United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Re: Dkt. 10]
HOWARD R. LLOYD, Magistrate Judge.
Plaintiff Desmond Williams is an African-American who worked as a Federal Police Officer at the Naval Support Activity Monterey Security Department (NSA Monterey). He sues under Title VII, 42 U.S.C. § 2000e, et seq. for alleged employment discrimination based on his "race and color and retaliation for engaging in protected activity." (First Amended Complaint (FAC) ¶ 1). The FAC alleges five incidents of purported discrimination. The first three concern an alleged May 2011 delayed promotion to the GS-7 level; a July 2011 work shift change; and an August 2011 suspension. As to these claims, there is no dispute that plaintiff exhausted his administrative remedies. During those proceedings, plaintiff says that he was issued a Notice of Right to File a Discrimination Complaint, and his formal EEO complaint was then filed in October 2011 (hereafter, "October 2011 formal EEO complaint").
The other two claims of discrimination concern a December 2011 failure to promote and a June 2012 suspension. According to the FAC, in late 2011 NSA Monterey announced a job vacancy for a Sergeant position, which eventually was given to a Caucasian officer whom, plaintiff claims, was the least qualified of all the candidates. As for the June 2012 suspension, plaintiff claims that it was completely unwarranted.
As to these two claims, defendant moves to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and for failure to state a claim, Fed.R.Civ.P. 12(b)(6). Defendant contends that plaintiff either failed to timely exhaust his administrative remedies or withdrew his claims prior to filing this suit. Additionally, defendant argues that dismissal is warranted anyway because the FAC fails to state a claim for relief. Plaintiff opposes the motion. Upon consideration of the moving and responding papers, as well as the arguments of counsel, the court grants the motion to dismiss for failure to exhaust administrative remedies and finds it unnecessary to reach defendant's arguments under Fed.R.Civ.P. 12(b)(6).
A. Fed.R.Civ.P. 12(b)(1)
"A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000)). Here, defendant raises a factual attack on jurisdiction. Thus, "[u]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir. 1989). "It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." Id . "The district court obviously does not abuse its discretion by looking to this extra-pleading material in deciding the issue, even if it becomes necessary to resolve factual disputes." Id . (citing Thornhill Publishing Co. v. Gen. Tel. & Elec. Corp. , 594 F.2d 730, 733 (9th Cir. 1979)). Additionally, where, as here, jurisdictional issues are separable from the merits of the case, the court may weigh the evidence and determine the facts in order to establish its power to hear the case. See id.
B. Fed.R.Civ.P. 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Id . (citing Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the claimant. Id . However, "[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). Moreover, "the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network , 18 F.3d 752, 754-55 (9th Cir. 1994).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." This means that the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted) However, only plausible claims for relief will survive a motion to dismiss. Iqbal , 129 S.Ct. at 1950. A claim is plausible if its factual content permits the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id . A plaintiff does not have to provide detailed facts, but the pleading must include "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1949.
Documents appended to the complaint or which properly are the subject of judicial notice may be considered along with the complaint when deciding a Fed.R.Civ.P. 12(b)(6) motion. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1990); MGIC Indem. Corp. v. Weisman , 803 F.2d 500, 504 (9th Cir. 1986).
While leave to amend generally is granted liberally, the court has discretion to dismiss a claim without leave to amend if amendment would be futile. Rivera v. BAC Home Loans Servicing, L.P. , 756 F.Supp.2d 1193, 1997 (N.D. Cal. 2010) (citing Dumas v. Kipp , 90 F.3d 386, 393 (9th Cir. 1996)).
A. Alleged December 2011 Failure ...