Weseman v. Alyeska Pipeline Service Company
ORDER granting 5 Motion to Dismiss for Failure to State a Claim. Signed by Judge H. Russel Holland on 9/11/20. (JLH, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALYESKA PIPELINE SERVICE COMPANY, )
Partial Motion to Dismiss
Defendant moves to dismiss plaintiff’s Age Discrimination in Employment Act
(“ADEA”) and Americans with Disabilities Act (“ADA”) claims.1 This motion is opposed.2
Oral argument was not requested and is not deemed necessary.
Plaintiff Carrie Weseman alleges that she was employed by defendant Alyeska
Pipeline Service Company from 1994 through June 2018.3 Plaintiff alleges that in 2017, she
Docket No. 5.
Docket No. 11.
Amended Complaint at 1, ¶ 2.1 and 2, ¶ 2.5, Exhibit E, Notice of Removal of Civil
“notified OSHA of” violations she had observed at “her employment site, the Vapor Power
Facility in Valdez, Alaska.”4 Plaintiff alleges that “[i]n retaliation for complaining of OSHA
violations, [her] new supervisor Megan Woods began to treat her in a disparate manner to
her co-workers, even submitting a poor performance evaluation for part of her work in
2017.”5 Plaintiff alleges that in December 2017, Woods also began to subject her use of
medical leave benefits to “heightened scrutiny. . . .”6 Plaintiff alleges that defendant “issued
to her a Medical Leave Management Memo, which singled her out concerning medical leave
usage.”7 Plaintiff alleges that “[d]uring 2018,” defendant “required that she provide more
than just a doctor’s note, when she needed medical treatment during her work shift period
. . . despite the fact that she had an excess of 1,600 hours of sick leave available to her.”8
Plaintiff alleges that she had an emergency medical procedure on June 12, 2018,
which was a day on which “she had been scheduled to be on shift for work.”9 Plaintiff
alleges that she then “received an email from her supervisor Ms. Woods, informing her that
Action, Docket No. 1.
Id. at 2, ¶ 2.8.
Id. at 2, ¶ 2.9.
Id. at 2, ¶ 2.10.
Id. at 2, ¶ 2.11.
Id. at 3, ¶¶ 2.13-2.14.
Id. at 3, ¶ 2.17.
because she had undertaken a medical procedure during her work shift . . . , she had acted in
an insubordinate manner, and would be subject to a disciplinary hearing board -- which
would likely result in her termination.”10
Plaintiff alleges that she “was released from work on June 21, 2018, due to a death
in the family, but due to the stress caused by the continual harassment imposed on her by Ms.
Woods, she stated to her supervisor that she would resign if the harassment would not
Plaintiff alleges that on June 25, 2018, the Disciplinary Review Board “determined
that it would terminate [her] employment. It issued a finding that [she] was ineligible for
rehire at the Vapor Power Facility, but that she could reapply to other Trans-Alaska Pipeline
Service positions.”12 Plaintiff alleges that “[w]hen she received her final pay check, her
paycheck noted that [her] last day of work was on June 26, 2018.”13
Plaintiff alleges that she “filed a complaint with the Equal Employment Opportunity
Commission, eventually receiving her right to sue letter.”14 The right to sue letter was issued
Id. at 3, ¶ 2.18.
Id. at 4, ¶ 2.19.
Id. at 4, ¶ 2.20.
Id. at 4, ¶ 2.21.
Id. at 4, ¶ 2.23.
on September 19, 2019 and advised plaintiff that she had 90 days, after receipt of the letter,
in which to file a lawsuit.15
On December 16, 2019, plaintiff filed a complaint in state court.16 In this complaint,
plaintiff asserted a state law wrongful discharge claim, an ADEA claim, and an ADA claim.
Plaintiff did not serve the complaint on defendant. On April 20, 2020, plaintiff was ordered
to “show good cause in writing why service is not complete.”17 The order provided that “[i]f
good cause is not shown within 30 days after the date of distribution of this notice, this action
will be dismissed without prejudice as to all defendants not served.”18
Plaintiff concedes that she “failed to timely serve [defendant] with its summons and
complaint.”19 Plaintiff contends that this was “[d]ue to complications created by the Covid19 pandemic[.]”20 Plaintiff did not, however, file an affidavit in the state court case to this
effect nor did plaintiff file any other document to attempt to show good cause for her failure
to timely serve the original state court complaint.
Dismissal and Notice of Rights, Exhibit A at 1, Partial Motion to Dismiss for Failure
to State a Claim, Docket No. 5. The court may consider the right to sue letter without
converting the instant motion into a motion for summary judgment. Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
Exhibit B, Notice of Removal of Civil Action, Docket No. 1.
Exhibit D, Notice of Removal of Civil Action, Docket No. 1.
Plaintiff’s Opposition [etc.] at 2, Docket No. 11.
On May 18, 2020, plaintiff filed an amended complaint in the same state court action
as the original complaint.21 Other than correcting a typo and making two minor edits, the
amended complaint is identical to the original complaint. The amended complaint names the
same defendant and asserts the same causes of action as the original complaint. In her
amended complaint, plaintiff again asserts a state law wrongful discharge claim, an ADEA
claim, and an ADA claim against defendant.
On May 26, 2020, plaintiff’s state court “case [was] dismissed without prejudice . . .
due to plaintiff’s failure to serve” defendant.22
Plaintiff contends that she served defendant with the amended complaint “[s]hortly
after” it was amended.23 Plaintiff offers no evidence that shows the date on which service
was effected. In its notice of removal, defendant contends that it first received plaintiff’s
amended complaint on June 10, 2020.24
Defendant removed the action to this court on July 1, 2020.
Defendant has filed an answer to the allegations in plaintiff’s amended complaint as
they pertain to the wrongful discharge claim25 and concurrently moves, pursuant to Rule
Exhibit E, Notice of Removal of Civil Action, Docket No. 1.
Exhibit D at 1, Notice of Removal of Civil Action, Docket No. 1.
Plaintiff’s Opposition [etc.] at 2, Docket No. 11.
Notice of Removal of Civil Action at 2, Docket No. 1.
Docket No. 4.
12(b)(6), Federal Rules of Civil Procedure, to dismiss plaintiff’s ADEA and ADA claims.
Defendant’s motion to dismiss is ready for disposition.
“‘To survive a [Rule 12(b)(6)] 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.’”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “A claim is facially plausible ‘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. (quoting Iqbal, 556 U.S. at 678). “The plausibility standard
requires more than the sheer possibility or conceivability 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 Iqbal, 556 U.S. at 678). “[T]he complaint must provide
‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.’” In re Rigel Pharmaceuticals, Inc. Securities Litig., 697 F.3d 869, 875
(9th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “In
evaluating a Rule 12(b)(6) motion, the court accepts the complaint’s well-pleaded factual
allegations as true and draws all reasonable inferences in the light most favorable to the
plaintiff.” Adams v. U.S. Forest Srvc., 671 F.3d 1138, 1142-43 (9th Cir. 2012). “However,
the trial court does not have to accept as true conclusory allegations in a complaint or legal
claims asserted in the form of factual allegations.” In re Tracht Gut, LLC, 836 F.3d 1146,
1150 (9th Cir. 2016).
Defendant argues that plaintiff’s ADEA and ADA claims must be dismissed because
she did not file her complaint within 90 days of receiving her right to sue letter. “This
ninety-day period is a statute of limitations.” Charley v. Arizona Public Service Co., Case
No. CV–12–2068–PHX–DGC, 2013 WL 781001, at *1 (D. Ariz. March 1, 2013). “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.’”
Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)
(quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)).
Plaintiff’s amended complaint was filed on May 18, 2020, which was 242 days after
her right to sue letter was issued. Thus, defendant argues that it is apparent that plaintiff did
not file her ADEA and ADA claims before the 90-day period expired.
Defendant argues that plaintiff cannot rely on the date on which she filed her original
state court complaint, which was filed before the 90-day period expired, because “‘[i]n
instances where a complaint is timely filed and later dismissed, the timely filing of the
complaint does not toll or suspend the 90–day limitations period.’” O’Donnell v. Vencor
Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (quoting Minnette v. Time Warner, 997 F.2d 1023,
1027 (2d Cir. 1993)). Here, the Alaska Superior Court dismissed plaintiff’s original
complaint and thus defendant insists that it has nothing to do with whether plaintiff timely
filed her ADEA and ADA claims.
Plaintiff seems to argue that this dismissal does not matter because it was without
prejudice. But all that means is that plaintiff could file her claims in a new action if the
statute of limitations had not yet run on her claims. At the time plaintiff filed her amended
complaint, the 90-day period had run as to ADEA and ADA claims, unless her amended
complaint related back to her original complaint.
Defendant argues that the relation back doctrine cannot save plaintiff’s ADEA and
ADA claims. Plaintiff disagrees. The parties agree that Rule 15(c) governs as to whether
plaintiff’s amended complaint relates back to her original complaint, but they disagree as to
which Rule 15(c) applies here, the state rule or the federal rule. Because the amended
complaint was filed prior to the case being removed, Alaska Rule 15(c) applies here.
Anderson v. Allstate Ins. Co., 630 F.2d 677, 682 (9th Cir. 1980).
Alaska Civil Procedure Rule 15(c) provides:
Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction or occurrence set forth or
attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates back
if the foregoing provision is satisfied and, within the period
provided by Rule 4(j) for service of the summons and complaint,
that party (1) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining a
defense on the merits, and (2) knew or should have known that,
but for a mistake concerning the identity of the proper party, the
action would have been brought against the party.
Defendant argues that the second sentence of Alaska Rule 15(c) applies here because
it was effectively a new party when plaintiff filed her amended complaint as it had not been
served with the original complaint. But, this provision of Alaska Rule 15(c), which pertains
to amending to change a party, has no application here because plaintiff named the same
defendant in both her original and amended complaint. Rather, it is the first sentence of
Alaska Rule 15(c) that applies here.
The first sentence in Alaska Rule 15(c) reads: “Whenever the claim or defense
asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth
or attempted to be set forth in the original pleading, the amendment relates back to the date
of the original pleading.” Plaintiff argues that this sentence is unambiguous and that it
“pronounces clearly that as long as the amendment does not alter the original pleading, then
the amended pleading relates back to when the case was initiated.”26 Plaintiff contends that
because her amended complaint “did not alter” the facts or causes of action contained in her
original complaint, her amended complaint relates back to her original complaint.
In order for an amended complaint to relate back to the original complaint pursuant
to the first sentence of Alaska Rule 15(c), “the new allegations must be sufficiently related
to the conduct, transaction or occurrence originally set forth so as to avoid prejudice to the
opposing party and to ensure that the opposing party has notice of the nature of the claim
from the beginning.” Norman v. Nichiro Gyogyo Kaisha, Ltd., 645 P.2d 191, 199 (Alaska
Plaintiff’s Opposition [etc.] at 3, Docket No. 11.
1982) (emphasis added). Defendant could not have had notice of the nature of plaintiff’s
ADEA and ADA claim “from the beginning” because plaintiff never served the original
complaint on defendant. Id. Plaintiff points out that defendant was aware of plaintiff’s
EEOC complaint, but the fact that defendant was aware of plaintiff’s EEOC complaint does
not mean that it had notice of plaintiff’s subsequent lawsuit. See Gonzales v. Secretary of
Air Force, 824 F.2d 392, 396 (5th Cir. 1987) (“the mere fact that administrative proceedings
occurred cannot be construed as any kind of notice, whether ‘formal’ or ‘informal,’ of a
subsequent federal lawsuit”). Because defendant was never served with the original
complaint and had no idea that plaintiff had filed it, defendant had no notice as to plaintiff’s
ADEA and ADA claims prior to the expiration of the 90-day period. Because defendant did
not have notice of plaintiff’s claims prior to the running of the statute of limitations,
plaintiff’s amended complaint does not relate back to the original complaint, which means
that her ADEA and ADA claims were not timely filed.
The result would be the same if Federal Rule 15(c) applied. Federal Rule 15(c)(1)(B)
provides that “[a]n amendment to a pleading relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction,
or occurrence set out--or attempted to be set out--in the original pleading[.]” “In deciding
whether an amendment to state a new claim [or the same claim] against the original
defendant is proper, the policies underlying the statute of limitations are implicated.” Percy
v. San Francisco General Hosp., 841 F.2d 975, 979 (9th Cir. 1988). “Thus, amendment of
a complaint is proper if the original pleading put the defendant on notice of the particular
transaction or set of facts that the plaintiff believes to have caused the complained of injury.”
Id. (citation omitted). “Fairness to the defendant demands that the defendant be able to
anticipate claims that might follow from the facts alleged by the plaintiff.” Id. “[A]n
amendment to the complaint that is filed or served after the running of the statute of
limitations will be allowed to relate back to the date of the original complaint only when the
defendant would not be unfairly surprised.” McAtee v. Capital One, F.S.B., 479 F.3d 1143,
1147 (9th Cir. 2007). Here, because defendant had no notice that plaintiff had filed a lawsuit
prior to the expiration of the 90-day period, it would be unfair to allow plaintiff’s amended
complaint to relate back to her original complaint, which means that plaintiff’s ADEA and
ADA claims are untimely.
Defendant’s motion to dismiss plaintiff’s ADEA and ADA claims27 is granted. These
claims are dismissed with prejudice because any amendment would be futile.
With the dismissal of plaintiff’s ADEA and ADA claims, all that is left in this case
is plaintiff’s state law claim. “‘A district court ‘may decline to exercise supplemental
jurisdiction’ if it ‘has dismissed all claims over which it has original jurisdiction.’” Sanford
v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (quoting 28 U.S.C. § 1367(c)(3)).
“[W]hen all federal law claims are eliminated before trial, [the] court is ‘duty-bound to take
Docket No. 5.
seriously’ the responsibility to decline or retain jurisdiction over any remaining state law
claims.’” Int’l Longshore and Warehouse Union v. Port of Portland, 844 F.3d 864, 865-66
n.1 (9th Cir. 2016) (quoting Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir.
1997)). Because this case is in the earliest stages of development, the court declines to
exercise jurisdiction over plaintiff’s remaining state law claim and sua sponte dismisses this
claim without prejudice.
The clerk of court shall enter judgment dimissing plaintiff’s ADEA and ADA claims
with prejudice and dismissing plaintiff’s state law wrongful discharge claim without
DATED at Anchorage, Alaska, this 11th day of September, 2020.
/s/ H. Russel Holland
United States District Judge
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