v. Aris et al

Filing 11

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT FILED APRIL 10, 2013 re: 5 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/14/2013. ~ "This Court HEREBY DISMISSES Plaintiff's Complaint WITHOUT PREJUDICE. The Co urt GRANTS Plaintiff leave to file an amended complaint...by no later than July 16, 2013" (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). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
REBECCA A. ARIS,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII, DEPARTMENT
)
OF EDUCATION; JOHN DOES 1-10, )
DOE ENTITIES 1-10,
)
)
)
Defendant.
_____________________________ )

CIVIL 13-00035 LEK-KSC

ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS COMPLAINT FILED April 10, 2013
Before the Court is Defendant State of Hawai`i,
Department of Education’s (“the DOE”) Motion to Dismiss Complaint
Filed January 18, 2013 (“Motion”), filed on April 10, 2013.
[Dkt. no. 5.]

Plaintiff Rebecca A. Aris (“Plaintiff”) filed her

memorandum in opposition on May 20, 2013, and the DOE filed its
reply on May 28, 2013.

[Dkt. nos. 8, 9.]

The Court finds this

matter suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i.

After careful

consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, the DOE’s Motion is HEREBY
GRANTED for the reasons set forth below.
BACKGROUND
On January 18, 2013, Plaintiff filed the instant action

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000(e) et seq. (“Title VII”).

The Complaint states that her

race and national origin is Filipino.

English is her second

language, and she speaks English with a Filipino accent.
[Complaint at ¶ 7.]

Plaintiff was employed with the DOE for the

majority of the school years from 1983 through 2011.

On or about

January 2001, the DOE hired Plaintiff as a full-time special
education (“SPED”) teacher and assigned her to Waipahu High
School (“Waipahu”).

[Id. at ¶¶ 11-16, 29.]

On or about September 2009, Plaintiff’s duties as a
SPED teacher included accompanying her students to their general
education classes.

According to the Complaint, Plaintiff

observed Tracy Takahashi, a world history teacher who is of
Chinese ancestry, “mock[ing] people of Filipino ancestry by
mockingly using Filipino accents in the classroom 3-4 times per
week, which resulted in the non-Filipino students laughing.”
[Id. at ¶ 19.]
Plaintiff states that she spoke directly to
Ms. Takahashi about the matter, but the mocking continued.
Plaintiff verbally reported the matter to SPED chairpersons,
Nadine Villarmia and Steve Karpinski, and to two Waipahu vice
principals, Gary Chun and Corrine Fujieda, but nothing was done
to address the problem.

Plaintiff also reported the matter to

Mr. Chun in a memorandum dated August 30, 2010 and in a March 24,

2

2011 memorandum that was virtually identical to the August 30,
2010 memorandum.

Mr. Chun did not respond to either memorandum.

[Id. at ¶¶ 19-21.]
In a May 8, 2011 email that Plaintiff sent to Waipahu’s
principal, Keith Hayashi, Mr. Chun, and two other vice
principals, Plaintiff reported a specific incident that occurred
on May 6, 2011, in which Ms. Takahashi mimicked a Filipino accent
during a lesson.

Plaintiff stated that she spoke to Ms.

Takahashi during a recess, but Ms. Takahashi did not stop the
offensive behavior.

Plaintiff’s email mentioned her August 30,

2010 memorandum and her verbal report to Mr. Karpinski.
¶ 22.]

[Id. at

In a May 11, 2011 email, Principal Hayashi stated that he

spoke with Ms. Takahashi, and Ms. Takahashi told him that she
apologized to Plaintiff and the class and that it would not
happen again.

[Id. at ¶ 23.]

Plaintiff responded that same day

and told Principal Hayashi that Ms. Takahashi had not apologized
to her; Ms. Takahashi only apologized to the students.

Plaintiff

reiterated that Ms. Takahashi had been using the mocking Filipino
accent for the last three years and that Plaintiff first reported
the matter to Mr. Chun on August 23, 2010.

Plaintiff also

inquired about corrective action against by Ms. Takahashi.
Principal Hayashi did not respond.

[Id. at ¶ 24.]

On May 19, 2011, Plaintiff filed a complaint with the
DOE’s Office of Civil Rights Compliance (“CRC”).

3

The CRC

complaint alleged race and national origin discrimination and
retaliation.

The same day, the director of the CRC office sent

Plaintiff a letter acknowledging receipt of the CRC complaint and
stating that an investigator would look into the matter.
¶ 25.]

[Id. at

On May 23, 2011, Plaintiff met with the DOE Complex Area

Superintendent Sheldon Oshiro and also provided him with a
written report.

In addition to the events discussed, supra,

Plaintiff’s report stated that she had been targeted after filing
her discrimination complaints.

Area Superintendent Oshiro

prepared a report about the meeting with Plaintiff, but the
report did not discuss the alleged discrimination or retaliation.
[Id. at ¶¶ 26-27.]

On July 25, 2011, Plaintiff met with DOE

Superintendent Kathryn S. Matayoshi and provided her with a
similar written report.
respond.

Superintendent Matayoshi did not

[Id. at ¶ 28.]
Plaintiff alleges that, in retaliation for her reports

of discrimination and retaliation, the DOE: “placed Plaintiff on
a PEP-T on May 11, 2011;” recommended Plaintiff for termination
on May 16, 2011; notified Plaintiff on July 22, 2011 that she was
on Department Directed Leave (“DDL”) from July 26, 2011 to
August 10, 2011; extended her DDL from August 11, 2011 to
August 25, 2011; extended her DDL from August 26, 2011 to
October 17, 2011; and notified her in writing on September 23,
2011 that she was being terminated effective October 5, 2011 “for

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false allegations of alleged ‘performance issues.’”
¶ 29.]

[Id. at

Plaintiff alleges that the DOE violated its anti-

discrimination and anti-retaliation policies.

[Id. at ¶¶ 30-31.]

Plaintiff filed a charge of discrimination (“the
Charge”) with the Equal Employment Opportunity Commission
(“EEOC”) on June 27, 2012, alleging race and national origin
discrimination and retaliation.1
letter on September 26, 2012.2

The EEOC issued a right to sue

Plaintiff states that she filed a

timely complaint in state court on December 6, 2012 but, on
January 18, 2013, the parties stipulated to dismiss the state
court case without prejudice, and Plaintiff filed the instant
action.

[Id. at ¶¶ 33-38.]
The Complaint alleges two Title VII claims - race and

national origin discrimination (“Count I”) and retaliation
(“Count II”).

The Complaint prays for reinstatement,

compensatory and special damages, attorneys’ fees and litigation
expenses, and any other appropriate relief.
I.

Motion
In the instant Motion, the DOE argues that this Court

must dismiss the Complaint because there is no subject matter

1

The Charge is attached to the instant Motion as Exhibit A
to the Declaration of Beth Schimmelfennig (“Schimmelfennig
Declaration”).
2

The right to sue letter is attached to the instant Motion
as Exhibit B to the Schimmelfennig Declaration.
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jurisdiction and, even assuming arguendo that jurisdiction
exists, Plaintiff has failed to state an actionable Title VII
claim.
The DOE argues that this Court lacks subject matter
jurisdiction because Plaintiff failed to bring this action within
ninety days after receipt of the right to sue letter, as required
by 42 U.S.C. § 2000e-5(f)(1).

The fact that Plaintiff timely

filed a complaint in state court is irrelevant because the filing
of that action did not toll the ninety-day requirement.

[Mem. in

Supp. of Motion at 5-6.]
The DOE also argues that Plaintiff failed to file her
Charge alleging hostile work environment in a timely manner.
Plaintiff alleges a hostile work environment based on
Ms. Takahashi’s mocking use of a Filipino accent in September
2009 and on May 6, 2011, but Plaintiff did not file her Charge
until June 27, 2012.

The DOE argues that the September 2009

incident is clearly time barred by several years, but the May 6,
2011 incident was also 479 days before Plaintiff filed the
Charge.

Thus, whether the Court applies the 180-day filing

period for an EEOC charge or the 300-day filing period for state
agency complaints, Plaintiff’s hostile work environment claim is
time-barred.

[Id. at 6-7.]

In addition, the DOE contends that Plaintiff failed to
exhaust her administrative remedies as to her hostile work

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environment claim based on the mocking use of the Filipino accent
because Plaintiff did not specify that allegation in the Charge.
The hostile work environment claim is not like or reasonably
related to the retaliation claim she alleged in the Charge.
Further, even if the hostile work environment claim is like or
reasonably related to Plaintiff’s retaliation claim, Plaintiff’s
failure to bring the hostile work environment claim in a timely
manner constitutes failure to exhaust her administrative
remedies.

[Id. at 8-9.]
Even if this Court concludes that Plaintiff properly

exhausted her administrative remedies and timely filed her
Complaint following the right to sue letter, the DOE argues that
Plaintiff’s Complaint fails to state a claim upon which relief
can be granted.

The DOE therefore urges this Court to dismiss

the Complaint.
II.

Memorandum in Opposition
Plaintiff argues that all of her oral and written

reports about Ms. Takahashi’s conduct, culminating in the Charge,
were protected activities.

She also points to the incidents of

retaliation described in the Complaint and described in her
declaration and supporting documents.

[Mem. in Opp. at 3-4

(citing Mem. in Opp., Decl. of Rebecca Aris, Exhs. H-M).]
Plaintiff argues that her Charge, which she filed pro se, “was
within 300 days of at least two adverse

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actions/harassment/retaliation.”

[Id. at 4-5.]

Although

Plaintiff does not expressly state which two actions she is
referring to, presumably she is referring to the September 23,
2011 notification of her termination, which was effective
October 5, 2011, and the second DDL leave period.
therefore argues that her Charge was timely.

Plaintiff

She further

contends that the instant action was timely filed within ninety
days of receipt of the right to sue letter because: she timely
filed the state court action; the parties stipulated to dismiss
the state court action without prejudice; and she filed this
action on the same day that the state court approved the parties’
stipulation.3

Plaintiff states that the DOE has not identified

any case law supporting its position that the instant action is
untimely.

[Id. at 5.]
Plaintiff also argues that the Complaint sets forth

sufficient factual allegations to state a plausible claim as to
both Count I and Count II.

Plaintiff therefore urges the Court

to deny the Motion.
III. Reply
In its Reply, the DOE first argues that the 180-day
filing period applies, not the 300-day filing period, because
Plaintiff did not file her Charge with the Hawai`i Civil Rights

3

Plaintiff submitted a copy of the stipulation with her
Memorandum in Opposition as Exhibit O to the Declaration of
Counsel.
8

Commission (“HCRC”).

Plaintiff did not mark the box for Fair

Employment Practices Agencies on her EEOC Charge, and therefore
her Charge was not dual filed with the HCRC.

Further, Plaintiff

herself does not mention a HCRC filing either in the Complaint or
in the declaration attached to her Memorandum in Opposition.
Plaintiff failed to file her Charge within 180-days of the last
alleged discriminatory act.

The DOE reiterates that, even if the

300-day filing period applied, Plaintiff’s hostile work
environment claim is based on Ms. Takahashi’s mimicking a
Filipino accent, which last occurred on May 6, 2011, 479 days
before Plaintiff filed the Charge.

[Reply at 2-3.]

The DOE also

contends that Plaintiff did not timely file her Charge as to
Count II.

Even if October 5, 2011, the effective date of

Plaintiff’s termination, is the last adverse action, the filing
date of the Charge was well beyond 180 days from October 5, 2011.
The DOE, however, argues that the relevant date is May 16, 2011,
when Plaintiff learned that Principal Hayashi recommended her for
termination.

Based on that date, Plaintiff’s Charge was untimely

under even the 300-day period.

[Id. at 4-5 (some citations

omitted) (citing Stanley v. Trs. of Cal. State Univ., 433 F.3d
1129, 1136 (9th Cir. 2006)).]
The DOE points out that there is no dispute that
Plaintiff filed the instant action more than ninety days after
the receipt of the right to sue letter.

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The DOE acknowledges

that the failure to comply with the ninety-day period is subject
to equitable tolling, but the DOE argues that tolling is not
warranted in this case, particularly because Plaintiff has not
even argued that equitable tolling applies.

The DOE argues that

the stipulation to dismiss the state court complaint without
prejudice does not make the filing of the Complaint in this
action timely.

The DOE emphasizes that its counsel notified

Plaintiff’s counsel in a January 8, 2013 letter that the
stipulation did not waive the DOE’s timeliness defense if
Plaintiff filed an action in federal court.
id., Decl. of Maria C. Cook, Exh. C).]

[Id. at 5-6 & n.2;

The DOE argues that,

under Ninth Circuit case law, the timely filing of a complaint,
which the plaintiff later dismisses, does not toll or suspend the
ninety-day limitations period.
was without prejudice.

This is so even if the dismissal

[Id. at 6-7 (citing O’Donnell v. Vencor

Inc., 466 F.3d 1104, 1111 (9th Cir. 2006)).]

The DOE also argues

that the Complaint in the instant case does not relate back to
the complaint in the state court action, and Plaintiff has not
set forth any extraordinary grounds that would warrant equitable
tolling, such as an improper purpose by the DOE.

[Id. at 7-8.]

Finally, the DOE reiterates that, even if this Court is
not inclined to dismiss the Complaint based on either the
untimeliness of the Charge or the untimeliness of the Complaint,
this Court must dismiss Plaintiff’s Complaint because it fails to

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state a claim upon which relief can be granted.

The DOE

therefore urges this Court to grant the Motion.
STANDARD
The DOE brings the instant Motion pursuant to Fed. R.
Civ. P. 12(b)(1) and (b)(6).

Rule 12(b)(1) authorizes a district

court to dismiss an action for “lack of subject matter
jurisdiction[.]”

“[T]he party asserting subject matter

jurisdiction has the burden of proving its existence.”
v. United States, 586 F.3d 683, 685 (9th Cir. 2009).

Robinson
This

district court has stated that a Rule 12(b)(1) motion “may (1)
attack the allegations of a pleading as insufficient to confer
subject matter jurisdiction on the court (‘facial attack’) or (2)
‘attack the existence of subject matter jurisdiction in fact’
(‘factual attack’).”

Krakauer v. Indymac Mortg. Servs., Civ. No.

09–00518 ACK–BMK, 2013 WL 704861, at *2 (D. Hawai`i Feb. 26,
2013) (some citations omitted) (quoting Malama Makua v. Rumsfeld,
136 F. Supp. 2d 1155, 1159 (D. Hawai`i 2001)).
Rule 12(b)(6) permits a motion to dismiss a claim for
“failure to state a claim upon which relief can be granted[.]”
Under Rule 12(b)(6), review is generally
limited to the contents of the complaint.
Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir. 2001). . . .
On a Rule 12(b)(6) motion to dismiss,
all allegations of material fact are taken as
true and construed in the light most
favorable to the nonmoving party. Fed’n of
African Am. Contractors v. City of Oakland,
11

96 F.3d 1204, 1207 (9th Cir. 1996). To
survive a motion to dismiss, a complaint must
contain sufficient factual matter to “state a
claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007). “A claim has facial plausibility
when the plaintiff pleads factual content
that allows the court to draw the reasonable
inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal,
--- U.S. ----, 129 S. Ct. 1937, 1949, 173 L.
Ed. 2d 868 (2009). “Threadbare recitals of
the elements of a cause of action, supported
by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at
554, 127 S. Ct. 1955).
Hawaii Motorsports Inv., Inc. v. Clayton Group
Servs., Inc., 693 F. Supp. 2d 1192, 1195-96 (D.
Hawai`i 2010).
This Court, however, notes that the tenet
that the court must accept as true all of the
allegations contained in the complaint — “is
inapplicable to legal conclusions.” Iqbal, 129 S.
Ct. at 1949. Factual allegations that only permit
the court to infer “the mere possibility of
misconduct” do not show that the pleader is
entitled to relief. Id. at 1950.
“Dismissal without leave to amend is improper
unless it is clear that the complaint could not be
saved by any amendment.” Harris v. Amgen, Inc.,
573 F.3d 728, 737 (9th Cir. 2009) (citation and
quotation marks omitted).
Enriquez v. Countrywide Home Loans, FSB, 814 F. Supp. 2d 1042,
1055 (D. Hawai`i 2011) (some citations omitted).
This district court has recognized that:
When a defendant attaches exhibits to a motion to
dismiss, the court ordinarily must convert the
motion into a summary judgment motion so that the
plaintiff has an opportunity to respond. Parrino
v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir.
12

1998). However, a court “may consider evidence on
which the complaint ‘necessarily relies’ if: (1)
the complaint refers to the document; (2) the
document is central to the plaintiff’s claim; and
(3) no party questions the authenticity of the
copy attached to the 12(b)(6) motion.” Marder v.
Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The
court may treat such a document as “part of the
complaint, and thus may assume that its contents
are true for purposes of a motion to dismiss under
Rule 12(b)(6).” United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003).
Yamalov v. Bank of Am. Corp., CV. No. 10–00590 DAE–BMK, 2011 WL
1875901, at *7 n.7 (D. Hawai`i May 16, 2011); see also Fed. R.
Civ. P. 12(b)(6) (“If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary
judgment under Rule 56.

All parties must be given a reasonable

opportunity to present all the material that is pertinent to the
motion.”).
DISCUSSION
I.

Threshold Requirements for Title VII Actions
This district court has recognized that:
“Title VII contains several distinct filing
requirements which a claimant must comply with in
bringing a civil action.” Valenzuela v. Kraft,
Inc., 801 F.2d 1170, 1172 as amended by, 815 F.2d
570 (9th Cir. 1987). To file a claim under Title
VII, a plaintiff must file a complaint with the
EEOC within 180 days of the last discriminatory
act. See Bouman v. Block, 940 F.2d 1211, 1219
(9th Cir. 1991) (citing 42 U.S.C. § 2000e–5(e)).
Moreover, a Title VII action must “be filed within
ninety days from the issuance of the right to sue
letter by the EEOC.” Valenzuela, 801 F.2d at 1172
(citing 42 U.S.C. § 2000e–5(f)(1)).
13

You v. Longs Drugs Stores Cal., LLC, Civil No. 11–00530 SOM/RLP,
2013 WL 1296257, at *8 (D. Hawai`i Mar. 27, 2013).

In work

sharing jurisdictions such as Hawai`i, however, 42 U.S.C. §
2000e–5(e)(1) extends the 180–day filing period to 300–days.
See, e.g., E.E.O.C. v. Global Horizons, Inc., 860 F. Supp. 2d
1172, 1193-94 (D. Hawai`i 2012) (noting that “Hawaii and
California are both ‘worksharing’ states such that administrative
claims filed with the EEOC are deemed ‘dual-filed with the
state’s local agency and vice versa” (citations and footnote
omitted) (emphasis added)).

Further, the Supreme Court held

that, in a Title VII case, “filing a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite
to suit in federal court, but a requirement that, like a statute
of limitations, is subject to waiver, estoppel, and equitable
tolling.”

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393

(1982) (footnote omitted).
At the present time, however, this Court need not
determine which events, if any, Plaintiff timely challenged in
her Charge because Plaintiff failed to file the Complaint in the
instant case within ninety days after receipt of the right to sue
letter.
Plaintiff’s right to sue letter states that it was
mailed on September 26, 2012.

[Schimmelfennig Decl., Exh. B.]

Pursuant to Ninth Circuit law, Plaintiff is presumed to have

14

received the letter three days after mailing, i.e. on
September 29, 2012.

See Turner v. Dep’t of Educ. Hawai`i, 855 F.

Supp. 2d 1155, 1168-69 (D. Hawai`i 2012) (citing Payan v. Aramark
Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1125 (9th Cir. 2007)).
Plaintiff filed her complaint in the state court action within
ninety-days after September 29, 2012, but more than one hundred
days elapsed between September 29, 2012 and the filing of
Plaintiff’s Complaint in the instant action on January 18, 2013.
Plaintiff’s position, as suggested in the Complaint, and
expressly stated in her Memorandum in Opposition, is that this
Court should deem the filing of the instant Complaint to be
timely because Plaintiff filed it on the same day that the state
court case was dismissed without prejudice pursuant to the
parties’ stipulation.

Without more, Plaintiff’s argument fails

as a matter of law.
While equitable tolling can apply to the ninety-day
filing period, this district court has recognized that a
plaintiff “will have to satisfy a high burden to demonstrate that
the ninety-day deadline should be equitably tolled.

‘Equitable

tolling is . . . to be applied only sparingly, and courts have
been generally unforgiving . . . when a late filing is due to
claimant’s failure to exercise due diligence in preserving his
legal rights.’”

Id. at 1169 (alterations in Turner) (some

citations omitted) (quoting Nelmida v. Shelly Eurocars, Inc., 112

15

F.3d 380, 384 (9th Cir. 1997)).
Further, the Ninth Circuit has held that tolling does
not apply when a plaintiff dismisses a timely filed complaint and
later files a new complaint, nor does the second complaint relate
back to the first complaint under Fed. R. Civ. P. 15(c)(2)
because the second complaint is a separate filing, not an
“amendment” of the original complaint.

O’Donnell v. Vencor,

Inc., 465 F.3d 1063, 1066 (9th Cir. 2006).

In O’Donnell, the

Ninth Circuit stated:
In instances where a complaint is timely filed and
later dismissed, the timely filing of the
complaint does not “toll” or suspend the
ninety-day limitations period. See Minnette v.
Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993);
see also Wei v. State of Hawaii, 763 F.2d 370, 372
(9th Cir. 1985) (per curiam). “In such cases,
dismissal of the original suit, even though
labeled as without prejudice, nevertheless may
sound the death knell for the plaintiff’s
underlying cause of action if the sheer passage of
time precludes the prosecution of a new action.”
Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59
(1st Cir. 1998). Contrary to O’Donnell’s
assertion, it is irrelevant that the dismissal of
her first complaint without prejudice was
“involuntary” rather than “voluntary.” See Wei,
763 F.2d at 372; see also 8 James Wm. Moore, et
al., Moore’s Federal Practice § 41.50(7)(b) (3d
ed. 1997).
Id.
Even if this Court liberally construes Plaintiff’s
Complaint as asserting equitable estoppel because she relied on
the stipulation to dismiss the state court action, the factual

16

allegations currently pled in the Complaint are insufficient.
“Equitable estoppel focuses primarily on the
actions taken by the defendant in preventing a
plaintiff from filing suit . . . .” Santa Maria
[v. Pac. Bell], 202 F.3d [1170,] 1176 [(9th Cir.
2000), overruled on other grounds by SocopGonzalez v. I.N.S., 272 F.3d 1176, 1194 (9th Cir.
2001)]. “A finding of equitable estoppel rests on
the consideration of a non-exhaustive list of
factors, including: (1) the plaintiff’s actual and
reasonable reliance on the defendant’s conduct or
representations, (2) evidence of improper purpose
on the part of the defendant, or of the
defendant’s actual or constructive knowledge of
the deceptive nature of its conduct, and (3) the
extent to which the purposes of the limitations
period have been satisfied.” Id. Equitable
estoppel is not warranted here because there is no
“evidence of improper purpose on the part of the
defendant, or of the defendant’s actual or
constructive knowledge of the deceptive nature of
its conduct.” Id.
Id. at 1067 (some alterations in O’Donnell).
The DOE asks this Court to rule that there is no basis
for either equitable tolling or equitable estoppel because the
DOE’s counsel made it clear that, by stipulating to dismiss the
complaint in the state court action, the DOE was not waiving its
right to challenge the timeliness of any complaint Plaintiff
subsequently filed in federal court.

[Reply, Decl. of Maria C.

Cook, Exh. C (letter dated January 8, 2013).]

This Court,

however, declines to consider the January 8, 2013 letter in
ruling on the instant Motion because considering the letter would
require converting the instant Motion into a motion for summary
judgment and allowing Plaintiff to submit responsive evidence.
17

See Yamalov, 2011 WL 1875901, at *7 n.7.
Although it is a close question, this Court cannot say
that it is clear Plaintiff’s Complaint could not be saved by any
amendment.

See Harris, 573 F.3d at 737.

This Court therefore

GRANTS the DOE’s Motion and DISMISSES Plaintiff’s Complaint
WITHOUT PREJUDICE.
II.

Leave to Amend
Insofar as this Court has dismissed Plaintiff’s

Complaint without prejudice, Plaintiff is granted until July 16,
2013 to file an amended complaint addressing the issues discussed
in this Order.

This Court emphasizes that, although a motion to

dismiss is not the proper stage to address the merits of an
equitable tolling and/or equitable estoppel claim, Plaintiff must
plead sufficient facts to raise a plausible argument that
equitable tolling and/or equitable estoppel applies.

This Court

also emphasizes that, as set forth supra, courts sparingly apply
equitable tolling and equitable estoppel.
The Court CAUTIONS Plaintiff that, if she fails to
timely file her amended complaint, the claims which this Court
has dismissed without prejudice will be automatically dismissed
with prejudice.

Further, if Plaintiff’s amended complaint fails

to address the issues identified in this Order, the Court may
dismiss Plaintiff’s claims with prejudice.
This Court emphasizes that Plaintiff is not granted
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leave to add new parties, claims, or theories of liability.

If

Plaintiff wishes to add new parties, claims, or theories of
liability, she must either obtain a stipulation from the DOE or
file a motion seeking leave to amend.

The magistrate judge will

rule upon such a motion in the normal course.

This Court

CAUTIONS Plaintiff that, if she includes new parties, claims, or
theories of liability in the amended complaint without obtaining
either a stipulation or leave from the magistrate judge, the new
parties, claims, or theories of liability may be dismissed with
prejudice.
CONCLUSION
On the basis of the foregoing, the DOE’s Motion to
Dismiss Complaint Filed January 18, 2013, filed April 10, 2013,
is HEREBY GRANTED.

This Court HEREBY DISMISSES Plaintiff’s

Complaint WITHOUT PREJUDICE.

The Court GRANTS Plaintiff leave to

file an amended complaint, pursuant to the terms of this Order,
by no later than July 16, 2013.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, June 14, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

REBECCA A. ARIS V. STATE OF HAWAII, ETC.; CIVIL 13-00035 LEK-KSC;
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COMPLAINT FILED
APRIL 10, 2013

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