Complaint §§ 5-8.) Plaintiff further pleads that there were persons unknown to him who were engaged in the alleged discrimination against him. (Complaint § 9.)

In the summer of 2009, Plaintiff was enrolled in several training courses offered for court personnel. While enrolling in the training sessions but prior to his attendance it came to Plaintiff's attention that other court personnel who had taken the course received the training at the expense of the Tulare County Superior Court. (Complaint §§ 12-13.) Several times thereafter Plaintiff enrolled in courses and then, upon the direction of Defendant Vitale, cancelled his registration when Defendant Cleek as Executive Officer for the court opted to cover the training expenses of other court employees rather than Plaintiff. (Complaint §§ 13-16.)

In August of 2010, Plaintiff alleges that he was passed over for promotion to the position of Court Financial Officer - which he claims to have been "highly qualified for" - in favor of Defendant Scalia, who plaintiff claims fell below the minimum requisite qualifications for the position. (Complaint § 17.) On August 9, 2010, Plaintiff filed a discrimination complaint in the state court related to the alleged discrimination. (Complaint § 18.) On August 11, 2010, Plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission (hereinafter "EEOC"). (Complaint § 20.) On September 30, 2011, Plaintiff exhausted all administrative and internal remedies with the EEOC; the EEOC issued Plaintiff a Notice of Right to Sue. (Complaint § 29.)

Since filing of the complaints with the state court and EEOC, Plaintiff alleges that he has been placed under increased surveillance, (Complaint §§ 21, 26.) threatened with disciplinary action, (Complaint §§ 22, 23.) segregated from his peers, (Complaint §§ 19, 25.) frustrated in the carrying out of his duties and given an increased workload, (Complaint §§ 24, 27.) and continues to be denied training while white and/or female court employees continue to be given training at the court's expense. (Complaint § 27.)

LEGAL STANDARD

Courts "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Motions to strike under Rule 12(f) allow parties "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993). Motions to strike are disfavored and "should not be granted unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation.... If there is any doubt whether the portion to be stricken might bear on an issue in the litigation, the court should deny the motion." Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D.Cal.2004); Byrd v. California Superior Court, County of Marin, 2009 WL 2031761 at *13 (N.D. Cal. 2009); Contreras, ex rel. Contreras v. County of Glenn, 725 F.Supp.2d 1157, 1159 (E.D. Cal. 2010). "Given their disfavored status, courts often require a showing of prejudice by the moving party before granting the requested relief." Sanchez v. City of Fresno, 2012 WL 6719556 *31 (E.D. Cal. Dec. 26, 2012); California Dept. of Toxic Substances Contol v. Alco Pacific, 217 F.Supp.2d 1028, 1033 (C.D. Cal. 2002)

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations and quotations omitted). Though "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (internal citations and quotations omitted). A plaintiff's factual allegations must be enough to raise a right to relief above the speculative level. Id. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) ("The pleading must contain something more... than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action")).

Moreover, "Rule 8(a)(2)... requires a showing, ' rather than a blanket assertion of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests." Twombly, at 1965, n.3 (internal citations omitted). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 1960; see also Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009). If the "plaintiffs... have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Twombly, at 1974.

If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without prejudice, and with or without leave to amend."[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe. v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). In other words, leave ...


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