Barbieri v. Timeshare Liquidators LLC et al

Filing 92

ORDER. IT IS ORDERED that 77 the defendants' motion to dismiss is GRANTED and this case dismissed with prejudice. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. IT IS FURTHER ORDERED that 72 , 75 , 80 , 82 , 86 , 88 , 89 all remaining motions are DENIED as moot. Signed by Judge Jennifer A. Dorsey on 4/9/2021. (Copies have been distributed pursuant to the NEF - MR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Anthony Ruben Aldo Barbieri,
4

Case No.: 2:18-cv-00355-JAD-EJY

Plaintiff
Order Granting Motion to Dismiss,
Denying Remaining Motions as Moot, and
Closing Case

5 v.
6 Timeshare Liquidators LLC and Stan Mullins,

[ECF Nos. 72, 75, 77, 80, 82, 86, 88, 89]
7

Defendants

8

Last year, I gave pro se plaintiff Anthony Barbieri another opportunity to plead a hostile-

9 work-environment claim against his former employer, Timeshare Liquidators LLC. 1 The
10 defendants now move to dismiss Barbieri’s resulting amended complaint as inadequately pled.
11 In response, Barbieri filed a countermotion for summary judgment, which largely leans on the
12 allegations in his pleading. Because Barbieri still has not pled any facts that, taken as true, 2
13 could state a claim for relief, I grant the motion to dismiss, deny all pending motions, and close
14 this case.
Discussion 3

15
16

To state a hostile-work-environment claim under Title VII, the plaintiff must plead true

17 facts that show that “(1) [he] was subjected to verbal or physical conduct because of” a protected
18 status, “(2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive
19 to alter the conditions of [his] employment and create an abusive work environment.” 4 Those
20
1

21

ECF No. 69.

2

Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

22

3

23

4

The parties are familiar with Barbieri’s factual allegations, which are summarized in ECF No.
69 at 2–4, so I do not repeat them here.
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (alteration in
original) (citation omitted).

1 allegations must go beyond a mere “recital[] of a claim’s elements, supported by only conclusory
2 statements.” 5 When I last dismissed Barbieri’s hostile-work-environment claim, I did so because
3 he failed to detail any conduct that occurred “because of” any category protected by Title VII. 6
4 Though Barbieri referenced some “abuse” that occurred, I explained that he must include
5 specific details about those incidents in his complaint itself—not in his other briefing. I gave
6 him one more chance—with my detailed instructions—to try to plead a plausible claim.
7

Barbieri’s fourth and fifth amended complaints do little to cure the problems that I

8 identified in my dismissal order. Barbieri again alleges that he was “singl[ed] [] out” to
9 complete additional tasks, like getting beer for his supervisors—tasks that others were not
10 required to do. 7 But Barbieri’s amended complaint still lacks any facts tying the unfair
11 assignment of these tasks to his membership in a protected class. And much like before,
12 Barbieri’s passing references to harassing behavior only show up in his briefing and not in his
13 complaint. 8 Because the court’s inquiry on a dismissal motion like this one is restricted to the
14 amended complaint, I cannot consider those briefing arguments when determining the pleading’s
15 sufficiency. 9 Doing so wouldn’t help anyway because, even with those additional points, the
16 claim still falls short.
17
18
19
20
21

5

Iqbal, 556 U.S. at 678–79.

6

ECF No. 69 at 8.

7

ECF No. 71 at ¶ 21(j).

8

See ECF No. 85 at 7. Even if I were to consider the allegation that “he was told to ‘go home . .
22 . to Argentina,’” he has not alleged that this one-time statement was part of an ongoing pattern of
conduct that created a hostile-work environment. Johnson, 534 F.3d at 1122 (“A hostile work
23 environment, by its ‘very nature involves repeated conduct.’”).
9

Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
2

1

Barbieri’s attempts at alleging a hostile-work-environment claim based on new sexual-

2 harassment allegations fare no better. For the first time, Barbieri alleges in his amended
3 complaint that his supervisors kept a sex toy in a filing cabinet and “once” brought it out while
4 Barbieri was around. 10 He adds that they would sometimes make crude jokes about the toy or
5 have discussions about the supervisors’ sex lives. 11
6

There are two problems with Barbieri’s new allegations: they present a new theory under

7 Title VII, in violation of this court’s last dismissal order and, like the rest of his complaint, they
8 fail to relate to his status as a member of a protected class. As the United States Supreme Court
9 explained in Oncale v. Sundowner Offshore Services, Inc., the statute doesn’t “prohibit all verbal
10 or physical harassment in the workplace; it is directed only at ‘discriminat[ion] . . . because of . .
11 . sex.’ We have never held that workplace harassment . . . is automatically discrimination
12 because of sex merely because the words used have sexual content or connotations.” 12 These
13 new facts still fail to remedy the problems that I previously identified, so I dismiss this claim.
14

While I understand the difficulty Barbieri faces in litigating without an attorney, the law

15 requires him to comply with this court’s instructions and rules like any other litigant. 13 Not only
16 did Barbieri file his fourth and fifth amended complaints without curing the deficiencies I
17 outlined in my last dismissal order, he has now begun to file exhibits that he claims substantiate
18 his new allegations that defendant Stan Mullis “is not under sole [sic] kind of fraud
19
20
21
22

10

ECF No. 71 at ¶ 21(j).

11

Id.

12

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (first alteration in original)
23 (citation omitted).
13

See Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107–08 (9th Cir. 2000).

3

1 investigation” 14 and that one of the employees “was arrested for [m]urder.” 15 These filings only
2 take us farther and farther from a plausible claim. Barbieri’s continued inability to connect the
3 defendants’ conduct to any protected status indicates that leave to amend his complaint again
4 would be a futile exercise that will not result in a viable cause of action. 16 So I dismiss this case
5 with prejudice. And because I close this case, I deny as moot the rest of the motions in the
6 docket.
7

Conclusion

8

IT IS THEREFORE ORDERED that the defendants’ motion to dismiss [ECF No. 77] is

9 GRANTED and this case dismissed with prejudice. The Clerk of Court is directed to ENTER
10 JUDGMENT accordingly and CLOSE THIS CASE.
11

IT IS FURTHER ORDERED that all remaining motions [ECF Nos. 72, 75, 80, 82, 86,

12 88, 89] are DENIED as moot.
13

_______________________________
U.S. District Judge Jennifer A. Dorsey
April 9, 2021

14
15
16
17
18
19
20
21

14

ECF No. 88 at 1.

22

15

Id. at 3.

23

16

See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (explaining that
a court “may deny leave to amend due to . . . ‘repeated failure to cure deficiencies by
amendments previously allowed . . . [and] futility of amendment” (citation omitted)).
4