United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED
COMPLAINT AND DISMISSING ACTION WITH PREJUDICE RE: DKT. NO.
C. SPERO CHIEF MAGISTRATE JUDGE.
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”). 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. The Case
Management Conference scheduled for August 18, 2017 at 2:00
p.m. is vacated.
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).
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.
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).
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).
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).
Claim One: Termination in Violation of the ADEA
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.
respect to exhaustion, the relevant requirement is set forth
29 U.S.C. § 633a(d), which provides, in relevant part,
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). 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
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 ...