Lenk v. Monolithic Power Systems Incorporated

Filing 25

ORDER granting in part and denying in part Defendant's Motion to Dismiss. (Doc. 14 .) ORDERED dismissing Plaintiff's Complaint (Doc. 1 ) without prejudice. Plaintiff shall have fourteen days to file a First Amended Complaint. FURTHER ORDERED denying as moot Defendant's Motion to Strike. (Doc. 23 .) Signed by Judge John J Tuchi on 9/19/24. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kenneth Lenk,
Plaintiff,

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v.

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Monolithic Power Systems Incorporated,

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No. CV-23-02083-PHX-JJT
ORDER

Defendant.

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At issue is Defendant’s Motion to Dismiss (Doc. 14), which seeks dismissal with

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prejudice of all fifteen claims contained in Plaintiff’s Complaint (Doc. 1, Complaint).

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Plaintiff, who proceeds pro se, filed a responsive memorandum notated as an “Opposition”

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(Doc. 20), to which Defendant filed a Reply (Doc. 21). Plaintiff also filed a sur-response

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notated as a “Second Opposition” (Doc. 22), which Defendant moved to strike (Doc. 23).

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The Court finds these matters appropriate for resolution without oral argument. See LRCiv

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7.2(f). For the reasons explained below, the Court grants Defendant’s Motion to Dismiss

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in part and denies it in part.

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I.

Background

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This case is merely the latest entry in a long-running litigation saga that commenced

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in 2015 and shows no signs of abating anytime soon. Plaintiff worked for Defendant as a

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marketing director from 2012 until Plaintiff quit Defendant’s employ in 2013. Two years

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after the termination of the parties’ employment relationship, Plaintiff filed his first lawsuit

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against Defendant. The initial lawsuit was followed by four additional lawsuits, each one

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initiated by Plaintiff against Defendant and each one resulting in judgment for Defendant.

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The parties refer to these lawsuits as Lenk I–IV, with the instant case being Lenk V. Rather

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than reinvent the wheel, the Court will rely on Lenk IV’s summary of the facts, proceedings,

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and disposition of the four preceding Lenk lawsuits.

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Lenk has alleged in all four lawsuits that he began working for MPS as a
marketing director in 2012; MPS began harassing him, discriminating
against him, and subjecting him to adverse employment actions in early
2013; and he was constructively discharged in March 2013. Lenk's first two
lawsuits asserted claims based on MPS's alleged discrimination, harassment,
and ultimate constructive discharge of him. In his third lawsuit, Lenk
reasserted claims based on his alleged constructive discharge and related
conduct, and he added new claims based on MPS's post-discharge litigation
conduct in defending against Lenk I and Lenk II. In . . . his fourth lawsuit,
Lenk once again asserts claims based on his alleged constructive discharge
and MPS's post-discharge litigation conduct, and he adds new claims that of
[sic] post-discharge “blacklisting” by MPS.

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In light of Lenk's insistence on reasserting claims previously dismissed by
the Court, the doctrines of res judicata and collateral estoppel were central to
this Court's prior dismissals of Lenk II and Lenk III, and are central to MPS's
current motion to dismiss Lenk IV. To inform its discussion of those doctrines
in this order, the Court summarizes the claims asserted in Lenk's prior and
current actions.
Lenk I, Case No. 15-cv-01148-NC
In March 2015, Lenk filed suit against MPS (“Lenk I”) in the United Stated
District Court for the Northern District of California (“Northern District”).
He asserted two federal claims for violation of the Fair Labor Standards Act
(“FLSA”) and the Americans with Disabilities Act (“ADA”), and nine state
law claims for breach of contract, constructive discharge, and violations of
the California Labor Code. Magistrate Judge Nathanael M. Cousins, to whom
the case was assigned, dismissed all claims under Rule 12(b)(6).
Judge Cousins determined that Lenk had not alleged that he engaged in
protected activity under the FLSA and had not alleged a disability under the
ADA. See Lenk v. Monolithic Power Sys., Inc., No. 15-CV-01148-NC, 2015
WL 6152475, at *3–4 (N.D. Cal. Oct. 20, 2015). Judge Cousins also found
that Lenk had failed to state a claim for breach of contract, constructive
discharge, or violation of the California Labor Code. See Lenk v. Monolithic
Power Sys., Inc., No. 15-CV-01148 NC, 2016 WL 1258862, at *3 (N.D. Cal.
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Mar. 31, 2016); Lenk v. Monolithic Power Sys., Inc., No. 15-CV-01148-NC,
2015 WL 7429498, at *9 (N.D. Cal. Nov. 23, 2015). The United States Court
of Appeals for the Ninth Circuit (“Ninth Circuit”) dismissed Lenk's appeal
as frivolous.
Lenk II, Case No. 16-cv-02625-BLF
Lenk filed a second suit against MPS (“Lenk II”) in the Northern District in
May 2016, again alleging constructive discharge and related conduct. The
second suit also named Lenk's former supervisor at MPS, Maurice Sciammas
(“Sciammas”). The case initially was assigned to Judge Cousins, but it was
reassigned to [Judge Beth Labson Freeman] after Lenk declined to consent
to magistrate judge jurisdiction.

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Lenk claimed that MPS and Sciammas had discriminated against him in
violation of 42 U.S.C. § 1981, and that they had retaliated against him in
violation of Title VII. This Court dismissed those claims without leave to
amend as barred by the doctrine of res judicata. See Lenk v. Monolithic Power
Sys., Inc., No. 16-CV-02625-BLF, 2017 WL 1832198, at *5 (N.D. Cal. May
8, 2017). The Ninth Circuit affirmed, concluding that “[t]he district court
properly dismissed Lenk's action on the basis of claim preclusion because the
claims were raised or could have been raised in a prior action between the
parties or those in privity with them, and the prior action resulted in a final
judgment on the merits.” Lenk v. Monolithic Power Sys., Inc., 754 F. App'x
554, 556 (9th Cir. 2018).
Lenk III, Case No. 19-cv-03791-BLF
In March 2018, Lenk filed his third suit against MPS (“Lenk III”) in the
United States District Court for the District of Arizona. He also sued
Sciammas and Sacks, Ricketts & Case LLP, the law firm that represented
MPS and Sciammas Lenk I and Lenk II [sic]. The Arizona district court
transferred the case to the Northern District, where it ultimately was assigned
to this Court. Lenk asserted federal claims under Title VII, 42 U.S.C. § 1981,
42 U.S.C. § 1983, and 42 U.S.C. § 1985, and a state law emotional distress
claim. See Lenk v. Monolithic Power Sys. Inc., No. 19-CV-03791-BLF, 2020
WL 619846, at *3 (N.D. Cal. Feb. 10, 2020). Those claims were based in
part on the alleged constructive discharge that had been litigated in Lenk I
and Lenk II, and in part on new allegations that MPS engaged in postdischarge retaliatory conduct by defending itself against Lenk I and Lenk II.
See id. at *6.
This Court found that the doctrine of collateral estoppel precluded Lenk from
asserting that he was wrongfully constructively discharged, as that issue
actually was litigated in Lenk I and Lenk II. See Lenk, 2020 WL 619846, at
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*7. With respect to the defendants’ alleged post-discharge retaliation, the
Court found that the conduct described by Lenk consisted of ordinary
litigation conduct in defense of Lenk I and Lenk II and thus could not form
the basis of a Title VII retaliation claim. See id. at *8. The Court also found
that Lenk had not alleged that he is a member of a racial minority as required
under § 1981; had not allege [sic] state action as required under § 1983; and
had not alleged that he belongs to a protected class as required under
§ 1985(3). See id. at 9-10. Finally, the Court determined that Lenk's
emotional distress claims based on post-discharge conduct were barred by
California's litigation privilege, Cal. Civ. Code § 47(b), and did not allege
sufficient facts. See id. at *10-11.

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Lenk IV [], Case No. 20-cv-08094-BLF
Lenk filed [this] action against MPS in the Northern District on November
16, 2020. . . . He filed the operative [complaint] on March 8, 2021, asserting
eleven claims: (1) retaliation under Title VII; (2) civil rights violation under
42 U.S.C. § 19811; (3) retaliation under California's Fair Employment and
Housing Act (“FEHA”); (4) harassment under FEHA; (5) hostile work
environment under FEHA; (6) blacklisting under California state law; (7)
blacklisting under Washington state law; (8) blacklisting under Arizona state
law; (9) violation of California's Unfair Competition Law (“UCL”); (10)
intentional interference with prospective economic relations; and (11) unjust
enrichment.

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In support of these claims, Lenk once again alleges that MPS constructively
discharged him and that MPS engaged in retaliatory and harassing behavior
when it defended itself against Lenk's suits. Lenk also adds new allegations
that MPS “blacklisted” Lenk after he left the company by transmitting
negative job references to On Semiconductor.

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Lenk v. Monolithic Power Sys., Inc. (“Lenk IV”), No. 20-CV-08094-BLF, 2021 WL

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5233078, at *1–3 (N.D. Cal. Nov. 10, 2021); see also Lenk v. Monolithic Power Sys. Inc.

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(“Lenk III”), No. 19-CV-03791-BLF, 2020 WL 619846, at *1–3 (N.D. Cal. Feb. 10, 2020)

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(describing the facts, proceedings, and dispositions of Lenk I–III). The Lenk IV court

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dismissed all eleven of Lenk’s claims with prejudice, finding that “all of Lenk's claims are

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subject to dismissal for failure to state a claim and that leave to amend is not warranted.”

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Id. at *3.

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After losing in Lenk IV, Plaintiff filed the instant lawsuit seeking relief for claims

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alleging (1) age discrimination in the form of disparate treatment under the Age

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Discrimination in Employment Act of 1967 (“ADEA”); (2) age discrimination in the form

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of disparate impact under ADEA; (3) age and race discrimination under the California Fair

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Employment and Housing Act; (4) age and race discrimination under the Arizona Civil

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Rights Act; (5) age and race discrimination under the Washington Law Against

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Discrimination; (6) retaliation under Washington law; (7) retaliation under the California

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labor code; (8) retaliation under Title VII; (9) race-related violations of the Civil Rights

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Act of 1866 and the Civil Rights Act of 1991; (10) retaliation under the California Fair

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Employment and Housing Act; (11) unfair competition under California law; (12)

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retaliation under the Sarbanes-Oxley Act; (13) blacklisting under California law; (14)

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blacklisting under Washington law; and (15) blacklisting under Arizona law. (Complaint

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at 48–89.)

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In support of his fifteen claims, Plaintiff’s 90-page Complaint recapitulates all of

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the facts that he has already presented to the courts in Lenk I–IV, focusing heavily on the

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constructive discharge, retaliation, harassment, and blacklisting that Plaintiff believes he

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has suffered and continues to suffer at the hands of Defendant. Although Plaintiff’s

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Complaint consists mostly of a regurgitation of his prior, unsuccessful complaints in Lenk

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I–IV, the current Complaint also extends the factual narrative beyond the conclusion of

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Lenk IV and alleges a handful of new facts. Specifically, Plaintiff asserts that he has applied

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for several positions with Defendant, but that Defendant has rejected each of his

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employment applications for illegal, discriminatory, and retaliatory reasons. (Complaint at

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30–33.) Plaintiff also alleges that Defendant has maliciously prevented him from procuring

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employment with various other companies in the years following Lenk IV. (Complaint at

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34–38.)

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Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

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is grounded primarily in the doctrines of claim preclusion and issue preclusion. Indeed,

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Defendant’s current Motion to Dismiss echoes many of the preclusion arguments that

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Defendant has already successfully asserted against Plaintiff in Lenk I–IV. Having read the

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parties’ briefing, including Plaintiff’s sur-response, the Court proceeds to the merits of the

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case.

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II.

Discussion

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A.

Legal Standard

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Pursuant to FRCP 8(a)(2), a complaint should contain “a short and plain statement

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of the claim showing that the pleader is entitled to relief.” A court may dismiss a complaint

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that fails to comply with Rule 8. See Kraft v. Gainey Ranch Cmty. Ass'n, No. CV-19-05697-

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PHX-JJT, 2021 WL 535527, at *1 (D. Ariz. Feb. 12, 2021), aff'd, No. 21-15653, 2022 WL

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2315443 (9th Cir. June 28, 2022) (“Plaintiff subsequently filed a First Amended Complaint

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that was 105 pages, which the Court struck because it did not comply with Rule 8.”).

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Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to

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state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the

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absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for

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failure to state a claim, the well-pled factual allegations are taken as true and construed in

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the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067

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(9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is

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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility

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standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

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possibility that a defendant has acted unlawfully.” Id. Legal conclusions couched as factual

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allegations are not entitled to the assumption of truth and therefore are insufficient to defeat

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a motion to dismiss for failure to state a claim. Id. at 679–80.

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In determining whether a claim is precluded by a prior adjudication, the Court must

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first determine which body of law governs the analysis. The preclusive effect of a prior

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ruling by a federal court sitting in diversity is determined by the preclusion rules of that

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court’s forum state, whereas the preclusive effect of a federal-question adjudication is

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determined by a uniform federal standard. See Taylor v. Sturgell, 553 U.S. 880, 891 (2008);

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Jacobs v. CBS Broad., Inc., 291 F.3d 1173 (9th Cir. 2002). The rendering courts of Lenk

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I–IV were federal courts in the Northern District of California. Because Lenk I–IV involved

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federal courts whose jurisdiction depended in part upon the existence of federal questions

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and in part upon the existence of diversity, the Court would ordinarily bifurcate its analysis

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of the preclusive effect carried by the prior adjudications. However, the Court need not do

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so here because the distinction between the federal standards for issue preclusion and the

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California standards for issue preclusion is not significant, at least for purposes of this

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case.1 Compare In re Lopez, 367 B.R. 99, 104 (B.A.P. 9th Cir. 2007), with DKN Holdings

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LLC v. Faerber, 61 Cal. 4th 813, 825 (2015).

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Under both standards, a defendant asserting issue preclusion must show that the

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prior issue is identical to the current issue, that the issue was actually decided in the prior

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action, that the issue was necessary to the prior judgment, that such judgment was on the

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merits, and that the parties are the same. Furthermore, under both federal and California

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law, a dismissal for failure to state a claim is a dismissal on the merits. See Save Bull Trout

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v. Williams, 51 F.4th 1101, 1108 (9th Cir. 2022); Boyd v. Freeman, 18 Cal. App. 5th 847,

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855 (2017) (“[I]t is generally held that a demurrer which is sustained for failure of the facts

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alleged to establish a cause of action, is a judgment on the merits. However, this is true

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only if the same facts are pleaded in the second action, or if, although different facts are

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While the federal rules of issue preclusion do not differ materially from those of
California, at least as applied to this case, the same is not true for claim preclusion. See
Guerrero v. Dep't of Corr. & Rehab., 28 Cal. App. 5th 1091, 1099 (2018) (“The basic
principles of claim preclusion are roughly the same under California and federal law, but
there are some key differences. For example, while federal law defines a ‘claim’ for
purposes of claim preclusion using a transactional test, California law uses the older
pleading term ‘cause of action’ and defines it according to the common law doctrine of
primary rights.”). However, the Court does not reach claim preclusion in this Order.
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pleaded, the new complaint contains the same defects as the former.” (quoting Kanarek v.

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Bugliosi, 108 Cal. App. 3d 327, 334 (Ct. App. 1980)) (cleaned up)).

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B.

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In Lenk IV, Plaintiff sued Defendant for, among other things, retaliation under

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Title VII, retaliation and harassment under the California Fair Employment and Housing

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Act, blacklisting under California law, blacklisting under Washington law, blacklisting

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under Arizona law, and unfair competition under California law. The court in Lenk IV held

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that Plaintiff had failed to state a claim on any cause of action. In issuing its holding, the

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court concluded that Plaintiff “offer[ed] only pure speculation that MPS transmitted

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negative references to On Semiconductor” and that Plaintiff’s “subjective belief that MPS

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must have done so because he otherwise would have been selected for the positions does

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not satisfy his burden to plead facts giving rise to a plausible claim.” Lenk IV, 2021 WL

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5233078, at *5. Similarly, the court found that Plaintiff “[had] not alleged facts suggesting

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a causal connection between his 2012 suit against Freescale Semiconductor and MPS's

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alleged negative references in 2013 and 2019.” Id. The court went on to reject Plaintiff’s

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“asserti[on] that an inference of blacklisting may be drawn from the fact that an MPS

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employee ‘pinged’ Lenk's Linked-In account during a time period in which Lenk applied

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for a job that he did not get,” and the court ultimately held that Plaintiff “fail[ed] to explain

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how the pinging of his Linked-In account relates to the alleged blacklisting.” Id. at *8. The

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court reiterated that “Lenk has not alleged facts sufficient to make out a plausible claim

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that [Defendant] communicated with On Semiconductor, or that such communication has

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prevented Lenk from engaging in a useful occupation. Lenk's bare speculation that

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[Defendant] must have given him a negative reference because he was not hired is

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insufficient to state a claim [for blacklisting].” Id. at *9. The court also held that Lenk was

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precluded from reasserting his allegations of constructive discharge, race discrimination,

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and litigation-related retaliatory conduct. Id. at *4–6.

Analysis

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In the instant case, Plaintiff once again claims retaliation, blacklisting, harassment,

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and unfair competition, and he supports these claims with extensive references to

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Defendant’s alleged punitive actions regarding Plaintiff’s filing of a complaint against

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Freescale Semiconductor (Complaint at 5–9), alleged constructive discharge of Plaintiff

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(Complaint at 11–18), alleged racial discrimination against Plaintiff while he was an

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employee (Complaint at 21 ¶ 90), alleged litigation-related retaliatory conduct arising out

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of Lenk I–III (Complaint at 22–24, 27), alleged transmission of malicious references to On

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Semiconductor (Complaint at 28–30), and alleged malicious use of Linked-In (Complaint

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at 29–30). The Court finds Plaintiff to be collaterally estopped under the doctrine of issue

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preclusion from reasserting the same facts that undergirded his unsuccessful lawsuits in

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Lenk IV. All of the elements of issue preclusion are met here. The same facts and issues

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that Plaintiff depends upon today were actually and necessarily determined in an

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adjudication on the merits between the same parties in Lenk IV.

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This conclusion standing alone merits dismissal of the instant Complaint, as

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Plaintiff’s various claims are thoroughly entangled with the issues that are subject to

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preclusion by virtue of Lenk IV. Throughout the Complaint, Plaintiff depicts Defendant’s

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alleged wrongs as a continuous course of conduct, thereby making it impracticable for the

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Court to disaggregate the precluded issues upon which Plaintiff relies from those that might

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not be precluded. (See, e.g., Complaint at 32 ¶ 161 (“Lenk asserts that [Defendant] has and

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continues to retaliate and discriminate against him as recently as the July 11, 2022 failure

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to hire, due to his age and/or race and/or due to his reporting of [Defendant’s] of Federal

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and State laws . . . .”); Complaint at 33 ¶ 164 (“[Defendant] refuses to hire Lenk yet

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continue their retaliation against him by interfering with his career with other

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semiconductor companies noted below.”); Complaint at 37 ¶ 186 (“Plaintiff alleges that

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[Defendant] has and continues to retaliate against him by their own failure to hire and by

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blacklisting him at other companies listed above. Lenk asserts [Defendant]

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retaliated/discriminated against him for standing up to their unethical and illegal behavior

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(and financial reporting, a violation of Sarbanes-Oxley) and other violations of state and

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federal laws.”); Complaint at 39 ¶ 194 (“[Defendant] continued their harassment of Lenk,

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whenever possible.”); Complaint at 41 ¶ 203 (“[Defendant] continues to make Lenk an

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example to dissuade other employees from reporting ethic and other violations of law, such

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that the top employees can personally reap hundreds of millions of dollars via their stock

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options.”); Complaint at 61 ¶ 317 (“Lenk further alleges that [Defendant] has and continues

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to harass, discriminate and retaliate against Lenk (for his filing of EEOC charges) to

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discourage him (and other [of Defendant’s] employees) from asserting their rights under

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law.”); Complaint at 64 ¶ 336 (“Since the filing of [the Freescale] complaint, Lenk suffered

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retaliation and constructive discharge by [Defendant] for doing so at that time, which

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continues today by [Defendant’s] “blacklisting” activities.”).)

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Even in his summarized claims for relief at the end of his Complaint, Plaintiff

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repeatedly grounds his requests in factual allegations adjudicated time and again by prior

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courts, such as his 2013 reporting activities (Complaint at 59 ¶ 306), his 2012 lawsuit

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against Freescale (Complaint at 61 ¶ 316, 64 ¶ 336, 74 ¶ 383), his 2013 alleged constructive

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discharge (Complaint at 61 ¶ 317), the alleged racial discrimination that he suffered while

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employed with Defendant in 2013 (Complaint at 69 ¶ 359, 74 ¶ 381), and the alleged

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malicious interference with his employment opportunity at On Semiconductor and related

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malicious pinging of his Linked-In account (Complaint at 85 ¶ 444).

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To be clear, Plaintiff does allege new facts that might provide sufficient independent

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support for his claims such that portions of the Complaint might withstand Defendant’s

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Motion to Dismiss. For instance, Plaintiff alleges that he was not hired by Halo

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Semiconductor, SiTime, Infineon, Microchip, and Renesas and that the interviewers at each

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of those companies pursued a line of questioning that indicated they had conferred with

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Defendant beforehand. (Complaint at 34–38.) This fact is the first step toward a coherent

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claim of blacklisting or retaliation, but Plaintiff does not adequately connect the dots. It is

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common practice for a potential employer to seek information from an applicant’s prior

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employers. Indeed, the statute that forms the basis of Plaintiff’s fifteenth claim expressly

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protects such information-gathering activities from the ambit of its general blacklisting

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prohibition. See Ariz. Rev. Stat. § 23-1361(B) (“It is not unlawful for a former employer

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to provide to a requesting employer . . . information concerning a person’s . . . job

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performance to be used for the purpose of evaluation the person for employment.”). Thus,

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Plaintiff’s position that an inference of retaliatory blacklisting follows directly from the

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fact that potential employers conferred with Defendant verges quite close to the “bare

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speculation” that the court denounced in Lenk IV in connection with Plaintiff’s prior claims

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for retaliation and blacklisting. See 2021 WL 5233078, at *8–9. As already noted, legal

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conclusions masquerading as factual allegations are not entitled to a presumption of truth

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when confronted with a motion to dismiss. See Iqbal, 556 U.S. at 679–80. However, the

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Court will indulge the assumption that Plaintiff failed to adequately allege his claims not

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because he has no claim to allege, but instead because he became caught up in portraying

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the narrative as a continuing course of conduct going back to 2012. Of course, that strategy

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was to Plaintiff’s detriment, as the vast majority of Plaintiff’s Complaint is precluded by

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Lenk I–IV.

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Plaintiff’s claims regarding Defendant’s failure to hire him from 2021 onwards also

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might have merit,2 but they too are insufficiently developed and excessively intertwined

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with the general invalidity of the Complaint. The Court would be on solid ground were it

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to dismiss Plaintiff’s Complaint with prejudice, as Defendant urges. However, because the

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Court concludes that a few of Plaintiff’s claims might have merit, and in light of Plaintiff’s

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status as a pro se litigant, the Court will instead dismiss the Complaint without prejudice.

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The Court cannot say with certainty that Plaintiff has not buried a cognizable claim

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somewhere in his 90-page Complaint. The problem is that the Complaint is so long, so

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dense, and so internally interconnected that Plaintiff’s pervasive reliance on precluded

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issues contaminates whatever legitimate allegations he might have. Therefore, the Court

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will afford Plaintiff leave to amend his Complaint.

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However, the Court notes that the courts in both Lenk III and Lenk IV identified

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Plaintiff as a “bad faith” litigator. See 2020 WL 619846, at *12; 2021 WL 5233078, at *10.

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On the other hand, many of Plaintiff’s allegations regarding Defendant’s failure to
hire him read as simple racism, such as when Plaintiff alleges that “[Defendant’s] Asian
company culture discriminates against non-Asian (Caucasian and other races) employees
whose ancestry/characteristics support strong ethics . . . .” (Complaint at 65 ¶ 339.) If
Plaintiff avails himself of the Court’s permission to file an amended complaint, Plaintiff is
required to couch his allegations in facts rather than in derogatory racial generalities.

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Indeed, the court in Lenk IV declined to provide Plaintiff leave to amend due to its

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determination that Plaintiff was “acting in bad faith.” See 2021 WL 5233078, at *10–11.

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Therefore, the Court warns Plaintiff that his amended complaint (1) must not allege any

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facts or claims predicated thereon already rejected in Lenk I–IV and (2) must comply with

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Rule 8(a). Although the Court will not pronounce a hard-and-fast page limit, the Court

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notes that 90 pages (plus 359 pages of attachments) is excessive for a complaint in a case

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as straightforward as this. Accordingly, the Court urges Plaintiff to ensure that his amended

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complaint comports with the requirement that pleadings in federal court be “short and

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plain.” Failure to comply with this Order will result in dismissal of Plaintiff’s amended

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pleading and the possible imposition of sanctions, including but not limited to an order to

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pay attorney fees and a formal declaration that Plaintiff is a vexatious litigant.

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IT IS THEREFORE ORDERED granting in part and denying in part Defendant’s
Motion to Dismiss. (Doc. 14.)
IT IS FURTHER ORDERED dismissing Plaintiff’s Complaint (Doc. 1) without
prejudice. Plaintiff shall have fourteen days to file a First Amended Complaint.
IT IS FURTHER ORDERED denying as moot Defendant’s Motion to Strike.
(Doc. 23.)
Dated this 19th day of September, 2024.

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Honorable John J. Tuchi
United States District Judge

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