Justice v. Albertsons Corp. et al

Filing 59

ORDER (1) Granting In Part And Denying In Part Defendants' Motion To Dismiss Under 12(b)(6); (2) Denying Defendants' Motion For A More Definite Statement Under 12(e); And (3) Granting Defendants Clugston And Baker's Motion To Dismiss F or Insufficient Service Of Process Under 12(b)(4) & 12(b)(5): The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines these matters to be appropriate for resolution without oral argument, submits it on the parties' papers, a nd vacates the motion hearing set for 2/6/2012. The Court denies Defendants' motion to dismiss under (12)(b)(6) as to Plaintiff's wrongful termination, gender discrimination, and Family Medical Leave Act claims. The Court directs Defendants to file an answer to Plaintiff's second amended complaint on these causes of actions within thirty days. The Court grants Defendants' motion to dismiss under 12(b)(6) as to all of Plaintiff's other claims. The Court grants Defendants' motion to dismiss the complaint against Defendants Baker and Clugston, under Rules 12(b)(4) and 12(b)(5). Signed by Judge Marilyn L. Huff on 2/2/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTIE JUSTICE,

CASE NO. 11-CV-2253-H (BLM)
Plaintiff,

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ORDER
(1) GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO
DISMISS UNDER 12(B)(6);

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vs.

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(2) DENYING DEFENDANTS’
MOTION FOR A MORE
DEFINITE STATEMENT
UNDER 12(E); AND

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ALBERTSONS CORP.; ALBERTSONS
# 6713; DANNY BAKER; JEREMY
CLUGSTON, ET AL.,

(3) GRANTING DEFENDANTS
CLUGSTON AND BAKER’S
MOTION TO DISMISS FOR
INSUFFICIENT SERVICE OF
PROCESS UNDER 12(B)(4) &
12(B)(5)

Defendants.

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On December 30, 2011, Plaintiff filed her second amended complaint. (Doc. No. 55.)
On January 6, 2012, Defendants New Albertson’s, Inc., Danny Baker, and Jeremy Clugston
filed a motion to dismiss under FRCP 12(b)(6) for failure to state a claim, a motion to dismiss
under 12(b)(4) and 12(b)(5) for insufficient service of process, and, in the alternative, a motion
under 12(e) for a more definite statement. (Doc. No. 57.)

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The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines these

2 matters to be appropriate for resolution without oral argument, submits it on the parties’
3 papers, and vacates the motion hearing set for February 6, 2012. For the following reasons,
4 the Court denies in part Defendants’ motion to dismiss under 12(b)(6), grants in part
5 Defendants’ motion to dismiss under 12(b)(6), denies Defendants’ motion for a more definite
6 statement, and grants Defendants Clugston and Baker’s motion to dismiss for insufficient
7 service of process.
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Background
On September 28, 2011, Plaintiff Christie Justice, proceeding pro se, filed a complaint

11 arising out of the termination of her employment with Defendants Albertson’s Corp. and
12 Albertson’s # 6713. (Doc. No. 1.) On October 19, 2011, Defendants filed a motion to dismiss
13 or strike portions of the complaint, or for a more definite statement. (Doc. No. 9.) On October
14 21, 2011, Plaintiff filed her response in opposition to the motion to dismiss. (Doc. No. 14.)
15 On October 26, 2011, Plaintiff filed her first amended complaint. (Doc. No. 17.) On
16 November 2, 2011 and November 3, 2011, Plaintiff submitted two new documents entitled
17 “amended complaint.” (Doc. Nos. 21 & 23.) On November 8, 2011, in light of the amended
18 complaint, the Court denied as moot Defendant’s motion to dismiss. (Doc. No. 25.)
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On November 8, 2011, Plaintiff filed a motion for leave to file exhibits with her

20 amended complaint. (Doc. No. 27.) On November 21, 2011 and November 29, 2011, Plaintiff
21 filed two additional motions seeking to submit exhibits to her complaint. (Doc. Nos. 37 & 45.)
22 On December 5, 2011, the Court granted Defendants’ motion to dismiss with leave to amend
23 and denied as moot Plaintiff’s additional motions. (Doc. No. 53.)
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On December 30, 2011, Plaintiff filed her second amended complaint. (Doc. No. 55.)

25 On January 6, 2012, Defendants Albertson’s, Inc., sued as Albertsons # 6713 and Albertsons
26 Corp., Danny Baker, and Jeremy Clugston filed their motion to dismiss for failure to state a
27 claim or, in the alternative, a motion for a more definite statement, and their motion to dismiss
28 for insufficient service of process. (Doc. No. 57.) The Court issued a scheduling order on
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1 January 26, 2012 requesting Plaintiff to respond to Defendants’ motion to dismiss by February
2 1, 2012. (Doc. No. 58.) Plaintiff did not file a response.
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Discussion

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5 I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
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A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests

7 the legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729,
8 732 (9th Cir. 2001). Rule 8(a)(2) requires that a pleading stating a claim for relief contain “a
9 short and plain statement of the claim showing that the pleader is entitled to relief.” The
10 function of this pleading requirement is to “give the defendant fair notice of what the . . . claim
11 is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
12 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
13 detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement
14 to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements
15 of a cause of action will not do.” Id. A complaint does not “suffice if it tenders ‘naked
16 assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
17 (2009) (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a
18 right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Wright &
19 Miller, Federal Practice and Procedure § 1216, 235–36 (3d ed. 2004)). “All allegations of
20 material fact are taken as true and construed in the light most favorable to plaintiff. However,
21 conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion
22 to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th
23 Cir. 1996); see also Twombly, 550 U.S. at 555.
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A. Plaintiff’s Second Amended Complaint
1.

Wrongful Termination, Gender Discrimination, and
Family Medical Leave Act

After reviewing Plaintiff’s second amended complaint, the Court concludes that

28 Plaintiff has met the pleading standard and provided notice to Defendants of the claims against
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1 them and the grounds on which they rest. As Defendants noted in their motion to dismiss,
2 Plaintiff pleads wrongful termination, gender discrimination, and a violation of the Family
3 Medical Leave Act. (Doc. Nos. 55 & 57.) Further, Plaintiff provides details that inform
4 Defendants of the facts underlying Plaintiff’s causes of action. (Doc. No. 55.) Defendants’
5 arguments regarding these causes of actions are better suited for a motion for summary
6 judgment. Therefore, the Court denies in part Defendants’ motion to dismiss under 12(b)(6)
7 based on Plaintiff’s pleading of wrongful termination, gender discrimination, and a violation
8 of the Family Medical Leave Act. The Court directs Defendants to file an answer to Plaintiff’s
9 second amended complaint on these causes of actions.
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2.

Plaintiff’s Other Claims

“The pleading standard Rule 8 announces does not require ‘detailed factual

12 allegations,’ but it demands more than an unadorned, the defendant-unlawfully-harmed-me
13 accusation.” Iqbal, 129 S. Ct. 1937, 1949 (2009). Thus, “[w]hile legal conclusions can
14 provide the framework of a complaint, they must be supported by factual allegations. When
15 there are well-pleaded factual allegations, a court should assume their veracity and then decide
16 whether they plausibly give rise to an entitlement to relief.” Iqbal, 129 S. Ct. at 1950. “The
17 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
18 possibility that defendant has acted unlawfully.” Id. at 1949.
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However, where a complaint pleads facts that are “merely consistent with” a

20 defendant’s liability, it “stops short of the line between possibility and plausibility of
21 ‘entitlement to relief.’” Id.; see also Twombly, 550 U.S. at 570 (explaining that when a
22 plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [his]
23 complaint must be dismissed”).

Moreover, allegations that amount to no more than a

24 “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements”
25 are insufficient to state a claim. Iqbal, 129 S. Ct. at 1940 (citations omitted).
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With regard to Plaintiff’s other alleged claims, the Court concludes that Plaintiff’s

27 second amended complaint falls short of the pleading requirements of the Rule 8. Plaintiff
28 fails to plead sufficient facts to support any other claims. (Doc. No. 55.) The second amended
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1 complaint alleges that Defendants committed a variety of wrongs against her, but Plaintiff fails
2 to provide any factual bases beyond “defendant-unlawfully-harmed-me” accusations. (Doc.
3 No. 55.) Accordingly, the Court grants Defendants’ motion to dismiss in part without leave
4 to amend with respect to all other of Plaintiff’s claims.
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6 II.

Motion for a More Definite Statement Pursuant to Rule 12(e)

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Rule 12(e) of the Federal Rules of Civil Procedure allows a court to order a more

8 definite statement in response to pleading deficiencies “[i]f a pleading to which a responsive
9 pleading is permitted is so vague or ambiguous that party cannot be reasonably required to
10 frame a responsive pleading.” Fed. R. Civ. P. 12(e). “A motion for a more definite statement
11 is used to provide a remedy for an unintelligable pleading rather than a correction for lack of
12 detail.” N. Cnty. Commc’ns Corp. v. Sprint Commc’ns Co., No. 09-CV-02685 BEN (Wmc),
13 2010 WL 1499289, at *1 (S.D. Cal. Apr. 12, 2010). A Rule 12(e) motion is proper only when
14 the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being
15 asserted. Wilson v. PFC LLC, No. 06-CV-1046-WQH (NLS), 2006 WL 3841517, at *2 (S.D.
16 Cal. Nov. 2, 2006).
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Defendants argue that, in the alternative, the Court should grant their motion for a more

18 definite statement because Plaintiff’s second amended complaint is confusing to the point that
19 Defendants cannot ascertain what claims are being asserted. (Doc. No. 57.) However, in their
20 motion to dismiss, Defendants successfully identify several of Plaintiff’s claims, which leads
21 the Court to conclude that Defendants could reasonably prepare a response to Plaintiff’s
22 second amended complaint. Further facts underlying Plaintiff’s claims may be ascertained
23 through the discovery process. Additionally, Defendants’ arguments regarding these causes
24 of actions are better suited for summary judgment. Because Defendants were able to
25 understand the nature of the claims asserted against them, as demonstrated in their motion, the
26 Court denies Defendants’ motion for a more definite statement pursuant to Rule 12(e).
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1 III.

Motion to Dismiss Pursuant to Rules 12(b)(5) and 12(b)(4)

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The Court lacks jurisdiction over defendants who have not been properly served in

3 accordance with Federal Rule of Civil Procedure 4. S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th
4 Cir. 2007). Therefore, Rules 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure
5 permit a court to dismiss an action for insufficient service of process. Fed. R. Civ. P.
6 12(b)(4)–(5). Rule 12(b)(4) enables the defendant to attack the form of the proof of service,
7 and Rule 12(b)(5) enables the defendant to attack the manner in which service was attempted.
8 Id. When the validity of service is contested, the burden is on the plaintiff to prove that service
9 was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). If the
10 Plaintiff is unable to satisfy this burden, the Court has the discretion to either dismiss the action
11 or retain the action and quash the service of process. Stevens v. Sec. Pac. Nat’l Bank, 538 F.2d
12 1387, 1389 (9th Cir. 1976).
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A.

Original Complaint and First Amended Complaint

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Defendants argue that Defendants Baker and Clugston have never been properly served

16 with any of Plaintiff’s complaints. Service upon an individual may be made by following state
17 law for serving a summons where the district court is located or where service is made. Fed.
18 R. Civ. P. 4(e). Service upon an individual may also be made by delivering a copy of the
19 summons and of the complaint to the individual personally, leaving a copy of each at the
20 individual’s dwelling or usual place of abode with someone of suitable age and discretion who
21 resides there, or delivering a copy of each to an agent authorized by appointment or by law to
22 receive service of process. Id.
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The Court concludes that when attempting to serve the original complaint, Plaintiff did

24 not serve Defendants Baker and Clugston in compliance with Rule 4(e). According to the
25 original complaint’s proof of service, Plaintiff served the on-duty manager at Albertson’s
26 rather than personally serving Defendants Baker or Clugston. (Doc. No. 5.) Additionally,
27 Plaintiff did not serve Defendants Baker or Clugston at their residence or by delivering a copy
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1 California law, which requires personal service attempts prior to leaving a copy of the
2 summons and of the complaint during usual office hours at a plaintiff’s office. Cal. Civ. Proc.
3 Code § 415.20(a).
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In addition, Defendants argue that Plaintiff’s service was improper because Plaintiff

5 failed to serve any summons with the original complaint. According to Rule 4, “[a] summons
6 must be served with a copy of the complaint.” Because the original complaint was allegedly
7 served on September 28, 2011 but the Clerk’s Office did not issue summons until October 13,
8 2011, Plaintiff could not have properly served summons with the complaint. Therefore, the
9 Court concludes that Plaintiff’s service of the original complaint upon Defendants Clugston
10 and Baker was improper.
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With regard to the first amended complaint, it appears from the record that Plaintiff’s

12 proof of service generally states that she served all Defendants by leaving the complaint with
13 the customer service counter at Albertson’s. As stated above, merely leaving a complaint at
14 Defendants’ place of business without attempting personal service is insufficient under Rule
15 4. Therefore, the Court concludes that Defendants Clugston and Baker were improperly and
16 insufficiently served both the original complaint and first amended complaint under Rule 4.
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B.

Second Amended Complaint

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With respect to the second amended complaint, Defendants argue that Plaintiff

20 improperly served Defendants Baker and Clugston by sending a copy of the second amended
21 complaint to defense counsel, who Defendants Baker and Clugston had not yet retained. (Doc.
22 No. 57.) Although Rule 4 contemplates service on an agent authorized by appointment,
23 Defendants Baker and Clugston had not authorized defense counsel to receive service on their
24 behalf. (Doc. No. 57.) Therefore, the Court concludes that Plaintiff failed to properly serve
25 the second amended complaint on Defendants Baker and Clugston. Accordingly, the Court
26 grants Defendants’ motion to dismiss the complaint against Defendants Baker and Clugston.
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Conclusion
For the foregoing reasons, the Court denies Defendants’ motion to dismiss under

3 (12)(b)(6) as to Plaintiff’s wrongful termination, gender discrimination, and Family Medical
4 Leave Act claims. Accordingly, the Court directs Defendants to file an answer to Plaintiff’s
5 second amended complaint on these causes of actions within thirty days. The Court grants
6 Defendants’ motion to dismiss under 12(b)(6) as to all of Plaintiff’s other claims. The Court
7 grants Defendants’ motion to dismiss the complaint against Defendants Baker and Clugston,
8 under Rules 12(b)(4) and 12(b)(5).
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IT IS SO ORDERED.

10 Dated: February 2, 2012
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MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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