Whitfield v. Pick Up Stix, Inc. et al

Filing 33

ORDER Granting in part and Denying in part 19 Defendants Pick Up Stix, Inc., Pick Up Stix Nevada Inc., and Glenn Rutter's Motion to Dismiss. IT IS FURTHER ORDERED that 30 Defendants Mark Bunim and Gordon Keith Denman's Motion to Dismiss is GRANTED. Plaintiff shall have 21 days to file an amended complaint. Signed by Judge Edward C. Reed, Jr on 12/9/10. (Copies have been distributed pursuant to the NEF - EDS)

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HENRY A . WHITFIELD , an individual, ) )
Pla in tif f ,

2 :10-CV-99-ECR-PAL

vs .

PICK UP STIX, INX ., a California, 9 Corporaticn; PICK UP STIX NEVADA,

INC

a Nevada Corpoéation; MARK

) ) ) ) ) )

Order

)

1 BUNIM, an individual; GLENN RUTTERD 0 an individual; DOES 1 through 1007 ) 11 and ROE CORPORATTONS 1 through ) 100, ) 1 2 ) Defendants. ) 1 3 )
14 Plaintiff in this case is an African American male .
He

15 contends that Defendants refused to hire him because of his race . 16 Defendants include Pick Up Stix , Inc w a California corporation and

17 Pick Up Stix , Nevada Tncw a Nevada corporation ( cllectively c

18 referred to herein as uPick Up Stix'). Defendants also include '
19 various employees of Pick Up Stix : Mark Bunim , a district operator ,
Whitfield v. Pick Up Stix, Inc. et al Doc. 33

20 Gcrdon Keith Denman , an area supervisor and Glenn Rutter , a human
21 resources manager .

22

Now pending are Pick Up Stix and Glenn Rutter's motion ( 19) tc #

23 dismiss and Mark Bunim and Gordon Keith Denman's moticn ( 30) to #

24 dismiss. Plaintiff opposed ( # 20 and 22) the motions, and # 25 Defendants Pick Up Stix and Glenn Rutter replied ( 21). The motions #
26 are ripe , and we now rule on them . 27 28

Dockets.Justia.com

1 2

1 . Factual and Procedural Backcround The facts as alleged in the complaint are as follows : nprior to

3 February 7 , 2006, Plaintiff participated in a telephone interview 4 with Mr . Denman wherein Mr . Denman informed h im that h is 5 qualifications were perfect and that he simply needed tc come in for
6 a 2nd interview to finalize his hiring for the position of assistant

7 manager with ( ick Up Stixl.' ( ompl. $ 19 ( 1).) On or about P 'C #
8 February 7, 2006, Plaintiff uwas interviewed in person by Mr . Bunim , 9 Mr . Denman and Mr . Rutter for the position of assistant manager with

1 E ick Up Stixl.' ( d. $ 20.) During the interview uDefendants 0p 'I lt visually expressed shock and outrage over Plaintiff's race.' ( d . 6 'I 1 21.) Defendants informed Plaintiff that he was ujust not what we 2
13 are looking for right now' and that 'they had no openings for ' '

1 assistant manager with E ick Up Stixq.' ( d . ! 22.) Defendants 4 p 'I
15 subsequently hired uless qualified, non -A frican American individuals

1 for the position of assistant manager.' ( d. f 23.) 6 'I
1 7 On January 22, 2010, Plaintiff filed the complaint ( 1) in the #
18 present lawsuit . On March 31, 2010 , Defendants Pick Up Stix and

1 Glenn Rutter filed a motion ( 21) tc dismiss. Plaintiff opposed 9 #

20 ( 20) the motion, and Defendants replied ( 21) . On June 23, 2010, # # 21 defendants Mark Bunim and Gordon Keith filed a motion ( 30) to # 22 dismiss. Plaintiff opposed ( 32) the motion . #
23 24 II . Motion to Dismiss Standard

25

A motion to dismiss under Fed . R. Civ . P. 12 ( ) ( ) will only be b6

26 granted if the complaint fails to ustate a claim to relief that is 27 plausible on its face .' Bell Atl . Corr . v . Twomblv , 550 U .S . 544 , ' 28 a

1 57O ( 2007). On a motion to dismiss, nwe presum g ) that general e
2 allegations embrace those specific facts that are necessary to 3 support the claim .' Lunan v . Defenders of Wildlife , 504 U .S . 555 , ' '

4 56l ( 992) ( uoting Lu1an v . Nat 'l Wildlife Fed'n, 497 U . . 87l, 889 1 q S

5( 1990)) ( lteration in original). Moreover, u E 111 allegations of a a
6 material fact in the complaint are taken as true and construed in 7 the light most favorable to the non -m ov ing party .' ' In re Stac

8 Elecs . Sec . Litiq ., 89 F . 1399, 1403 ( 3d 9th Cir . 1996) ( itation c 9 omitted).
10 Although courts generally assume the facts alleged are true ,

11 courts do not 'a ssum e the truth of legal conclu sion s m ere ly because ' 12 they are cast in the form of factual allegations .' W . M in in q '

1 Council v . Watt , 643 F . : 618, 624 ( 3 24 1 9th Cir . 1981) . Accordingly, 1 u E qonclusory allegations and unwarranted inferences are 4 c
15 insufficient to defeat a moticn to dismiss .' ' In re Stac Elecs ., 89

1 F . at 1403 ( 6 3d citation omitted). 1 7 Review on a motion pursuant to Fed . R . Civ . P . 12 ( ) ( ) is b6
See Lee v . Citv of L . ., A

18 normally lim it ed to the complaint itself .

19 250 F . 668 , 688 ( 3d 9th Cir . 2001). If the district court relies on
20 materials outside the pleadings in making its ruling , it must treat

21 the moticn to dismiss as one for summary judgment and give the non22 moving party an opportunity tc respcnd . Fed . R . Civ . P . 12 ( ); d 23 see United States v . Ritchie , 342 F . 903 , 907 ( 3d 9th Cir . 2003). U A
24 court may , however , consider certain materials - documents attached

25 to the complaint , documents incorporated by reference in the

26 complaint , or matters of judicial notice - without converting the
27
28 3

1 motion to dismiss into a motion for summary judgment .' Ritchie , 342 '
2 F .3d at 908 .

3

If documents are physically attached to the complaint, then a

4 court may consider them if their 'au then t ic ity is not contested' and ' ' 5 uthe plaintiff 's complaint necessarily relies on them .' Lee , 2 50 '

6 F . at 688 ( 3d citation, internal quotations, and ellipsis omitted).
7 A court may also treat certain documents as incorporated by 8 reference into the plaintiff ' complaint if the comp lain t urefers s 9 extensively to the document or the document forms the basis of the 1 plaintiff 's claim .' Ritchie , 342 F . 0 ' 3d at 908 . Finally , if

11 adjudicative facts or matters of public record meet the requirements 1 of Fed . R . Evid . 201, a court may judicially notice them in deciding 2
1 a motion tc dismiss . Id . at 9O9; see Fed . R . Evid . 201 ( ) (' 3 b ' A

1 judicially noticed fact must be one nct subject to reasonable 4
1 dispute in that it is either ( generally known within the 5 1)

1 territorial jurisdiction of the trial court or ( ) capable of 6 2
1 accurate and ready determination by resort to sources whose accuracy 7

1 cannot reasonably be questioned .'). 8 '
1 9 20
21

III . Discussion
Defendants challenge all of Plaintiff 's claims .
We will

22 examine each claim in turn . 23 24 A . Race D iscrim in at ion Plaintiff 's first claim for relief asserts that he has been the

25 victim of purposeful discrimination . Specif ically , Plaintiff 26 alleges that he was not hired because of his race in violation of

27 Title VII of the Civil Rights Act of 1967, 42 U . . . 55 2000 ( )SC e
28 4

1 20OO( )-17 ( 982) (uTitle VII'). Defendants contend that Plaintiff e 1 '
2 fails to state a claim for race discrimination . Defendants also

3 contend that Plaintiff cannot bring a Title V II suit against the
4 individually named defendants . 5 Title V II makes it unlawful for an employer nto fail or refuse

6 to hire or to discharge any individual, or otherwise to discriminate

7 against any individual with respect to his compensation , terms, 8 conditions , or priv ilege s of employment, because of such

9 individual's race, cclor, religion, sex, or national origin E.l' 42 ' 1 U . . . ï 2000e-2( ) ( ). A prima facie claim fcr failure to hire 0 SC al 11 based on race requires a plaintiff to show : ' i) that he belongs to S

1 a racial minority; ( i) that he applied and was qualified for a job 2 i
13 for which the employer was seeking applicants; ( ii) that, despite i

1 his qualifications, he was rejected; and ( v) that, after his 4 i
1 rejection, the position remained open and the employer continued to 5
16 seek applicants from persons of ccmplainant 's qualifications .' See '

1 McDonnell Douqlas Corp . v. Green, 4l1 U.S. 792, 8O2 ( 973) . 7 1
1 8 Plaintiff states a claim against Pick Up Stix . Plaintiff

19 alleges that he is African American . He further alleges that he was 20 qualified for the position of assistant manager w ith Pick Up Stix . 2 1 Finally , Plaintiff alleges that he was not hired . Instead , Pick Up

22 stix hired less qualified individuals who were not African American . 23 Plaintiff's allegations suffice to put Pick Up Stix on notice of the 24 nature of this claim . 25 Individual defendants, however, cannot be held liable for
991 F .2d

26 damages under Title VII. M iller v . Maxwell's Intern . Inc w
27

28

5

1 583, 587 ( th Cir . 1993). Plaintiff's first claim will therefore be 9
2 dismissed as to the individual defendants named in this lawsuit . 3 4 B . Harassment Plaintiff's second claim alleges harassment under Title VII .

5 To maintain a claim under Title VII for harassment , a Plaintiff must

6 show that: 1) he was subjected to verbal or physical conduct of a
7 racial nature, 2) this conduct was unwelcome, and 3) the conduct was
8 sufficiently severe or pervasive tc alter the conditions of the 9 victim 's employment and create an abusive working environment . See

1 Fuller v . Citv of Oakland, Cal., 47 F.3d 1522, 1527 ( th Cir. 0 9

11 1995)( nterna1 quotation marks and citation cmitted). Plaintiff's i
1 allegations do not support a Title V II claim for harassment . 2 1 Plaintiff was never employed by Pick Up Stix . Therefore , he could 3

1 not have been subjected to an abusive working environment. 4
15 Plaintiff's second claim will therefore be dism issed . 16 17 C . Intentional and Neqligent Infliction of Emotional Distress Plaintiff's third and fourth claims for relief allege

1 intenticnal and negligent infliction of emctional distress , 8
19 respectively . Under Nevada 's applicable statute of limitations,

20 Plaintiff had two years from February 2006 to file these tort 21 claim s . See Orr v . Bank of America , NT & SA , 285 F . 3d 764, 780-81

22 ( th Cir. 2002) ( iting NE . REv. ST T. 5 11. 90 ( ) ( ) ( 001))7 NEV. 9 c v A 1 4e 2
23 RE . ST T. 5 11.190 ( ) ( ) ( 001) ( rov iding a two- ear limitations v A 4e 2 p y

24 period for nan action to recover damages for injuries to a person
25 . . . caused by the wrongful act or neglect cf another'); Arnold v . '

26 United States, 816 F .2d 1306, 1312-13 ( 9th Cir . 1987) ( oting that n
27 f iling a Title V IT claim does not toll the lim ita t ion s period for
28 6

1 tort claims). Plaintiff did not file the present lawsuit until
2 January 22, 2010 , almost two years after the lim itat ion s period 3 expired . Plaintiff 's third and fourth claims are thus time barred 4 unless equitable tolling applies . 5 There are several factors a court should consider in

6 determining whether the doctrine of equitable tolling should apply
7 in a given case : 'th e diligence of the claimant ; the claimant's '

8 knowledge of the relevant facts ; the claimant 's reliance on
9 authoritative statements by the administrative agency that m isled

10 the claimant about the nature of the claimant's rights ; any
11 deception or false assurances on the part of the employer against

1 whom the claim is made; the prejudice to the employer that would 2
13 actually result from delay during the time that the limitations 1 period is tolled ; and any other equitab le considerations appropriate 4 15 in the particular case .' Coreland v . Desert Inn Hotel, 673 P .2d

1 490, 492 ( ev . 1983). 6 N
17 Plaintiff argues in his oppositicn that the statute of

1 limitations should be tolled on various grounds . Nevertheless, it 8
19 is clear from the face of the complaint that Plaintiff's state-law 20 claims are time-barred and Plaintiff failed to plead any facts in 21 his complaint demonstrating an entitlement to tolling . 22 Products , Inc . v . Southwall Technolocies . Inc w
S ee Wa sco

435 F .3d 989 , 991

23 ( th Cir. zoo6ll oting that nfederal courts have repeatedly held 9 n
24 that plaintiffs seeking to toll the statute of limitations on 25 various grounds must have included the allegation in their

26 pleadingsv). Therefore, we conclude that Plaintiff's state 1aw
27 claim s are time barred; they will be dismissed on that basis . 28 7

1

IV . Leave to Amend

2

Under Rule 15( ) leave to amend is to be ufreely given when a

3 justice so requires.' FED. R. CI . P. 15( ). In general, amendment ' V a
4 should be allowed with uextreme liberality .' Owens v . Kaiser Found . '

5 Hea1th Plan, Incw 244 F. d 708, 712 (9th Cir . 2001) ( ucting 3 q
6 Moronao Band of Mission Indians v . Rose , 893 F . d 1074 , 1079 ( th 2 9

7 Cir. 1990)). If factors such as undue delay y bad faith, dilatory

8 motive, undue prejudice or futility of amendment are present, leave
9 to amend may properly be denied in the district court's discretion .

1 Eminence Carital, LLC v. Aspeon , Incw 316 F. d 1048, 1051-52 (9th 0 3 1 Cir. zoo3lt iscussing Foman v . Davis, 371 U . . 178, 182 ( 962). 1 d S 1
12 In light of the liberal spirit of Rule 1S, Plaintiff should

13 have leave to amend his complaint in order to cure the claims
14 dismissed by this Order . If Plaintiff chooses not to amend his

15 complaint, this case will continue with respect to the claim not 16 dismissed by this Order . 17 18 19 v . co nclu sion
-

Plaintiff states a claim against Pick Up Stix for racial Individual defendants ,

20 discrimination in v io lat ion of Title V II .

21 however , cannot be held liable for damages under Title VII . 22 Plaintiff's first claim will therefore be dismissed as to the 23 individually named defendants . 24 racial harassment . 25 dism issed . Plaintiff does not state a claim for

Plaintiff's second claim will therefore be

Plaintiff's third and fourth claims for relief , alleging

26 intentional and negligent infliction of emotional distress,

27 respectively , are barred by the applicable statute of lim itat ion s
28 8

1 and are not subject to equitable tolling. These claims will
2 therefore be dismissed . 3 amended complaint .
4 Plaintiff shall have leave to file an

5

IT IS , THEREFORE , HEREBY ORDERED that Defendants Pick Up Stix
.

6 Inc ., Pick Up Stix Nevada Inc . and Glenn Rutter's motion to dismiss

7 ( 19) is GRANTED in part and DENIED in part on the following basis ; #
8 Defendants ' motion is granted with respect to Plaintiff 's second ,
9 third and fourth claims . With respect to Plaintiff 's first claim

10 for relief , the motion is denied as to Defendants Pick Up Stix , In c .
11 and Pick Up Stix , Nevada Inc . and granted as to Defendant Glenn

12 Rutter .
13 14 IT IS HEREBY
-FURT

HER ORDERED that Defendants Mark Bunim and
-

15 Gordon Keith Denman's motion to dismiss ( 30) is GRANTED . #
16 17 IT IS HEREBY FURTHER ORDERED that Plaintiff shall have 21 days If Plaintif f does not

1 within which tc file an amended complaint . 8

19 file an amended complaint this case will prcceed with respect to 20 Plaintif f 's claim not dismissed by this Order . 21

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UN IT ED STATES D ISTR ICT JUDGE