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Greenwood v. Frost

United States District Court, D. Hawaii

September 23, 2019

AIMEE N. GREENWOOD, et al., Plaintiffs,
ERIK P. FROST and KARIN A. FROST, Defendants.



         On March 14, 2019, five individuals, proceeding pro se, filed a Complaint against Erik and Karin Frost (collectively, Defendants), principally asserting various employment-related claims. Dkt. No. 1. Defendants have moved to dismiss the Complaint with prejudice. Dkt. No. 18. While there is good reason for Defendants to have done so, because some of the Complaint's deficiencies may be correctable, the Court GRANTS IN PART and DENIES IN PART the motion to dismiss and allows partial leave to amend the Complaint, as explained below.


         Plaintiffs are Aimee Greenwood, Alan DeCoite, Kimberly Rose, Samuel Hambek, and Claire Kellerman (collectively, Plaintiffs). They allege their former employment at Hoku Nui Maui, LLC (Hoku Nui), which appears to operate some form of farm on Maui. Hoku Nui, however, is not named, at least not in the caption of the Complaint, as a defendant in this case. Instead, the named defendants appear to be Erik and Karin Frost, the alleged owners of Hoku Nui.

         In the Complaint, Plaintiffs designate ten causes of action. The majority of the claims are brought pursuant to Title VII of the Civil Rights Act of 1964 and Hawai‘i Revised Statutes Section 378-2 for instances of alleged employment discrimination. One claim is brought under Hawai‘i Revised Statutes Section 328J-4 due to alleged exposure to second-hand smoking. The remaining claims are brought under various federal statutes and/or regulations. In addition, attached to the Complaint are various affidavits from each of the Plaintiffs.

         On June 5, 2019, Defendants filed the instant motion to dismiss, which, out of “an abundance of caution, ” has also been filed by Hoku Nui. Defendants move for dismissal, pursuant to Federal Rule of Civil Procedure 12(b)(6), on numerous grounds, including, the failure to plead claims with the required specificity, the failure to adequately exhaust administrative remedies, and the lack of a cause of action against individuals such as the Defendants. The motion to dismiss seeks dismissal of the Complaint with prejudice. Attached to the motion, inter alia, is a Charge of Discrimination filed by Plaintiff DeCoite with the Hawai‘i Civil Rights Commission (HCRC) and the Equal Employment Opportunity Commission (EEOC).

         A hearing on the motion to dismiss was set for September 20, 2019. Dkt. No. 19. Pursuant to Local Rule 7.2, this meant that a response in opposition was due on August 30, 2019. That day came and went without any response to the motion to dismiss having been filed or at least nothing designated as such. That remains the case. Instead, in a letter dated August 31, 2019, one of the Plaintiffs, DeCoite, mailed a series of documents to the Magistrate Judge assigned to this case.[1] Dkt. No. 24. The letter does not purport to be a response to the motion to dismiss, but, out of an abundance of caution, the Court liberally construed the foregoing as a potential response and permitted Defendants to file a reply. Dkt. No. 25. At the same time, the Court elected to decide the motion to dismiss without a hearing. Dkt. No. 26. On September 18, 2019, Defendants filed a reply. Dkt. No. 27. This Order now follows.


         I. Motion to Dismiss Under Rule 12(b)(6)

         Rule 12(b)(6) authorizes the Court to dismiss a complaint that fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In addition, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not show that the pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.

         A court may consider certain documents attached to a complaint, as well as documents incorporated by reference in the complaint or matters of judicial notice, without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908–09 (9th Cir. 2003).

         II. Pro Se Status

         The Court liberally construes a pro se Complaint. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). With that in mind, “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). However, the Court cannot act as counsel for a pro se litigant or supply the essential elements of a claim. Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). In addition, a pro se litigant must still follow this Court’s Local Rules and the Federal Rules of Civil Procedure. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896, 925, 928 (9th Cir. 2012).


         I. Plaintiff DeCoite’s Documents

         While it is possible to liberally construe the documents DeCoite mailed on August 31, 2019 as a response to the motion to dismiss, as the Court did in allowing Defendants to reply, the documents do not directly respond to any of the legal arguments made in the motion. Instead, as the letter prefacing the documents states, the documents are designed to support various statements of purported fact that are set forth in the letter. To the extent these purported facts are contained within the Complaint, at this stage of proceedings, there is no need for a plaintiff to present supporting documents. To the extent the purported facts are not contained within the Complaint, then the Court cannot consider the documents because, in reviewing the motion to dismiss, the Court is confined to the universe of facts alleged in the Complaint. As a result, for present purposes, the Court does not further consider the documents from DeCoite.

         Essentially, then, the motion to dismiss is unopposed.[2] Nonetheless, the Court will review the substantive merits of the motion in order to determine whether Defendants, as the movants, are entitled to the relief they seek.[3]

         II. Review of the Complaint

         As already mentioned, Defendants seek dismissal of the Complaint with prejudice. While there are many claims in the Complaint that deserve dismissal without leave to amend, as discussed in more detail below, dismissal with prejudice of this entire case is not presently appropriate. The Court addresses both the claims that may not be amended, and those that may, in turn.

         A. Dismissal With Prejudice

         First, in Count One, Plaintiffs appear to assert that they were all subjected to second-hand smoke in violation of HRS Section 328J-4. Section 328J-4 prohibits smoking “in all enclosed or partially enclosed areas of places of employment.” That is all, however, Section 328J-4 provides. It does not provide for how an aggrieved person may seek enforcement of the smoking prohibition. For that, one must consider the administrative regulations set forth at Haw. Code R. § 11-81-5(e). See Dkt. No. 18-1 at 5. The regulations allow an aggrieved person to seek enforcement by way of injunctive relief in a competent court. Nonetheless, as Defendants assert in their memorandum in support of the motion to dismiss, given that the Complaint alleges that none of the Plaintiffs presently work for Hoku Nui, or intend to do so in the future, any request for injunctive relief would be moot. See Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (concluding that a plaintiff lacked standing to sue for injunctive relief when she was no longer an employee of the defendant and there was no indication in the complaint that she wanted to return to the defendant’s employ). Therefore, to the extent Count One seeks injunctive relief, [4] the claim is dismissed with prejudice.

         Second, many of Plaintiffs’ claims assert violations of Title VII, Section 378-2, and/or the Americans with Disabilities Act (ADA)–specifically, Counts Two, Three, Four, Five, Six, and Seven. As mentioned earlier, the Complaint only clearly names as defendants two individuals, Erik and Karin Frost. The status of Hoku Nui in relation to this case is not clear. While Hoku Nui is arguably mentioned in the Complaint as a possible defendant (see Dkt. No. 1 at 2), given the caption on the first page of the same where Hoku Nui is omitted, it is far from clear whether Plaintiffs intend to name Hoku Nui as a defendant. Neither the parties nor the Court should have to guess. While that potential deficiency, as discussed more below, is correctable, including the individual defendants, with respect to most of the claims brought under Title VII, Section 378-2, and the ADA, is not. This is because Title VII and the ADA do not allow for a cause of action against an individual. See Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587-588 (9th Cir. 1993) (concluding that there is no individual liability under Title VII); Link v. Rhodes, 2006 WL 1348424, at *5 (N.D. Cal. May 17, 2006) (dismissing with prejudice ADA claims brought against individual defendants because there is no individual liability under the ADA); McClelland v. Nev. Dep’t of Prisons, 1994 WL 497545, at *1-3 (D. Nev. Aug. 29, 1994) (explaining that, because the ADA adopts the remedy provisions of Title VII and the Ninth Circuit has concluded that individuals are not liable under Title VII, individuals are not liable under the ADA). In ...

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