United States District Court, D. Hawaii
MOLLIE M. KLINGMAN, Plaintiff,
THE COUNTY OF MAUI, MAUI POLICE DEPARTMENT; JOHN DOES 1-10; JOHN DOE CORPORATIONS 1-10; JOHN DOE PARTNERSHIPS 1-10; AND JOHN DOE GOVERNMENT ENTITIES 1-10 Defendants.
ORDER GRANTING DEFENDANT COUNTY OF MAUI, MAUI POLICE
DEPARTMENT'S MOTION TO DISMISS COMPLAINT FILED ON JULY
C. Kay Sr. United States District Judge
reasons set forth below, the Court GRANTS Defendant County of
Maui, Maui Police Department's Motion to Dismiss
Complaint Filed on July 20, 2016, ECF No. 8, with leave to
Mollie Klingman (“Plaintiff”) began working for
the Maui Police Department in 1987. Compl. ¶ 11, ECF No.
1. In 2011, Plaintiff was promoted to Captain and assigned as
“Support Services Bureau - Technical Services
Captain.” Id. ¶ 12. While in this role,
Plaintiff was assigned to be the Acting Assistant
Chief/Inspector of Support Services Bureau over 25 times
allowing her to become “very experienced at running the
Support Services Bureau.” Id. ¶¶
February of 2013, Plaintiff “transferred to a position
as Lahaina District Commander.” Id. ¶ 14.
In 2013, Plaintiff also applied for the position of Police
Inspector, but was not selected. Id. ¶ 15.
Plaintiff was informed by the Assistant Chief of Support
Services Bureau “that she should not have bothered to
submit an application because the position was going to be
filled by Dean Rickard (a male).” Id. ¶
16. Dean Rickard (“Deputy Chief Rickard”) was
selected for the Police Inspector position and has since been
promoted to Deputy Chief of Police. Id. ¶ 17.
around September 24-25, 2014, Deputy Chief Rickard informed
Officer Rusty Iokia, a Maui Police Department union
representative, that the next Assistant Chief would be
Captain John Jakubczak (“Captain Jakubczak”).
Id. ¶¶ 19-20. Captain Jakubczak “had
socialized” with Chief of Police Tivoli S. Faaumu and
was a classmate of Deputy Chief Rickard. Id. ¶
21. Deputy Chief Rickard and Captain Jakubczak “lunched
together nearly every day.” Id.
around November 6, 2014, Plaintiff “submitted an
application for a vacant Police Inspector position (also
known as Assistant Chief).” Id. ¶ 22. The
position was with the Support Services Bureau at which
Plaintiff had previously been assigned as Acting Assistant
Chief/Inspector more than 25 times. Id. Plaintiff
participated in a promotion board interview for the Police
Inspector/Assistant Chief position, which lasted 23 minutes.
Id. ¶ 23. Police Chief Faaumu and Deputy Chief
Rickard were the board members. Id. “The
interview was unstructured and informal, ” and
Plaintiff was “asked very limited questions”
regarding the open position. Id. ¶ 24.
vacant Police Inspector position was given to Captain
Jakubczak, “a less experienced and less qualified
male” who also had “less seniority” than
Plaintiff. Id. ¶ 25. Plaintiff requested a
meeting with Chief Faaumu regarding the promotion process,
which Deputy Chief Rickard also attended. Id. ¶
26. At the meeting, Deputy Chief Rickard “became very
confrontational” with Plaintiff. Id.
20, 2016, Plaintiff filed her Complaint against the County of
Maui, Maui Police Department (“Defendant”). The
Complaint raises four counts against Defendant: Count I-Title
VII Sex Discrimination; Count II-Violation of the Hawaii
Constitution, Article XVI; Count III-Negligent Infliction of
Emotional Distress (“NIED”); and Count
IV-Intentional Infliction of Emotional Distress
(“IIED”). Compl. ¶¶ 28-48.
August 25, 2016, Defendant filed a Motion to Dismiss
Complaint Filed on July 20, 2016 (“Motion to
Dismiss”). ECF No. 8. On November 7, 2016, Plaintiff
filed her Memorandum in Opposition to Defendant County of
Maui Police Department's Motion to Dismiss Complaint
Filed on July 20, 2016 (“Opposition” or
“Opp.”). ECF No. 12. Defendant filed its Reply
Memorandum in Support of its Motion to Dismiss Complaint
Filed July 20, 2016 (“Reply”) on November 14,
2016. ECF No. 13.
Court held a hearing on Defendant's Motion to Dismiss on
November 28, 2016.
Motion to Dismiss for Lack of Subject Matter
to Federal Rule of Civil Procedure (“Rule”)
12(b)(1), a party may move to dismiss based on a lack of
subject matter jurisdiction. “[T]he party asserting
subject matter jurisdiction has the burden of proving its
existence.” Robinson v. United States, 586
F.3d 683, 685 (9th Cir. 2009) (citation omitted).
“Failure to exhaust administrative remedies is properly
considered under a 12(b)(1) motion to dismiss where
exhaustion is required by statute.” Dettling v.
United States, 948 F.Supp.2d 1116, 1128 (D. Haw. 2013).
Motion to Dismiss for Failure to State a Claim
12(b)(6) authorizes the Court to dismiss a complaint that
fails “to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read
in conjunction with Rule 8(a), which requires only “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The Court may dismiss a complaint either because it lacks a
cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988).
resolving a Rule 12(b)(6) motion, the Court must construe the
complaint in the light most favorable to the plaintiff and
accept all well-pleaded factual allegations as true.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d
777, 783 (9th Cir. 2012). The complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The plausibility standard . . . asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557). “In considering a motion to dismiss,
the court is not deciding whether a claimant will ultimately
prevail but rather whether the claimant is entitled to offer
evidence to support the claims asserted.” Tedder v.
Deutsche Bank Nat. Trust Co., 863 F.Supp.2d 1020, 1030
(D. Haw. 2012) (citing Twombly, 550 U.S. at 563
Court should grant leave to amend unless the pleading cannot
be cured by new factual allegations. OSU Student All. v.
Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
Rule 12(b)(6), review is generally limited to the contents of
the complaint. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). However,
courts may “consider certain materials-documents
attached to the complaint, documents incorporated by
reference in the complaint, or matters of judicial
notice-without converting the motion ...