Rapp v. Hampton by Hilton

Filing 17

ORDER granting in part 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Hampton by Hilton, ( Amended Pleadings due by 11/15/2017.), Motions terminated: 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Hampton by Hilton., ORDER TO SHOW CAUSE: ( Show Cause Response due by 11/15/2017.) Signed by Magistrate Judge Jeremiah C. Lynch on 10/31/2017. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
JEFFREY S. RAPP,

CV 17-63-BU-BMM-JCL
Plaintiff,
ORDER

vs.

HAMPTON BY HILTON,
Defendant.

I.

Introduction
Plaintiff Jeffrey Rapp, appearing pro se, filed the present action in the

Montana Eighteenth Judicial District Court, Gallatin County on July 3, 2017. The
gravamen of Rapp’s complaint lies in his assertions that Defendant Hampton by
Hilton – Rapp’s employer from October 2016 to April 2017 – “established and
maintained a hostile and unsafe work environment” that purportedly resulted in
Rapp’s “inability to work.” (Doc. 5 at 1-2.)1
On August 25, 2017, Hampton removed the case to this Court, invoking
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Rapp’s complaint does not expressly state that his employment with
Hampton terminated, but in its L.R. 16.2(b)(1) Preliminary Pretrial Statement,
Hampton advises Rapp’s employment with Hampton ended in April 2017.
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diversity jurisdiction under 28 U.S.C. § 1332(a).
II.

Motion to Dismiss
Shortly after removal, Hampton filed a motion requesting dismissal of

Rapp’s complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted. (Doc. 6.) In the alternative, Hampton seeks to have
Rapp file a more definite statement under Fed. R. Civ. P. 12(e).
Review of the record reflects that Rapp has not filed a response to
Hampton’s motion within the time prescribed by Local Rule 7.1(d)(1)(B). As to
Hampton’s request for a more definite statement, Rapp’s failure to file a response
is deemed an admission that this aspect of Hampton’s motion is well taken.
The Court agrees with Hampton that Rapp’s complaint, as plead, is indeed
so vague that Hampton cannot be expected to formulate an informed response.
Consequently, this aspect of Hampton’s motion is granted. Therefore, IT IS
HEREBY ORDERED that Rapp shall file a more definite statement on or before
November 15, 2017.
III.

Failure to Prosecute
Review of the record reflects Rapp failed: (1) to file a Preliminary Pretrial

Statement as directed by order entered August 30, 2017, (doc. 3); and (2) failed to
appear at the October 31, 2017 Fed. R. Civ. P. 16 scheduling conference as
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directed by the order entered August 30, 2017. Therefore, IT IS HEREBY
ORDERED that on or before November 15, 2017, Rapp shall show cause in a
writing filed with the Court why this action should not be dismissed under Fed. R.
Civ. P. 41(b) for failure to prosecute and otherwise comply with the order of this
Court entered August 30, 2017.
DATED this 31st day of October, 2017.

Jeremiah C. Lynch
United States Magistrate Judge

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