Equal Employment Opportunity Commission v. Global Horizons, Inc. et al
Filing
124
ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STAY 109 ; (2) GRANTING DEFENDANTS' MOTIONS TO DISMISS 20 , 22 , 29 , 39 , 46 , 48 , 58 , 59 AND (3) DISMISSING THE FIRST AMENDED COMPLAINT WITHOUT PREJUDICE AS TO THE MOVING DEFENDANTS. Excerpt of order: ~ As to the Motion to Stay (doc 109 ): "[T]he Court hereby DENIES the Motion to Stay with respect to the Moving Defendants and GRANTS the Motion to Stay with resp ect to Defendant Global [Global Horizons, Inc.]. The Court...will revisit the stay if and when Defendant Global files an appearance and moves to lift the stay." Re: Motions to Dismiss: "[T]he FAC [First Amended Complaint] is...DISMI SSED WITHOUT PREJUDICE as to all Moving Defendants with leave to amend no later than forty-five (45) days from the filing of this Order." ~ Signed by JUDGE DAVID ALAN EZRA on 11/2/2011. [Order follows hearing held 10/26/2011 on Moti on to Stay and Motions to Dismiss. Minutes of hearing: doc no. 119 ] (afc)CERTIFICATE OF SERVICEParticipants registered 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 November 3, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
vs.
GLOBAL HORIZONS, INC. D/B/A
GLOBAL HORIZONS
MANPOWER, INC.; CAPTAIN
COOK COFFEE COMPANY LTD.;
DEL MONTE FRESH PRODUCE
(HAWAII), INC.; KAUAI COFFEE
COMPANY, INC.,; KELENA
FARMS, INC.; MAC FARMS OF
HAWAII, LLC N/K/A MF NUT
CO., LLC; MAUI PINEAPPLE
COMPANY, LTD. A/K/A MAUI
PINEAPPLE FARMS;
ALEXANDER & BALDWIN, INC.;
MASSIMO ZANETTI BEVERAGE
USA, INC.; AND DOES 1–15,
INCLUSIVE
Defendants.
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CV. NO. 11-00257 DAE-RLP
ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO STAY; (2) GRANTING DEFENDANTS’ MOTIONS TO DISMISS
AND (3) DISMISSING THE FIRST AMENDED COMPLAINT WITHOUT
PREJUDICE AS TO THE MOVING DEFENDANTS
On October 26, 2011, the Court heard Plaintiff’s Motion to Stay and
Moving Defendants’ Motions to Dismiss. Sue J. Noh, Esq., Michael J. Farrell,
Esq., and Lorena Garcia Bautista, Esq., appeared on behalf of Plaintiff Equal
Employment Opportunity Commission (“Plaintiff” or EEOC”); Amanda Marie
Jones, Esq., and Kristin S. Shigemura, Esq., appeared on behalf of Defendant
Captain Cook Coffee Company Ltd. (“Captain Cook”); David W.H. Chee, Esq.,
appeared on behalf of Defendant Del Monte Fresh Produce (Hawaii) (“Del
Monte”); Gerald L. Maatman, Jr., Esq., and Mark J. Bennet, Esq., appeared on
behalf of Defendant Kauai Coffee Company, Inc. (“Kauai Coffee”); Sarah O.
Wang, Esq., appeared on behalf of Defendant Kelena Farms, Inc. (“Kelena
Farms”); Barbara A. Petrus, Esq., appeared on Behalf of Defendant Mac Farms of
Hawaii, LLC (“Mac Farms”); Christopher S. Yeh, Esq., appeared on behalf of
Maui Pineapple Company, Ltd., (“Maui Pineapple”); and Gerald L. Maatman, Jr.,
Esq., appeared on behalf of Defendants Alexander & Baldwin, Inc. (“A&B”) and
Massimo Zanetti Beverage USA, Inc. (“MZB”). After reviewing the Motions and
the supporting and opposing memoranda, the Court GRANTS IN PART and
DENIES IN PART Plaintiff’s Motion to Stay (Doc. # 109) and GRANTS Captain
Cook, Del Monte, Kauai Coffee, Kelena Farms, Mac Farms, Maui Pineapple,
A&B, and MZB’s (collectively “Moving Defendants”) Motions to Dismiss (Docs.
## 20, 22, 29, 39, 46, 48, 58, 59).
BACKGROUND
I.
Criminal Case
On September 1, 2010, a Grand Jury indicted various employees of
Global Horizons, Inc. (“Global”) on charges of human trafficking. United States v.
Orian et al., No. 10-576 (D. Haw. filed Sept. 1, 2010). A First Superseding
Indictment was issued on January 12, 2011. Id. at Doc. # 112. The individuals
indicted include Global’s CEO Mordechai Orian and former Global employees
Pranee Tubchumpol, Shane Germann, Sam Wongsesanit, Ratawan Chunharutai,
Podjanee Sinchai, Bruce Schwartz, and Joseph Knoller (“Criminal Defendants”).
Id. The criminal matter is set for trial on February 7, 2012.
II.
Civil Case
On April 19, 2011, EEOC filed the instant action for recovery
pursuant to Title VII of the Civil Rights Act of 1964 and Title 1 of the Civil Rights
Act of 1991 to correct allegedly unlawful employment practices on the basis of
national origin, race, and retaliation. Plaintiff claims that Defendants engaged in
discrimination and a pattern or practice of discrimination when they subjected
2
Marut Kongpia, Nookrai Matwiset, Jakarin Phookhien, Mongkol Bootpasa,
Janporn Suradanai, Suthat Promnonsri, Itthi Oa-Sot, and a class of similarly
situated Thai and Asian individuals (collectively “Claimants”) to harassment,
disparate treatment, retaliation, and constructive discharge on the basis of the
Claimants’ national origin and race. (See “FAC,” Doc. # 12.)
The majority of the alleged misconduct stems from the conduct of
Defendant Global Horizons, Inc.1 (“Global”). The First Amended Complaint
(“FAC”) alleges that Global “with the help of the agricultural companies and farms
with which it contracted” engaged in a pattern or practice of misconduct against
Claimants based on their national origin and race. (Id. ¶ 40a.) Specifically,
Plaintiff alleges that “Global targeted economically-vulnerable Asian men from
Thailand” and “promised [them] working conditions that complied with U.S. law
in exchange for exorbitant recruiting fees.” (Id.) Global allegedly “harassed and
intimidated the Claimants on a regular basis” and “threatened the Claimants with
deportation, arrest, suspension, and/or physical violence.” (Id.) According to
Plaintiff, Global “unlawfully confiscated the Claimants’ identification documents”
1
Global has not made an appearance in these proceedings. As the Court
understands, many of Global’s officers and employees now face criminal charges
for the misconduct alleged here. See United States v. Orian, et al., Cr. No 1000675 SOM (D. Haw.).
3
and “subjected the Claimants to uninhabitable housing, insufficient food and
kitchen facilities, inadequate pay, significant gaps in work, visa and certification
violations, suspension, deportation and/or physical violence.” (Id.) These
“intolerable working conditions . . . resulted in constructive discharge.” (Id.)
Plaintiff claims that these conditions created a hostile work environment and that
the Claimants were subject to these conditions because of their national origin and
race. (Id. ¶ 40(a),(b).)
Plaintiff also alleges that when the Claimants complained of the
unlawful employment practices alleged, “Global threatened the Claimants with
deportation, arrest, suspension, and/or physical violence” and “subjected the
Claimants to harassment, significant gaps in work, visa and certification violations,
suspension, deportation, and/or physical violence.” (Id. ¶ 41(a).)
As a result of this alleged misconduct, Plaintiff claims that Global
violated Sections 703(a) and 704(a) of Title VII, 42 U.S.C. §§ 2000e-2(a), 200e3(a). (Id. ¶¶ 40, 41.)
Plaintiff’s theory of liability with respect to the Moving Defendants is
more attenuated. Plaintiff claims that each Moving Defendant, with the exception
of MZB, “has continuously been under contract with Defendant Global for services
rendered in Hawaii, and has continuously been a joint employer with Defendant
4
Global where both generally controlled the terms and conditions of the
employment” of the Claimants.2 (Id. ¶¶ 8, 11, 14, 17, 20, 23, 26.) Plaintiff then
claims that each Moving Defendant “either engaged in, knew of, or should have
known of the unlawful employment practices and pattern or practice of such
unlawful acts” which Plaintiff alleges Global committed. (Id. ¶¶ 42–57.)
III.
Procedural History
On April 19, 2011, Plaintiff filed its initial Complaint. (Doc. # 1.) On
July 15, 2011, Plaintiff filed its First Amended Complaint. (Doc. # 12.) On July
19, 2011, Kauai Coffee filed its Motion to Dismiss. (“Kauai MTD,” Doc.
# 20.) On July 22, 2011, Captain Cook filed its Motion to Dismiss. (“Cook
MTD,” Doc. # 22.) On August 5, 2011, Maui Pineapple filed its Motion to
Dismiss. (“Maui MTD,” Doc. # 29.) On August 8, 2011, Kelena Farms filed its
Motion to Dismiss. (“Kelena MTD,” Doc. # 39.) On August 12, 2011, Mac Farms
filed its Motion to Dismiss. (“Mac MTD,” Doc. # 46.) On August 15, 2011, Del
Monte filed its Motion to Dismiss. (“Del MTD,” Doc. # 48.) On September 6,
2011, Plaintiff filed an Opposition to Kauai Coffee’s Motion to Dismiss (“Kauai
2
Plaintiff’s claim with respect to MZB is derivative of the alleged liability of
Kauai Coffee and A&B because, according to Plaintiff, MZB “acquired certain
assets of Defendant Kauai Coffee, which was formerly a subsidiary of Defendant
[A&B].” (Id. ¶ 29.)
5
Opp’n,” Doc. # 55) and an Opposition to Captain Cook’s Motion to Dismiss
(“Cook Opp’n,” Doc. # 56). On September 7, 2011, the Court issued an Order
unifying the briefing schedule for Moving Defendants’ Motions to Dismiss. (Doc.
# 57.) On September 19, 2011, A&B filed its Motion to Dismiss (“A&B MTD,”
Doc. # 58.) The same day, MZB filed its Motion to Dismiss. (“MZB MTD,” Doc.
# 59.) On September 26, 2011, Plaintiff filed an Opposition to: (1) Maui
Pineapple’s Motion to Dismiss (“Maui Opp’n, Doc. # 64); (2) Mac Farm’s Motion
to Dismiss (“Mac Opp’n,” Doc. # 65); (3) Del Monte’s Motion to Dismiss (“Del
Opp’n,” Doc. # 66); and (4) Kelena Farm’s Motion to Dismiss (“Kelena Opp’n,”
Doc. # 67). The same day, each of the Moving Defendants filed Statements of No
Opposition to each other’s Motions.3 (Docs. ## 68–73.) On October 3, 2011, Mac
Farms filed a Reply in support of its Motion to Dismiss. (“Mac Reply,” Doc.
# 87.) The same day, Maui Pineapple filed a Response in support of its Motion to
Dismiss. (“Maui Reply,” Doc. # 90.) Kauai Coffee, Captain Cook, Del Monte,
3
Mac Farms included in its Statement of No Opposition a discussion of
temporal limitations established by Section 706 and arguably 707 of Title VII.
(Doc. # 68 at 2–9.) This, in turn, prompted the EEOC to file a motion requesting
that this Court either strike Mac Farms’ statement or provide it the opportunity to
file a sur-reply. (Doc. # 95.) On October 13, 2011, the Court denied the EEOC’s
motion because Mac Farms made clear that it was not seeking to raise a new
argument with respect to its own Motion in its Statement of No Opposition. (See
Doc. # 108.)
6
and Kelena Farms also filed their Reply briefs. (“Kauai Reply,” Doc. # 89; “Cook
Reply,” Doc. # 91; “Del Reply,” Doc. # 92; “Kelena Reply,” Doc. # 94.) On
October 5, 2011, Plaintiff filed its Opposition to MZB’s Motion to Dismiss and
A&B’s Motion to Dismiss. (“MZB Opp’n,” Doc. # 96; “A&B Opp’n,” Doc. # 99.)
On October 12, 2011, A&B and MZB filed their Replies.4 (“A&B Opp’n,” Doc.
# 104; “MZB Opp’n,” Doc. # 106.)
On October 20, 2011, EEOC Attorneys Anna Park, Sue Noh, and
Lorena Garcia-Bautista met with U.S. Attorney Florence Nakakuni and Robert J.
Moossy and Daniel H Weiss from the Criminal Section of the U.S. Department of
Justice, Civil Rights Division. (Doc. # 109-2.) The prosecution team asked the
EEOC to file the instant motion to stay this case and to stay discovery pending
resolution of the criminal matter to ensure that the criminal prosecution would not
be frustrated by any abuse of civil discovery in the criminal matter and ultimately
to ensure the public’s interest in the proper prosecution of the criminal matter.
(Id.)
Pursuant to that request, EEOC filed the instant Motion to Stay on
October 21, 2011. (Doc. # 109.) On October 24, 2011, the Moving Defendants
4
A&B, MZB, and Kauai Coffee also filed objections to the exhibits Plaintiff
filed with its Oppositions to their Motions to Dismiss. (See Docs. ## 88, 105,
107.)
7
submitted briefs in Opposition to the Motion to Stay. (Docs. ## 111–112,
113–116.) On October 25, 2011, EEOC filed a Reply in support of its Motion to
stay. (Doc. # 118.)
As of the date of this Order, Defendant Global has not made an
appearance in this action.
STANDARD OF REVIEW
I.
Motion to Stay
“The Constitution does not ordinarily require a stay of civil
proceedings pending the outcome of criminal proceedings.” Keating v. Office of
Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) (citing Fed. Sav. & Loan Ins.
Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989). “In the absence of
substantial prejudice to the rights of the parties involved, simultaneous parallel
civil and criminal proceedings are unobjectionable under our jurisprudence.” Id.
(internal quotation marks and citation omitted). Nonetheless, a Court has the
inherent discretion to stay civil proceedings “when the interests of justice seem to
require such action.” Id. (internal quotation marks and citation omitted).
“The decision whether to stay civil proceedings in the face of a
parallel criminal proceeding should be made ‘in light of the particular
circumstances and competing interests involved in the case.’” Id. (quoting
8
Molinaro, 889 F.2d at 902). In making this determination, the court “should
consider the extent to which the defendant’s fifth amendment rights are
implicated.” Id. (internal quotation marks and citation omitted). Additionally, the
court should generally consider the following factors: (1) the interest of the
plaintiffs in proceeding expeditiously with this litigation or any particular aspect of
it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any
particular aspect of the proceedings may impose on defendants; (3) the
convenience of the court in the management of its cases, and the efficient use of
judicial resources; (4) the interests of persons not parties to the civil litigation; and
(5) the interest of the public in the pending civil and criminal litigation. Id. at 325.
II.
Motions to Dismiss
A.
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. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.
1994). 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.
9
1984) (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).
10
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)).
B.
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 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.
11
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
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]” and “[a] pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do.” Iqbal, 129 S. Ct. at 1949 (citations and 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.
12
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
veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id.
DISCUSSION
I.
Motion to Stay
Plaintiff EEOC moves to stay this action and stay discovery pending
the conclusion of the criminal proceedings involving employees of Defendant
Global. Specifically, EEOC contends that the substantial overlap between the
criminal case and the civil case as well as the opportunity for the Criminal
Defendants to abuse the broad scope of civil discovery to improperly gain
advantage in the criminal proceedings counsel in favor of a stay. The Moving
Defendants, however, oppose the Motion to Stay on the grounds that further delay
of the civil proceedings will unduly prejudice the Moving Defendants and EEOC
has not established that the government will suffer hardship if a stay is denied.
Upon consideration of the Keating factors set forth above, the Court concludes that
13
a stay should be granted with respect to Defendant Global and denied with respect
to the Moving Defendants.
First, there is no indication that the Criminal Defendants’ Fifth
Amendment rights are implicated by the civil proceedings. None of the Criminal
Defendants are named Defendants in the civil action, nor is there any indication
that any of the Criminal Defendants intend to invoke their Fifth Amendment rights.
Further, the only Defendant in this action with whom the Criminal Defendants
have any established ties is Defendant Global, who has not even made an
appearance in this case.5 Thus, the Criminal Defendants’ Fifth Amendment rights
are only potentially implicated by the civil proceedings against Global.
Second, under Keating, the Court must consider “the interest of the
plaintiffs in proceeding expeditiously with this litigation.” Keating, 45 F.3d at
325. However, Keating involved the typical situation where a defendant seeks to
stay the action, thus calling into question the effect of the proposed stay on the
party opposing the stay, i.e., the plaintiffs. Id. at 326. Here, by contrast, it is the
Plaintiff asking for the stay. The relevant inquiry therefore concerns the effect of
the proposed stay on the Defendants.
5
The Court notes that Global was served on July 21, 2011. (Doc. # 26.)
Thus, Global’s responsive pleading was due on August 11, 2011. Fed. R. Civ.
Proc. 12(a)(1)(A). To date, Global has not filed a responsive pleading.
14
The Court finds that the Moving Defendants have a substantial
interest in proceeding expeditiously with this litigation. The allegations in the
FAC involve events that allegedly occurred as far back as 2003, approximately
eight years ago. (FAC ¶¶ 40–57.) At least one of the Moving Defendants contends
that it has since shut down operations and let go of former employees. (Doc.
# 112.) Thus, further delay may preclude the presentation of evidence at trial as a
result of stale memories, the inability to locate witnesses, and lost, inaccessible, or
stale evidence. Additionally, in light of the seriousness of the discrimination
allegations and the substantial publicity surrounding both the civil and criminal
case, the Moving Defendants have a compelling interest in resolving this matter as
soon as possible. Accordingly, the Court finds that the potential prejudice to the
Moving Defendants if this matter were delayed weighs against granting a stay.
Third, the burden that the civil proceedings may impose on the
Criminal Defendants is unclear and speculative at best. Plaintiff contends that the
Criminal Defendants are entitled to avoid having to disclose their defense
strategies in the related civil case. However, since the Criminal Defendants are not
parties to the civil case, there is no reason to believe that they would be forced to
expose their defense strategies in this action. This is particularly true in light of the
fact that Global, the Criminal Defendants’ purported former employer, has not yet
15
made an appearance in this case. Additionally, Plaintiff has not shown that the
Criminal Defendants would be burdened if the civil action were allowed to proceed
with respect to the Moving Defendants, who are not implicated in the criminal
case.
Fourth, with respect to the convenience of the Court in the
management of its cases and the efficient use of judicial resources, Plaintiff
contends that “[i]ssues common to both cases may be resolved in the criminal
proceeding, thereby streamlining the civil action.” (Doc. # 109 at 10.) However,
with respect to the Moving Defendants, the principles of res judicata would not
apply because none of them are parties in the criminal case. Further, Plaintiff does
not identify any issues with respect to the allegations against the Moving
Defendants that will be resolved in the criminal proceeding. Accordingly, the
Court finds that Plaintiff has not shown that staying the case with respect to the
Moving Defendants would not promote judicial efficiency.
With respect to Global, however, the Court observes that there may be
some overlap between the issues surrounding the allegations against Global in the
civil action and the allegations against Global employees in the criminal action.
Nonetheless, since this factor does not clearly way in either direction, the Court
considers it to be neutral with respect to Global.
16
Fifth, as to the interests of persons not parties to the civil action,
Plaintiff argues that the Department of Justice has a strong interest in ensuring that
the criminal prosecution not be frustrated by any abuse of civil discovery in the
criminal matter. However, since Global has not even made an appearance in the
civil action, it is entirely speculative to assert that Global will improperly use the
civil discovery process to support the criminal defense of its personnel. Further,
there is no indication that discovery with respect to the Moving Defendants will
implicate the concerns of the Department of Justice.
As to the sixth and final factor, the public has a clear interest in the
speedy resolution of the civil action. See, e.g., Keating, 45 F.3d at 326 (holding
that any burden on the defendant was “far outweighed by the public interest in a
speedy resolution of the case”). The public also has a strong interest in the proper
prosecution of the Criminal Defendants. However, Plaintiff has failed to
demonstrate that the latter interest would be compromised if a stay were denied.
Accordingly, this factor weighs against granting a stay.
The Court therefore concludes, based on the factors set forth in
Keating, that the stay should be denied with respect to the Moving Defendants.
Simply stated, Plaintiff has not demonstrated any compelling reason for staying
17
these proceedings with respect to the Moving Defendants, who have little, if any,
connection with the criminal proceedings.
With respect to Global, on the other hand, the Court concludes that a
stay is warranted. As a preliminary matter, the Court notes that Global has not
made an appearance in these proceedings or filed an opposition to the Motion to
Stay. Further, the relationship between Global and the Criminal Defendants is
substantially less attenuated. Thus, as discussed above, the Criminal Defendants’
Fifth Amendment rights may be implicated by the civil proceedings against Global.
Accordingly, the Court hereby DENIES the Motion to Stay with
respect to the Moving Defendants and GRANTS the Motion to Stay with respect
to Defendant Global. The Court notes, however, that it will revisit the stay if and
when Defendant Global files an appearance and moves to lift the stay.
II.
Motions to Dismiss
A.
The EEOC and Title VII
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”) prohibits employers from discriminating against an employee based
on race, color, religion, sex, or national origin. Id. § 2000e-2. Title VII also makes
18
it unlawful for an employer to retaliate against an employee because he has taken
an action to enforce his rights under Title VII. Id. § 2000e-3.
The EEOC may assert claims pursuant to §§ 706 and 707 of Title VII,
42 U.S.C. §§ 2000e-5 and 2000e-6. Section 706 allows the EEOC to sue on behalf
of one or more “persons aggrieved” by an unlawful employment practice. 42
U.S.C. § 2000e-5(f). Section 707 allows the EEOC to investigate and act on a
charge of a pattern or practice of discrimination. See id. § 2000e-6.
In order to establish a pattern or practice of discriminatory treatment
under § 707, a plaintiff must show “‘more than the mere occurrence of isolated or
accidental or sporadic discriminatory acts.’” Obrey v. Johnson, 400 F.3d 691, 694
(9th Cir. 2005) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,
336 (1977)). Plaintiff must show that the discrimination was the defendant’s
“‘standard operating procedure-the regular rather than the unusual practice.’” Id.
(quoting Teamsters, 431 U.S. at 336).
The Court finds that Plaintiff has failed to allege sufficient facts in
support of its Title VII theories of liability against the Moving Defendants.
Specifically, the Court finds the FAC lacking sufficient detail with respect to the
employment relationship between each of the Moving Defendants and Claimants.
19
Plaintiff has also insufficiently detailed the Moving Defendants’ alleged wrongful
conduct.
B.
Joint Employer Relationship
1.
Legal Standards
“One of Congress’ objectives in enacting Title VII was ‘to achieve
equality of employment opportunities . . . .’” Adcock v. Chrysler Corp., 166 F.3d
1290, 1292 (9th Cir. 1999) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429
(1971)). Therefore, in order for Title VII protections to apply, “there must be some
connection with an employment relationship.” Anderson v. Pac. Mar. Ass’n, 336
F.3d 924, 930 (9th Cir. 2003) (citing Lutcher v. Musicians Union Local 47, 633
F.2d 880, 883 (9th Cir. 1980)). However, that connection need not necessarily be
direct. Id.; E.E.O. C. v. Pac. Mar. Ass’n., 351 F.3d 1270, 1274 (9th Cir. 2003).
An employer may be held liable under Title VII pursuant to a “joint
employer” theory of liability.6 E.E.O. C., 351 F.3d 1275–77; Torres-Lopez v.
6
To be sure, the joint employer theory of liability is distinct from liability as
an indirect employer. The latter “requires that the employer have ‘some peculiar
control over the employee’s relationship with the direct employer’ and that the
indirect employer engage in ‘discriminatory interference’” with the employees’
relationship with their direct employer. E.E.O. C., 351 F.3d at 1274 (quoting
Anderson, 336 F.3d at 932.) Plaintiff does not appear to allege that the Moving
Defendants are liable as indirect employers. Therefore, the Court need not address
this theory of liability here.
20
May, 111 F.3d 633, 639 (9th Cir. 1997). “Two or more employers may be
considered ‘joint employers’ if both employers control the terms and conditions of
employment of the employee.” E.E.O. C., 351 F.3d at 1275. In joint employer
situations, “no finding of a lack of arm’s length transaction or unity of control or
ownership is required.” Id. at 1276. “[I]t is rather a matter of determining which
of two, or whether both, [alleged employers] control, in the capacity of employer,
the labor relations of a given group of workers.” Id.
To determine whether a joint employment relationship exists, the
Ninth Circuit applies an “economic reality test” that takes into account “all factors
relevant to the particular situation.” Id. at 1275 (citing Bonnette v. California
Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983)). For example, the
Ninth Circuit has considered whether the alleged joint employer (1) supervised the
employee, (2) had the power to hire and fire him, (3) had the power to discipline
him, and (4) supervised, monitored and/or controlled his work site. Id. at 1277.
For purposes of determining whether a joint employment relationship
exists in the agricultural context, the Ninth Circuit has explained that:
a grower’s ownership of farmland is relevant for the obvious reason
that without the land, the worker might not have work, and because a
business that owns or controls the worksite will likely be able to
prevent labor law violations, even if it delegates hiring and
supervisory responsibilities to labor contractors. Similarly, the
21
grower’s investment in equipment and facilities is probative of the
workers’ economic dependence on the person who supplies the
equipment or facilities. Finally, considering whether the farmworkers
perform a line-job integral to the grower’s business is relevant
because a worker who performs a routine task that is a normal and
integral phase of the grower's production is likely to be dependent on
the grower’s overall production process.
Torres-Lopez, 111 F.3d at 640–41 (internal quotation marks and citation omitted).
2.
Allegations
Plaintiff’s allegations in the FAC with respect to the employment
relationship between each of the Moving Defendants (except MZB) and the
Claimants are as follows:
At all relevant times, [the Moving Defendant] has continuously been
under contract with Defendant Global for services rendered in Hawaii,
and has continuously been a joint employer with Defendant Global
where both generally controlled the terms and conditions of the
employment of [the Claimant] and similarly situated individuals.
(Compl. ¶¶ 8, 11, 14, 17, 20, 23, 26.) Plaintiff’s further allege the following with
respect to all of the Moving Defendants:
Defendants Alexander & Baldwin, Inc., Captain Cook, Del Monte,
Kauai Coffee, Kelena Farms, Mac Farms, Maui Pineapple, and
Massimo Zanetti Beverage USA, Inc. (collectively, the “Joint
Employers”) are persons against whom a right to relief is asserted
jointly, severally, or out of the same transaction or series of
transactions. Additionally, questions of law or fact common to all
Defendants will arise in this action. Joint Employers are named as
parties pursuant to Rule 20(a)(2) of the Federal Rules of Civil
Procedure in that Defendant Global and the Joint Employers, at all
22
relevant times, acted as joint employers and/or successors with regard
to the relevant claimants.
(Compl. ¶ 30.) Plaintiff does not offer any specific facts to support its claim that
the Moving Defendants were joint employers. Plaintiff merely alleges, in
conclusory fashion, that each of the Moving Defendants “has continuously been a
joint employer with Defendant Global” and that “both generally controlled the
terms and conditions of the employment.” These bald allegations, without more,
are entirely insufficient to satisfy the basic pleading requirements of Rule 8. See
Iqbal, 129 S. Ct. at 1949 (stating that a complaint that “tenders naked assertions
devoid of further factual enhancement” is insufficient to satisfy Rule 8); see also
McGlinchy, 845 F.2d at 810 (“conclusory allegations without more are insufficient
to defeat a motion to dismiss for failure to state a claim”).
It is true that “[w]hile a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. Plaintiff’s unsubstantiated allegations that each
of the Moving Defendants is a joint employer constitutes no more than a series of
“labels and conclusions.” Indeed, the FAC is completely devoid of any factual
23
allegations regarding the nature of the relationship between each of the Moving
Defendants and the Claimants. For example, the FAC says nothing about whether
the Moving Defendants supervised or monitored the Claimants, whether they had
the power to hire or fire the Claimants, whether they owned the land on which the
Claimants worked, or whether they supplied equipment or facilities for the
Claimants to use. In other words, Plaintiffs do not offer any facts that would
inform an evaluation under the economic realities test.7
Perhaps recognizing these shortcomings, Plaintiff attempts to cure its
pleading deficiencies by providing additional factual allegations regarding the
alleged joint employment relationships in its briefs in opposition to the pending
Motions to Dismiss. Plaintiff also attempts to incorporate into its FAC various
documents purportedly demonstrating the existence of joint employment
relationships. Of course, these allegations and documents cannot be incorporated
into the FAC via an opposition. See Clegg v. Cult Awareness Network, 18 F.3d
752, 754 (9th Cir. 1994) (“[Rule 12(b)(6) [r]eview is limited to the contents of the
7
The Courts notes that with respect to MZB, Plaintiff asserts a theory of
liability that is derivative to that of Defendants A&B and Kauai Coffee. (Compl. ¶
29.) Accordingly, to the extent that the Claimants’ relationship with MZB is more
attenuated than their relationship with the other Moving Defendants, establishing
the requisite employment relationship with respect to MZB may require further
factual allegations those necessary to establish a tenable theory of liability as to the
other Moving Defendants.
24
complaint.”); BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., 780 F. Supp. 2d
1061, 1075 n.10 (D. Haw. 2011) (citing Zimmerman v. PepsiCo. 836 F.2d 173,
181 (3d. Cir. 1988) (“It is axiomatic that the complaint may not be amended by the
briefs in opposition to a motion to dismiss.”)). Accordingly, the Court does not
consider them in assessing whether the FAC states a plausible claim for relief
under Title VII.
Moreover, the Court rejects Plaintiff’s contention that certain exhibits
attached to its Opposition briefs can be considered under the doctrine of
incorporation by reference. In ruling on a motion to dismiss under Rule 12(b)(6), a
court may consider documents that are not physically attached to the complaint
only if the documents’ authenticity is not contested and the plaintiff’s complaint
necessarily relies on them. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038
(9th Cir. 2010); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
But see United States v. Ritchie, 342 F.3d 903, 908–09 (9th Cir. 2003) (holding
that mere mention of the existence of a document is insufficient to incorporate by
reference the contents of a document). None of the documents submitted by
Plaintiff satisfy this criteria.
Since the allegations in the FAC are insufficient to demonstrate the
existence of an employment relationship between each of the Moving Defendants
25
and the Claimants, Plaintiff has failed to state a claim under Title VII against
Moving Defendants.
C.
Alleged Wrongful Conduct
In the FAC, Plaintiff alleges causes of action against each Moving
Defendant for employment discrimination, hostile work environment, constructive
discharge and retaliation. (FAC ¶¶ 42–57.) The factual allegations of Moving
Defendants’ underlying misconduct is insufficient to sustain these claims.
1.
Legal Standards
In order to state a claim for unlawful employment discrimination
under Title VII, a plaintiff must show: (1) that they belong to a class of persons
protected by Title VII; (2) that the plaintiffs were qualified for their positions and
performing their jobs satisfactorily; (3) that they experienced adverse employment
actions; and (4) that similarly situated individuals outside of their protected class
were treated more favorably, or other circumstances surrounding the adverse
employment action giving rise to an inference of discrimination. Hawn v.
Executive Jet Management, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (citing
Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
26
In addition to prohibiting unlawful employment discrimination, 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)). An employer is liable under Title VII for conduct giving rise
to a hostile work environment “where the employee proves (1) that he was
subjected to verbal or physical conduct of a harassing nature, (2) that this conduct
was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.” Swinton v. Potomac Corp., 270 F.3d 794, 807 (9th Cir. 2001)
(quoting Pavon v. Swift Transp. Co., 192 F.3d 902, 908 (9th Cir. 1999)).
An employer may also be held liable under Title VII for constructive
discharge. Penn. State Police v. Suders, 542 U.S. 129, 143 (2004). A constructive
discharge claim requires some aggravating factors beyond those required for a
hostile work environment claim. Brooks v. City of San Mateo, 229 F.3d 917,
930–31 (2000). To state a claim for constructive discharge under Title VII, a
plaintiff must show that “the working conditions [had] become so intolerable that a
reasonable person in the employee’s position would have felt compelled to resign.”
27
Penn. State Police, 542 U.S. at 130; see also Hardage v. CBS Broadcasting, Inc.,
427 F.3d 1177, 1184 (9th Cir. 2005).
To state a claim for retaliation under Title VII, a plaintiff must
demonstrate 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). Conduct constituting
a “protected activity” includes filing a charge or complaint, testifying about an
employer’s alleged unlawful practices, and “engaging in other activity intended to
oppose an employer’s discriminatory practices.” Raad, 323 F.3d at 1197 (citing 42
U.S.C. § 2000e3(a)) (internal quotations omitted). 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)).
28
2.
Allegations
Plaintiff’s allegations of Moving Defendants’ misconduct are
insufficient to support its claims of employment discrimination, hostile work
environment, and retaliation. Plaintiff alleges that each Moving Defendant
either engaged in, knew or should have known of the unlawful
employment practices and pattern or practice of such unlawful acts
alleged [with respect to Global] that occurred at or around its Hawaii
location and/or Global’s California location[.]
(FAC ¶¶ 42–57.)
This bald assertion with respect to each Moving Defendant is wholly
insufficient to survive Moving Defendants’ Motions to Dismiss. As a preliminary
matter, it is unclear to the Court whether each Moving Defendant either engaged
in, knew, or should have known of the misconduct Plaintiff alleged Global
committed. For instance, did Del Monte engage in the misconduct? Was Del
Monte aware that the misconduct happened? Or should Del Monte merely have
known that Global was engaging in this misconduct. The same question can be
posited with respect to each Moving Defendant. Neither the Court nor Moving
Defendants are required to speculate as to the misconduct in which Plaintiff alleges
Moving Defendants engaged. See McHenry, 84 F.3d at 1178–80 (affirming
dismissal of complaint where “one cannot determine from the complaint who is
29
being sued, for what relief, and on what theory, with enough detail to guide
discovery”); Sakugawa v. Countrywide Bank F.S.B., 769 F. Supp. 2d 1211,
1221(D. Haw. 2011) (“Although FRCP Rule 8 requires only that a complaint
include a ‘short and plain statement of the claims showing that the pleader is
entitled to relief,’ the complaint must sufficiently put Defendants on fair notice of
the claim asserted and the ground upon which it rests. [Neither] Defendants, nor
the Court, are required to speculate . . . .”).
Moreover, Plaintiff has provided no facts in the FAC to flesh out this
allegation. For instance, to what extent and under what circumstances did the
Moving Defendants engage in the misconduct that Plaintiff alleged against Global.
Similarly, assuming a Moving Defendant should have known about Global’s
misconduct, it is unclear: (1) what specifically they should have known; (2) why
should they have known it; and (3) how they could have known it. In other words,
there is a complete paucity of factual allegations in the FAC supporting the
allegations that Moving Defendants “engaged in, knew, or should have known of
the unlawful employment practices.” This thread-bare allegation is insufficient to
withstand Moving Defendants’ Motions to Dismiss. McGlinchy, 845 F.2d at 810
(“[C]onclusory allegations without more are insufficient to defeat a motion to
dismiss for failure to state a claim.”). Plaintiff has not even alleged a formulaic
30
recitation of the elements of a cause of action, though even if it had, that also
would be insufficient. Iqbal, 129 S. Ct. at 1949 (“A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not
do.” (citations and quotations omitted)).
The Court notes that Plaintiff’s failure to sufficiently allege that
Moving Defendants’ engaged in any wrongdoing relates closely to Plaintiff’s
failure to allege the nature of the employment relationship between Global,
Claimants, and Moving Defendants. Specifically, the degree to which Plaintiff
must allege the facts and circumstances relating to Moving Defendants’
misconduct will depend on the nature of the allegations with respect to the joint
employment relationship.8 As it stands, because this Court does not have any
factual allegations before it with respect to the nature of the employment
relationship between Global, Claimants, and Moving Defendants, the Court can
8
The Court notes that it is not currently in a position to speak to the
sufficiency of the misconduct alleged against Global in the FAC. Global has not
made an appearance in these proceedings, and Moving Defendants have not
demonstrated to this Court that they have standing to seek dismissal of the claims
against Global on Global’s behalf.
31
only conclude that the allegations of misconduct against Moving Defendants are
insufficient.9
D.
Statute of Limitations
Plaintiff asserts its claims pursuant to §§ 706 and 707 of Title VII, 42
U.S.C. §§ 2000e-5 and 2000e-6. (FAC ¶ 1 (“This action is authorized and
instituted pursuant to Sections 706(f)(1) and (3) and 707 of Title VII of the Civil
Rights Acts of 1964.”).) Section 706 allows the EEOC to sue on behalf of one or
more “persons aggrieved” by an unlawful employment practice. 42 U.S.C.
§ 2000e-5(f). Pursuant to § 706, the aggrieved individual must first file a charge
with the EEOC within 180 days “after the alleged unlawful employment practice
occurred.” See id. § 2000e-5(e)(1). Alternatively, the aggrieved individual may
file a charge within 300 days after the alleged unlawful employment practice
occurred if “the person aggrieved has initially instituted proceedings with a State
or local agency with authority to grant or seek relief from such practice or to
institute criminal proceedings with respect thereto.” Id.
Section 707 allows the EEOC to investigate and act on a charge of a
pattern or practice of discrimination. See id. § 2000e-6. Subsection (e) of § 707,
9
The Court notes that once again, Plaintiff seemingly attempts to amend the
FAC in its Oppositions to the Motions for Summary Judgment. This is not
permitted. See BlueEarth Biofuels, 780 F. Supp. 2d at 1075 n.10.
32
entitled “Investigation and action by Commission pursuant to filing of charge of
discrimination,” provides that “the [EEOC] shall have authority to investigate and
act on a charge of a pattern or practice of discrimination, whether filed by or on
behalf of a person claiming to be aggrieved by a member of the Commission. All
such actions shall be conducted in accordance with the procedures set forth in
[Section 706.]” Id. § 2000e-6(e) (emphasis added).
Many of the Moving Defendants in their Motions argue that the scope
of the alleged misconduct for which they are purported to be liable should be
temporally limited to the 180 days prior to the Claimants filing with the EEOC.
Specifically, the Moving Defendants claim that because § 707 states that “[a]ll
such actions shall be conducted in accordance with” the procedures of § 706, the
requirement stated in § 706 that states a claimant must file within 180 days of the
alleged misconduct should also be imputed to causes of action instituted by § 707.
(See Kauai Mot. at 18–29; Maui Mot. at 17–18; Kelena Mot. at 23–26; De Mot. at
19–22; A&B Mot. at 25–34; MZB Mot. at 26–34.) Although the Court has already
outlined sufficient rational to grant Moving Defendants’ Motions to Dismiss, the
Court wants to be clear that Moving Defendants’ argument that the 180/300 day
time limits described in § 706 applies to § 707 is not persuasive.
33
As a preliminary matter, it is self-evident that to the extent Plaintiff
alleges theories of liability pursuant to § 706, the Claimants must have filed their
charges with the EEOC within 180 days of the alleged employer misconduct; the
statute is clear in that regard. Plaintiff does not dispute this in any one of its
myriad Oppositions.10
The Court is not persuaded, however, that the time limitation
described in § 706 is applicable to § 707. While the Court acknowledges that
10
It is worthy of note, however, that the “Continuing Violations Doctrine”
may save some of Plaintiff’s theories of liability brought pursuant to § 706. This
doctrine provides an exception to the statute of limitations for certain types of
claims, specifically those that “cannot be said to occur on any particular day” and
may have occurred, in part, outside of the time limitation period. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). For instance, alleged
employment misconduct which gives rise to a hostile work environment claim
“cannot be said to occur on any particular day. [Instead,] it occurs over a series of
days or perhaps years.” Id. at 116. Thus a claim for a hostile work environment
may be tenable notwithstanding that some of the alleged misconduct occurred prior
to the 180/300 day period, provided that “at least one act falls within the time
period.” Id. at 127; see also Stanley v. Trustees of Cal. State. Univ., 433 F.3d
1129, 1136 (9th Cir. 2006); Cherorsky v. Henderson, 330 F.3d 1243, 1246 (9th
Cir. 2003); Kang v. U. Lim America, Inc., 296 F.3d 810, 818 (9th Cir. 2002). By
contrast, “[d]iscrete acts, such as termination, failure to promote, denial of transfer,
or refusal to hire are easy to identify.” Morgan, 536 U.S. at 114. Accordingly,
“discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.” Id. at 113; see also Stanley, 433
F.3d at 1136. However, since Plaintiff’s FAC is so factually deficient, the Court
cannot determine which, if any, of its factual allegations would be saved by the
“continuing violations doctrine” and which allegations relate to “discrete acts”
such that the time period in § 706 would operate to bar them.
34
district courts across the country have split on this issue, this Court has already
determined that the time limitation in § 706 is not applicable to § 707. In EEOC v.
Scolari Warehouse Markets, Inc., 488 F. Supp. 2d 1117 (D. Nev. 2007), this Court
held as follows:
The EEOC is the only federal law enforcement agency that may
pursue pattern-or-practice claims against private entities. See 42
U.S.C. § 2000e-6 (pattern-or-practice claims commonly are referred
to as “707 cases” because authority is derived from § 707 of Title
VII). Unlike private litigants, a statute of limitations does not apply
when the EEOC brings a pattern-or-practice suit. See 42 U.S.C. §
2000e-6; see also Mitsubishi, 990 F. Supp. at 1083–84 (commenting
that 707 claims do not contain a statute of limitations for
pattern-or-practice cases initiated by a Commissioner's charge); U.S.
v. Fresno Unified School Dist., 592 F.2d 1088, 1096 n.5 (9th Cir.
1979) (noting, indirectly, that statute of limitations for 707 claims may
be illogical because there is no certain date from which the limitations
period could run). See generally Federal Procedure, Lawyer’s Edition
§ 50-633 (1997) (“There is [] no statute of limitations under Title VII
for pattern-or-practice suits brought by the EEOC.”).
Id. at 1136 (footnote omitted).
Moving Defendants have provided this Court with no persuasive
argument as to why it should now conclude differently. For instance, Moving
Defendants assert that the “plain text” suggests that the limitation period should be
imported to § 707. (See Kauai Mot. at 18–29; Maui Mot. at 17–18; Kelena Mot. at
23–26; De Mot. at 19–22; A&B Mot. at 25–34; MZB Mot. at 28–29.) A plain
reading of the text, however, suggests to the Court that the “actions” referenced in
35
§ 707 relate to the EEOC’s “authority to investigate and act on a charge of a
pattern or practice of discrimination.” Id. § 2000e-6(e). This conclusion is
bolstered by the fact that subsection (e) is entitled “Investigation and action by
Commission pursuant to filing of charge of discrimination.” Id. This suggests that
the “actions” referred to in the subsection is the “action by Commission” and not
any action which must be performed by a claimant. Nowhere in § 707 is there any
mention of the time period in which a claimant must file a complaint with the
EEOC. “If the plain meaning of the statute is unambiguous, that meaning is
controlling and we need not examine legislative history as an aid to interpretation
unless the legislative history clearly indicates that Congress meant something other
than what it said.” Washington v. Chimel Innolux Corp., ---F.3d---, 2011 WL
4543086, at * 2 (9th Cir. Oct. 3, 2011) (internal quotation marks and citations
omitted). Here there is no indication that “Congress meant something other than
what it said.” The Court therefore concludes, as it did in Scolari, that “a statute of
limitations does not apply when the EEOC brings a pattern-or-practice suit.” 488
F. Supp. 2d at 1136. Moving Defendants’ arguments to the contrary are without
merit.
36
E.
Rule 10(b)
Finally, many of the Moving Defendants request that the Court
dismiss the FAC for failing to comply with Rule 10(b). (Kauai Mot. at 30; A&B
Mot. at 34; MZB Mot. at 34.) This rule provides:
(b) Paragraphs; Separate Statements. A party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to
a single set of circumstances. A later pleading may refer by number to
a paragraph in an earlier pleading. If doing so would promote clarity,
each claim founded on a separate transaction or occurrence--and each
defense other than a denial--must be stated in a separate count or
defense.
Fed. R. Civ. P. 10(b). The Court does not here grant the Moving Defendants’
Motions on these grounds. Nevertheless, the Court notes that it would certainly
“promote clarity” if Plaintiff separated its multiple causes of action into distinct
counts rather than stringing together sixty-one paragraphs without meaningful
delineation between them and directs Plaintiff to do so if it chooses to file an
amended complaint pursuant to this Order.
F.
Dismissal Without Prejudice
Pursuant to Rule 15(a)(2), courts should “freely give leave [to amend]
when justice so requires.” Further, “requests for leave should be granted with
extreme liberality.” Moss v. U.S. Secret Service, 572 F.3d 962, 792 (9th Cir.
2009). “Dismissal without leave to amend is improper unless it is clear . . . that the
37
complaint could not be saved by an amendment.” Id. “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).
The Court recognizes that it may be possible for Plaintiff to state a
claim if provided the opportunity to amend. The FAC is therefore DISMISSED
WITHOUT PREJUDICE as to all Moving Defendants with leave to amend no
later than forty-five (45) days from the filing of this Order.
CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and
DENIES IN PART Plaintiff’s Motion to Stay (Doc. # 109) and GRANTS Captain
Cook, Del Monte, Kauai Coffee, Kelena Farms, Mac Farms, Maui Pineapple,
38
A&B, and MZB’s (collectively “Moving Defendants”) Motions to Dismiss (Docs.
## 20, 22, 29, 39, 46, 48, 58, 59).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 2, 2011.
_____________________________
David Alan Ezra
United States District Judge
EEOC v. Global Horizons, Inc., et al, Cv. No. 11-00258 DAE-RLP; (1)
GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO
STAY; (2) GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND (3)
DISMISSING THE FIRST AMENDED COMPLAINT WITHOUT PREJUDICE
AS TO THE MOVING DEFENDANTS
39
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