McAllister v. Adecco Group N.A. et al

Filing 223

ORDER DENYING PLAINTIFF'S APPEAL 204 AND AFFIRMING MAGISTRATE JUDGE'S MAY 10, 2017 ORDER 188 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 6/29/2017. (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 were served by first class mail on the date of this docket entry

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

Civ. No. 16-00447 JMS-KJM
ORDER DENYING PLAINTIFF’S
APPEAL AND AFFIRMING
MAGISTRATE JUDGE’S MAY 10,
2017 ORDER

Plaintiff,
vs.
ADECCO USA INC.; ET AL.,
Defendants.

ORDER DENYING PLAINTIFF’S APPEAL AND AFFIRMING
MAGISTRATE JUDGE’S MAY 10, 2017 ORDER
I. INTRODUCTION
Pro se Plaintiff Willis C. McAllister (“Plaintiff”) appeals Magistrate
Judge Kenneth J. Mansfield’s May 10, 2017 “Order Denying Plaintiff’s Revised
Motion for Leave to File Second Amended Complaint” (the “May 10 Order”), ECF
No. 188. Because the May 10 Order is neither clearly erroneous nor contrary to
law, Plaintiff’s Appeal is DENIED, and the May 10 Order is AFFIRMED.
II. BACKGROUND
On August 9, 2016, Plaintiff filed a “Complaint for Employment
Discrimination,” ECF No. 1, and a document titled “Plaintiff’s Original
Complaint,” ECF No. 2 (collectively, the “Complaint”), alleging race
discrimination claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. On February 9, 2017, this
court dismissed the § 1981 claims asserted against Defendant Trane U.S., Inc.
(“Trane”), and granted Plaintiff leave to amend (the “February 9 Order”). ECF
No. 188. The February 9 Order provided that “[a]n amended complaint may not
add any new parties or claims.” Id. at 7.
On March 10, 2017, Plaintiff filed a First Amended Complaint
(“FAC”) adding new defendants -- Adecco Group A.G.; Ingersoll Rand, Inc.
(“Ingersoll Rand”); and Shawna Q. Huddy (“Huddy”). ECF No. 117. On March
15, 2017, the court struck these new defendants and advised Plaintiff that “[i]f [he]
wishes to add new parties and/or claims, he must first seek leave in accordance
with Federal Rule of Civil Procedure 15.” ECF No. 126 at 3. On March 22, 2017,
Plaintiff filed a Revised Motion for Leave to File Second Amended Complaint
(“SAC”). 1 ECF No. 147. The proposed SAC sought leave to add the three
defendants previously stricken (collectively, the “Proposed Defendants”). Id. at 2.
The May 10 Order denied with prejudice Plaintiff’s Revised Motion
to the extent it sought to assert Title VII claims against the Proposed Defendants.
See ECF No. 188 at 7, 10. The magistrate judge ruled that Plaintiff’s Title VII

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Plaintiff’s initial motion seeking leave to file a second amended complaint, ECF No.
128, was denied without prejudice for failure to reproduce the entire proposed amended pleading
as required by Rule 10.3 of the Local Rules of Practice for the United States District Court for
the District of Hawaii (“LR”). ECF No. 135.
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claims are futile because they are time-barred and do not relate back to the original
Complaint under Federal Rule of Civil Procedure 15(c)(1)(C). Id. at 4-7. The May
10 Order denied without prejudice the Revised Motion to the extent it sought to
assert § 1981 claims against the Proposed Defendants. Id. at 9, 10.
On May 24, 2017, Plaintiff filed a “Motion for Extension of Time to
File an Appeal” of the May 10 Order, ECF No. 204, which this court construed as
a timely appeal. ECF No. 205. The court then granted Plaintiff additional time to
file a supporting memorandum. Id. On June 8, 2017, Plaintiff filed his supporting
memorandum (“Appeal”). ECF No. 215. Trane filed its Opposition on June 16,
2017, ECF No. 218, and Defendant Adecco USA, Inc. (“Adecco”) filed its
Opposition on June 21, 2017, ECF No. 222.
III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure
72(a), and LR 74.1, any party may appeal to the district court any pretrial
nondispositive matter determined by a magistrate judge. Such an order may be
reversed by the district court judge only when it is “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A); LR 74.1. An order is “contrary to law” when it
“fails to apply or misapplies relevant statutes, case law, or rules of procedure.”
Akey v. Placer Cty., 2017 WL 1831944, at *10 (E.D. Cal. May 8, 2017) (citation
and quotation marks omitted). And an order is “clearly erroneous” if, after review,
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the court has a “definite and firm conviction that a mistake has been committed.”
Easley v. Cromartie, 532 U.S. 234, 242 (2001); Fisher v. Tucson Unified Sch.
Dist., 652 F.3d 1131, 1136 (9th Cir. 2011); Cochran v. Aguirre, 2017 WL
2505230, at *1 (E.D. Cal. June 9, 2017) (citing cases). “[R]eview under the
‘clearly erroneous’ standard is significantly deferential.” Concrete Pipe & Prods.
v. Constr. Laborers Pension Tr., 508 U.S. 602, 623 (1993). Thus, the district court
“may not simply substitute its judgment for that of the deciding court.” Grimes v.
City & Cty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991); Cochran, 2017 WL
2505230, at *1.
“‘Pretrial orders of a magistrate’ judge ‘under § 636(b)(1)(A) . . . are
not subject to a de novo determination.’” Hypolite v. Zamora, 2017 WL 68113, at
*1 (E.D. Cal. Jan. 6, 2017) (quoting Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d
1013, 1017 (5th Cir. 1981)). Consideration by the reviewing court of new
evidence, therefore, is not permitted. United States ex rel. Liotine v. CDW Gov’t,
Inc., 2013 WL 1611427, at *1 (S.D. Ill. Apr. 15, 2013) (“If the district court
allowed new evidence [on review of a magistrate judge’s non-dispositive order], it
would essentially be conducting an impermissible de novo review of the order.”);
cf. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (determining that “a
district court has discretion, but is not required, to consider evidence presented for

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the first time” in a de novo review of a magistrate judge’s dispositive
recommendation).
IV. DISCUSSION
Plaintiff identifies the exact issues he is appealing (and what he is not
appealing):
(1) “Plaintiff acknowledges and agrees . . . that [Huddy] can not (sic)
be sued for individual liability under Title VII . . . [thus] Plaintiff is not
asserting an individual liability Title VII claim against [Huddy]”, Appeal at
2-3 (emphasis omitted);
(2) “Plaintiff asserts . . . that . . . Adecco Group, N.A., can not (sic) be
sued for liability under Title VII . . . [a]ccordingly . . . Plaintiff will not
pursue Title VII claims against . . . Adecco Group, N.A.,” id. at 3;
(3) “Plaintiff does not disagree with the portion of the [May 10 Order]
that denied without prejudice Plaintiff’s § 1981 claims against the Proposed
Defendants,” id. at 3-4 (emphasis omitted); and
(4) “Plaintiff asserts . . . that his Title VII claims against . . . ‘Ingersoll
Rand’ relates (sic) back to his Original Complaint,” id. at 4.
The first three appeal issues are statements agreeing with the May 10
Order. Thus the sole issue on appeal is whether Plaintiff’s Title VII claim against
Ingersoll Rand relates back to the original Complaint. Notably, Plaintiff did not
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appeal the May 10 Order’s correct determination that his “Title VII claims against
the Proposed Defendants are . . . untimely -- and futile -- unless [he] can
demonstrate that, pursuant to [Rule] 15(c), the Title VII claims relate back to his
original complaint filed on May 9, 2016.”2 May 10 Order at 4-5. Rather, he
appeals only the finding (as to Ingersoll Rand) that “[Plaintiff’s] Title VII claims
do not relate back to his original May 9, 2016 complaint.” Id. at 5.
The May 10 Order sets forth the proper legal standard:
Under Rule 15(c)(1)(C), the following conditions must
be met for an amended pleading to relate back to the
original pleading: (1) the claim arises out of the conduct
set forth in the original pleading; (2) the party to be
brought in must have received such notice that it will not
be prejudiced in maintaining its defense; and (3) the party
to be brought in must or should have known that, but for
a mistake concerning identity, the action would have
been brought against it. Fed. R. Civ. P. 15(c)(1)(C);
Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191,
1202 (9th Cir. 2014). The second and third criteria must
have been fulfilled within the time provided for serving
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As the May 10 Order explained:
It is well settled that a claimant has only ninety days within which
to file a civil action after receipt of an [Equal Employment
Opportunity Commission (“EEOC”)] right-to-sue letter; otherwise,
the claimant’s suit is time-barred. McAllister alleges that he
received his right to sue letters on May 12, 2016. The 90-day
statute of limitations period thus expired on August 10, 2016.
McAllister’s Title VII claims against the Proposed Defendants are
therefore untimely - and futile - unless McAllister can demonstrate
that, pursuant to Federal Rule of Civil Procedure 15(c), the Title
VII claims relate back to his original complaint filed on May 9,
2016.

May 10 Order at 4-5 (internal citations omitted).
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the summons and complaint under Federal Rule of Civil
Procedure 4(m) (i.e., 90 days after the complaint was
filed).
May 10 Order at 5 (citations omitted). And the May 10 Order correctly states that
“[Plaintiff] has the burden of demonstrating these relation back elements.” Id. at 6
(citations omitted).
Applying this standard, the May 10 Order found that:
[Plaintiff’s] claims cannot relate back to his Complaint
because there is no evidence that [Ingersoll Rand] knew
or should have known [Plaintiff] would have sued [it]
originally but for mistakes concerning [its] identity. . . .
The evidence available to the Court indicates that
[Plaintiff] was well aware of the true identit[y] of
Ingersoll Rand . . . much earlier in the case. See e.g.,
ECF No. 2 (identifying . . . Ingersoll Rand in the
Complaint); ECF No. 15 (identifying Trane as a
“subsidiary co. [(sic)] of Ingersoll Rand” in the
Summons); ECF No. 43 ([Plaintiff’s] original and
subsequently withdrawn First Amended Complaint[3]
alleging claims against Ingersoll Rand . . . ).
Id. at 6-7.
Plaintiff contends that the May 10 Order is clearly erroneous. Relying
on Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010), Plaintiff argues that
Ingersoll Rand “had notice of the suit within the period required by Rule 4(m) . . .
[and] knew and should have known[] that Plaintiff . . . would have sued [it]

3

Plaintiff filed a prior First Amended Complaint on November 7, 2016, ECF No. 43,
which he then withdrew on November 17, 2016, see ECF No. 49.
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originally, but for . . . mistakes made by . . . Plaintiff.” Id. at 4-5 (emphasis
omitted).
Plaintiff’s reliance on Krupski, however, is not persuasive. In that
case, the complaint “made clear that [the plaintiff] meant to sue the company that
‘owned, operated, managed, supervised and controlled’ the ship on which [the
plaintiff] was injured,” . . . and also indicated (mistakenly) that Costa Cruise
performed those roles.” 560 U.S. at 554. Because “Costa Crociere should have
known, within the Rule 4(m) period, that it was not named as a defendant in that
complaint only because of [the plaintiff’s] misunderstanding about which ‘Costa’
entity was in charge of the ship,” Krupski determined that the plaintiff’s mistake
was clearly one “concerning the proper party’s identity” and therefore, an amended
complaint against Costa Crociere would relate back to the original complaint. Id.
at 554-55, 557.
Here, Plaintiff does not, and cannot, argue that he was mistaken about
Ingersoll Rand’s identity. As the May 10 Order states, Plaintiff alleged in the
Complaint that Ingersoll Rand was a point of contact for Trane, ECF No. 2 at 5;
identified Trane as a subsidiary of Ingersoll Rand in the Summons, filed on
September 7, 2016, ECF No. 15; and alleged claims against Ingersoll Rand in the
withdrawn First Amended Complaint, filed on November 7, 2016, ECF No. 43. A
review of the record also shows that prior to withdrawing his initial First Amended
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Complaint (1) on November 9, 2016, the Clerk issued a Summons to “Registered
Agent CSC Services of Hawaii, at 1600 Pauahi Tower, 1003 Bishop Street,
Honolulu, Hawaii 96813 (for Trane U.S. Inc., Ingersoll Rand, Inc., and Shawna Q.
Huddy, et al.)”; (2) the Summons was returned on November 16, 2017, indicating
that a summons for “Trane U.S. Inc.” was received by the process server on
November 15, 2016; and (3) the returned Summons indicated that on November
15, 2016, it was served on “Trane U.S. Inc. (Ingersoll Rand)” at 1003 Bishop
Street, Suite 1600. ECF Nos. 45, 52.
Moreover, the Complaint asserted claims against Trane and Adecco,
Plaintiff’s alleged “joint employers,” arising from Plaintiff’s work at Trane.
Nothing in the Complaint indicates that Plaintiff sought to assert claims against
any other corporate entity, or that Ingersoll Rand was involved in any way with
Plaintiff’s employment at Trane.
Plaintiff urges the court, however, to consider a letter dated May 4,
2015 (the “May 4 letter”), from Ingersoll Rand’s Assistant General Counsel to the
executive director of the Hawaii Civil Rights Commission (“HCRC”) that he
argues establishes that Trane and Ingersoll Rand “streamlined their labor relations
and personnel.”4 Appeal at 5. Because this letter is new evidence that was not

4

The letter, which is photocopied onto page 5 of the Appeal, references an EEOC charge
by Plaintiff against Trane, indicates that Ingersoll Rand’s Assistant General Counsel will respond
to the HCRC on behalf of Trane, and seeks an extension of time for its response. Id. at 5.
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presented in his Motion for Leave to File Second Amended Complaint, it may not
be considered in this appeal. See Howell, 231 F.3d at 621; United States ex rel.
Liotine, 2013 WL 1611427, at *1. Nevertheless, even if the court were to consider
the May 4 letter, nothing in that letter establishes that Ingersoll Rand knew or
should have known, within the time period for service under Rule 4(m), that it
would have been sued originally but for Plaintiff’s mistake concerning its identity. 5
The Complaint was filed on August 9, 2016. Pursuant to Rule 4(m),
Plaintiff had ninety days, or until November 7, 2016, to serve the Complaint.
Although the withdrawn First Amended Complaint was filed on November 7,
2016, there is no evidence that Ingersoll Rand was served, or was otherwise on
notice that it was named as a defendant, by November 7, 2016. At best, the record
shows that a Summons, that was later withdrawn, was served on Trane U.S. Inc. on
November 15, 2016.
In sum, Plaintiff received his EEOC right-to-sue letter on May 12,
2016, and he had ninety days, or until August 10, 2016, to file a Title VII claim.

5

Although a motion to amend generally falls within a magistrate judge’s authority to
determine non-dispositive matters under 28 U.S.C. § 636(b)(1)(A), “where an amendment is
denied as futile, the ruling is akin to a motion to dismiss for failure to state a claim.” Slagowski
v. Cent. Wash. Asphalt, Inc., 2014 WL 4887807, at *6 (D. Nev. Sept. 30, 2014) (citing Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). A motion to dismiss for failure to state a
claim is expressly excepted under § 636(b)(1)(A), falls under § 636(b)(1)(B), and is subject to de
novo review. Id. And in a de novo review, the court has discretion to consider new evidence.
See Howell, 231 F.3d at 621. This is not an appeal of a motion to dismiss, but even if the court
were to conduct a de novo review and consider the May 4 letter, Plaintiff would still not prevail.
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Thus, Plaintiff’s Title VII claim against Ingersoll Rand is time-barred, and
therefore futile, unless it relates back under Rule 15(c) to the Complaint filed on
August 9, 2016. And as set forth above, Plaintiff’s Title VII claim against
Ingersoll Rand does not relate back to the Complaint. Accordingly, Plaintiff has
not met his burden to show that the May 10 Order is clearly erroneous or contrary
to law.
V. CONCLUSION
Based on the foregoing, the court DENIES Plaintiff’s Appeal and
AFFIRMS the May 10 Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 29, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

McAllister v. Adecco USA Inc., et al., Civ. No. 16-00447 JMS-KJM, Order Denying Plaintiff’s
Appeal and Affirming Magistrate Judge’s May 10, 2017 Order
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