Jones v. Scorpio Gold (US) Corporation

Filing 16

ORDER GRANTING Defendant's 7 Motion to Dismiss. Plaintiff's 1 Complaint is DISMISSED in its entirety. Signed by Judge Larry R. Hicks on 03/25/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PEGGY JONES,

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Plaintiff,

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v.

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SCORPIO GOLD (US) CORPORATION,

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Defendants.

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3:12-CV-0508-LRH-WGC
ORDER

Before the court is defendant Scorpio Gold (U.S.) Corporation’s (“Scorpio”) motion to

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dismiss. Doc. #7.1 Plaintiff Peggy Jones (“Jones”) filed an opposition (Doc. #12) to which Scorpio

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replied (Doc. #15).

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I.

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Facts and Procedural History
This is a Title VII employment discrimination action. Plaintiff Jones was employed by

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defendant Scorpio and was discharged on April 15, 2011. On May 8, 2012, Jones filed her charge

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of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that her

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discharge was in retaliation for engaging in protected activities.

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Subsequently, Jones filed a Title VII retaliation complaint against Scorpio. Doc. #1.
Thereafter, Scorpio filed the present motion to dismiss for lack of jurisdiction. Doc. #7.

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Refers to the court’s docket number.

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II.

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Legal Standard
Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger,

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437 U.S. 365, 374 (1978). “A federal court is presumed to lack jurisdiction in a particular case

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unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville

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Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

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Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a claim for lack

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of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Although the defendant is the moving party

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in a motion to dismiss, the plaintiff is the party invoking the court’s jurisdiction. As a result, the

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plaintiff bears the burden of proving that the case is properly in federal court. McCauley v. Ford

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Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp.,

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298 U.S. 178, 189 (1936)). In addressing a motion to dismiss for lack of subject matter jurisdiction,

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a district court may consider evidence outside the pleadings including an EEOC charge. See Farr v.

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United States, 990 F.2d 451 (9th Cir. 1993).

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A motion to dismiss pursuant to Rule 12(b)(1) may be brought as a factual challenge or as a

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facial challenge. Thornhill Publ’g Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th

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Cir. 1979). “In a facial attack, the challenger asserts that the allegations contained in a complaint

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are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the

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challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal

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jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Here, Scorpio

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makes a factual challenge to subject matter jurisdiction.

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III.

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Discussion
Title VII prohibits discrimination against an employee or an applicant for employment on

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the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). In order for a

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district court to have subject matter jurisdiction over a Title VII claim, a plaintiff must have

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exhausted all available administrative remedies. See Sutter v. Mass Mutual Financial Group, 2011

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U.S. Dist. LEXIS 72840, *6 (D. Nev. 2011) (citing B.K.B. v. Maui Police Dept., 276 F.3d 1091,
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1099 (9th Cir. 2002). To exhaust all administrative remedies, a plaintiff must timely file a charge

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with the EEOC. Id; see also, Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004)

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(“To establish subject matter jurisdiction over a Title VII claim, [a plaintiff] must have exhausted

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his administrative remedies by filing a timely charge with the EEOC.”). A plaintiff timely files a

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charge with the EEOC if the charge is filed “within 180 days from the last act of alleged

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discrimination,” or in a state like Nevada which has its own local agency, “within 300 days of the

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last discriminatory act.” Guevara v. Marriott, 2012 U.S. Dist. LEXIS 132456, *10 (N.D. Cal.

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2012); see also, 42 U.S.C. § 2000e-5(e)(1).

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Here, Jones filed her EEOC charge on May 8, 2012, three hundred and eighty-eight (388)

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days after her April 15, 2011 termination, the only act of alleged discrimination. Thus, Jones’

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charge was untimely. Therefore, this court lacks subject matter jurisdiction over this action.

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See e.g., Guevara, 2012 U.S. Dist. LEXIS 132456, *15. Accordingly, the court shall grant

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Scorpio’s motion to dismiss.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. #7) is
GRANTED. Plaintiff’s complaint (Doc. #1) is DISMISSED in its entirety.

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IT IS SO ORDERED.

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DATED this 25th day of March, 2013.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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