Whitsitt v. Tesla Motors Inc. et al

Filing 63

ORDER DENYING DEFENDANT TESLA MOTORS, INC.'S MOTION TO DISMISS; STRIKING UNTIMELY OPPOSITION. Signed by Judge Maxine M. Chesney on 03/01/17. (mmclc2, COURT STAFF) (Filed on 3/1/2017) (Additional attachment(s) added on 3/1/2017: # 1 Certificate/Proof of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM J. WHITSITT,
Plaintiff,

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v.

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WEST VALLEY STAFFING GROUP, et
al.,

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United States District Court
Northern District of California

Case No. 16-cv-00797-MMC

Defendants.

ORDER DENYING DEFENDANT
TESLA MOTORS, INC.’S MOTION TO
DISMISS; STRIKING UNTIMELY
OPPOSITION
Re: Dkt. Nos. 25, 53

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Before the Court is defendant Tesla Motors, Inc.’s (“Tesla”) motion, filed

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September 21, 2016, to dismiss plaintiff William J. Whitsitt’s (“Whitsitt”) complaint

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pursuant to Rules 8(a), 12(b)(6), 41(b), and 12(b)(3) of the Federal Rules of Civil

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Procedure. On December 15, 2016, Whitsitt filed an untimely opposition, as to which

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Tesla, in reply, moved to strike. Having read and considered the papers filed in support

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of the motion,1 the Court rules as follows.2

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1. At the outset, Tesla argues that Whitsitt’s complaint fails to comply with Rule

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8(a) of the Federal Rules of Civil Procedure because, according to Tesla, the complaint is

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“incomprehensible.” (See Mot. at 7:10.) Rule 8(a) requires a complaint to contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief,” see

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Fed. R. Civ. P. 8(a)(2), so as to “give the defendant fair notice of what the claim is and

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On November 23, 2016, the Court struck Whitsitt’s opposition for failure to
comply with the Civil Local Rules of this District and afforded Whitsitt the opportunity to
file a revised opposition. Whitsitt’s revised opposition was filed almost a week late and
again fails to comply with the Civil Local Rules as to page limits, spacing, and font size.
See Civil L.R. 3-4(c)(2), 7-3(b). Accordingly, said filing is hereby STRICKEN.
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By order filed January 6, 2017, the Court took the matter under submission.

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the grounds upon which it rests,” see Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal

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quotation, citation, and alteration omitted). Courts, however, “have an obligation where

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the [plaintiff] is pro se, particularly in civil rights cases, to construe the pleadings liberally

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and to afford the [plaintiff] the benefit of any doubt.” See Bretz v. Kellman, 773 F.2d

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1026, 1027 n.1 (9th Cir. 1985). Although the Court agrees with Tesla that Whitsitt’s

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complaint does not contain numbered paragraphs, repeats certain allegations and

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arguments, and includes some irrelevant arguments and references, the Court,

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construing the complaint liberally, finds that, overall, Whitsitt has sufficiently set forth

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“who is being sued, and on what theory, with enough detail to guide discovery.” See
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.1996). In particular, Whitsitt has

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United States District Court
Northern District of California

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organized his complaint into numbered sections with clearly labeled and numbered

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causes of action and set forth the reasoning on which he relies in bringing his claims

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against the named defendants, all of which claims are based on age discrimination.

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Accordingly, the complaint is not subject to dismissal under Rule 8(a).

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2. Tesla next contends Whitsitt’s complaint fails to comply with Rule 12(b)(6), for

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the asserted reason that it lacks “facts sufficient to allege the elements necessary to state

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a prima facie case of age discrimination.” (See Mot. at 9:16-17.)3 Dismissal under Rule

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12(b)(6) of the Federal Rules of Civil Procedure “can be based on the lack of a

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cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal

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theory.” See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Here,

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the Court finds Whitsitt has alleged sufficient facts to plead a prima facie case of age

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discrimination. Specifically, Whitsitt has alleged that he is 61 years old (see Compl. at

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1:26), that his interviewer stated that he was “more than qualified” (see id. at 1:28-2:1),

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that his “considerably younger best friend” with whom he had worked “at several jobs in

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Tesla does not seek dismissal of Whitsitt’s “common law at-law claims” (see
Compl. at 4:20) or “constitutional” claims (see id. at 16:21; 17:3), except to the extent
such claims are based on age discrimination, nor does it seek dismissal of Whitsitt’s
claims of retaliation or infliction of emotional distress.
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the past 3 years got the job” (see id. at 3:28-4:1), and that “[o]ut of 400 or so applicants

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interviewed and hired that day[,] there was only one other lady over the age of 50 or so

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and another man over the age of 45 or so” (see id. at 9:13-14); see also Cotton v. City of

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Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987) (holding plaintiff “makes out a prima facie

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case of [age] discrimination if he demonstrates that he was within the protected class of

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individuals between forty and seventy years of age,” that he “applied for a position for

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which he was qualified,” and that “a younger person with similar qualifications received

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the position”). In addition, Whitsitt alleges that “the oldest [applicants] had to wait until all

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the considerably younger w[e]re interviewed first” (see id. at 3:20) and that Whitsitt’s
interviewer asked him, “[a]t your AGE can you handle being flexible with having to work

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United States District Court
Northern District of California

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different shifts and do the job” (see id. at 3:23 (emphasis in original)).4

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Accordingly, the complaint is not subject to dismissal under Rule 12(b)(6) for
failure to state an age discrimination claim.
3. Next, Tesla argues that Whitsitt “qualifies for involuntary dismissal pursuant to

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[Rule] 41(b) for his ongoing failure to comply with court rules and court orders.” (See

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Mot. at 12:3-5.) Rule 41(b) permits a defendant to move for involuntary dismissal of “the

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action or any claim against” such defendant if “the plaintiff fails to prosecute or comply

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with [federal] rules or a court order.” Fed. R. Civ. P. 41(b). Tesla does not argue,

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however, that, in the instant action, Whitsitt has failed to prosecute or comply with any

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rule or court order; rather, Tesla makes reference only to proceedings in other actions.

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(See id. at 11:15-25) (stating Whitsitt has filed “more than seventy” cases, the

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“overwhelming majority” of which “have been dismissed against [Whitsitt] for failure to

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prosecute or pursuant to pre-trial motions,” and that “several courts have rebuked and

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The Court does, however, agree with Tesla that Whitsitt’s allegations as to the
undisclosed thoughts of his interviewer cannot be used to support his claim. (See, e.g.,
Compl. at 3:22-23 (alleging Whitsitt’s interviewer “gave [Whitsitt] the most bad look and
face expression that [he has] ever experienced and it was like she said to [him] out loud:
What are [you] doing here wasting my time you old over the hill dinosaur and why do[n’t]
you just go away and die”).)
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admonished [Whitsitt] for his bad faith filings”).) Tesla’s characterization of those other

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proceedings, whether or not accurate, is unavailing, as Rule 41, read as a whole, clearly

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pertains only to the parties’ litigation of the immediate action before the district court, not

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to other cases. See Fed. R. Civ. P. 41; see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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(9th Cir. 1992) (noting “[d]istrict courts have the inherent power to control their dockets”

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and “in the exercise of that power” may, under Rule 41, “impose sanctions,” including

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dismissal) (internal quotation, citation, and alteration omitted).5
Accordingly, the complaint is not subject to involuntarily dismissal under Rule

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41(b).
4. Tesla also argues Whitsitt’s complaint is subject to dismissal “because venue

United States District Court
Northern District of California

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has not been properly pled as required by [Rule] 12(b)(3)” (see Mot. at 12:15-16), for the

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asserted reason that “Whitsitt’s [c]omplaint was filed [i]n the Northern District of

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California” (see id. at 12:15) but contains an allegation that “venue is correct” because

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Whitsitt resides in San Joaquin County, which is within the “territorial [j]urisdictional

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boundaries of the Eastern District of California” (see Compl. at 2:18-20). Contrary to

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Tesla’s argument, however, Whitsitt is “not required to plead venue at all in [his]

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complaint,” see Brackett v. Hilton Hotels Corp., 619 F.Supp.2d 810, 816 n.2 (N.D. Cal.

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2008), and Rule 12(b)(3) “authorize[s] dismissal only when venue is ‘wrong’ or ‘improper’

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in the forum in which it was brought,” see Atl. Marine Const. Co. v. U.S. Dist. Ct. W. Dist.

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Texas, 134 S. Ct. 568, 577 (2013), which Tesla does not contend.

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Accordingly, the complaint is not subject to dismissal for improper venue under
Rule 12(b)(3).
5. Lastly, Tesla asks the Court to “revoke” Whitsitt’s in forma pauperis status

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“and/or to dismiss his case” (see Mot. at 14:26-27), pursuant to 28 U.S.C.

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§ 1915(e)(2)(B), for the asserted reason that the instant complaint and complaints filed by

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The Court makes no finding herein as to the relevance of a party’s conduct in
other cases, where such party, in the case before the Court, has failed to prosecute the
action or to comply with a federal rule or court order.
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Whitsitt in other cases have been “meritless, frivolous, and malicious.” (See Mot. at

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15:10-12). The Court is not persuaded. First, the Court notes, § 1915(e)(2)(B) only

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provides reasons for which “the court shall dismiss the case” and does not address

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revocation of in forma pauperis status. See 28 U.S.C. § 1915(e)(2)(B). Moreover, the

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Court, as set forth above, has not accepted Tesla’s arguments as to the sufficiency of

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Whitsitt’s complaint or the relevance of other cases he has brought.

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Accordingly, Whitsitt’s in forma pauperis status is not subject to revocation nor is
the case subject to dismissal under 28 U.S.C. § 1915(e)(2)(B).
CONCLUSION

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For the reasons stated above, defendants' motion to dismiss is hereby DENIED.

United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: March 1, 2017
MAXINE M. CHESNEY
United States District Judge

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