McAllister v. Hawaiiana Management Company, Ltd.

Filing 61

ORDER: (1) GRANTING IN PART DEFENDANT AOAO ROYAL CAPITAL PLAZA'S MOTION TO DISMISS 45 ; (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS 39 , 42 ; AND (3) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR SUMMAR Y JUDGMENT 46 . Signed by JUDGE DAVID ALAN EZRA on 1/30/2012. Excerpt of Order: "The Court recognizes that it may be possible for Plaintiff to state a claim for his hostile work environment and IIED claims i f provided the opportunity to amend his Complaint. Plaintiff will therefore have 30 days from the filing of this Order to file and serve an amended complaint...." (afc)CERTIFICATE OF SERVICEParticipants register ed to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on January 31, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIS C. MCALLISTER,

)
)
Plaintiff,
)
)
vs.
)
)
HAWAIIANA MANAGEMENT
)
CO., LTD., and AOAO ROYAL
)
CAPITAL PLAZA
)
)
Defendants.
)
_____________________________ )

CV. NO. 11-00056 DAE-KSC

ORDER: (1) GRANTING IN PART DEFENDANT AOAO ROYAL
CAPITAL PLAZA’S MOTION TO DISMISS;(2) GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION TO DISMISS;
AND (3) DENYING WITHOUT PREJUDICE PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for
disposition without a hearing. After reviewing the motions and supporting
memoranda, the Court: GRANTS IN PART Defendant AOAO Royal Capital
Plaza’s Motion to Dismiss (Doc. # 45); GRANTS IN PART AND DENIES IN
PART Defendants’ Motion to Dismiss (Docs. # 39, 42); and DENIES
WITHOUT PREJUDICE Plaintiff’s Motion for Summary Judgment (“Motion”).
(Doc. # 46.)

BACKGROUND
The instant action stems from allegations that Defendants Hawaiiana
Management Company and AOAO Royal Capital Plaza (collectively,
“Defendants”) unlawfully discriminated and retaliated against Plaintiff Willis C.
McAllister (“Plaintiff”) in violation of Title VII of the Civil Rights Act of 1964
and 42 U.S.C. § 1981.
In December 2008, Plaintiff, who is African-American, was hired as a
full-time security guard at the Royal Capital Plaza (“RCP”) condominium
complex. (“SAC,” Doc. # 38 ¶¶ 1.1, 18.1.) Hawaiiana Management Company
(“HMC”) is the managing agent of the RCP. (Id. ¶ 2.2.) On August 6, 2009,
Defendants terminated Plaintiff. (See id. ¶ 52.1.)
Plaintiff alleges, inter alia, that his supervisors treated his co-workers
more favorably than him in that his supervisors did not investigate his complaints
about certain tenants’ “harassing conduct” toward him, but investigated similar
complaints that “non-African American security guards” made against tenants. (Id.
¶¶ 33.1–33.10; 34.9–34.10; 38.1–38.2.) Plaintiff also alleges that his supervisors
reprimanded him for failing to follow protocol but did not discipline other security
guards for similar conduct. (Id. ¶¶ 42.2; 46.1; 47.2.)

2

On May 12, 2010, Plaintiff filed an EEOC Complaint, asserting that
his termination violated Title VII. (Id. ¶ 3.1.) On October 22, 2010, the EEOC
mailed Plaintiff a Notice of his Right to Sue; Plaintiff received the Notice on
October 26, 2010. (Id. ¶ 3.3.)
PROCEDURAL HISTORY
On January 24, 2011, Plaintiff, proceeding pro se, filed a Complaint
against HMC, alleging, inter alia, violations of Title VII of the Civil Rights Act of
1964.1 (Doc. # 1.) On February 14, 2011, Plaintiff filed an Amended Complaint
against HMC and RCP. (Doc. # 9.) On March 31, 2011, Plaintiff filed a Motion to
Dismiss his Common Law Tort Claims for Negligence. (See Doc. # 15.) The
Court granted Plaintiff’s request on May 13, 2011. (Doc. # 22.)
On July 15, 2011, Plaintiff filed a Motion for Partial Summary
Judgment. (“Mot.,” Doc. # 25.) On August 24, 2011, the Court sua sponte
dismissed Plaintiff’s Complaint without prejudice for failure to comply with
Federal Rule of Civil Procedure 8; denied without prejudice Plaintiff’s Motion for
Partial Summary Judgment as moot; and denied without prejudice Plaintiff’s

1

With his Complaint, Plaintiff filed a Motion for Leave to Proceed in Forma
Pauperis (“IFP Motion”) as well as a Request for Appointment of Counsel
(“Appointment Motion”). (Docs. ## 3, 4.) On January 26, 2011, United States
Magistrate Judge Kevin S.C. Chang denied both the Appointment Motion and the
IFP Motion. (Doc. # 5.)
3

Motions to Strike various Defendants’ declarations and exhibits. (Doc. # 36.) The
Court granted Plaintiff leave to amend within 30 days of the Order. (Id.)
On September 23, 2011, Plaintiff filed a Second Amended Complaint
(“SAC”) against Defendants. (“SAC,” Doc. # 38.) Plaintiff’s SAC alleges causes
of action for: (1) “Hostile Work Environment; Retaliation (Continuing Violation)”;
(2) “Hostile Work Environment; Disparate Treatment-Race (Continuing
Violation)”; (3) “Harassment based on race/Tangible Action (Vicarious Liability)”;
(4) “Hostile Work Environment; Harassment-Race (Continuing Violation)”; and
(5) “Intentional Inflection [sic] of Emotional Distress-Race.” (SAC ¶¶ 5.1–5.5.)
Plaintiff states that he brings claims under both Title VII of the Civil Rights Act of
1964 and 42 U.S.C. § 1981.
On October 13, 2011, Defendants filed the instant Motion to Dismiss
Plaintiff’s Second Amended Complaint with Prejudice. (Doc. # 39.) On October
24, 2011, Plaintiff filed a Memorandum in Opposition to Defendants’ Motion to
Dismiss. (Doc. # 41.) On November 23, 2011, Defendants filed another Motion to
Dismiss Plaintiff’s Second Amended Complaint with Prejudice.2 (Doc. # 42.) On
December 2, 2011, RCP filed a Motion to Dismiss Plaintiff’s Complaint with

2

Defendants’ two motions to dismiss are virtually identical. The Court
treats the Defendants’ Motion filed on October 13, 2011 as the operative motion.
4

Prejudice. (Doc. # 45.) On December 5, 2011, Plaintiff filed an Opposition to the
Defendants’ Three Motions to Dismiss. (Doc. # 50.) On December 7, Plaintiff
filed a Supplemental Filing in Opposition to the Defendants’ Three Motions to
Dismiss. (Doc. # 53.) On January 16, 2012, Defendants filed a Reply. (Doc.
# 57.) On January 16, 2012, RCP filed a Reply. (Doc. # 58.)
On December 2, 2011, Plaintiff filed the instant Motion for Summary
Judgment. (Doc. # 46.) On January 5, 2012, Defendants filed a Memorandum in
Opposition to Plaintiff’s Motion for Summary Judgment. (Doc. # 54.) On January
9, 2012, Plaintiff filed a Reply to Defendant’s Opposition. (Doc. # 56.)
STANDARD OF REVIEW
I.

Federal Rule of Civil Procedure 12(b)(6)
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

(“Rule”), a motion to dismiss will be granted where the plaintiff fails to state a
claim upon which relief can be granted. Review is limited to the contents of the
complaint and matters properly subject to judicial notice. See Colony Cove
Properties, LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011). A complaint
may be dismissed as a matter of law for one of two reasons: “(1) lack of a
cognizable legal theory, or (2) insufficient facts under a cognizable legal claim.”
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984)
5

(citation omitted). Allegations of fact in the complaint must be taken as true and
construed in the light most favorable to the plaintiff. See Livid Holdings Ltd. v.
Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
In providing grounds for relief, however, a plaintiff must do more than recite the
formulaic elements of a cause of action. See id. at 556–57; see also McGlinchy v.
Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (“[C]onclusory allegations
without more are insufficient to defeat a motion to dismiss for failure to state a
claim.”) (citation omitted). “The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions,” and
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations
and citations omitted). Thus, “bare assertions amounting to nothing more than a
formulaic recitation of the elements” of a claim “are not entitled to an assumption
of truth.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[T]he
non-conclusory ‘factual content,’ and reasonable inferences from that content,
must be plausibly suggestive of a claim entitling the plaintiff to relief.”) (internal
quotations and citations omitted).
6

A court looks at whether the facts in the complaint sufficiently state a
“plausible” ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must
include enough facts to raise a reasonable expectation that discovery will reveal
evidence and may not just provide a speculation of a right to relief. Id. at 586.
When a complaint fails to adequately state a claim, such deficiency should be
“exposed at the point of minimum expenditure of time and money by the parties
and the court.” Id. at 558 (citation omitted). If a court dismisses the complaint or
portions thereof, it must consider whether to grant leave to amend. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (finding that leave to amend should be
granted “if it appears at all possible that the plaintiff can correct the defect”)
(internal quotations and citations omitted).
A claim may be dismissed under Rule 12(b)(6) on the ground that it is
barred by the applicable statute of limitations only when “the running of the statute
is apparent on the face of the complaint.” Huynh v. Chase Manhattan Bank, 465
F.3d 992, 997 (9th Cir. 2006). A complaint cannot be dismissed unless it appears
beyond a doubt that the plaintiff can prove no set of facts that would establish the
timeliness of the claim. Conley v. Gibson, 335 U.S. 41 (1957); Pesnell v.
Arsenault, 543 F.3d 1038, 1042 (9th Cir. 2008). A motion to dismiss based only
on the running of the statute of limitations period may be granted “if the assertions
7

of the complaint, read with liberality, would not permit the plaintiff to prove that
the statute was tolled.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204,
1206-07 (9th Cir. 1995) (internal quotations omitted).
II.

Federal Rule of Civil Procedure 8
Federal Rule of Civil Procedure 8 mandates that a complaint include a

“short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that each
allegation “be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint
that is so confusing that its “‘true substance, if any, is well disguised’” may be
dismissed sua sponte for failure to satisfy Rule 8. Hearns v. San Bernardino Police
Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of
Richmond, 417 F.2d 426, 431 (9th Cir. 1969); see also McHenry v. Renne, 84 F.3d
1172, 1180 (9th Cir. 1996) (“Something labeled a complaint but written . . . , prolix
in evidentiary detail, yet without simplicity, conciseness and clarity as to whom
plaintiffs are suing for what wrongs, fails to perform the essential functions of a
complaint.”); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981)
(“A complaint which fails to comply with [Rule 8] may be dismissed with
prejudice[.]”).
Put slightly differently, a complaint may be dismissed for failure to
comply with Rule 8 where it fails to provide the defendants fair notice of the
8

wrongs they have allegedly committed. See McHenry, 84 F.3d at 1178–80
(affirming dismissal of complaint where “one cannot determine from the complaint
who is being sued, for what relief, and on what theory, with enough detail to guide
discovery”); cf. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105 n.4
(9th Cir. 2008) (finding dismissal under Rule 8 was in error where “the complaint
provide[d] fair notice of the wrongs allegedly committed by defendants and [did]
not qualify as overly verbose, confusing, or rambling”). Rule 8 requires more than
“the-defendant-unlawfully-harmed-me accusation[s].” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (internal quotations omitted). Further, “[a] pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do.” Id. (internal quotations omitted). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (internal
quotations omitted). “The propriety of dismissal for failure to comply with Rule 8
does not depend on whether the complaint is wholly without merit.” McHenry, 84
F.3d at 1179.
The court may “begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 129
S. Ct. at 1950. Legal conclusions must be supported by factual allegations. Id.
“When there are well-pleaded factual allegations, a court should assume their
9

veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id.
III.

Rule 12(b)(5)
Rule 12(b)(5) provides for dismissal for insufficient service of

process. When a defendant challenges service, the plaintiff bears the burden of
establishing the validity of service as governed by Federal Rule of Civil Procedure
4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).
IV.

Motion for Summary Judgment
Rule 56 requires summary judgment to be granted when “the

pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Porter v. Cal. Dep’t
of Corr., 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d
1130, 1134 (9th Cir. 2000). A main purpose of summary judgment is to dispose of
factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317,
323–24 (1986).
Summary judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element at trial. See id. at
323. A moving party without the ultimate burden of persuasion at trial—usually,
10

but not always, the defendant—has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment. Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls upon the moving party to identify for the court those “portions of the
materials on file that it believes demonstrate the absence of any genuine issue of
material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323).
Once the moving party has carried its burden under Rule 56, the
nonmoving party “must set forth specific facts showing that there is a genuine
issue for trial” and may not rely on the mere allegations in the pleadings. Porter,
419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)). In setting forth “specific facts,” the nonmoving party may not meet its
burden on a summary judgment motion by making general references to evidence
without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885,
889 (9th Cir. 2003); Local Rule 56.1(f) (“When resolving motions for summary
judgment, the court shall have no independent duty to search and consider any part
of the court record not otherwise referenced in the separate concise statements of
the parties.”). “[A]t least some ‘significant probative evidence’ ” must be
produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v.
11

Cities Serv. Co., 391 U.S. 253, 290 (1968)). “A scintilla of evidence or evidence
that is merely colorable or not significantly probative does not present a genuine
issue of material fact.” Addisu, 198 F.3d at 1134. Further, the Ninth Circuit has
“refused to find a ‘genuine issue’ where the only evidence presented is
‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause, Inc., 90 F.3d
1477, 1481 (9th Cir. 1996)). “Conclusory allegations unsupported by factual data
cannot defeat summary judgment.” Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d
1074, 1078 (9th Cir. 2003).
When “direct evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing summary judgment, “the judge
must assume the truth of the evidence set forth by the nonmoving party with
respect to that fact.” T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence
and inferences must be construed in the light most favorable to the nonmoving
party. Porter, 419 F.3d at 891. The court does not make credibility determinations
or weigh conflicting evidence at the summary judgment stage. Id.; see also Nelson
v. City of Davis, 571 F.3d 924 (9th Cir. 2009) (“[C]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.”) (citations omitted). However, inferences
12

may be drawn from underlying facts not in dispute, as well as from disputed facts
that the judge is required to resolve in favor of the nonmoving party. T.W. Elec.
Serv., 809 F.2d at 631.
DISCUSSION
I.

Royal Capital Plaza’s Motion to Dismiss
RCP argues that Plaintiff’s Title VII claims against it are untimely

because Plaintiff did not name it as a defendant until he filed his First Amended
Complaint on February 14, 2011, after the ninety-day statute of limitations expired.
(Doc. # 45-1 at 4.) Title VII provides a ninety-day period within which to file a
federal action after receipt of an EEOC right-to-sue letter. See 42 U.S.C. § 2000e5(f)(1).
Plaintiff states that the EEOC mailed him a Notice of Right to Sue on
October 22, 2010 and that he received this Notice on October 26, 2010. (SAC
¶ 3.3.) He filed his original Complaint against HMC on January 24, 2011.
Plaintiff does not appear to dispute that he filed his First Amended Complaint
naming both HMC and RCP after the ninety-day Title VII statute of limitations had
expired. However, he cites Federal Rule of Civil Procedure 15(c)(1), which allows
for amended complaints to “relate back” to the date of the original complaint under
certain circumstances.
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The purpose of relation back is “to balance the interests of the
defendant protected by the statute of limitations with the preference expressed in
the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for
resolving disputes on their merits.” Krupski v. Costa Crociere S.p.A., 130 S. Ct.
2485, 2494 (2010). Rule 15(c)(1) provides, in pertinent part, that an amendment to
a pleading relates back to the date of the original pleading when:
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the
original pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s identity.
“That a plaintiff knows of a party’s existence does not preclude her from making a
mistake with respect to that party’s identity. . . . The only question under Rule
15(c)(1)(C)(ii) . . . is whether [the added defendant] knew or should have known
that, absent some mistake, the action would have been brought against him.”
Krupski, 130 S. Ct. at 2494.
Here, Plaintiff has not met his burden of showing that his amended
complaint as to his Title VII claims satisfy the requirements of Rule 15(c)(1)(C).
14

See Brooks v. ComUnity Lending, Inc., 2009 WL 1513397, at *4 (N.D. Cal. May
29, 2009) (“The Rule [15(c)] has been interpreted to mean that for ‘claims asserted
against a new defendant to relate back in time to the original complaint, the
plaintiff must demonstrate . . . that the new party knew or should have known that
the action would have been brought against the party but for a mistake in
identity.”) (citing Bass v. World Wrestling Fed’n Entm’t, Inc., 129 F. Supp. 2d
491, 507–08 (E.D. N.Y. 2001). Although Plaintiff quoted in part the relevant rule
and cited some cases, he does not even attempt to demonstrate, nor are there any
factual allegations suggesting that the requirements of Rule 15(c)(3) have been
satisfied. Therefore, the Court finds that Plaintiff’s Title VII claims against RCP
do not relate back to the original Complaint and that these claims against RCP are
time-barred.
The Court, however, is cognizant that Plaintiff is proceeding pro se.
The Court also cannot say with certainty that further amendment would be futile.
See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969
(9th Cir. 2010) (“[A] complaint cannot be dismissed unless it appears beyond
doubt that the plaintiff can prove no set of facts that would establish the timeliness
of the claim.”) (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1207 (9th
Cir. 1995)). Accordingly, the Court GRANTS RCP’s Motion to Dismiss as to
15

Plaintiff’s Title VII claims and grants Plaintiff leave to amend to address whether
his claims relate back to the original complaint.
II.

Defendants’ Motion to Dismiss
Defendants argue that Plaintiff’s SAC does not comply with Rule 8 or

Rule 12(b)(6). In particular, Defendants assert that the SAC is not “simple, concise
or direct” and is unintelligible. Defendants also argue that Plaintiff’s SAC was
improperly served.
A.

Plaintiff’s Claims
As a preliminary matter, the Court observes that Plaintiff’s SAC is 49

pages long and littered with numerous allegations and facts that are confusing,
repetitive, and irrelevant to his Title VII and Section 1981 claims. The SAC lists
several causes of action on one page, followed by nearly 40 pages of allegations.
However, in considering that Plaintiff is proceeding pro se and in liberally viewing
the SAC in the light most favorable to Plaintiff, as this Court must, the Court finds
that Plaintiff has stated sufficient factual allegations as to two of his claims.
As stated above, Plaintiff’s SAC lists causes of action for: (1) “Hostile
Work Environment; Retaliation (Continuing Violation)”; (2) “Hostile Work
Environment; Disparate Treatment-Race (Continuing Violation)”; (3) “Harassment
based on race/Tangible Action (Vicarious Liability)”; (4) “Hostile Work
16

Environment; Harassment-Race (Continuing Violation)”; and (5) “Intentional
Inflection [sic] of Emotional Distress-Race.” (SAC ¶¶ 5.1–5.5.) In considering
Plaintiff’s SAC and Plaintiff’s Opposition, the Court construes the SAC as alleging
claims for hostile work environment based on racial harassment, disparate
treatment and retaliation in violation of Title VII and 42 U.S.C. § 1981, and
intentional infliction of emotional distress.
1.

Disparate Treatment
Title VII “guarantees employees ‘the right to work in an environment

free from discriminatory intimidation, ridicule, and insult.’” Davis v. Team Elec.
Co., 520 F.3d 1080, 1095 (9th Cir. 2008) (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986)). Section 1981 prohibits discrimination in the
“benefits, privileges, terms and conditions” of employment. 42 U.S.C. § 1981(b);
Surrell v. Calif. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (“When
analyzing § 1981 claims, we apply the same legal principles as those applicable in
a Title VII disparate treatment case.”).
The prima facie elements of a disparate treatment claim under Title
VII and § 1981 are: (1) membership by a plaintiff in a protected class; (2)
satisfaction by the plaintiff of the qualifications for the position in issue; (3) an
adverse employment action; and (4) more favorable treatment of similarly situated
17

individuals outside the plaintiff's protected class. See Davis v. Team Elec. Co.,
520 F.3d 1080, 1089 (9th Cir. 2008); see also Nicholson v. Hyannis Air Serv., Inc.,
580 F.3d 1116, 1123 (9th Cir. 2009); Metoyer v. Chassman, 504 F.3d 919, 930
(9th Cir. 2007) (stating that courts apply “the same legal principles as those
applicable in a Title VII disparate treatment case”) (quoting Fonseca v. Sysco Food
Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 2004)). The Court evaluates
Plaintiff’s SAC in light of this standard to determine whether it contains sufficient
facts that, accepted as true, states a plausible claim. See Washington v. Certainteed
Gypsum, Inc., 2011 WL 3705000, at *5 (D. Nev. Aug. 24, 2011) (citing Sablan v.
A.B. Won Pat Int’l Airport, 2010 WL 5148202, at *4 (D. Guam Dec. 9, 2010)
(“Now, when evaluating employment discrimination complaints in the context of a
Rule 12(b)(6) motion to dismiss, district courts in the Ninth Circuit are proceeding
on the premise that although it may not be necessary that the complaint have facts
constituting all the elements of a prima facie in order to survive the motion to
dismiss, those elements are nonetheless relevant to the court’s analysis of the
sufficiency of the complaint.”).
Here, Plaintiff belongs to a protected class as he is African-American.
See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006)
(African-Americans as protected class). The SAC alleges that he was performing
18

his job satisfactorily and that he was terminated, an adverse employment action.
Plaintiff asserts that a non-African American security guard, whom he refers to as
“EB, utilized personal remarks in his shift report, but was not reprimanded,” while
Plaintiff was reprimanded for the same conduct. (SAC ¶ 29.1.) Plaintiff also
contends that his supervisor did not report EB’s failure to follow protocol
regarding answering the security phone line, but reported Plaintiff’s “alleged
failure to follow protocol on a lost and found wallet.” (Id. ¶¶ 30.1, 46.5.) Viewing
the SAC in the light most favorable to the Plaintiff, the Court finds the allegations
regarding similarly situated individuals sufficient. The Court therefore concludes
that Plaintiff has alleged a disparate treatment claim.
2.

Hostile Work Environment
To establish a prima facie case for a Title VII hostile workplace claim

premised on race, “a plaintiff must show: (1) that he was subjected to verbal or
physical conduct of a racial . . . nature; (2) that the conduct was unwelcome; and
(3) that the conduct was sufficiently severe or pervasive to alter the conditions of
the plaintiff’s employment and create an abusive working environment.” Vasquez
v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003).
“Generally, a plaintiff alleging racial or national origin harassment
would present facts showing that he was subjected to racial epithets in the
19

workplace.” Kang v. U. Lim. America, Inc., 296 F.3d 810, 817 (9th Cir. 2002). A
Plaintiff may also allege facts showing that the abuse occurred because of the
supervisor’s view of his race or national origin. Id.
Here, from what the Court can glean from the SAC, Plaintiff makes
only conclusory allegations that actions against him were based upon his race. The
SAC lacks any allegations that his supervisors even mentioned or alluded to
Plaintiff’s race.
Moreover, the SAC fails to allege conduct that was so severe or
pervasive to alter the conditions of Plaintiff’s employment and create an abusive
work environment. Whether conduct is sufficiently severe or pervasive to violate
Title VII turns on “all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.” Vasquez, 349 F.3d at 642. Additionally,
“[t]he working environment must both subjectively and objectively be perceived as
abusive.” Id. In Vasquez, the Ninth Circuit examined other hostile work
environment cases and determined that the alleged conduct in Vasquez was not
severe or pervasive enough to violate Title VII. Id. at 643. Cases cited by the
court illustrating a hostile work environment include: Draper v. Coeur Rochester,
20

Inc., 147 F.3d 1104 (9th Cir. 1998) (defendant created a hostile work environment
where the plaintiff's supervisor made repeated sexual remarks about the plaintiff
over a two-year period, calling her “gorgeous” and “beautiful” rather than her
name, telling her about his sexual fantasies and his desire to have sex with her,
commenting on her “ass,” and asking over a loudspeaker if she needed help
changing clothes); Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864
(9th Cir. 2001) (defendant created a hostile work environment where a male
employee was subjected to a relentless campaign of insults, name-calling,
vulgarities, and taunts of “faggot” and “fucking female whore” by male co-workers
and supervisors at least once a week and often several times a day). In contrast,
cases where the court did not find a hostile work environment included: Sanchez
v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 1990) (no reasonable jury could have
found a hostile work environment despite allegations that the employer posted a
racially offensive cartoon, made racially offensive slurs, targeted Latinos when
enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate
police backup to Latino officers, and kept illegal personnel files on plaintiffs
because they were Latino); Kortan v. California Youth Authority, 217 F.3d 1104
(9th Cir. 2000) (no hostile work environment when a supervisor called female
employees “castrating bitches,” “Madonnas,” or “Regina” on several occasions in
21

plaintiff’s presence; the supervisor called the plaintiff “Medea”; the plaintiff
complained about other difficulties with that supervisor; and the plaintiff received
letters at home from the supervisor).
In Vasquez, the plaintiff alleged that another employee of a slightly
higher rank told plaintiff that he had “a typical Hispanic macho attitude” and that
he should consider transferring to the field because “Hispanics do good in the
field” in statements more than six months apart, yelled at him twice in front of the
youth plaintiff was supervising, made negative comments to the youth behind his
back, and submitted two memos about plaintiff allegedly containing false
complaints. Id. 642–43.
Here, Plaintiff does not allege sufficient facts demonstrating that any
conduct was severe or pervasive enough to violate Title VII. For example,
Plaintiff makes several allegations of his supervisor’s “taunting and vindictive
campaign” against him by calling him “Assistant” in reference to a “SHAM
promotion” of Plaintiff. (See, e.g., SAC ¶ 39.1.) The Court does not see how this
could be sufficiently abusive, much less create a hostile work environment.
Plaintiff’s other complaints about being reprimanded also do not rise to the level of
the cases cited above.

22

Hostile work environment claims under Title VII contain the same
elements of a § 1981 hostile work environment claim. Johnson v. Riverside
Heathcare System, LP, 534 F.3d 1116, 1122 n.3 (9th Cir. 2008) (“[T]he ‘legal
principles guiding a court in a Title VII dispute apply with equal force in a § 1981
action.’”) (citing Manatt v. Bank of Am., 339 F.3d 792, 797 (9th Cir. 2003)).
Thus, the Court finds that Plaintiff fails to state a claim for hostile work
environment under Title VII and § 1981.
The Court GRANTS Defendants’ Motion as to Plaintiff’s hostile work
environment claims.
3.

Retaliation
To state a claim for retaliation under Title VII, a plaintiff must

establish that: “(1) the employee engaged in a protected activity, (2) she suffered
an adverse employment action, and (3) there was a causal link between the
protected activity and the adverse employment decision.” Davis v. Team Elec.
Co., 520 F.3d 1080, 1093–94 (9th Cir. 2008); Raad v. Fairbanks North Star
Borough School Dist., 323 F.3d 1185, 1197 (9th Cir. 2003). Retaliation claims
asserted under § 1981 are analyzed in the same manner as claims brought under
Title VII. See Surrell, 518 F.3d at 1107–08.

23

An employee’s formal or informal complaints to a supervisor about
unlawful discrimination constitute “protected activity.” See Passantino v. Johnson
& Johnson Consumer Prod., Inc., 212 F.3d 493, 506 (9th Cir. 2000). Meanwhile,
“adverse employment action” has been interpreted to mean “any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity.” Ray v. Henderson, 217 F.3d
1234, 1242–43 (9th Cir. 2000) (adopting the EEOC test for determining whether
an act constitutes an “adverse employment action,” as set forth in EEOC
Compliance Manual Section 8, “Retaliation,” ¶ 8008 (1998)).
To show a causal link between activity protected under Title VII and
retaliation by an employer, a plaintiff must at least raise an inference that the
protected activity was the likely reason for the adverse action and that the
employer was aware the plaintiff had engaged in protected activity. Cohen v. Fred
Meyer, Inc., 686 F.2d 793, 798 (9th Cir. 1982). Courts may infer causation based
on a close temporal proximity between the protected activity and the alleged
violation, but the retaliation must be “fairly soon” after the protected activity.
Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002); see also
Miller v. Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) (prima facie case of

24

causation was established when discharges occurred forty-two and fifty-nine days
after EEOC hearings).
Here, Plaintiff alleges that in June 2009, he complained to property
manager Ralph Ahles about “revengeful differential treatment being directed
towards him,” and that on July 22, 2009, Plaintiff verbally complained to his
supervisor “about comparators being treated better than the Plaintiff.” These
complaints constitute protected activity because they pertain to discriminatory
treatment. Plaintiff was fired August 6, 2009, weeks after Plaintiff claims he
complained to his superiors. Plaintiff has stated a claim for retaliation. Therefore,
the Court DENIES Defendants’ Motion as to this claim.
B.

Intentional Infliction of Emotional Distress (IIED)
Under Hawai‘i law, IIED is an independent tort to be analyzed

separately from other claims. Hac. v. Univ. of Haw., 73 P.3d 46, 60 (Haw. 2003);
Nelson v. Univ. of Haw., 38 P.3d 95, 113 (Haw. 2001). To state a claim for IIED,
Plaintiff must allege sufficient facts to establish: “(1) that the act allegedly causing
the harm was intentional or reckless, (2) that the act was outrageous, and (3) that
the act caused (4) extreme emotional distress to another.” Enoka v. AIG Haw. Ins.
Co., 128 P.3d 850, 872 (Haw. 2006) (citing Hac, 73 P.3d at 60–61).

25

The Supreme Court of Hawai‘i has interpreted the term “outrageous,”
for purposes of an IIED claim, to mean “without just cause or excuse and beyond
all bounds of decency.” Enoka, 129 P.3d at 872 (citing Lee v. Aiu, 936 P.2d 655,
670 n.12 (1997) (internal quotation marks and citations omitted)). “Moreover,
‘extreme emotional distress’ constitutes, inter alia, mental suffering, mental
anguish, nervous shock, and other ‘highly unpleasant mental reactions.’” Id.
(quoting Hac, 73 P.3d at 60).
Courts have found “outrageous” conduct under Hawai‘i law where the
defendant insurance company intentionally misled the plaintiff claimant “in an
attempt to gain and exploit her trust” and “refused to settle the case for what it was
worth,” Young v. Allstate Ins. Co., 198 P.3d 666, 691 (Haw. 2008), and where the
defendant hospital lost the remains of the plaintiff’s infant child, Ritchie v.
Wahiawa General Hospital, 597 F. Supp. 2d 1108, 1112 (D. Haw. 2009). In
contrast, courts have found no outrageous conduct where plaintiff’s supervisor
yelled at her over the phone and criticized her appearance in front of other
employees, Shoppe v. Gucci America, Inc., 14 P.3d 1049, 1068 (Haw. 2000), and
where the defendant insurance company denied plaintiff’s claim based on the
statute of limitations which had not yet expired when plaintiff made her claim for
benefits. Enoka, 128 P.3d at 871–72.
26

Here, from what the Court can gather from the SAC, Plaintiff alleges
that he was the subject of a “SHAM promotion” memo, that he was disciplined for
various conduct that others were not reprimanded for, and that a superior
“rant[ed]” at him while terminating Plaintiff’s employment. In light of the cases
cited above, the Court finds that this conduct does not rise to the level of
“outrageous” or “beyond the bounds of decency.”
As to the extreme emotional distress element, courts have found
extreme emotional distress “where a reasonable [person], normally constituted,
would be unable to adequately cope with the mental stress engendered by the
circumstances of the case,” Shoppe, 14 P.3d at 1068 (internal quotations omitted)
(quoting Rodrigues v. State, 472 P.2d 509, 520) (Haw. 1970)), and where a
plaintiff “suffered unnecessary physical distress, severe shame, anxiety, worry,
mental and emotional distress, fear, loss of time and expenses,” Young, 198 P.3d
at 691–92 (internal quotations omitted).
Here, Plaintiff alleges suffering “severe emotional distress” such as
worry, nausea, and eating and sleeping problems. This appears to sufficiently meet
the extreme emotional distress element, but because the conduct alleged does not
rise to the level of outrageous, the Court finds that Plaintiff’s IIED claim fails.

27

The Court GRANTS Defendants’ Motion as to Plaintiff’s IIED claim,
with leave to amend.
III.

Improper Service
Defendants assert that Plaintiff failed to properly serve the SAC

because it was hand delivered to defense counsel’s office and not directly to
Defendants, and because no summons was served with a copy of the complaint.
(Doc. # 39-1 at 8–9.) Defendants also assert that Plaintiff has failed to provide the
Court with any proof of service. (Id.) Finally, Defendants assert that there is no
evidence that a summons was served with the original Complaint or First Amended
Complaint. (Id.)
In his Opposition, Plaintiff asserts that Defendants have not been
prejudiced by his “serving of his complaints and summons” upon the office of
Defendants’ counsel, which he contends is “the acting ‘REGISTERED AGENT[]’”
for Defendants. (Doc. # 50 at 3.) Plaintiff also cites Rule 4(h)(1)(B), which
provides that a business entity may be served
by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment or
by law to receive service of process and—if the agent is one authorized by
statute and the statute so requires—by also mailing a copy of each to the
defendant[.]
Fed. R. Civ. P. 4(h)(1)(B).

28

“When serving a corporation, Rule 4(h) requires personal service on
someone at the corporation, and service by mail to a general corporate address is
not sufficient.” Belle v. Chase Home Fin. LLC, 2007 WL 1518341, at *3 (S.D.
Cal. May 22, 2007) (citing Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th Cir.
2000) (service on corporation was ineffective “because the summons and
complaint were mailed and not personally served on anyone during the limitations
period.”); see also Pathak v. Omaha, 2011 WL 1152656 at *1 (C.D. Cal. March 28,
2011) (holding that service by certified mail is insufficient under FRCP 4(h)).
Service may also be effected by any method authorized under the law
of the state in which the district court is located or where service is made. Fed. R.
Civ. P. 4(h)(1)(A). Hawaii Rule of Civil Procedure (“HRCP”) 4(d)(3) mandates
service of a corporation in the same manner as FRCP 4(h)(1)(B).
Plaintiff appears to have served a summons with a copy of the original
Complaint. (See Docs. # 2, 7.) However, as far as the Court can determine,
Plaintiff’s Amended Complaint filed on February 14, 2009 and his SAC filed on
September 23, 2001 did not include a summons. On February 16, 2011, Plaintiff
filed with the Court a Proof of Service stating that he mailed via First Class Mail a
copy of his Amended Complaint to Defendants. (Doc. # 11.) The Proof of Service
does not mention, nor does there appear to be, a summons or other document
29

containing information required in a summons.3 Moreover, mailing a copy of a
complaint does not meet the requirements under FRCP 4(h) or HRCP 4(d).
Although the Federal Rules do not expressly define the term “delivery” under Rule
4(h)(1)(B), courts have determined that Rule 4 requires personal service. See
Larsen, 218 F.3d at 868; see also Pathak, 2011 WL 1152656 at *1. HRCP 4(d)(3)
also requires personal delivery of a copy of the summons and complaint to an
individual listed therein. See Wagner v. World Botanical Gardens, Inc., —P.3d—,
2011 WL 6811263 at *6 (Haw. Ct. App. December 23, 2011).
Plaintiff’s SAC filed on September 23, 2011 also suffers from
improper service. In Plaintiff’s Certificate of Service attached to the SAC, Plaintiff
states that he hand delivered a copy of the SAC to Defendants through defense
counsel. (Doc. # 38-3.) Plaintiff attached a one-page “Certificate of Service” at
the end of the SAC, but there also does not appear to be a summons or other
document containing information required in a summons. Defense counsel asserts
that Defendants never waived service, and there is no evidence of a waiver. The
record also does not show any proof of service for the SAC as required by Rule
4(l). See Fed. R. Civ. P. 4(l) (“Unless service is waived, proof of service must be

3

Under Rule 4(a)(1), a summons must, inter alia, be signed by the clerk,
bear the court’s seal, and “notify the defendant that a failure to appear and defend
will result in a default judgment.”
30

made to the court. Except for service by a United states marshal or deputy
marshal, proof must be by the server’s affidavit.”).
For these reasons, the Court concludes that Plaintiff did not properly
serve Defendants. However, the Court has discretion to allow Plaintiff an
extension of time to properly serve Defendants.
Rule 4(c)(1) requires that a plaintiff serve a summons and complaint
“within the time allowed by Rule 4(m)” – that is, within 120 days after the
complaint is filed. Fed. R. Civ. P. 4(c)(1), 4(m). Rule 4(m) states, in relevant part:
If a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
Absent a showing of good cause, courts have discretion to “extend time for service
upon a showing of excusable neglect.” Lemoge v. United States, 587 F.3d 1188,
1198 (9th Cir. 2009) (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). In
making extension decisions under Rule 4(m), a district court may consider factors
“like a statute of limitations bar, prejudice to the defendant, actual notice of a
lawsuit, and eventual service.” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.
2007) (citation omitted).

31

Here, Defendants do not show that they have suffered prejudice as a
result of not being properly served. Defendants had actual notice of Plaintiff’s
complaints, as evidenced by their Motions to Dismiss. The Court therefore orders
Plaintiff to properly serve Defendants with his amended complaint within 30 days
of the filing of this Order.
IV.

Leave to Amend
Pursuant to Rule 15(a)(2), courts should “freely give leave [to amend]

when justice so requires.” “Dismissal without leave to amend is improper unless it
is clear . . . that the complaint could not be saved by an amendment.” Moss v. U.S.
Secret Service, 572 F.3d 962, 792 (9th Cir. 2009). “However, ‘liberality in
granting leave to amend is subject to several limitations.’” Cafasso, U.S. ex rel. v.
Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011) (quoting Ascon
Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)). “Those
limitations include undue prejudice to the opposing party, bad faith by the movant,
futility, and undue delay.” Id. (citing Ascon Props., 866 F.2d at 1160). “Further,
‘[t]he district court's discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.’” Id. (quoting Ascon Props., 866
F.2d at 1160).

32

The Court recognizes that it may be possible for Plaintiff to state a
claim for his hostile work environment and IIED claims if provided the
opportunity to amend his Complaint. Plaintiff will therefore have 30 days from the
filing of this Order to file and serve an amended complaint. The Court notes again
that Plaintiff’s SAC contains a mix of relevant as well as irrelevant and confusing
allegations. The Court therefore urges Plaintiff to—if he chooses to file an
amended complaint—eliminate the extraneous allegations that permeate his SAC.
Plaintiff is again advised that any amended complaint must clearly identify the
specific causes of action alleged and the factual allegations upon which those
claims are based.
The Court will not refer to any previous pleadings to make any
amended complaint complete. Local Rule 10.3 requires that an amended complaint
be complete in itself without reference to any prior pleading. See King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987). Furthermore, as a general rule, an amended
complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57
(9th Cir. 1967). In an amended complaint, each claim and the involvement of
each Defendant must be sufficiently alleged.

33

V.

Summary Judgment Motion
Because the Court is granting Plaintiff leave to amend his SAC, the

Court determines that ruling on Plaintiff’s Motion for Summary Judgment is
premature. Therefore, the Court DENIES WITHOUT PREJUDICE Plaintiff’s
Motion for Summary Judgment.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendant AOAO
Royal Capital Plaza’s Motion to Dismiss as to Plaintiff’s Title VII claims (Doc.
# 45); GRANTS IN PART AND DENIES IN PART Defendants’ Motion to
Dismiss (Docs. # 39, 42); and DENIES WITHOUT PREJUDICE Plaintiff’s
Motion for Summary Judgment (“Motion”). (Doc. # 46.)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 30, 2012.

_____________________________
David Alan Ezra
United States District Judge

McAllister v. Hawaiiana Management Co, Ltd., et al., CV No. 11-00056 DAEBMK; ORDER: (1) GRANTING IN PART DEFENDANT ROYAL CAPITAL
PLAZA’S MOTION TO DISMISS; (2) GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION TO DISMISS; AND(3) DENYING
WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
34