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)

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E-filed 2/28/2017 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERNESTO M. HEREDIA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 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 13 (“West Valley”) for retaliatory failure to hire. Dkt. No. 1. Defendant moves to dismiss the 14 complaint for lack of subject-matter jurisdiction (arguing that the suit is moot due to the 15 prohibition on claim-splitting), failure to state a claim upon which relief may be granted, and 16 exceptional circumstances under D.A. Osuthorpe Family Partnership v. ASC Utah, Inc., 705 F.3d 17 1223 (10th Cir. 2013). Dkt. No. 9. Defendant also requests that the court sua sponte revoke 18 Heredia’s in forma pauperis status. Id. All parties have consented to magistrate judge 19 jurisdiction. Dkt. Nos. 5, 16. Heredia has not opposed West Valley’s motion. 20 21 22 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 23 complaint contains the following allegations: “I believe that I was retaliated against for engaging 24 in protected activities in violation of title VII of the Civil Rights Act of 1964, as amended, and the 25 Age Discrimination in Employment Act [“ADEA”] of 1967 as amended.” Id., ¶ 4. “I have filed 26 multiple employment discrimination and retaliation complaints against the above named 27 respondent with the U.S. Equal Employment Opportunity Commission. I have also filed a lawsuit 28 against the respondent. I believe that the Respondent has continued retaliating against me by not 1 hiring me for positions that I am qualified for.” Id., ¶ 6. Heredia applied for and this court 2 granted leave to proceed in forma pauperis. Dkt. Nos. 2, 6. LEGAL STANDARD 3 4 To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege sufficient 5 facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 6 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that 7 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 8 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Complaints that merely recite the elements 9 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 11 United States District Court Northern District of California 10 plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But 12 “the court is not required to accept legal conclusions cast in the form of factual allegations if those 13 conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness 14 Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 15 When the court is evaluating a pro se complaint, it must construe the allegations liberally, 16 and dismissal of a pro se complaint without leave to amend is only proper if it is “absolutely clear 17 that no amendment can cure the defect.” Murphy v. United States Postal Serv., No. C 14-02156 18 SI, 2014 WL 4437731 (N.D. Cal. Sept. 9, 2014) (quoting Hughes v. Rowe, 449 U.S. 5, 9-10 19 (1980)). 20 DEFENDANT’S REQUESTS FOR JUDICIAL NOTICE 21 Generally, district courts are limited to the materials contained in and attached to the 22 pleadings in ruling on a 12(b)(6) motion. Courts may, however, without turning the motion to 23 dismiss into a motion for summary judgment, take judicial notice of facts that are not subject to 24 reasonable dispute and that are “capable of accurate and ready determination by resort to sources 25 whose accuracy cannot reasonably be questioned,” as well as matters of public record. Roca v. 26 Wells Fargo Bank, N.A., No. 15-cv-02147-KAW, 2016 WL 368153, at *3 (N.D. Cal., Feb. 1, 27 2016) (quoting Fed. R. Evid. 201(b)). “It is well established that the Court may take judicial 28 notice of records from other proceedings not to credit the truth of the allegations or facts set forth 2 1 therein, but rather ‘for purposes of noticing the existence of the [prior] lawsuit, the claims made in 2 the lawsuit, and the fact that various documents were filed therein.’” Acasio v. San Mateo Cnty., 3 No. 14-cv-04689-JSC, 2015 WL 5568345, at *1, n.1 (N.D. Cal. Sep. 22, 2015) (quoting 4 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”), 5 6 asking the court to take notice of 11 items, all (save one) documents from other judicial 7 proceedings. The documents include two state court complaints filed by Heredia alleging 8 discrimination against the defendant in this case; four state and three federal complaints filed by 9 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 11 United States District Court Northern District of California 10 undersigned. Dkt. No. 11. The court takes judicial notice of the requested documents. See 12 Acasio, 2015 WL 5568345, at *1, n.1 (taking notice of the existence of a state court complaint and 13 an order from another court granting a motion for judgment on the pleadings). DISCUSSION 14 15 16 1. Rule 12(b)(6). Heredia fails to allege sufficient facts to allow the court to draw a reasonable inference that 17 defendant West Valley is liable for retaliatory failure to hire. A prima facie case for retaliatory 18 failure-to-hire requires the plaintiff to show (1) that he engaged in a protected activity, (2) that the 19 position for which he applied was “eliminated or not available” to him, and (3) that the position 20 was not available to him “because of the protected activities.” See Ruggles v. Cal. Polytechnic 21 State Univ., 797 F.2d 782 (9th Cir. 1986). Heredia alleges that he engaged in a protected 22 activity—filing complaints before the EEOC and a lawsuit—and that he was not hired by 23 defendant. His central allegation, however—that he was not hired in retaliation for engaging in 24 protected activities—is wholly conclusory and not supported by any factual allegations. Heredia 25 states only that he “believe[s]” that he has been retaliated against. This belief, with nothing more, 26 is insufficient to support a reasonable inference of retaliation. On this basis, the court grants the 27 28 3 1 motion to dismiss for failure to state a claim upon which relief may be granted.1 2 2. 28 U.S.C. § 1915. In addition to moving to dismiss Heredia’s complaint, West Valley requests that the court 3 4 exercise its discretion to reconsider or revoke its grant of in forma pauperis status to pro se 5 plaintiff. The statute governing in forma pauperis status permits courts to dismiss claims filed in 7 forma pauperis “if satisfied that the action is frivolous or malicious.” Neitzke v. Williams, 409 8 U.S. 319, 324 (1989); 28 U.S.C. § 1915(e)(2)(B). This provision “is designed largely to 9 discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that 10 paying litigants generally do not initiate because of the costs of bringing suit . . . .” Id., at 327. 11 United States District Court Northern District of California 6 Section 1915 does not define “malicious,” but courts have determined that a complaint is 12 malicious within the meaning of the statute “if it is repetitive or evidences an intent to vex 13 defendants or abuse the judicial process by relitigating claims decided in prior cases.” Washington 14 v. Reno, 59 F.3d 172 (6th Cir. June 22, 1995). Other courts have given “malicious” its ordinary 15 meaning, stating that cases are malicious if they are “filed with the ‘intention or desire to harm 16 another.’” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (quoting Webster’s Third New 17 International Dictionary 1367 (1993)). 18 The court is persuaded that Heredia’s complaint in this action is malicious. Heredia has 19 filed 11 separate actions against staffing agencies in the Bay Area. Dkt. No. 11, RJN. The four 20 actions against this defendant all have similar conclusory allegations of discrimination, virtually 21 all of which are unsupported by any facts. Id. Heredia’s conduct once his cases were filed further 22 reveals his bad faith. Earlier this month, the undersigned issued an order to dismiss Heredia v. 23 Boyd, Case No. 16-cv-04031, for failure to prosecute. The order issued after Heredia failed to (1) 24 oppose defendant’s motion to dismiss, (2) timely amend his complaint, (3) file a Case 25 Management Conference statement, and (4) appear at a show cause hearing. Case No. 16-cv- 26 27 28 1 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. 4 1 4031, Dkt. No. 25. Heredia similarly failed to amend his complaint when given leave to do so in 2 Case No. 16-cv-4593, Heredia v. Coast Personnel Services. And Heredia has failed to oppose 3 defendant’s motion to dismiss in this action. 4 More revealing of defendant’s malicious motives, however, are the e-mails he has sent 5 defendant’s counsel. Defendant’s counsel has submitted a declaration detailing twenty-six 6 instances of insulting or profane communications Heredia sent to her or her colleagues, including 7 nine e-mails in one day. Dkt. No. 12, Bonnel-Rogers Decl., ¶ 3, Ex. A. The e-mails include 8 gender-, race-, national origin-, and sexual orientation-based insults, sometimes in combination 9 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 11 United States District Court Northern District of California 10 to court or I will have to go to the state a[nd] federal court and file more lawsuits for retaliation on 12 all recruiters that work for west valley staffing.” Id. Heredia appears to have carried out his threat 13 by initiating the present action, in which the complaint was filed November 23, 2016. Dkt. No. 1. 14 Heredia threatened to (and did) file likely-frivolous lawsuits (query whether Heredia could 15 have legitimate claims against “all recruiters that work for” defendant, particularly when 16 individual defendants cannot be held liable for damages under Title VII or the ADEA, Miller v. 17 Maxwell’s Int’l, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993)) against West Valley to gain leverage 18 in making settlement demands, and he has insulted and threatened defendant’s counsel. When 19 viewed in combination with Heredia’s prior and continuing failures to prosecute his claims once in 20 court, Heredia’s malicious purpose in filing this action becomes clear. Heredia has abused the 21 judicial process, and the court dismisses his complaint pursuant to 28 U.S.C. § 1915(e) as a result. 22 CONCLUSION 23 The court grants defendant’s motion to dismiss the complaint for failure to state a claim 24 upon which relief may be granted and because the court determines the complaint was maliciously 25 filed. As the court has determined that Heredia has proceeded in bad faith, the court denies leave 26 to amend. See In re Rogstad, 126 F.3d 1224, 1228 (9th Cir. 1997) (“Whether leave to amend 27 should be granted is generally determined by considering the following factors: (1) undue delay; 28 (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party.”). 5 1 Finally, the court is concerned that Heredia may be engaging in a pattern of 2 malicious conduct. The court CAUTIONS HEREDIA that a plaintiff who engages in a 3 pattern of CONTINUED ABUSE of the judicial process may be declared a VEXATIOUS 4 LITIGANT and may face SANCTIONS, MONETARY OR OTHERWISE. 5 6 IT IS SO ORDERED. Dated: 2/28/2017 7 8 HOWARD R. LLOYD United States Magistrate Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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