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Scheller v. Interstate Realty Management

United States District Court, E.D. California

June 24, 2014



KENDALL J. NEWMAN, Magistrate Judge.


Presently pending before the court is defendants Interstate Realty Management Company (erroneously sued as Interstate Realty Management aka IRM and The Michaels Organization) ("IRM") and Kimberlee Schreiber ("Schreiber") (collectively, "defendants") motion to dismiss pro se plaintiff Melanie Scheller's ("plaintiff") first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 16.)[1] The motion was initially noticed for hearing on June 5, 2014. (Id.)

However, on May 23, 2014, the parties filed a stipulation to continue the hearing until June 19, 2014, based on plaintiff's representation that she had found an attorney who might be willing to represent her. (ECF No. 26.) On May 27, 2014, the court approved the stipulation and rescheduled the hearing for June 19, 2014. (ECF No. 27.) The court's minute order further provided that:

Plaintiff, proceeding with or without counsel, shall file any opposition to the motion no later than 6/5/2014, and defendants shall file any reply brief no later than 6/12/2014. Failure to file an opposition or statement of non-opposition to the pending motion by the required deadline may result in the imposition of sanctions, including monetary sanctions or potential dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b). If plaintiff obtains counsel and such counsel enters an appearance, the court will be willing to consider a stipulation or request for a further, brief extension of time should such counsel need additional time to evaluate the case and/or a stipulation by the parties to amend the complaint.


Thereafter, on June 6, 2014, plaintiff filed an opposition to the motion to dismiss. (ECF No. 28.)[2] Plaintiff's opposition indicated that, even with the extension of time, plaintiff was unable to obtain counsel, and that she would continue to represent herself. Defendants timely filed their reply brief on June 12, 2014. (ECF No. 29.)

At the June 19, 2014 hearing, plaintiff appeared representing herself, and attorney Heath Havey appeared telephonically on behalf of defendants. After carefully considering the parties' written briefing, the parties' oral argument, the court's record, and the applicable law, the court recommends that defendants' motion to dismiss be granted, and that the action be dismissed with prejudice.


Plaintiff originally filed this action in the San Joaquin County Superior Court on November 14, 2013. After being served with the complaint and summons on January 13, 2014, defendants removed the action to this court by filing a notice of removal on February 11, 2014, which invoked the court's diversity of citizenship subject matter jurisdiction. (See ECF No. 1.) On February 14, 2014, defendants also filed a motion to dismiss plaintiff's original complaint. (ECF No. 5.)

Thereafter, on February 27, 2014, plaintiff filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 11.) On March 7, 2014, the court granted plaintiff's request to proceed in forma pauperis, and dismissed plaintiff's original complaint with leave to amend. (ECF No. 14.) At that time, the court noted:

Plaintiff's complaint is approximately 123 pages long, does not contain numbered paragraphs, and consists of multiple California Judicial Council forms, interspersed with declarations, charts, lists, notes, and other evidentiary documents in a somewhat haphazard fashion. As such, it plainly fails to meet the requirements of Federal Rules of Civil Procedure 8 and 10.

(ECF No. 14 at 3.) In light of plaintiff's pro se status, the court provided plaintiff with some basic instruction regarding federal pleading requirements, including the requirement to plead sufficient facts in support of each claim to allow the court to draw a reasonable inference that the defendants are liable for the misconduct alleged. ( Id. at 2-4.) Plaintiff was granted 28 days to file a first amended complaint, and the court denied without prejudice as moot defendants' motion to dismiss the original complaint. ( Id. at 6.)

Subsequently, on April 2, 2014, plaintiff filed the operative first amended complaint. (See First Amended Complaint, ECF No. 15 ["FAC"].) The background facts for purposes of the pending motion to dismiss are taken from the first amended complaint, unless otherwise noted.

According to plaintiff, on June 27, 2012, while working part-time at a non-profit agency, plaintiff responded to an employment advertisement by defendant IRM for a property manager position in Bakersfield, California, which was placed on the Las Vegas, Nevada section of Craigslist. During a subsequent July 3, 2012 phone interview with IRM's district manager, Mary Kashishian, Ms. Kashishian apparently "expressed a desire to offer the position, but wanted to meet face to face to make an official offer." Plaintiff alleges that she gave notice to her former employer and prepared to relocate at her own expense based on her belief that an employment position in Bakersfield was secured. However, during the subsequent in-person meeting with Ms. Kashishian and an individual named Naomi Pereja on July 11, 2012, it was "made clear that the position was not in Bakersfield California, but rather in Needles, California and that the position was for an onsite Property Manager in a Senior Complex." Plaintiff claims that she had no choice but to accept the position in Needles, California, because she had already given notice to her prior job and made arrangements to relocate. (FAC ¶ 9.)

Plaintiff apparently started her employment for IRM around July 22, 2012, and at that time, she was presented with, and acknowledged receipt of, an IRM employee handbook. (FAC ¶ 4; ECF No. 1 at 28-71.) Although plaintiff was offered a position as site manager for a senior complex in Needles known as "Mesa Grande, " plaintiff was told that she would first stay at a neighboring family complex, known as "Lilly Hill, " for a two-week training period to familiarize herself with IRM procedures and to allow the vacating manager at Mesa Grande, Janet Mask, to vacate the manager's unit. (FAC ¶ 12.) However, after the two-week training period ended, plaintiff was purportedly informed that defendant and IRM Vice President Kimberlee Schreiber had decided not to terminate Janet Mask, but instead to allow her to take a "forced retirement" in February 2013. As such, plaintiff was required to continue residing at Lilly Hill and begin her position as site manager at Mesa Grande alongside the unwilling and disgruntled outgoing site manager, Janet Mask. ( Id. ¶ 13.)

According to the first amended complaint, plaintiff was then subjected to a hostile work environment, discrimination, retaliation, sexual harassment, and other acts of harassment until she left work on July 8, 2013. Plaintiff's allegations in this regard are largely conclusory, but she recounts a few incidents of purportedly unwarranted or invalid criticism (remarks in an employee review that plaintiff needed to work on communication skills, reprimands based on a private phone conversation in plaintiff's apartment concerning child support payments, and reprimands concerning a friend who visited and stayed with plaintiff); blame for remarks by plaintiff that she allegedly never made (remarks that plaintiff was "tight" with her supervisor and could get another employee fired); being required to work over the 4th of July holiday when other employees did not have to; being assigned a different supervisor; having to send her children away to stay with their father due to complaints about plaintiff's children coming into the office; being given work with unrealistic deadlines; and being shouted or sworn at. (FAC ¶ 26.) Plaintiff alleges that the outgoing manager, Janet Mask, on a daily basis made numerous remarks such as "this resident thinks you're a bitch" and "everybody hates you, no one wants you here, " and purportedly incited the residents against plaintiff. ( Id. ¶ 23.) Plaintiff further alleges that the maintenance supervisor, Mike Harding, made inappropriate comments such as "maybe I should start wearing high heels so you can't look down on me, " or, when he walked behind plaintiff and noted a black heart tattooed on her lower backside, saying "Oh, that's where your heart is." ( Id. ¶ 24.)

Plaintiff filed a complaint with the Department of Fair Employment and Housing ("DFEH") sometime in November 2012, but then participated in a meeting with defendant Schreiber that same month to avoid litigation. The discussions at the meeting were memorialized in meeting notes; plaintiff made a few changes to the notes, and defendant Schreiber subsequently agreed to those changes. (FAC ¶ 1; ECF No. 1 at 21-24.) Discussions at the meeting apparently included a potential transfer within the company. (Id.) However, plaintiff contends that defendants subsequently breached several terms of the contract that was purportedly formed between plaintiff and defendants by virtue of the meeting notes. (FAC ¶¶ 2-3.)

In February 2013, plaintiff was transferred to a position in Jackson, California, and in connection with that transfer, plaintiff signed a relocation agreement, whereby plaintiff was required to repay to IRM a pro-rated portion of her relocation expenses if she voluntarily terminated her employment within a certain period of the transfer. (FAC ¶ 7; ECF No. 1 at 78-79.) Plaintiff claims that her misfortunes continued at the Jackson, California position. In addition to some of the above-mentioned alleged conduct, plaintiff alleges that she was never given a promised copy of a property audit inspection by her acting supervisor, Erin Gibson. (FAC ¶ 21.) Furthermore, despite plaintiff receiving threats from some of the residents at the Jackson property, Ms. Gibson allegedly refused to terminate their leases due to the property's many vacancies, placing plaintiff "in physical and psychological danger." ( Id. ¶ 29.)

Plaintiff alleges that she consequently suffered an emotional and psychological breakdown, stopped working around July 8, 2013, and has filed for and received disability insurance benefits and worker's compensation benefits. (FAC ¶¶ 2, 5, 32; see also ECF No. 28 at 17-18.) According to plaintiff's opposition to the motion to dismiss, plaintiff has not been terminated, but remains on unpaid medical leave since July 8, 2013. (ECF No. 28 at 12.)[3]

The first amended complaint asserts three causes of action for breach of contract; three causes of action for fraud; and seven state law tort causes of action (labeled as good faith and fair dealing, deception, violation of public policy, violation of rights, harassment, negligence by breach of obligation, and serious and willful misconduct). The first amended complaint seeks the following relief: injunctive relief (an order that defendants become knowledgeable with, implement, and adhere to certain company policies dispelling harassment and bullying); actual damages of $57, 337.00 for each breach of contract, for a total of $172, 011.00; $66, 560.00 in general damages for each count of fraud, for a total of $199, 680.00; $250, 000 in punitive ...

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