Heredia v. West Valley Staffing Group

Filing 22

Order by Magistrate Judge Howard R. Lloyd granting 9 Motion to Dismiss. (hrllc3S, COURT STAFF) (Filed on 2/28/2017)

E-filed 2/28/2017

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERNESTO M. HEREDIA,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-06777-HRL
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.
WEST VALLEY STAFFING GROUP,

Re: Dkt. No. 9

Defendant.
Pro se plaintiff Ernesto Heredia (“Heredia”) sues defendant West Valley Staffing Group

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(“West Valley”) for retaliatory failure to hire. Dkt. No. 1. Defendant moves to dismiss the

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complaint for lack of subject-matter jurisdiction (arguing that the suit is moot due to the

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prohibition on claim-splitting), failure to state a claim upon which relief may be granted, and

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exceptional circumstances under D.A. Osuthorpe Family Partnership v. ASC Utah, Inc., 705 F.3d

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1223 (10th Cir. 2013). Dkt. No. 9. Defendant also requests that the court sua sponte revoke

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Heredia’s in forma pauperis status. Id. All parties have consented to magistrate judge

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jurisdiction. Dkt. Nos. 5, 16. Heredia has not opposed West Valley’s motion.

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For the reasons stated below, the court grants the motion to dismiss.
BACKGROUND
Heredia alleges that he was denied employment by West Valley. Dkt. No. 1. His brief

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complaint contains the following allegations: “I believe that I was retaliated against for engaging

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in protected activities in violation of title VII of the Civil Rights Act of 1964, as amended, and the

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Age Discrimination in Employment Act [“ADEA”] of 1967 as amended.” Id., ¶ 4. “I have filed

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multiple employment discrimination and retaliation complaints against the above named

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respondent with the U.S. Equal Employment Opportunity Commission. I have also filed a lawsuit

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against the respondent. I believe that the Respondent has continued retaliating against me by not

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hiring me for positions that I am qualified for.” Id., ¶ 6. Heredia applied for and this court

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granted leave to proceed in forma pauperis. Dkt. Nos. 2, 6.
LEGAL STANDARD

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To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege sufficient

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facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Complaints that merely recite the elements

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of a claim are insufficient. Id. In considering a 12(b)(6) motion, a court accepts all of the
plaintiff’s factual allegations as true and construes the pleadings in the light most favorable to the

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United States District Court
Northern District of California

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plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But

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“the court is not required to accept legal conclusions cast in the form of factual allegations if those

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conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness

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Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

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When the court is evaluating a pro se complaint, it must construe the allegations liberally,

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and dismissal of a pro se complaint without leave to amend is only proper if it is “absolutely clear

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that no amendment can cure the defect.” Murphy v. United States Postal Serv., No. C 14-02156

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SI, 2014 WL 4437731 (N.D. Cal. Sept. 9, 2014) (quoting Hughes v. Rowe, 449 U.S. 5, 9-10

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(1980)).

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DEFENDANT’S REQUESTS FOR JUDICIAL NOTICE

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Generally, district courts are limited to the materials contained in and attached to the

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pleadings in ruling on a 12(b)(6) motion. Courts may, however, without turning the motion to

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dismiss into a motion for summary judgment, take judicial notice of facts that are not subject to

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reasonable dispute and that are “capable of accurate and ready determination by resort to sources

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whose accuracy cannot reasonably be questioned,” as well as matters of public record. Roca v.

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Wells Fargo Bank, N.A., No. 15-cv-02147-KAW, 2016 WL 368153, at *3 (N.D. Cal., Feb. 1,

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2016) (quoting Fed. R. Evid. 201(b)). “It is well established that the Court may take judicial

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notice of records from other proceedings not to credit the truth of the allegations or facts set forth
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therein, but rather ‘for purposes of noticing the existence of the [prior] lawsuit, the claims made in

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the lawsuit, and the fact that various documents were filed therein.’” Acasio v. San Mateo Cnty.,

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No. 14-cv-04689-JSC, 2015 WL 5568345, at *1, n.1 (N.D. Cal. Sep. 22, 2015) (quoting

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McMunigal v. Bloch, No. C 1002765 SI, 2010 WL 5399219, at *2 (N.D. Cal. Dec. 23, 2010)).
Accompanying its motion to dismiss, defendant filed a request for judicial notice (“RJN”),

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asking the court to take notice of 11 items, all (save one) documents from other judicial

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proceedings. The documents include two state court complaints filed by Heredia alleging

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discrimination against the defendant in this case; four state and three federal complaints filed by

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Heredia against different employment agencies; the complaint in this action; and an order granting
defendant’s motion to dismiss in a separate case between these two parties, also before the

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United States District Court
Northern District of California

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undersigned. Dkt. No. 11. The court takes judicial notice of the requested documents. See

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Acasio, 2015 WL 5568345, at *1, n.1 (taking notice of the existence of a state court complaint and

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an order from another court granting a motion for judgment on the pleadings).
DISCUSSION

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Rule 12(b)(6).
Heredia fails to allege sufficient facts to allow the court to draw a reasonable inference that

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defendant West Valley is liable for retaliatory failure to hire. A prima facie case for retaliatory

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failure-to-hire requires the plaintiff to show (1) that he engaged in a protected activity, (2) that the

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position for which he applied was “eliminated or not available” to him, and (3) that the position

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was not available to him “because of the protected activities.” See Ruggles v. Cal. Polytechnic

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State Univ., 797 F.2d 782 (9th Cir. 1986). Heredia alleges that he engaged in a protected

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activity—filing complaints before the EEOC and a lawsuit—and that he was not hired by

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defendant. His central allegation, however—that he was not hired in retaliation for engaging in

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protected activities—is wholly conclusory and not supported by any factual allegations. Heredia

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states only that he “believe[s]” that he has been retaliated against. This belief, with nothing more,

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is insufficient to support a reasonable inference of retaliation. On this basis, the court grants the

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motion to dismiss for failure to state a claim upon which relief may be granted.1

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28 U.S.C. § 1915.
In addition to moving to dismiss Heredia’s complaint, West Valley requests that the court

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exercise its discretion to reconsider or revoke its grant of in forma pauperis status to pro se

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plaintiff.
The statute governing in forma pauperis status permits courts to dismiss claims filed in

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forma pauperis “if satisfied that the action is frivolous or malicious.” Neitzke v. Williams, 409

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U.S. 319, 324 (1989); 28 U.S.C. § 1915(e)(2)(B). This provision “is designed largely to

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discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that

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paying litigants generally do not initiate because of the costs of bringing suit . . . .” Id., at 327.

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United States District Court
Northern District of California

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Section 1915 does not define “malicious,” but courts have determined that a complaint is

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malicious within the meaning of the statute “if it is repetitive or evidences an intent to vex

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defendants or abuse the judicial process by relitigating claims decided in prior cases.” Washington

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v. Reno, 59 F.3d 172 (6th Cir. June 22, 1995). Other courts have given “malicious” its ordinary

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meaning, stating that cases are malicious if they are “filed with the ‘intention or desire to harm

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another.’” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (quoting Webster’s Third New

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International Dictionary 1367 (1993)).

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The court is persuaded that Heredia’s complaint in this action is malicious. Heredia has

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filed 11 separate actions against staffing agencies in the Bay Area. Dkt. No. 11, RJN. The four

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actions against this defendant all have similar conclusory allegations of discrimination, virtually

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all of which are unsupported by any facts. Id. Heredia’s conduct once his cases were filed further

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reveals his bad faith. Earlier this month, the undersigned issued an order to dismiss Heredia v.

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Boyd, Case No. 16-cv-04031, for failure to prosecute. The order issued after Heredia failed to (1)

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oppose defendant’s motion to dismiss, (2) timely amend his complaint, (3) file a Case

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Management Conference statement, and (4) appear at a show cause hearing. Case No. 16-cv-

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As the court grants the motion to dismiss pursuant to Rule 12(b)(6), and in light of the discussion
of 28 U.S.C. § 1915 that follows, the court declines to consider defendant’s arguments with
respect to Osuthorpe and claim-splitting.
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4031, Dkt. No. 25. Heredia similarly failed to amend his complaint when given leave to do so in

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Case No. 16-cv-4593, Heredia v. Coast Personnel Services. And Heredia has failed to oppose

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defendant’s motion to dismiss in this action.

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More revealing of defendant’s malicious motives, however, are the e-mails he has sent

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defendant’s counsel. Defendant’s counsel has submitted a declaration detailing twenty-six

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instances of insulting or profane communications Heredia sent to her or her colleagues, including

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nine e-mails in one day. Dkt. No. 12, Bonnel-Rogers Decl., ¶ 3, Ex. A. The e-mails include

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gender-, race-, national origin-, and sexual orientation-based insults, sometimes in combination

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and occasionally in more than one language. Id. Significantly, the e-mails also include
communications dated August 30, 2016, stating: “You need to settle for 3,500.00 before this goes

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United States District Court
Northern District of California

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to court or I will have to go to the state a[nd] federal court and file more lawsuits for retaliation on

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all recruiters that work for west valley staffing.” Id. Heredia appears to have carried out his threat

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by initiating the present action, in which the complaint was filed November 23, 2016. Dkt. No. 1.

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Heredia threatened to (and did) file likely-frivolous lawsuits (query whether Heredia could

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have legitimate claims against “all recruiters that work for” defendant, particularly when

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individual defendants cannot be held liable for damages under Title VII or the ADEA, Miller v.

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Maxwell’s Int’l, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993)) against West Valley to gain leverage

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in making settlement demands, and he has insulted and threatened defendant’s counsel. When

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viewed in combination with Heredia’s prior and continuing failures to prosecute his claims once in

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court, Heredia’s malicious purpose in filing this action becomes clear. Heredia has abused the

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judicial process, and the court dismisses his complaint pursuant to 28 U.S.C. § 1915(e) as a result.

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CONCLUSION

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The court grants defendant’s motion to dismiss the complaint for failure to state a claim

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upon which relief may be granted and because the court determines the complaint was maliciously

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filed. As the court has determined that Heredia has proceeded in bad faith, the court denies leave

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to amend. See In re Rogstad, 126 F.3d 1224, 1228 (9th Cir. 1997) (“Whether leave to amend

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should be granted is generally determined by considering the following factors: (1) undue delay;

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(2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party.”).
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Finally, the court is concerned that Heredia may be engaging in a pattern of

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malicious conduct. The court CAUTIONS HEREDIA that a plaintiff who engages in a

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pattern of CONTINUED ABUSE of the judicial process may be declared a VEXATIOUS

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LITIGANT and may face SANCTIONS, MONETARY OR OTHERWISE.

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IT IS SO ORDERED.
Dated: 2/28/2017

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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