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Begley v. County of Kauai

United States District Court, D. Hawaii

July 31, 2018

MARK N. BEGLEY, Plaintiff,
v.
COUNTY OF KAUAI, KAUAI POLICE DEPARTMENT, DARRYL PERRY, ROY ASHER, MICHAEL CONTRADES AND DOE DEFENDANTS 16-100, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND SUBSTANTIVE JOINDER

          Leslie E. Kobayashi United States District Judge

         On March 14, 2018, Defendant Michael Contrades (“Contrades”), in his individual capacity, filed his Motion to Dismiss Plaintiff's Second Amended Complaint Filed on February 15, 2018 (“Motion”). [Dkt. no. 216.] On March 21, 2018, Defendants County of Kauai (“the County”); Kauai Police Department (“KPD”); Darryl Perry (“Perry”), in his official capacity; Roy Asher (“Asher”), in his official capacity; and Contrades, in his official capacity (collectively, “County Defendants”), filed a substantive joinder in the Motion (“Substantive Joinder”).[1] [Dkt. no. 226.] On April 16, 2018, Plaintiff Mark N. Begley (“Plaintiff”) filed his memorandum in opposition. [Dkt. no. 246.] Contrades and the County Defendants each filed their reply on April 23, 2018. [Dkt. nos. 274 (Contrades Reply), 276 (County Defendants Reply).] These matters came on for hearing on May 7, 2018. The Motion and Substantive Joinder are hereby granted in part and denied in part for the reasons set forth below.

         BACKGROUND

         This action commenced on June 27, 2016, and the First Amended Complaint was subsequently filed on May 5, 2017. [Dkt. nos. 1, 103.] On January 4, 2018, this Court issued its Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Portions of Plaintiff's First Amended Complaint (“1/4/18 Order”). [Dkt. no. 198.[2] On January 16, 2018, this Court issued its Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Portions of Plaintiff's First Amended Complaint (“1/16/18 Order”). [Dkt. no. 199.[3]In the First Amended Complaint, Plaintiff asserted four claims:

-retaliation, under Title VII of the Civil Rights Act of 1964 (“Title VII”), U.S.C. § 2000e-3(a) and Haw. Rev. Stat. Chapter 368 and § 378-2(2), [4] against the County and KPD
(“Count I”);
-aiding and abetting retaliation, under Chapter 368 and § 378-2(3), [5]against the Individual Defendants (“Count II”);
-violation of the Hawai`i Whistleblowers' Protection Act, Haw. Rev. Stat. § 378-61, et seq., against the County and KPD (“Count III”); and
-intentional infliction of emotional distress (“IIED”) against all Defendants (“Count IV”).

         In the 1/4/18 Order and 1/16/18 Order, the motions to dismiss of Asher and Contrades, respectively, in their individual capacities, were denied as to Count II, and granted insofar as Count IV was dismissed as time-barred. The First Amended Complaint lacked sufficient factual allegations, accepted as true, to support Plaintiff's position that, under the discovery rule, his IIED claims accrued in 2016 when a United States Equal Employment Opportunity Commission (“EEOC”) document production revealed to him the outrageous character of otherwise time-barred incidents.[6]1/4/18 Order, 2018 WL 295799, at *4 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (dismissing Count IV against Asher); 1/16/18 Order, 2018 WL 443437, at *4 (dismissing Count IV against Contrades “[f]or the reasons stated in the 1/4/18 Order”). The dismissal of Count IV was without prejudice because it was possible that Plaintiff could cure the timeliness defect “by alleging facts that would support his position regarding the 2016 document production.” 1/4/18 Order, 2018 WL 295799, at *4 (footnote and citation omitted); see also 1/16/18 Order, 2018 WL 443437, at *4.

         On February 15, 2018, Plaintiff filed his Second Amended Complaint. [Dkt. no. 201.] Plaintiff alleges the same claims as in the First Amended Complaint. [Id. at ¶¶ 120-39.] Plaintiff repeats all of the factual allegations considered in the 1/4/18 Order and 1/16/18 Order. The factual allegations set forth in the First Amended Complaint are summarized in the 1/4/18 Order and are not repeated here except as relevant to the instant Motion and Substantive Joinder. See 2018 WL 295799, at *2. In short, Plaintiff was an assistant KPD chief of police. [Second Amended Complaint at ¶ 4.] Plaintiff alleges he helped oppose sex discrimination committed by Asher against Darla Abbatiello (“Abbatiello”), who was a KPD police officer, and that as a result, Defendants discriminated against him in the workplace. Asher was also an assistant KPD chief of police; Contrades was the deputy chief of police; and Perry was the KPD chief of police. [Id. at ¶¶ 6-8.] The only significant new factual allegations are that, on June 15, 2016, Plaintiff received a document production from the EEOC. [Id. at ¶ 36.] According to Plaintiff, the document production “revealed . . . further retaliation . . . . Prior to receiving the EEOC's investigatory files, Plaintiff was unaware of the aforementioned documents and County-wide retaliatory efforts made against him.” [Id. at ¶ 37.]

         In the instant Motion, Contrades seeks dismissal of Counts II and IV. The County Defendants argue that, for the reasons asserted in the Motion, they are entitled to dismissal of Counts I, II, and IV.[7]

         STANDARD

         The Ninth Circuit has described the standard applicable to a motion under Fed.R.Civ.P. 12(b)(6) as follows:

To survive a motion to dismiss for failure to state a claim after the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the [plaintiff's] factual allegations “must . . . suggest that the claim has at least a plausible chance of success.” In re Century Aluminum [Co. Sec. Litig.], 729 F.3d [1104, ] 1107 [(9th Cir. 2013)]. In other words, their complaint “must allege ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).

         Following Iqbal and Twombly, . . . . we have settled on a two-step process for evaluating pleadings:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
[Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)] (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). In all cases, evaluating a complaint's plausibility is a “context-specific” endeavor that requires courts to “draw on . . . judicial experience and common sense.” Id. at 995-96 (internal quotation marks omitted).

Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th Cir. 2014) (some alterations in Levitt).

         This district court has stated, “although allegations ‘upon information and belief' may state a claim after Iqbal and Twombly, a claim must still be based on factual content that makes liability plausible, and not be ‘formulaic recitations of the elements of a cause of action.'” Klohs v. Wells Fargo Bank,N.A., 901 F.Supp.2d 1253, 1260 n.2 (D. Hawai`i 2012) (quoting Long v. Yomes, 2011 WL ...


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