The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER: (1) GRANTING IN PART DEFENDANT AOAO ROYAL CAPITAL PLAZA'S MOTION TO DISMISS;(2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; AND (3) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the motions and supporting memoranda, the Court: GRANTS IN PART Defendant AOAO Royal Capital Plaza's Motion to Dismiss (Doc. # 45); GRANTS IN PART AND DENIES IN PART Defendants' Motion to Dismiss (Docs. # 39, 42); and DENIES WITHOUT PREJUDICE Plaintiff's Motion for Summary Judgment ("Motion"). (Doc. # 46.)
The instant action stems from allegations that Defendants Hawaiiana Management Company and AOAO Royal Capital Plaza (collectively, "Defendants") unlawfully discriminated and retaliated against Plaintiff Willis C. McAllister ("Plaintiff") in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
In December 2008, Plaintiff, who is African-American, was hired as a full-time security guard at the Royal Capital Plaza ("RCP") condominium complex. ("SAC," Doc. # 38 ¶¶ 1.1, 18.1.) Hawaiiana Management Company ("HMC") is the managing agent of the RCP. (Id. ¶ 2.2.) On August 6, 2009, Defendants terminated Plaintiff. (See id. ¶ 52.1.)
Plaintiff alleges, inter alia, that his supervisors treated his co-workers more favorably than him in that his supervisors did not investigate his complaints about certain tenants' "harassing conduct" toward him, but investigated similar complaints that "non-African American security guards" made against tenants. (Id. ¶¶ 33.1--33.10; 34.9--34.10; 38.1--38.2.) Plaintiff also alleges that his supervisors reprimanded him for failing to follow protocol but did not discipline other security guards for similar conduct. (Id. ¶¶ 42.2; 46.1; 47.2.)
On May 12, 2010, Plaintiff filed an EEOC Complaint, asserting that his termination violated Title VII. (Id. ¶ 3.1.) On October 22, 2010, the EEOC mailed Plaintiff a Notice of his Right to Sue; Plaintiff received the Notice on October 26, 2010. (Id. ¶ 3.3.)
On January 24, 2011, Plaintiff, proceeding pro se, filed a Complaint against HMC, alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964.*fn1 (Doc. # 1.) On February 14, 2011, Plaintiff filed an Amended Complaint against HMC and RCP. (Doc. # 9.) On March 31, 2011, Plaintiff filed a Motion to Dismiss his Common Law Tort Claims for Negligence. (See Doc. # 15.) The Court granted Plaintiff's request on May 13, 2011. (Doc. # 22.)
On July 15, 2011, Plaintiff filed a Motion for Partial Summary Judgment. ("Mot.," Doc. # 25.) On August 24, 2011, the Court sua sponte dismissed Plaintiff's Complaint without prejudice for failure to comply with Federal Rule of Civil Procedure 8; denied without prejudice Plaintiff's Motion for Partial Summary Judgment as moot; and denied without prejudice Plaintiff's Motions to Strike various Defendants' declarations and exhibits. (Doc. # 36.) The Court granted Plaintiff leave to amend within 30 days of the Order. (Id.)
On September 23, 2011, Plaintiff filed a Second Amended Complaint ("SAC") against Defendants. ("SAC," Doc. # 38.) Plaintiff's SAC alleges causes of action for: (1) "Hostile Work Environment; Retaliation (Continuing Violation)"; (2) "Hostile Work Environment; Disparate Treatment-Race (Continuing Violation)"; (3) "Harassment based on race/Tangible Action (Vicarious Liability)"; (4) "Hostile Work Environment; Harassment-Race (Continuing Violation)"; and (5) "Intentional Inflection [sic] of Emotional Distress-Race." (SAC ¶¶ 5.1--5.5.) Plaintiff states that he brings claims under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
On October 13, 2011, Defendants filed the instant Motion to Dismiss Plaintiff's Second Amended Complaint with Prejudice. (Doc. # 39.) On October 24, 2011, Plaintiff filed a Memorandum in Opposition to Defendants' Motion to Dismiss. (Doc. # 41.) On November 23, 2011, Defendants filed another Motion to Dismiss Plaintiff's Second Amended Complaint with Prejudice.*fn2 (Doc. # 42.) On December 2, 2011, RCP filed a Motion to Dismiss Plaintiff's Complaint with Prejudice. (Doc. # 45.) On December 5, 2011, Plaintiff filed an Opposition to the Defendants' Three Motions to Dismiss. (Doc. # 50.) On December 7, Plaintiff filed a Supplemental Filing in Opposition to the Defendants' Three Motions to Dismiss. (Doc. # 53.) On January 16, 2012, Defendants filed a Reply. (Doc. # 57.) On January 16, 2012, RCP filed a Reply. (Doc. # 58.)
On December 2, 2011, Plaintiff filed the instant Motion for Summary Judgment. (Doc. # 46.) On January 5, 2012, Defendants filed a Memorandum in Opposition to Plaintiff's Motion for Summary Judgment. (Doc. # 54.) On January 9, 2012, Plaintiff filed a Reply to Defendant's Opposition. (Doc. # 56.)
I. Federal Rule of Civil Procedure 12(b)(6)
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule"), a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Review is limited to the contents of the complaint and matters properly subject to judicial notice. See Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011). A complaint may be dismissed as a matter of law for one of two reasons: "(1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal claim." Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984) (citation omitted). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the plaintiff. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555--56 (2007). In providing grounds for relief, however, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556--57; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) ("[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.") (citation omitted). "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations and citations omitted). Thus, "bare assertions amounting to nothing more than a formulaic recitation of the elements" of a claim "are not entitled to an assumption of truth." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[T]he non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.") (internal quotations and citations omitted).
A court looks at whether the facts in the complaint sufficiently state a "plausible" ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must include enough facts to raise a reasonable expectation that discovery will reveal evidence and may not just provide a speculation of a right to relief. Id. at 586. When a complaint fails to adequately state a claim, such deficiency should be "exposed at the point of minimum expenditure of time and money by the parties and the court." Id. at 558 (citation omitted). If a court dismisses the complaint or portions thereof, it must consider whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (finding that leave to amend should be granted "if it appears at all possible that the plaintiff can correct the defect") (internal quotations and citations omitted).
A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when "the running of the statute is apparent on the face of the complaint." Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006). A complaint cannot be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim. Conley v. Gibson, 335 U.S. 41 (1957); Pesnell v. Arsenault, 543 F.3d 1038, 1042 (9th Cir. 2008). A motion to dismiss based only on the running of the statute of limitations period may be granted "if the assertions of the complaint, read with liberality, would not permit the plaintiff to prove that the statute was tolled." Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (internal quotations omitted).
II. Federal Rule of Civil Procedure 8
Federal Rule of Civil Procedure 8 mandates that a complaint include a "short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and that each allegation "be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its "'true substance, if any, is well disguised'" may be dismissed sua sponte for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) ("Something labeled a complaint but written . . . , prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint."); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) ("A complaint which fails to comply with [Rule 8] may be dismissed with prejudice[.]").
Put slightly differently, a complaint may be dismissed for failure to comply with Rule 8 where it fails to provide the defendants fair notice of the wrongs they have allegedly committed.SeeMcHenry, 84 F.3d at 1178--80 (affirming dismissal of complaint where "one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery"); cf.Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105 n.4 (9th Cir. 2008) (finding dismissal under Rule 8 was in error where "the complaint provide[d] fair notice of the wrongs allegedly committed by defendants and [did] not qualify as overly verbose, confusing, or rambling"). Rule 8 requires more than "the-defendant-unlawfully-harmed-me accusation[s]." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations omitted). Further, "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. (internal quotations omitted). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotations omitted). "The propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit." McHenry, 84 F.3d at 1179.
The court may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 1950. Legal conclusions must be supported by factual allegations. Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
Rule 12(b)(5) provides for dismissal for insufficient service of process. When a defendant challenges service, the plaintiff bears the burden of establishing the validity of service as governed by Federal Rule of Civil Procedure 4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).
IV. Motion for Summary Judgment
Rule 56 requires summary judgment to be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986).
Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial-usually, but not always, the defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls upon the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any ...