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Blackman-Baham v. Kelly

United States District Court, N.D. California

July 26, 2017

JOHN F. KELLY, Defendant.




         On February 21, 2017, the Court granted Defendant's Motion to Dismiss, finding that as to many of her claims Plaintiff had not exhausted her administrative remedies, and that as to all of the claims, Plaintiff failed to state a viable claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court dismissed all of Plaintiff's claims with leave to amend. On April 7, 2017, Plaintiff filed a “Response” to the Court's order. The Court construes the Response as Plaintiff's Second Amended Complaint (“SAC”).[1] In the SAC, Plaintiff asserts the same seven claims she asserted in her previous complaint. Presently before the Court is Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (“Motion”). The Court vacated the motion hearing previously scheduled for June 2, 2017 pursuant to Civil Local Rule 7-1(b). The Court finds that Plaintiff has failed to cure the defects identified in its previous order and therefore GRANTS Defendant's Motion and dismisses this action, in its entirety, with prejudice.[2] The Case Management Conference scheduled for August 18, 2017 at 2:00 p.m. is vacated.

         II. ANALYSIS[3]

         A. Legal Standards

         1. Rule 12(b)(1)

         Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a district court must dismiss an action if it lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P. 12(b)(1). “Subject matter jurisdiction can never be forfeited or waived and federal courts have a continuing independent obligation to determine whether subject-matter jurisdiction exists.” Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (internal quotation marks and citations omitted). On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), it is the plaintiff's burden to establish the existence of subject matter jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008).

         A party challenging the court's subject matter jurisdiction under Rule 12(b)(1) may bring a facial challenge or a factual challenge. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In evaluating a facial challenge to subject matter jurisdiction, the court accepts the factual allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001). Where a defendant brings a factual challenge, on the other hand, “a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment.” White, 227 F.3d at 1242 (citation omitted). Once the moving party has made a factual challenge by offering affidavits or other evidence to dispute the allegations in the complaint, the party opposing the motion must “present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” McCarthy v. Brennan, No. 15-CV-03308-JSC, 2017 WL 386346, at *5 (N.D. Cal. Jan. 27, 2017) (quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)).

         2. Rule 12(b)(6)

         A complaint may be dismissed for failure to state a claim on which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a claimant's burden at the pleading stage is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that “[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a).

         In ruling on a motion to dismiss under Rule 12(b)(6), the court takes “all allegations of material fact as true and construe[s] them in the light most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that would support a valid theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A pleading must “contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). “A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “[C]ourts 'are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a [pleading] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Rather, the claim must be “'plausible on its face, '” meaning that the claimant must plead sufficient factual allegations to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570).

         Pro se pleadings are generally liberally construed and held to a less stringent standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even post-Iqbal, courts must still liberally construe pro se filings. Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010). As the Ninth Circuit explained in Hebbe v. Pliler, “[w]hile the standard is higher, our obligation remains, where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” 627 F.3d at 342. Nevertheless, the Court may not “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982).

         B. Claim One: Termination in Violation of the ADEA

         In the Court's Order dismissing Plaintiff's amended complaint, the Court found that Plaintiff's ADEA claim failed because she did not satisfy the exhaustion requirements of ADEA, and she failed to allege facts sufficient to state a claim. Dkt. No. 30 at 29-31. Plaintiff has not remedied either deficiency in the SAC. See SAC at 6-7.

         With respect to exhaustion, the relevant requirement is set forth 29 U.S.C. § 633a(d), which provides, in relevant part, as follows:

When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred.

29 U.S.C.A. § 633a (d).[4] Plaintiff now alleges that she gave the agency representative notice that she intended to file an action in federal court in an April 18, 2016 email - more than 30 days before she initiated this action. Dkt. No. 31 at 7. She does not, however, allege that she gave the required notice to the EEOC. Further, this claim is based on her terminations in 2011 and 2012, which were more than 180 days before the April 18, 2016 email. Therefore, this claim is subject to dismissal under Rule 12(b)(1) because Plaintiff has not satisfied the exhaustion requirements for her ADEA claim.

         Plaintiff also does not allege facts sufficient to raise a plausible inference that she was discriminated against on the basis of age. As in her previous complaint, Plaintiff includes only bare conclusory allegations that “[o]ther employees, who were similarly situated, not in Plaintiff's protected class, were not so adversely treated or were accorded more favorable treatment.” Id. Therefore, this claim also fails on the basis that Plaintiff fails to state a claim under Rule ...

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