Begley v. County of Kauai, Kauai Police Department
Filing
199
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT RE 111 Motion to Dismiss for Failure to State a Claim. Signed by JUDGE LESLIE E. KOBAYASHI on 01/16/2016. On the basis of the foregoing, Defendant Michael Contrades's Motion to Dismiss Plaintiff's First Amended Complaint Filed May 5, 2017, filed May 23, 2017, is HEREBY GRANTED IN PART AND DENIED IN PART. As to Count II, the Motion is DENIED. The Motion is GRANTED insofar as it seeks dismissal of Count IV, and DENIED insofar as the dismissal is WITHOUT PREJUDICE. Plaintiff has until February 15, 2018 to file a second amended complaint in accordance with this Orde r. The Court CAUTIONS Plaintiff that, if he fails to file his second amended complaint by February 15, 2018, the claims dismissed without prejudice in this Order will be dismissed with prejudice. Plaintiff is only granted leave to address the defects in his claims identified in this Order. To the extent Plaintiff wishes to make other changes, he must file a motion pursuant to Fed. R. Civ. P. 15(a)(2). (eps, )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).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiff,
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vs.
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COUNTY OF KAUAI, KAUAI POLICE )
DEPARTMENT, DARRYL PERRY, ROY )
ASHER, MICHAEL CONTRADES AND )
DOE DEFENDANTS 16-100,
)
)
Defendants.
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_____________________________ )
MARK N. BEGLEY,
CIVIL 16-00350 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS TO DISMISS
PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT
On May 23, 2017, Defendant Michael Contrades, in his
individual capacity (“Contrades”), filed his Motion to Dismiss
Plaintiff’s First Amended Complaint Filed May 5, 2017 (“Contrades
Motion”).
[Dkt. no. 111.]
The Court finds that further briefing
on this matter is not necessary, and this matter is 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 (“Local Rules”).
The Contrades Motion is
hereby granted in part and denied in part for the reasons set
forth below.
BACKGROUND
This action commenced on June 27, 2016, and the First
Amended Complaint was subsequently filed on May 5, 2017.
[Dkt.
nos. 1, 103.]
The facts alleged in Plaintiff’s First Amended
Complaint are set forth fully in this Court’s January 4, 2018
Order Granting in Part and Denying in Part Defendant’s Motions to
Dismiss Portions of Plaintiff’s First Amended Complaint (“1/4/18
Order”).
[Dkt. no. 198.]
Counts II (aiding and abetting
retaliation) and IV (intentional infliction of emotional distress
(“IIED”)) are also alleged against Contrades.
[First Amended
Complaint at ¶¶ 125-28, 134-36; 1/4/18 Order at 3 & n.2.]
The First Amended Complaint alleges that Plaintiff
reported that Defendant Roy Asher, a Kauai Police Department
(“KPD”) Assistant Chief of Police, committed sex discrimination
against Darla Abbatiello (“Abbatiello”), a KPD police officer.
[First Amended Complaint at ¶¶ 37-49.]
This Order only repeats
those allegations pertinent to the Contrades Motion.
Specifically, Plaintiff alleges that, after he reported sex
discrimination: in January and February 2012, Contrades and
Defendant Darryl Perry (“Perry”), Chief of Police, issued orders
to exclude Plaintiff from various briefings (“the Exclusionary
Orders”); on April 2, 2012, Contrades ordered an investigation
against Plaintiff for padding overtime; Perry and Contrades, on
May 14, 2012, scheduled KPD’s Administrative Review Board (“ARB”)
to hear frivolous charges against Plaintiff (“the ARB Hearing
Scheduling”); Contrades was a member of the ARB; Plaintiff
received a letter stating the ARB hearing was postponed (“the
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5/24/12 ARB Postponement Letter”); on June 14, 2012, Contrades
sent Plaintiff a letter stating that, notwithstanding the 5/24/12
ARB Postponement Letter, the disciplinary proceedings against him
were ongoing, and the ARB would notify him of a new hearing date
(“the 6/14/12 ARB Letter”); during June 2013, Contrades issued
twelve new disciplinary notices against Plaintiff, some of which
alleged terminable offenses (“the June 2013 Disciplinary
Notices”); and on December 12, 2014, Perry had Contrades order an
internal investigation against Plaintiff for animal cruelty (“the
Animal Cruelty Investigation”).
Contrades argues that the First Amended Complaint fails
to: 1) allege that Plaintiff engaged in protected activity;
2) state a plausible aiding and abetting retaliation claim; and
3) state a plausible IIED claim.
Further, Contrades argues that
qualified immunity bars the claims against him in his individual
capacity.
DISCUSSION
I.
Plausibility of Count II Against Contrades
For Plaintiff “to establish a prima facie case of
retaliation under federal or state law, [he] must show,” inter
alia, that he “engaged in protected activity.”
See Jura v. Cty.
of Maui, Civ. No. 11-00338 SOM/RLP, 2012 WL 5187845, at *11 (D.
Hawai`i Oct. 17, 2012).
“The requisite degree of proof . . . to
establish a prima facie case is ‘minimal.’”
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Id.
Protected
activity includes “testif[ying] or assist[ing] in any proceeding
respecting [prohibited] discriminatory practices,” Haw. Rev.
Stat. § 378-2(a)(2), such as employment discrimination because of
sex, § 378-2(a)(1)(A).
In order to state a plausible aiding and
abetting retaliation claim, sufficient factual allegations must
be pled to allow a reasonable inference that protected activity
and retaliation occurred.
See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.
A claim has
facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” (citations and internal
quotation marks omitted)).
Here, Plaintiff alleges that he reported to Perry that
Asher “made an inappropriate gesture and comment to . . .
Abbatiello” and that Asher “was unwilling to consider her for [a
promotion] due to a prior complaint she made”; and that “Perry
stated that . . . Asher’s behavior could get KPD sued for ‘big
bucks.’”
[First Amended Complaint at ¶¶ 37-38.]
Plaintiff also
alleges that he verbally informed Perry that Asher created a
hostile work environment, and later wrote a memorandum to
summarize Abbatiello’s allegations.
[Id. at ¶¶ 43, 46.]
The
First Amended Complaint claims retaliation for “reporting a
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female KPD officer’s complaint of sex discrimination and sexual
harassment.”
[Id. at ¶ 118.]
For purposes of a motion to
dismiss, the Court accepts as true all of Plaintiff’s factual
allegations, but does not accept Plaintiff’s legal conclusions.
See Iqbal, 556 U.S. at 678.
Taken as a whole, the First Amended
Complaint alleges sufficient facts to plausibly suggest that
Plaintiff engaged in protected activity by reporting sex
discrimination.
The Contrades Motion is denied insofar as it
argues that a description of the alleged inappropriate comment
and gesture is required for Plaintiff to state a claim for aiding
and abetting retaliation.1
To the extent the Contrades Motion
argues that the merits of Plaintiff’s retaliation claim depend on
the merits of Abbatiello’s sex discrimination claim, the argument
is rejected.
See Aloha Islandair Inc. v. Tseu, 128 F.3d 1301,
1304 (9th Cir. 1997) (“On its face, the Hawaii statute
prohibiting retaliation does not condition the retaliation claim
1
Contrades’s reliance on Jura, [Mem. in Supp. of Contrades
Motion at 6-8,] is misplaced because that case evaluates evidence
under the summary judgment standard. See Jura, 2012 WL 5187845,
at *11-13 (granting motion for summary judgment where evidence
showed the supervisor’s adverse action against the plaintiff was
not because of sex, but because of jealousy and personal
animosity). By contrast, the Fed. R. Civ. P. 12(b)(6)
plausibility requirement “does not . . . ‘impose a probability
requirement at the pleading stage.’ On the contrary, ‘a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.’” Williams v. Yamaha Motor
Co., 851 F.3d 1015, 1025 (9th Cir. 2017) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955 (2007)).
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on the merit of the underlying discrimination claim.”).
Contrades also argues that, even if others retaliated
against Plaintiff, the First Amended Complaint fails to allege
that Contrades coordinated with others to aid or abet their
retaliation.
To support his position, Contrades cites, inter
alia, Park v. Oahu Transit Services, Inc., [Mem. in Supp. of
Contrades Motion at 14,] in which this district court stated:
“the fact that multiple people may have treated Plaintiff poorly,
or even discriminatorily, does not automatically imply that they
aided and abetted each other in doing so.”
See CV No. 10-00445
DAE-KSC, 2011 WL 3490190, at *8 (D. Hawai`i Aug. 10, 2011).
Contrades’s reliance on Park is misplaced because the First
Amended Complaint pleads sufficient facts to support the claim
that Contrades aided or abetted the retaliation committed by
others.
According to Plaintiff, Contrades and Perry scheduled
the ARB to hear frivolous but serious charges, Contrades was a
member of the ARB, and, after the scheduled ARB hearing was
postponed, Contrades issued a letter stating that the
disciplinary proceedings were still ongoing and that a new
hearing date would be set.
77.]
[First Amended Complaint at ¶¶ 70-
As to intent, Plaintiff alleges Contrades previously acted
with Perry to retaliate against him because of his protected
activity when they issued the Exclusionary Orders.
¶¶ 56-57.]
[Id. at
Plaintiff’s allegations plausibly explain how
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Contrades’s conduct assisted Perry in the alleged retaliatory
scheme.
The First Amended Complaint, taken as a whole, alleges
that Contrades coordinated with Perry to use disciplinary
committees and investigations to retaliate against Plaintiff
because of his protected activity.
For the reasons stated in this Court’s 1/4/18 Order,
the allegations regarding the ARB Hearing Scheduling and the
6/14/12 ARB Letter allege substantial assistance to the
retaliatory scheme and plausibly state a claim to relief for
aiding and abetting retaliation.
See 1/4/18 Order, at 14-15
(concluding that the portion of Count II based on the 5/24/12 ARB
Postponement Letter plausibly stated a claim for relief against
Asher).
In addition, the First Amended Complaint alleges that
Contrades assisted the retaliatory scheme through his involvement
in the Exclusionary Orders, and disciplinary actions including
the overtime padding investigation, the June 2013 Disciplinary
Notices, and the Animal Cruelty Investigation.
At this juncture, Plaintiff’s allegations sufficiently
allege that Contrades substantially assisted the retaliatory
scheme, and Count II states a plausible claim for aiding and
abetting retaliation against Contrades.
See id. at 14
(discussing standard for substantial assistance).
The Contrades
Motion is denied insofar as it seeks dismissal of Count II for
failure to state a claim.
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II.
Plausibility of Count IV Against Contrades
The allegations relating to Contrades, except the
Animal Cruelty Investigation, cannot form the basis for an IIED
claim because they are time-barred.2
See 1/4/18 Order at 7
(incidents occurring before June 27, 2014 are untimely as the
basis for IIED claim).
The portion of Plaintiff’s IIED claim
against Contrades based on all incidents other than the Animal
Cruelty Investigation must therefore be dismissed.
For the
reasons stated in the 1/4/18 Order, it is arguably possible for
Plaintiff to cure these defects.
without prejudice.
Dismissal must therefore be
See id. at 11 (citing See Sonoma Cty. Ass’n
of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1118 (9th Cir.
2013) (“As a general rule, dismissal without leave to amend is
improper unless it is clear, upon de novo review, that the
complaint could not be saved by any amendment.” (brackets,
2
The Contrades Motion does not discuss the timeliness of
Count IV. However, district courts may sua sponte consider the
issue of statute of limitations where the defendant has not
waived the defense. Levald, Inc. v. City of Palm Desert, 998
F.2d 680, 687 (9th Cir. 1993). Contrades has not waived the
statute of limitations defense “because he ha[s] not yet filed a
responsive pleading.” See id. Moreover, the district court sua
sponte raising the statute of limitations issue did “not trouble”
the Ninth Circuit in Levald because the plaintiff later “had the
opportunity to present argument on the [issue] before the
district court and on appeal.” Id. Here, Plaintiff has
presented argument on a substantially similar statute of
limitations issue in his memorandum in opposition to Asher’s
motion to dismiss, [filed 9/1/17 (dkt. no. 173)]. Moreover, the
Court is permitting Plaintiff to amend the complaint.
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citation and internal quotation marks omitted))).
Contrades argues that Plaintiff’s IIED claim against
him fails to state a plausible claim for relief.
The elements of
an IIED claim are: “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.”
Young v. Allstate Ins. Co., 119 Hawai`i 403, 429, 198 P.3d 666,
692 (2008).
“The term ‘outrageous’ has been construed to mean
without cause or excuse and beyond all bounds of decency.”
Enoka
v. AIG Hawaii Ins. Co., 109 Hawai`i 537, 559, 128 P.3d 850, 872
(2006) (citation and internal quotation marks omitted)).
“The
question whether the actions of the alleged tortfeasor are
unreasonable or outrageous is for the court in the first
instance, although where reasonable people may differ on that
question it should be left to the jury.”
Young, 119 Hawai`i at
429, 198 P.3d at 692 (citation and quotation marks omitted).
The only non-time-barred portion of Plaintiff’s IIED
claim against Contrades states that KPD received a report that
Plaintiff was committing animal cruelty, and Perry had Contrades
order an investigation.
[First Amended Complaint at ¶¶ 105-107.]
Reasonable minds could not differ on the issue of whether these
allegations constitute conduct that is “without cause or excuse
and beyond all bounds of decency.”
559, 128 P.3d at 872.
See Enoka, 109 Hawai`i at
Even when considered in the context of the
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time-barred incidents, opening an investigation after receiving a
report of animal cruelty does not, as a matter of law, constitute
sufficiently outrageous conduct to support an IIED claim.
Count IV against Contrades must therefore be dismissed.
However,
the dismissal must be without prejudice because it is arguably
possible for Plaintiff to cure the defects in his IIED claims
against Contrades by amendment.
III. Qualified Immunity
To the extent the Contrades Motion seeks dismissal of
Counts II and IV on qualified immunity grounds, it is denied
without prejudice since this Court is permitting Plaintiff to
amend the complaint.
Contrades may revisit this issue after
Plaintiff files his second amended complaint, or after the
deadline to do so has passed.
CONCLUSION
On the basis of the foregoing, Defendant Michael
Contrades’s Motion to Dismiss Plaintiff’s First Amended Complaint
Filed May 5, 2017, filed May 23, 2017, is HEREBY GRANTED IN PART
AND DENIED IN PART.
As to Count II, the Motion is DENIED.
The
Motion is GRANTED insofar as it seeks dismissal of Count IV, and
DENIED insofar as the dismissal is WITHOUT PREJUDICE.
Plaintiff has until February 15, 2018 to file a second
amended complaint in accordance with this Order.
The Court
CAUTIONS Plaintiff that, if he fails to file his second amended
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complaint by February 15, 2018, the claims dismissed without
prejudice in this Order will be dismissed with prejudice.
Plaintiff is only granted leave to address the defects in his
claims identified in this Order.
To the extent Plaintiff wishes
to make other changes, he must file a motion pursuant to Fed. R.
Civ. P. 15(a)(2).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 16, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARK N. BEGLEY VS. COUNTY OF KAUAI, ET AL; CIVIL 16-00350; LEKKJM; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT
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