The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER (1) DENYING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND (2) DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
On January 23, 2012, the Court heard Plaintiff's ("Plaintiff") Motion for Preliminary Injunctive Relief and Defendant's Motion to Strike Plaintiff's Complaint. Norman Siales ("Plaintiff"), proceeding pro se, appeared at the hearing on behalf of himself; Deputy Attorney General Steve K. Miyasaka appeared on behalf of Defendant Judiciary, State of Hawai'i, Human Resources Department ("Defendant"). After reviewing the motions and the supporting and opposing memoranda, the Court (1) DENIES Defendant's Motion to Strike Plaintiff's Complaint for Declaratory and Injunctive Relief (Doc. # 31), and (2) DENIES Plaintiff's Motion for Preliminary Injunctive Relief (Doc. # 28).
According to Plaintiff, on January 12, 2009, he began doing volunteer clerical work for Defendant. ("FAC," Doc. # 17 ¶ 12.) On January 28, 2009, Defendant denied his application for a court clerk position. (Id.; "Hara Decl.," Doc. # 34-1 ¶ 8.) On August 11, 2009, Plaintiff reapplied for the same position and was again denied. (FAC ¶ 12.) On January 31, 2010, Plaintiff filed a Charge of Discrimination with the Hawaii Civil Rights Commission ("HCRC"), alleging that Defendant did not hire him for the clerk position because of his national origin. (Doc. # 34-10). According to Plaintiff, the HCRC and the Equal Employment Opportunity Commission ("EEOC") concluded that "they . . . couldn't find sufficient evidence in substantiating my employment discrimination claim." (FAC ¶ 16.)
On May 5, 2011, Plaintiff filed a Complaint ("original Complaint") against Defendant Hawaii State Judiciary, Department of Human Resources ("Defendant"), alleging employment discrimination. (Doc. # 1.) Plaintiff alleged, among other things, that Defendant discriminated against him by failing to hire him for a clerical position because of his national origin. (Doc. # 17 at 1--2.)
On August 10, 2011, Plaintiff filed a second Complaint, entitled "Complaint for Declaratory and Injunctive Relief." ("FAC," Doc. # 17.) On September 6, 2011, Defendant filed its Answer to Plaintiff's original Complaint. (Doc. # 21.) On September 30, 2011, Defendant filed a Motion to Strike the second Complaint. (Doc. # 31.)
On September 23, 2011, Plaintiff filed a Motion for a Preliminary Injunction, "Supplemental Memorandum for the Preliminary Injunctive Relief Motion Ref: Retaliatory/Employment Discriminations" ("Injunction Motion"). ("Inj. Mot.," Doc. # 28.) On December 20, 2011, Defendant filed a Memorandum in Opposition to Plaintiff's Injunction Motion. ("Opp'n," Doc. # 34.) On January 13, 2012, Plaintiff filed a Response to Defendant's Motion to Strike and Defendant's Opposition. (Doc. # 35.)
I. Motion to Strike "Grounds for a motion to strike must be readily apparent from the face of the pleadings or from materials that may be judicially noticed." Wailua Ass'n, 183 F.R.D. at 554 (citation omitted). In considering a motion to strike, the court views the challenged pleadings in the light most favorable to the non-moving party. Id. (citation omitted). Generally, motions to strike are not favored by courts in the absence of prejudice. Id. at 553, 555.
II. Preliminary Injunction "[I]njunctive relief is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). To obtain a preliminary injunction, the moving party must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 365 (citing Munaf v. Geren, 128 S. Ct. 2207, 2218--19 (2008); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311--12 (1982)); see also Stormans, Inc. v. Selecky, 586 F.3d. 1109, 1126--27 (9th Cir. 2009) (applying heightened standard mandated by Winter). "'[S]erious questions going to the merits' and a hardship balance that tips sharply towards the plaintiff can [also] support issuance of an injunction, so long as the plaintiff also shows a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1053 (9th Cir. 2010). A district court has great discretion in determining whether to grant or to deny a preliminary injunction. See Wildwest Inst. v. Bull, 472 F.3d 587, 589--90 (9th Cir. 2006).
Plaintiffs seeking preliminary injunctive relief must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 129 S. Ct. at 375 (emphasis in original). The mere possibility of irreparable harm is insufficient. Id. (finding the Ninth Circuit's standard of a "possibility" of harm too lenient). "To seek injunctive relief, a plaintiff must show that he is under threat of suffering 'injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009).
If irreparable injury is shown, courts must then "'balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.'" Winter, 129 S. Ct. at 376 (quoting Amoco Prod. Co., 480 U.S. at 542). In assessing whether the plaintiff has met this burden, the district court has a "'duty . . . to balance the interests of all parties and weigh the damage to each.'" Stormans, 586 F.3d. at 1138 (quoting L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)).
Finally, the court must weigh the public interest, if any, implicated by the injunction. Winter, 129 S. Ct. at 374. When the reach of an injunction is narrow, limited only to the parties, and has no impact on nonparties, the public interest will be "at most a neutral factor in the analysis rather than one that favor[s][granting or] denying the preliminary injunction." Bernhardt v. Los Angeles County, 339 F.3d 920, 931 (9th Cir. 2003). "If, however, the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences, the public interest will be relevant to whether the district court grants the preliminary injunction." Stormans, 586 F.3d. at 1139 (citing Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 965 (9th Cir. 2002)). "[When] an injunction is asked [for] which will adversely affect a public interest . . . the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312--13 (1982). In fact, "courts . . . should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Winter, 129 S. Ct. at 376--77.
Defendant argues that the Court should strike Plaintiff's second Complaint filed on August 10, 2011 because although it was filed before Defendant answered the original May 5, 2011 Complaint, it was never served on Defendant. (Doc. #31-1 at 3--4.) Defendant further argues that it only waived service for the original Complaint, and that once Defendant filed its Answer to the original Complaint, Plaintiff could amend the original Complaint only with Defendant's consent or leave of Court. (Id.)
Rule 15(a)(1) allows a party to amend his pleading "once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading[.]" Rule 15(a)(2) provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires."
Rule 4(c)(1) requires that a plaintiff serve the summons and complaint "within the time allowed by Rule 4(m)" -- that is, within 120 days after the complaint is filed. Fed. R. Civ. P. 4(c)(1), 4(m). Rule 4(m) states, in relevant part:
If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Absent a showing of good cause, courts have discretion to "extend time for service upon a showing of excusable neglect." Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009) (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). In making extension decisions under Rule 4(m), a district court may consider factors "like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service." Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (citation omitted).
Here, the Court construes Plaintiff's second Complaint as a first amended complaint ("FAC") and finds that it complies with Rule 15(a) because Plaintiff filed it before Defendant filed an answer to the original complaint. Although Plaintiff appears to admit in his Response to Defendant's Motion that he did not serve Defendant with the second Complaint, the Court declines to strike the second Complaint and instead will grant Plaintiff an extension to serve.
Defendant did not argue that it suffered prejudice as a result of the lack of service. Defendant also knew about Plaintiff's Complaint for Declaratory and Injunctive Relief at least as early as September 30, 2011, when it filed the Motion to Strike. Moreover, even if the Court granted Defendant's Motion to Strike, it would nevertheless give Plaintiff leave to file an amended complaint. Going through that process only to reach virtually the same situation in which the case is now -- the filing of an amended complaint -- would contravene the ...