United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
CYNTHIA BASHANT, District Judge.
Plaintiff Evelyn Naigan's First Amended Complaint alleges three claims against Defendant NANA Services, LLC for violation of Title VII of the Civil Rights Act of 1964, 42 USC 2000(e). Doc. 11. Defendant has filed a Motion to Dismiss for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6).
Because Plaintiff has not alleged facts showing that this action commenced within the ninety (90) days after the issuance of a Right to Sue letter, the Court cannot exercise jurisdiction over the matter. Consequently, Defendant's motion to dismiss is GRANTED.
I. LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
"[A] plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept "legal conclusions" as true. Iqbal, 556 U.S. at 678. Despite the deference the court must pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. It may also consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
As a general rule, a court freely grants leave to amend a complaint which has been dismissed. Fed.R.Civ.P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
Defendant, in its Motion to Dismiss, makes a statute of limitations challenge to Plaintiff's First Amended Complaint. Specifically, Defendant argues Plaintiff failed to file her Complaint within the ninety day statutory limitation imposed by Title VII. 42 USC 2000e-5(f)(1).
When the Equal Employment Opportunity Commission dismisses a claim, it must notify the claimant and inform her she has 90 days to bring a civil suit. Id. This 90-day period constitutes a statute of limitations. Scholar v. Pacific Bell, 963 F.2d 264, 267 (9th Cir. 1992).
Even assuming all factual allegations are true in the First Amended Complaint, Plaintiff has not alleged facts showing her action commenced within the time frame required. Instead, Plaintiff claims the complaint is "timely" without providing either the date of dismissal or the date the right-to-sue letter was sent. Compl. ¶ 6. The Complaint is even arguably ambiguous as to whether Plaintiff even received a right-to-sue letter. This conclusory language without alleging any supporting facts fails to meet the pleading standard required under Twombly.
To provide the Court jurisdiction, Plaintiff must include, at minimum, the date the "right-to-sue" letter was postmarked, as well as facts supporting tolling or delaying commencement of the ninety-day period. Scholar, supra at 267, see also Riley v. Delaware River & Bay Auth., 457 F.Supp.2d 505 (D. Del. 2006) (curing defect in pleading statute of limitation by including right-to-sue letter as exhibit in opposition to motion to dismiss). Accordingly, Plaintiff's First Amended Complaint is DISMISSED WITHOUT ...