Agardi v. Hyatt Corporation et al

Filing 11

ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS; DISMISSING COMPLAINT. Signed by Judge Maxine M. Chesney on October 26, 2017. (mmclc1, COURT STAFF) (Filed on 10/26/2017)

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6
7

JULIANNA AGARDI,
Plaintiff,

8
v.

9
10

HYATT HOTELS CORPORATION, et
al.,

11
United States District Court
Northern District of California

Case No. 17-cv-05612-MMC
ORDER GRANTING PLAINTIFF'S
APPLICATION TO PROCEED IN
FORMA PAUPERIS; DISMISSING
COMPLAINT

Defendants.

12
13

Before the Court is plaintiff Julianna Agardi's complaint and application to proceed

14

in forma pauperis, both filed September 28, 2017.1 Having read and considered plaintiff's

15

filings, the Court rules as follows.

16
17
18

As it appears from plaintiff's application that she lacks funds to pay the filing fee,
the application to proceed in forma pauperis is hereby GRANTED.
Where, as here, a party proceeds in forma pauperis, the district court, pursuant to

19

28 U.S.C. § 1915(e)(2), must dismiss the complaint if the plaintiff "fails to state a claim on

20

which relief may be granted" or the action is "frivolous or malicious." See 28 U.S.C.

21

§ 1915(e)(2)(B). In her complaint, plaintiff asserts claims against two defendants,

22

specifically, Hyatt Hotels Corporation, Global Hyatt ("Hyatt") and Yahoo Inc. ("Yahoo").

23

Pursuant to § 1915(e)(2), the Court considers in turn plaintiff's claims against Hyatt and

24

Yahoo.

25

A. Claims Against Hyatt

26

As discussed below, the instant action is the second of two actions plaintiff has

27
1

28

On October 24, 2017, the above-titled action was reassigned to the undersigned.

1

filed in this District against Hyatt, in each of which plaintiff challenges both the propriety of

2

her termination by Hyatt and alleged retaliatory actions taken by Hyatt subsequent

3

thereto.

4

In the first of those two actions, filed in 2014 and titled Agardi v. Hyatt Hotels

5

Corp., CV 14-0347 MMC (hereinafter, "Agardi I"), plaintiff alleged that, in 2003, after she

6

reported she had been subjected to sexual harassment, Hyatt terminated her

7

employment and thereafter engaged in numerous acts of retaliation, such as "hack[ing]"

8

plaintiff's "email" and "resume." (See Agardi I Compl. at 10, 13, 15.) Agardi I was

9

dismissed by the Court for failure to state a claim (see Doc. 29, Agardi I); plaintiff's appeal
from the order of dismissal was found to be "frivolous" by the Court of Appeals for the

11
United States District Court
Northern District of California

10

Ninth Circuit (see Doc 44, Agardi I), and subsequently was dismissed by the Ninth Circuit

12

for failure to prosecute (see Doc. 45, Agardi I.)

13

In this action (hereinafter, "Agardi II"), plaintiff again alleges that, in 2003, Hyatt

14

terminated her employment after she reported she had been subjected to sexual

15

harassment and that Hyatt thereafter engaged in numerous acts of retaliation, such as

16

"hack[ing] up [plaintiff's] email accounts and resume." (See Agardi II Compl. at 11, 13.)

17

Based thereon, plaintiff asserts ten Claims, two of which arise under federal law,

18

specifically, Title VII and the Computer Fraud and Abuse Act,2 and the remainder of

19

which arise under state law.

20

An in forma pauperis complaint that "merely repeats pending or previously litigated

21

claims" is subject to dismissal under § 1915(e)(2)(B). See Cato v. United States, 70 F.3d

22
23
24
25
26
27
28

2

Although the caption cites additional federal statutes, specifically, 42 U.S.C.
§ 1983, the CAN SPAM Act, 15 U.S.C. §§ 7701-13, and 47 U.S.C. § 223, the complaint
includes no claim brought thereunder. Moreover, plaintiff's factual allegations do not
implicate § 1983, as the instant complaint does not involve action taken "under color of
state law," see Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (setting forth
elements of claim under § 1983), nor is plaintiff an "internet service provider," which is the
only party who can bring a private cause of action under the CAN SPAM Act, see Gordon
v. Virtumundo, Inc., 575 F.3d 1040, 1048-50 (9th Cir. 2009), and no private cause of
action exists under § 223, see Davis v. FBI, 2017 WL 4310762, at *3 (S.D. Cal.
September 27, 2017) (citing cases).
2

1

1103, 1105 n.2 (9th Cir. 1995) (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.

2

1988)); see also Bailey, 846 F.2d at 1021 (holding "duplicative" complaints filed in forma

3

pauperis are "frivolous" and "malicious" and thus subject to dismissal).

4

A comparison of the complaint filed in Agardi I with the complaint filed in Agardi II
establishes that the later-filed complaint repeats against Hyatt the same allegations the

6

Court previously found failed to state a claim in Agardi I. Specifically, plaintiff asserted in

7

Agardi I, and repeats in Agardi II, the following allegations against Hyatt: (1) while she

8

worked for Hyatt, the Executive Sous Chef transferred plaintiff to the "Employee

9

Cafeteria" and cut her pay by fifty cents (see Agardi I Compl. at 10; Agardi II Compl. at

10

11, 13); (2) after plaintiff reported to Hyatt that the Executive Sous Chef had engaged in

11
United States District Court
Northern District of California

5

"sexual harassment," plaintiff was terminated for "lying" (see Agardi I Compl. at 8, 10, 11;

12

Agardi II Compl. at 11, 13); (3) after the termination, Hyatt "hacked up" plaintiff's

13

"resume," her "email accounts," and "her computer files" (see Agardi I Compl at 8; Agardi

14

II Compl. at 11, 13, 14, 17); (4) when plaintiff later obtained employment with a different

15

employer, specifically, NCPHS Sequoias, Hyatt sent NCPHS Sequoias a letter in which

16

Hyatt, pretending to be an "overseeing government agency," stated plaintiff had a

17

"criminal record," and plaintiff was then fired by HCPHS Sequoias (see Agardi I Compl. at

18

8, 10, 13-14; Agardi II Compl. at 11, 14); (5) Hyatt "appropriated" plaintiff's "likeness" and

19

placed it on websites (see Agardi I Compl. 27; Agardi II Compl. at 15, 19); (6) Hyatt sent

20

plaintiff "thousands" of unwanted emails, including pornography, Viagra advertisements,

21

and communications from "dating" websites (see Agardi I Compl. at 13, 25-26, 29; Agardi

22

II Compl. at 11, 14-15, 18-19); (7) Hyatt sent plaintiff an email accusing plaintiff's

23

boyfriend of being a "rapist" (see Agardi I Compl. at 17, 21; Agardi II Compl. at 13, 20);

24

(8) Hyatt emailed computer "virus[es]" to plaintiff (see Agardi I Compl. at 18; Agardi II

25

Compl. at 17); (9) Hyatt created a false "LinkedIn" account in plaintiff's name (see Agardi

26

I Compl. at 15; Agardi II Compl. at 19); (10) Hyatt's counsel "downloaded" programs that

27

gave counsel control over aspects of plaintiff's computer (see Agardi I Compl. at 17-18;

28

Agardi II Compl. at 18); (11) Hyatt placed a "GPS" program in plaintiff's computer (see
3

1

Agardi I Compl. at 23; Agardi II Compl. 16-17); (12) when plaintiff signed onto her

2

computer, Hyatt "redirected" her to websites (see Agardi Compl. I at 18; Agardi II Compl.

3

at 11); and (13) Hyatt videotaped plaintiff through a window and then stated on the

4

"Internet" that plaintiff was a "tenant from hell" (see Agardi I Compl. at 14; Agardi II

5

Compl. at 13, 20). In sum, the claims plaintiff asserts against Hyatt in Agardi II are based

6

on the same allegations as the claims plaintiff asserted against Hyatt in Agardi I.

7

Accordingly, the Court finds the instant action, as alleged against Hyatt, is

8

duplicative and, consequently, is subject to dismissal pursuant to § 1915(e)(2)(B). See

9

Cato, 70 F.3d at 1105 n.2; Bailey, 846 F.2d at 1021 (5th Cir. 1988).

10

B. Claims Against Yahoo

United States District Court
Northern District of California

11

With respect to Yahoo, plaintiff alleges that her Yahoo email accounts were among

12

the accounts that Hyatt "hacked up" (see Agardi Compl. II at 15, 17-18), that Yahoo email

13

accounts were used to send plaintiff "virus[es]" and "GPS tracking," as well as

14

"attachments" that downloaded programs onto plaintiff's computer (see Agardi II Compl.

15

at 17-18), and that Yahoo advised plaintiff her "email accounts were compromised" (see

16

Agardi II Compl. at 11; see also Agardi II Compl. at 14 (alleging "the hacking" was

17

"admitted by Yahoo")). Based thereon, plaintiff asserts against Yahoo claims for

18

"negligence" and "fraud/deception," both of which arise under state law. (See Agardi II

19

Compl. at 21.)

20

The Court has original jurisdiction over the above-titled action in light of the federal

21

claims plaintiff has alleged against Hyatt,3 and the Court's jurisdiction over the state law

22

claims asserted against Yahoo is supplemental in nature. See 28 U.S.C. § 1367(a).

23

Where, as here, a court has dismissed all claims over which it has original jurisdiction, it

24

may decline to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3). Here,

25
26
27
28

3

As plaintiff acknowledges in the Civil Cover Sheet filed concurrently with her
complaint, the parties are not diverse. Plaintiff is a citizen of California (see Civil Cover
Sheet), as is Yahoo, see Yahoo! Inc. v La Ligue Contre Le Racisme Et L'Antisemitisme,
433 F.3d 1199, 1201 (9th Cir. 2006).
4

1

given the early stage of the proceedings, the Court declines to exercise supplemental

2

jurisdiction over the state law claims alleged against Yahoo.

3
4

Accordingly, plaintiff's claims against Yahoo will be dismissed, without prejudice to
plaintiff's realleging them in state court.
CONCLUSION

5
6

For the reasons stated above, the complaint is hereby DISMISSED as follows:

7

1. Plaintiff's claims against Hyatt are DISMISSED without leave to amend,

8
9
10

pursuant to 28 U.S.C. § 1915(e)(2)(B); and
2. Plaintiff's claims against Yahoo are DISMISSED without prejudice, pursuant to
28 U.S.C. § 1367(c)(3).

United States District Court
Northern District of California

11

The Clerk shall close the file.

12

IT IS SO ORDERED.

13
14

Dated: October 26, 2017
MAXINE M. CHESNEY
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
5