Craig Ross et al v. Timothy P. White et al

Filing 258

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS 220 AND DENYING SECOND MOTION TO STRIKE AFFIRMATIVE DEFENSES 237 by Judge Otis D. Wright, II: For the reasons set forth above, the Court GRANTS EEOC Defendants' Motion to Dismiss without leave to amend. (ECF No. 220.) The Court DENIES Opersteins Second Motion to Strike Majority Defendants' Affirmative Defenses. (ECF No. 237.) IT IS SO ORDERED. (See minutes for further details)granting 220 MOTION to Dismiss Case ; denying 237 MOTION (yl)

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United States District Court
Central District of California

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CRAIG ROSS; NATALIE OPERSTEIN,
Plaintiffs,

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Case № 2:17-cv-04149-ODW-JC

v.

ORDER GRANTING

P. TIMOTHY WHITE, et al.,
Defendants.

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DEFENDANTS’ MOTION TO
DISMISS [220] AND DENYING

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SECOND MOTION TO STRIKE

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AFFIRMATIVE DEFENSES [237]

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I.

INTRODUCTION & PROCEDURAL BACKGROUND

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Plaintiff Natalie Operstein sued over 50 defendants (collectively “Defendants”)

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alleging several causes of action under the United States Constitution and federal law.

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(Compl., ECF No. 1; First Am. Compl. (“FAC”), ECF No. 68; Second Am. Compl.

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(“SAC”), ECF No. 102.) Operstein’s claims stem from California State University

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(“CSU”) denying her a tenured position at CSU Fullerton (“CSUF”). She alleges

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Defendants violated her civil rights and conspired to terminate her employment, deny

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her tenure, and prevent her access to the courts.

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The Court currently considers two motions involving different defendants.

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First, two defendants, Viramontes and Ramos (collectively, “EEOC Defendants”),

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move to dismiss Operstein’s claims as to them pursuant to Rules 12(b)(1) and 12(b)(6)

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of the Federal Rules of Civil Procedure, on the grounds that the Court lacks subject

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matter jurisdiction and Operstein fails to state a claim. (Mot. to Dismiss (“Mot.”),

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ECF No. 220.) Second, Operstein moves to strike Majority Defendants’1 affirmative

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defenses in their First Amended Answer to Operstein’s SAC. (Second Mot. to Strike2

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(“MTS”), ECF No. 237.) Upon consideration of the papers and the hearing held on

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September 24, 2018, and for the reasons discussed below, the Court GRANTS EEOC

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Defendants’ Motion to Dismiss WITHOUT leave to amend (ECF No. 220) and

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DENIES Operstein’s Second Motion to Strike Majority Defendants’ Affirmative

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Defenses (ECF No. 237).
I.

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BACKGROUND

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Natalie Operstein was a professor at CSUF from approximately 2011 to 2016.

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Most of her claims derive from CSUF’s decision not to promote her to a tenured

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position.3 She alleges that various defendants “introduced an official ethnic change

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The “Majority Defendants” include various CSU employees and members of the Board of Trustees,
among others, and have been previously defined to include Timothy P. White, Silas Abrego, John
Beisner, Emily Bonney, Edmund G. Brown, Jr., James Busalacchi, Jane W. Carney, Jose Luis Cruz,
Lana Dalley, Adam Day, Rebecca D. Eisen, Douglas Faigin, Debra S. Farar, Jean P. Firstenberg,
Sheryl Fontaine, Jacqueline Frost, Juan Carlos Gallego, Lupe Garcia, Mildred Garcia, Lori Gentles,
Shahin Ghazanshahi, Kristi Kanel, Lillian Kimbell, Judy King, Robert Koch, John Koegel, Philip
Lee, Michael Loverude, Thelma Melendrez de Santa Ana, Stephen Mexal, Lou Monville, Hugo N.
Morales, Franz Mueller, Gavin Newsom, John Nilon, Kim Norman, J. Lawrence Norton, Barry
Pasternack, Steve Relyea, Colleen Regan, Anthony Rendon, Jill Rosenbaum, Patricia SchneiderZioga, Monique Shay, Lateefah Simon, Steven Stepanek, Peter J. Taylor, Tom Torlakson, Ofir
Turel, Framroze Virjee, and Angela Della Volpe.
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Operstein previously filed a Motion to Strike Majority Defendants’ Answer or Affirmative
Defenses, discussed below. (See ECF No. 165.) For clarity, “First MTS” refers to Operstein’s
previous Motion to Strike and “Second MTS” refers to Operstein’s presently pending Motion to
Strike.
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The Court dismissed Ross, Operstein’s husband, for lack of standing on April 20, 2018, and
entered partial judgment as to him on June 12, 2018. (Order Granting, In Part, Defs.’ Mot. to
Dismiss (“MTD Order”), ECF No. 146; Partial J., ECF No. 186.) He appealed both the Order and
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policy and strategic goal to make Hispanics the majority among faculty,

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administrators and staff at the CSUF campus.”

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monetary damages for past harm, future lost earnings and fringe benefits, as well as

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injunctive relief preventing Defendants from continuing to implement the ethnic

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change policy. (See id. pp. 45–46.) She alleges Defendants conspired to terminate her

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employment, deny her tenure, and prevent her access to the courts. Operstein sues

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more than 50 government actors at varying levels, and from various branches of the

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state and federal government, in their official and personal capacities.

(SAC ¶ 42.)

Operstein claims

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Operstein has amended her complaint twice in response to motions to dismiss

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from various defendants. (See FAC; SAC.) On April 20, 2018, the Court dismissed

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all of Operstein’s claims against Becerra Defendants4 with prejudice. (MTD Order

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17.) The Court also dismissed, in part, her claims against Majority Defendants,

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without leave to amend. (Id.) As to Majority Defendants, the Court clarified that

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Operstein may proceed on her § 1983 claims, specifically as to: (1) “violation of her

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constitutional rights as it relates to Majority Defendants, in their personal and official

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capacities, terminating Operstein’s employment despite her alleged lifetime contract

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and vested right to tenure; and” (2) “prospective injunctive relief against the Majority

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Defendants in their official capacities.” (Id.) On June 12, 2018, the Court denied

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Operstein’s Motion for Reconsideration. (Order Denying Mot. For Recons., ECF

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No. 185.)

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Following the Court’s Order, Majority Defendants Answered Operstein’s SAC.

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(ECF No. 148.)

Operstein moved to strike Majority Defendants’ Answer or

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alternatively all of their affirmative defenses. (First MTS, ECF No. 165.) The Court

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granted, in part, Operstein’s motion as to affirmative defenses, with leave to Majority

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the Judgment. (Notice of Appeal, ECF No. 218.) This litigation proceeds with Operstein as the only
Plaintiff.
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The “Becerra Defendants” have been previously defined to include Xavier Becerra, Elizabeth
Frater, and Robin Grayboyes.

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Defendants to amend. (Order First MTS, ECF No. 219.) Majority Defendants did so

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in their First Amended Answer. (ECF No. 226.)

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Throughout this case, Majority Defendants suspected Ross had been acting on

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Operstein’s behalf, including after he was dismissed for lack of standing, despite not

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being an attorney. Consequently, on June 28, 2018, the Court granted Majority

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Defendants’ ex parte application for an in-person Rule 26(f) conference and warned

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Ross explicitly that he may not represent Operstein or otherwise participate in this

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litigation; the prohibition included communicating on her behalf. (Ex Parte Order 5,

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ECF No. 210.)5

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The Court now considers two motions involving different groups of defendants.

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First, EEOC Defendants, who have not previously appeared in this matter, move to

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dismiss Operstein’s SAC for lack of subject matter jurisdiction and failure to state a

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claim. (ECF No. 220.) Second, Operstein moves to strike Majority Defendants’

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affirmative defenses. (ECF No. 237.) The Court addresses each motion in turn.
II.

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EEOC DEFENDANTS’ MOTION TO DISMISS [220]

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EEOC Defendants move to dismiss Operstein’s SAC, arguing: (1) the Court

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lacks subject matter jurisdiction to the extent Operstein’s claims are based in

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negligence; (2) Bivens liability is unavailable; (3) EEOC Defendants are entitled to

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Qualified Immunity; and (4) Operstein fails to sufficiently allege facts to state claims.

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For the reasons discussed below, the Court GRANTS EEOC Defendants’ Motion to

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Dismiss without leave to amend.

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A.

Legal Standard 12(b)(6)

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A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable

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legal theory or insufficient facts pleaded to support an otherwise cognizable legal

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theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To

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survive a motion to dismiss, a complaint need only satisfy the minimal notice pleading

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The Court has also ruled on many ex parte applications filed by Plaintiffs and referred several
motions to disqualify judges in this district, pursuant to the Court’s General Order. (See, e.g.,
Referral Order, ECF No. 11.) All motions to disqualify have been denied.

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requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v.

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Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to

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raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). These factual

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allegations must provide “fair notice and . . . enable the opposing party to defend itself

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effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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The determination of whether a complaint satisfies the plausibility standard is a

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“context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited

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to the pleadings and must construe all “factual allegations set forth in the

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complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City

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of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks omitted).

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But a court need not blindly accept conclusory allegations, “unwarranted deductions

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of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d

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979, 988 (9th Cir. 2001). Although pro se pleadings are to be construed liberally, a

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plaintiff must present factual allegations sufficient to state a plausible claim for relief.

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See Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010.) A liberal reading cannot cure

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the absence of such facts. Ivey v. Bd. of Regents of Univ. Alaska, 673 F.2d 266, 268

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(9th Cir. 1982.)

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B.

Analysis

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Operstein brings claims under 42 U.S.C. §§ 1981, 1983, 1985, 1986; Bivens v.

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Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); and the First, Fifth, and

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Fourteenth Amendments to the United States Constitution. (SAC p. 23.) She seeks

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monetary damages from EEOC Defendants Viramontes and Ramos in their personal

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capacities. (Id.; id. ¶¶ 28, 29.)

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As to Defendant Viramontes, Operstein alleges she “is Director of EEOC’s Los
Angeles District Office” and is sued for:
[1] conspiracy or failure to prevent conspiracy with the State of
California to shield the CSU ethnic change policy from EEOC
investigation, [2] conspiracy and/or failure to prevent conspiracy with
state officials to deny [P]laintiff[’]s access to courts and to deprive
[P]laintiff Operstein from contractual benefits in relation with her EEOC
claim and request to file temporary injuction based on her claims,
[3] mishandling of [P]laintiff Operstein’s EEOC claims and [4] denial to
her of equal protection in relation with her EEOC claim.
(SAC ¶ 28.)

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As to Defendant Ramos, Operstein alleges she “is an investigator in EEOC’s

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Los Angeles District Office” and is sued for “mishandling of [P]laintiff Operstein’s

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EEOC claims.” (SAC ¶ 29.)

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In Operstein’s 47-page SAC, she alleges nothing more than these two

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paragraphs as to EEOC Defendants. These two paragraphs consist of conclusory

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allegations requiring unsupported and unreasonable inferences. Operstein alleges no

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facts as to how EEOC Defendants conspired with any other defendants, how they

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mishandled her EEOC claim, or what actions they took in the process of denying her

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equal protection in relation to it. Although she mentions her participation in an EEOC

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claim as a reason other defendants allegedly conspired and retaliated against her, she

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fails to provide any factual support to her allegations against EEOC Defendants. This

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is not sufficient to raise the possibility of a right to relief above a speculative level.

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Even construing Operstein’s SAC liberally, her allegations fall short. Operstein

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mentions her EEOC claim in paragraphs 8, 42, 48, 51, 53, and 58, referring to the

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defendants’ alleged conspiracies to retaliate against her or prevent her access to the

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courts.

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employment, in part, in retaliation for Operstein’s “participation in EEOC

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proceedings”); id. ¶ 53 (“The conspiracy also interfered with [P]laintiff[’s] right to

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equal protection by EEOC in relation with the processing of [P]laintiff Operstein’s

(See, e.g., id. ¶ 42 (alleging Defendant Garcia terminated Operstein’s

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EEOC claims.”).) Further, construing vague references to “defendants” as implying

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allegations specifically against EEOC Defendants (see SAC ¶¶ 42, 44, 47, 48, 53)

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merely identifies additional conclusory allegations of conspiracy.

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(“defendants conspired or neglected to prevent the conspiracy to deprive . . . Dr.

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Operstein of her constitutional rights . . . her federal rights [and] her property and

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liberty to pursue her chosen profession.”).) Even this generous reading fails because

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these references surround Operstein’s claims of conspiracy, which she fails to allege

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with any factual detail.

(See id. ¶ 44

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As the Court previously found in its Order dismissing the conspiracy claims

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against Majority Defendants (MTD Order 16), Operstein also fails to state a claim

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against EEOC Defendants because she fails to allege a conspiracy between any

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defendants with any factual detail. A plaintiff is required to “state specific facts to

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support the existence of the claimed conspiracy.” Olsen v. Idaho St. Bd. of Med., 363

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F.3d 916, 929 (9th Cir. 2004) (quoting Burns v. County of King, 883 F.2d 819, 821

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(9th Cir. 1989)); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th

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Cir. 1988) (finding that “mere allegation of conspiracy without factual specificity is

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insufficient” to withstand motion to dismiss). But Operstein’s SAC is devoid of any

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facts that indicate any discussion or agreement between the allegedly conspiring

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parties. Consequently, even the most generous reading of Operstein’s SAC cannot

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cure the absence of sufficient factual allegations.
Accordingly, the Court GRANTS EEOC Defendants’ Motion to Dismiss the

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SAC.

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C.

Leave to Amend

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Where a district court grants a motion to dismiss, it should generally provide

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leave to amend unless it is clear the complaint could not be saved by any amendment.

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See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

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1025, 1031 (9th Cir. 2008). A court may deny leave to amend when it “determines

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that the allegation of other facts consistent with the challenged pleading could not

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possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806

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F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly denied . . . if

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amendment would be futile.” Carrico v. City and County of San Francisco, 656 F.3d

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1002, 1008 (9th Cir. 2011).

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Here, amendment would be futile. The Court construes the SAC liberally in

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light of the procedural posture of the case and Operstein’s pro se status. Due to the

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dearth of allegations against EEOC Defendants, the Court considers the legal bases

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plausibly raised in the SAC. Even so, the Court finds no support for Operstein’s

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claims against EEOC Defendants. In her opposition, Operstein requests leave to

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amend, but proposes the addition of only further conclusory and unsupported

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inferences. Notably, Operstein previously amended her complaint twice in response

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to various motions to dismiss. Accordingly, the Court finds that “the allegation of

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other facts consistent with the [SAC] could not possibly cure the deficiency.”

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Schreiber, 806 F.2d at 1401.

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1.

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To the extent Operstein alleges EEOC Defendants violated 42 U.S.C. §§ 1985

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and 1986 by conspiring with Becerra Defendants or Majority Defendants, these claims

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fail. Section 1985 prohibits conspiracy to interfere with certain civil rights. A § 1986

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claim is wholly dependent on a § 1985 claim. Karim-Panahi, 839 F.2d at 626. The

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Court dismissed Operstein’s claims against Becerra Defendants with prejudice and

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dismissed Operstein’s conspiracy claims against Majority Defendants without leave to

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amend. (MTD Order 17.) In addition to the resulting lack of co-conspirators, as

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stated previously, “the Court cannot envision any set of facts that Plaintiff[] could

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plead that would save” her section 1985 and 1986 claims. (Id. at 16.) Accordingly,

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the Court finds amendment of these claims would be futile.

Statutory claims under 42 U.S.C. §§ 1985 & 1985

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2.

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To the extent Operstein alleges EEOC Defendants violated 42 U.S.C. §§ 1981

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and 1983, these claims fail. EEOC Defendants are federal, not state, employees. The

Statutory claims under 42 U.S.C. §§ 1981 & 1983

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plain language of 42 U.S.C. §§ 1981 and 1983 does not permit actions against federal

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employees acting under federal law. Accordingly, the Court finds that amendment of

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these claims would be futile.

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3.

Bivens claims under the First, Fifth, and Fourteenth Amendments to the
Constitution

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To the extent Operstein alleges constitutional violations under Bivens, her

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claims arise in a new context not previously recognized by the Supreme Court and the

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availability of alternative remedies precludes relief. Thus, these claims fail.

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A Bivens claim is an “implied right of action for damages against federal

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officers alleged to have violated a citizen’s constitutional rights.” Vega v. United

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States, 881 F.3d 1146, 1152 (9th Cir. 2018) (discussing Bivens, 403 U.S. 388). The

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Supreme Court has increasingly restricted Bivens claims, such that they are now

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available only in very limited contexts. See Corr. Servs. Corp. v. Malesko, 534 U.S.

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61, 67–68 (2001) (“Since Carlson [v. Green,] we have consistently refused to extend

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Bivens liability to any new context or new category of defendants.”); ibid. (discussing

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the three recognized contexts for Bivens claims as (1) Fourth Amendment claim for

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police search and seizure in Bivens, 403 U.S. 388, (2) Fifth Amendment claim for

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gender discrimination where the plaintiff was explicitly excluded from alternative

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remedies in Davis v. Passman, 442 U.S. 228 (1978), and (3) Eighth Amendment claim

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for deliberate indifference toward a prisoner’s medical needs in Carlson, 446 U.S. 14

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(1980).). The Supreme Court has “made clear that expanding the Bivens remedy is

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now a disfavored judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)

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(internal quotation marks omitted).

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As such, relief under Bivens is not available when (1) the claim arises in a new

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context than those previously recognized by the Supreme Court, and (2) special

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factors, including alternative remedies, counsel judicial hesitation. See Vega, 881

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F.3d at 1153–54 (quoting Abbasi, 137 S. Ct. at 1858) (“[I]f there is an alternative

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remedial structure present in a certain case, that alone may limit the power of the

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Judiciary to infer a new Bivens cause of action.”); see also Bush v. Lucas, 462 U.S.

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367, 386–90 (1983) (finding that, even assuming rights have been violated and other

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remedies were not as effective, the existence of a comprehensive remedy scheme

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precludes Bivens relief).

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Operstein seeks Bivens relief under the First, Fifth, and Fourteenth6

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Amendments (see SAC p. 23) and claims EEOC Defendants mishandled her EEOC

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claim and denied her equal protection in relation to it (SAC ¶¶ 28, 29).

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assuming Operstein could allege additional facts against EEOC Defendants, these

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claims arise in a new context than those previously recognized by the Supreme Court.

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Further, “Congress intended that the private right of action preserved by [Title VII] be

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the all-purpose remedy for charging parties dissatisfied with the EEOC’s handling of

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their charge.” Ward v. E.E.O.C., 719 F.2d 311, 313 (9th Cir. 1983) (quoting Hall v.

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E.E.O.C., 456 F. Supp. 695, 698–700 (N.D. Cal. 1978). Operstein’s claims against

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EEOC Defendants stem from her dissatisfaction with EEOC’s handling of her EEOC

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claim. Thus, her “all-purpose remedy” is to sue the discriminating employer directly,

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which she has done.

Even

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Because Operstein’s claims arise in a new context and alternative remedies

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exist, Bivens relief is unavailable. Accordingly, the Court finds amendment of these

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claims would be futile.

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4.

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Finally, to the extent Operstein alleges EEOC Defendants “mishandled” her

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EEOC claim, these claims fail. The Federal Tort Claims Act (“FTCA”) is the only

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remedy for tortious conduct by the United States and only the United States may be

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sued under it. F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998). The United States

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would be the proper defendant, not EEOC Defendants in their individual capacities.

“Mishandling” EEOC claim allegations

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Operstein’s Fourteenth Amendment claim is properly construed as coming under the Fifth
Amendment, as EEOC Defendants are federal employees who acted under federal law. See Davis v.
Passman, 442 U.S. 228, 230 (1978); see also Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

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Further, the FTCA provides jurisdiction for tort suits against the government only

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when a plaintiff has fully exhausted her administrative remedies. D.L. v. Vassilev, 858

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F.3d 1242, 1244 (9th Cir. 2017).

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Operstein had not filed an administrative claim against EEOC, and Operstein did not

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refute that evidence.7 (See Decl. of Anita Washington ¶¶ 3–4, ECF No. 220-1.)

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Accordingly, the Court finds amendment of these claims would be futile.

EEOC Defendants presented evidence that

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Operstein, through her SAC, fails to state a plausible claim for relief against

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EEOC Defendants. Because she has already amended twice, and because further

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amendment would be futile, the Court GRANTS EEOC Defendants’ Motion to

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Dismiss Operstein’s SAC WITHOUT leave to amend.

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PLAINTIFF’S MOTION TO STRIKE MAJORITY DEFENDANTS’
AFFIRMATIVE DEFENSES [237]

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Turning to the second motion at issue, Operstein moves to strike Majority

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III.

Defendants’ Affirmative Defenses in their First Amended Answer.
Previous Motion to Strike:

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The Majority Defendants previously answered

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Operstein’s SAC and asserted twelve affirmative defenses. (Answer, ECF No. 148.)

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Operstein moved to strike Majority Defendants’ entire Answer or alternatively all

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twelve affirmative defenses. (First MTS, ECF No. 165.) She failed to meet and

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confer in advance of her motion, as required by Local Rule 7-3. The Court declined to

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deny her motion on that basis alone but reminded Operstein of her “duty to comply

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with the Local Rules,” warning that “failure to do so in the future will result in

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sanctions.” (Order First MTS 3, ECF No. 219.) The Court granted Operstein’s

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motion, in part. (Id. at 6.) The Court dismissed one affirmative defense without leave

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to amend as an improper attack on Operstein’s prima facie case, but otherwise

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declined to consider the sufficiency of the remaining eleven affirmative defenses

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A court may dismiss a complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1),
and, “[i]n resolving a factual attack on jurisdiction . . . may review evidence beyond the complaint
without converting the motion to dismiss into a motion for summary judgment.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

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because Majority Defendants acknowledged their deficiency. (Id.) The Court thus

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struck the remaining affirmative defenses with leave to amend. (Id.)

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Current Motion to Strike: Following the Court’s Order, Majority Defendants

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filed a First Amended Answer to Operstein’s SAC and asserted ten affirmative

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defenses. (First Am. Answer, ECF No. 226.) Operstein again moves to strike all of

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Majority Defendants’ affirmative defenses. (Second MTS, ECF No. 237.) Majority

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Defendants have withdrawn one affirmative defense and otherwise oppose Operstein’s

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motion. (Opp’n Second MTS, ECF No. 240.) For the reasons discussed below, the

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Court DENIES Operstein’s Motion to Strike.

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A.

Local Rule 7-3
As with the previous motion to strike, Majority Defendants contend that

Operstein failed to comply with Local Rule 7-3. (Opp’n Second MTS 7.)

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1.

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On July 25, 2018, Operstein sent a detailed email to Counsel for Majority

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Defendants, informing them of her intent to move to strike all the affirmative

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defenses. (Second MTS 2, Ex. 2.) She sent the email using the email account

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“[e-mail],” which is listed as the email of record for former-plaintiff Ross,

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and which Ross also uses. (Decl. of Natalie Operstein in Supp. of Reply Second MTS

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(“Operstein Decl.”) ¶ 4, ECF No. 243-1.)

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Operstein by emailing Operstein’s email of record, [e-mail], and

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copying the sending account, [e-mail]. (Opp’n Second MTS 7.) They

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requested an in-person meeting to discuss Operstein’s motion, but received no

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response. (Id. at 7–8.) Majority Defendants assert that they continue to be concerned

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that Ross is communicating on Operstein’s behalf, despite the Court’s June 28, 2018,

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Order. (See Ex Parte Order 5 (Ross “may not represent Operstein, or otherwise

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participate in this litigation on her behalf. This includes . . . communicating on her

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behalf with the Court or with Defendants.”).) Majority Defendants requested the in-

“Meet and Confer” Dispute

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Majority Defendants responded to

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person meeting to avoid either encouraging the unauthorized practice of law by Ross

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or violating the Court’s June 28, 2018, Order. (Opp’n Second MTS 8.)

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In her Reply, Operstein stated that the [e-mail] email account is the

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“Family Account,” she prepared and sent the email, and the account displays a unique

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header with her name when an email comes from her. (Operstein Decl. ¶ 4, Ex. 1

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(displaying “From: Natalie Operstein <[e-mail]>”).) She asserts that the

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parties routinely correspond regarding this matter using this email account. (Id. ¶ 5.)

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She claims that she lacks the legal skills to meet with highly-trained attorneys, so in-

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person meetings are a “waste of time” because she needs more time to research and

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respond. (Reply Second MTS 13.) Finally, Operstein claims no requirement exists

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that they meet in person and Local Rule 7-3’s preference for in-person conferences

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does not apply to her because she is pro se. (Id. at 12.)

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2.

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Local Rule 7-3 requires counsel or parties contemplating motion practice to

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“contact opposing counsel to discuss thoroughly, preferably in person, the substance

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of the contemplated motion and any potential resolution.”

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(emphasis added). The purpose of Local Rule 7-3 is to attempt to resolve the issues

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necessitating motion practice. See id. It is within the Court’s discretion to refuse to

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consider a motion based on a party’s noncompliance with Local Rule 7-3. CarMax

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Auto Superstores Cal. LLC v. Hernandez, 94 F. Supp. 3d 1078, 1088 (C.D. Cal.

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2015). However, failure to comply with Local Rule 7-3 “does not automatically

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require the denial of a party’s motion.” Id.

Analysis

C.D. Cal. L.R. 7-3

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The Court previously directed Operstein to comply with the Local Rules,

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specifically Local Rule 7-3, when she failed to meet and confer on her previous

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motion to strike. (See Order First MTS 3 (declining to deny Operstein’s motion solely

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for her noncompliance, “the Court remind[ed] Operstein of her duty to comply with

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the Local Rules, and her failure to do so in the future will result in sanctions.”).)

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Further, Magistrate Judge Choolijan made explicit that the Local Rules apply to

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Operstein, notwithstanding her pro se status.

(See Order Denying Motion for

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Protective Order Without Prejudice 1, ECF No. 213 (citing Local Rules 37-1 and 1-3

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(“Persons appearing pro se are bound by these rules, and any reference in these rules

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to ‘attorney’ or ‘counsel’ applies to parties pro se unless the context requires

5

otherwise.”)).) Consequently, Operstein’s claim that Local Rule 7-3’s preference for

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in-person meetings does not apply to her is unsupportable, and she has actual

7

knowledge of its application based on the previous order.

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In any event, communication through letter or email may technically satisfy the

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meet and confer requirement. See Colodney v. County of Riverside, No. EDCV 13-

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00427-VAP (SPx), 2013 WL 12200649, at *4 (C.D. Cal. Aug. 16, 2013) (“Courts in

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this district have held that communication through letter may satisfy the meet and

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confer requirement of Rule 7-3.”).

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opposing counsel’s request for further discussion does not demonstrate a good faith

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attempt to comply with the Rule’s purpose, to “reach a resolution which eliminates the

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necessity for a hearing.” C.D. Cal. L.R. 7-3. At this time, the Court declines to

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sanction Operstein, but explicitly reminds her that the Local Rules, including Local

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Rule 7-3, apply to her, notwithstanding her pro se status; that Ross may not assist

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her or act on her behalf, including, but not limited to communications concerning

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this litigation; and that future failures to meet and confer in good faith may

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result in the Court requiring the parties to conduct all substantive conferences

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in-person or dismissal of her case with prejudice.

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B.

However, Operstein’s failure to respond to

Motion to Strike Affirmative Defenses

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Majority Defendants assert ten affirmative defenses in their First Amended

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Answer: (1) Statute of Limitations; (2) Unclean Hands; (3) After-Acquired Evidence;

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(4) Contributory Negligence/Comparative Fault; (5) Failure to Mitigate Damages;

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(6) Fault of Others; (7) Collateral Source; (8) Same Decision; (9) Qualified Immunity;

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and (10) Eleventh Amendment Immunity. (First Am. Answer ¶¶ 56–65.) Operstein

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moves to strike all ten as failing to provide fair notice, deficiently pled, or improperly

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attacking her prima facie case. (Second MTS 4–5; Second MTS Reply 4–5, ECF

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No. 243.) She argues leave to amend should be denied and seeks sanctions. (Second

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MTS 13.)

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In response, Majority Defendants provide a legal basis for the affirmative

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defenses and relate them to Operstein’s potential claims for breach of contract and

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employment discrimination.

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affirmative defense is sufficiently pled and provides Operstein with fair notice.

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(Id. at 11–14.) In addition, Majority Defendants withdraw the seventh affirmative

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defense, Collateral Source. (Id. at 14.) Should the Court find any of the remaining

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nine affirmative defenses lacking, Majority Defendants request leave to amend, to

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specifically reference Operstein’s allegations. (Id. at 15.)

(Opp’n Second MTS 9–11.)

They assert each

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1.

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Under Federal Rule of Civil Procedure 12(f), “[a] Court may strike affirmative

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defenses . . . if they present an insufficient defense or any redundant, immaterial,

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impertinent, or scandalous matter.”

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Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010) (internal

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quotation marks omitted) (citing Fed. R. Civ. P. 12(f)). Nevertheless, 12(f) motions

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are “generally regarded with disfavor because of the limited importance of pleading in

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federal practice, and because they are often used as a delaying tactic.” Neilson v.

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Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). Thus, as

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long as the opposing party is not prejudiced, courts freely grant leave to amend

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stricken defenses. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979).

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“Ultimately, whether to . . . strike lies within the sound discretion of the district

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court.” Neilson, 290 F. Supp. 2d at 1152.

12(f) Legal Standard

Barnes v. AT & T Pension Ben. Plan-

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Before a motion to strike affirmative defenses may be granted, the Court must

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be “convinced that there are no questions of fact, that any questions of law are clear

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and not in dispute, and that under no set of circumstances could the defense succeed.”

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Ganley v. County of San Mateo, No. C06–3923-TEH, 2007 WL 902551, at *1 (N.D.

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Cal. Mar. 22, 2007) (quoting E.E.O.C. v. Interstate Hotels, LLC, No. C04-04092,

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2005 WL 885604, at *1 (N.D. Cal. Apr. 14, 2005)). An affirmative defense is

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insufficient as a matter of pleading when it fails to provide fair notice of the defense

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asserted. Wyshak, 607 F.2d at 827. “Fair notice generally requires that the defendant

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state the nature and grounds for the affirmative defense,” but “a detailed statement of

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facts” is not required. Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464,

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468 (S.D. Cal. 2013).

8
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The Court previously determined that it will apply the Rule 8 standard
including Twombly/Iqbal to affirmative defenses.

(Order First MTS 5); see also

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Barnes, 718 F. Supp. 2d at 1172. That means that a defendant provides fair notice by

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meeting the pleading standard of FRCP 8 as further refined by Twombly, 550 U.S. at

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555 and Iqbal, 556 U.S. at 664. “Applying the standard for heightened pleading to

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affirmative defenses serves a valid purpose in requiring at least some valid factual

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basis for pleading an affirmative defense and not adding it to the case simply upon

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some conjecture that it may somehow apply.” Barnes, 718 F. Supp. 2d at 1172

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(quoting Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 650 (D. Kan. 2009)). A

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defendant need not provide extensive factual allegations but must nonetheless

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“include enough supporting information to be plausible.” MIC Prop. & Cas. Corp. v.

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Kennolyn Camps, Inc., No. 5:15-cv-00589-EJD, 2015 WL 4624119, at *2 (N.D. Cal.

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Aug. 3, 2015).

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2.

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To begin, Majority Defendants withdrew their seventh affirmative defense,

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24

Analysis

Collateral Source. Thus, the Court does not consider that affirmative defense.
Operstein first argues that Majority Defendants’ affirmative defenses

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improperly attack her prima facie case.

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Eleventh Amendment (ninth and tenth affirmative defenses). An affirmative defense

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that “is merely [a] rebuttal against the evidence presented by the plaintiff” is improper.

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Barnes, 718 F. Supp. 2d at 1173; see also Zivkovic v. Cal. Edison Co., 302 F.3d 1080,

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She identifies Qualified Immunity and

1

1088 (9th Cir. 2002). “The purpose of an affirmative defense is to plead matters

2

extraneous to the plaintiff’s prima facie case, which deny plaintiff’s right to recover,

3

even if the allegations of the complaint are true.’” MIC Prop., No. 5:15-cv-00589-

4

EJD, 2015 WL 4624119, at *3 (internal quotation marks omitted).

5

The affirmative defenses of Qualified Immunity and Eleventh Amendment do

6

not merely rebut evidence presented by the plaintiff, but instead operate as affirmative

7

defenses, with the burden on the defendant, which could deny a plaintiff’s right to

8

recover even if all allegations in the complaint were true. See Gomez v. Toledo, 446

9

U.S. 635, 640 (1980) (“Since qualified immunity is a defense, the burden of pleading

10

it rests with the defendant”); Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147

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(9th Cir. 2007) (“Eleventh Amendment immunity is an affirmative defense that must

12

be raised early in the proceedings to provide fair warning to the plaintiff”) (internal

13

quotation marks omitted). As such, these are proper affirmative defenses.

14

Operstein’s second, and primary, argument appears to be that Majority

15

Defendants’ affirmative defenses do not provide fair notice and fail to meet the

16

pleading standard. Majority Defendants provide a legal basis for the affirmative

17

defenses and relate them to Operstein’s potential claims. They provide the nature and

18

grounds for each asserted affirmative defense. (See e.g., First Am. Answer ¶ 57

19

(Unclean Hands: “Plaintiff engaged in actions that violated the laws, regulations and

20

policies applicable to her employment, and that said violations bar the complaint filed

21

herein, and/or limit her remedies.”); id. ¶ 63 (Same Decision: “Defendants are

22

informed and believed and thereon allege that the adverse employment action, denial

23

of tenure and termination would have been taken even in the absence of any

24

constitutionally protected speech or conduct.”).) A detailed statement of facts is not

25

required at this stage.

26

sufficient to support the plausibility of their nine affirmative defenses relevant to the

27

allegations in Operstein’s SAC.

Majority Defendants have provided notice and reasoning

28

17

1

Accordingly, the Court finds Majority Defendants’ remaining nine affirmative

2

defenses sufficiently pled and DENIES Operstein’s Motion to Strike Majority

3

Defendants’ Affirmative Defenses.

4

IV.

CONCLUSION

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For the reasons set forth above, the Court GRANTS EEOC Defendants’

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Motion to Dismiss without leave to amend. (ECF No. 220.) The Court DENIES

7

Operstein’s Second Motion to Strike Majority Defendants’ Affirmative Defenses.

8

(ECF No. 237.)

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10

IT IS SO ORDERED.

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October 2, 2018

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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