McKnight v. Tesla Motors Inc

Filing 4

ORDER - ECF No. 1 IFP Application is GRANTED. Clerk shall FILE the complaint (ECF No. 1 -1). The complaint is DISMISSED WITH LEAVE TO AMEND. "Amended Complaint" due by 6/16/2018. Signed by Magistrate Judge William G. Cobb on 5/17/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TERRIA MCKNIGHT,

Case No. 3:18-cv-00220-MMD-WGC

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Plaintiff,

ORDER

v.
TESLA MOTORS INC.,

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Defendant.

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Before the court is Plaintiffs’ Application to Proceed in Forma Pauperis (IFP) (ECF No. 1)
and pro se Complaint (ECF No. 1-1).
I. IFP APPLICATION

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A person may be granted permission to proceed IFP if the person “submits an affidavit that

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includes a statement of all assets such [person] possesses [and] that the person is unable to pay

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such fees or give security therefor. Such affidavit shall state the nature of the action, defense or

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appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v.

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Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to all

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actions filed IFP, not just prisoner actions).

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In addition, the Local Rules of Practice for the District of Nevada provide: “Any person

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who is unable to prepay the fees in a civil case may apply to the court for authority to proceed

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[IFP]. The application must be made on the form provided by the court and must include a financial

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affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1.

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“‘[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some

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particularity, definiteness and certainty.’” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)

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(quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). A litigant need not “be

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absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co.,

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335 U.S. 331, 339 (1948).
A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee;
therefore, the application should be granted.
II. SCREENING

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A. Standard

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“The court shall dismiss the case at any time if the court determines that … the action or

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appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or

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(iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B)(i)-(iii). This provision applies to all actions filed IFP, whether or not the plaintiff is

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incarcerated. See Lopez, 203 F.3d at 1129; see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001)

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(per curiam).

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Dismissal of a complaint for failure to state a claim upon which relief may be granted is

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provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) tracks

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that language. Thus, when reviewing the adequacy of a complaint under 28 U.S.C. §

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1915(e)(2)(B)(ii), the court applies the same standard as is applied under Rule 12(b)(6). See

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Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a

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plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is

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the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”).

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Review under 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of

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America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).

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In reviewing the complaint under this standard, the court must accept as true the

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allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts

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in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

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Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted

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by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation

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omitted).

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A complaint must contain more than a “formulaic recitation of the elements of a cause of

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action,” it must contain factual allegations sufficient to “raise a right to relief above the speculative

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level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain

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something more … than … a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure §

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1216, at 235-36 (3d ed. 2004)). At a minimum, a plaintiff should state “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009).

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A dismissal should not be without leave to amend unless it is clear from the face of the

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complaint that the action is frivolous and could not be amended to state a federal claim, or the

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district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d

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1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

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B. Plaintiffs’ Complaint

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Plaintiff’s complaint names Tesla Motors Inc. as the sole defendant.

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Plaintiff alleges that she was hired as a production associate with Tesla in January 2018,

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and on March 14, 2018, she filed a complaint with the human resources department due to a hostile

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work environment and defamatory emails she claimed were being sent by other employees, but

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got no response. She goes on to allege that days into her employment, a manager came to see her

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and accused her of being on the phone, and advised her there was no cellphone use while on the

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line, and berated her about the line being down. Plaintiff contends she was not on the phone, and

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in any event, she was instructed during orientation that cellphones were used to contact managers

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or leads and listen to music.

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Next, Plaintiff asserts there was a day she was required to work mandatory overtime. She

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had the flu and came to work. She tried to explain she was sick and asked to work in the back so

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as not to contaminate anyone else, and then was degraded while the manager and supervisor

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observed.

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She then asserts that on April 27, 2018, there was a garnishment of her wages, but she was
not alerted until after she was paid.

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She goes on to discuss an incident where there was a dispute about what her job entailed,

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causing Plaintiff to talk to a supervisor, and she was so nervous about losing her job that she

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urinated on herself and had to go home early. She believes that this stemmed from an alleged

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defamatory email that went out from other engineers about her that human resources never

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addressed. She also mentions not having sufficient instruction to perform her job. She claims that

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she resigned on May 9, 2018 due to stressful working conditions.

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In the first claim, Plaintiff asserts a violation of her due process rights, stating that her

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wages were garnished without due process and she was denied the liberty of a peaceful working

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environment. She subsequently references Silk v. Metropolitan Life Insurance Company and

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Nevada Revised Statute 31.270. The later states that a writ of garnishment shall be served by the

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sheriff of the county where the garnishee defendant is found in the same manner as is provided for

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service of a summons in a civil action under Nevada law. She states that the address on the

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document was not the same as the address in her employee file.

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It is unclear what type of claim Plaintiff is attempting to assert here. Plaintiff merely states

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that her wages were garnished and then makes general reference to her due process rights, makes

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reference to a case without providing a citation, and then refers to a Nevada Revised Statute. First,

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it is unclear if Plaintiff is simply asserting that the Nevada statutory procedures were not followed

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when her wages were garnished. If so, the relationship to the Due Process Clause of the United

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States Constitution is uncertain.

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Second, insofar as Plaintiff references Silk v. Metropolitan Life Insurance, the court has

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performed a Westlaw search which revealed a 2009 unpublished decision of the Ninth Circuit: 310

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Fed.Appx. 138 (9th Cir. 2009). If this is the case Plaintiff is referring to, there the plaintiff sued

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Metropolitan Life Insurance Company for recovery of long term disability benefits under his

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employer’s plan, which was governed by ERISA. Silk discusses the administrative exhaustion

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requirement, but Plaintiff makes no factual connection with her case to Silk.

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Finally, Plaintiff mentions Nevada Revised Statute 31.270. Chapter 31 of the Nevada

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Revised Statutes includes statutes related to garnishment. The chapter allows a writ of garnishment

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to issue at the time or after a writ of attachment is issued to satisfy a judgment, which causes the

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money of a defendant in the possession or control of any third party to be attached as security for

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any judgment. Nev. Rev. Stat. 31.240. A court order is required for a writ of garnishment in aid of

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attachment. Nev. Rev. Stat 31.249. The writ of garnishment must be served by the sheriff of the

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county where the garnishee defendant is found, unless the court directs otherwise, in the same

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manner as provided by rule of court or law of this state for service of a summons in a civil action.

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Nev. Rev. Stat. 31.270.

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Plaintiff states that the address on the document, presumably the garnishment document,

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was not the same as the address in her employer file, but she does not specifically assert that it was

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not served by the sheriff of the county where she was “found” or any other facts that would give

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rise to liability on the part of Tesla.

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Plaintiff simply does not include enough facts for the court to conclude there is any

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cognizable legal claim here related to the garnishment of wages. Plaintiff will be given leave to

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amend to attempt to assert a cognizable claim related to the garnishment that is supported by

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factual allegations. The basis for the federal court to exercise jurisdiction over this claim should

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also be made clear. In other words, if the basis is federal question jurisdiction, Plaintiff shall clearly

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alleged facts demonstrating a cognizable federal claim. If, on the other hand, the basis of the claim

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is State law, Plaintiff should make clear whether she is requesting that the court exercise

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supplemental jurisdiction over the claim or whether it is based on diversity jurisdiction. Under the

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former, district courts have supplemental jurisdiction over claims “that are so related to claims in

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the action within such original jurisdiction that they for part of the same case or controversy under

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Article III of the United States Constitution.” 28 U.S.C. § 1367. With respect to the later, district

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courts have original jurisdiction of civil actions where the matter in controversy exceeds $75,000

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and the action is between citizens of different states. 28 U.S.C. § 1332(a).

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Next, Plaintiff appears to assert a hostile work environment claim under Title VII. She

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alleges that human resources did not address her complaint and allowed the hostility to continue.

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Under Title VII, an employer may not “discriminate against an individual with respect to his

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compensation, terms, conditions, or privileges of employment because of such individual’s race,

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color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). Harassment is unwelcome

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conduct based on race, color, religion, sex, or national origin, and is unlawful where enduring the

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conduct becomes a condition of continued employment or is severe or pervasive enough to create

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a work environment that a reasonable person would consider intimidating, hostile or abusive.

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Plaintiff’s allegations do not contend Plaintiff was discriminated against and subjected to a hostile

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work environment on the basis of her race, color, religion, sex or national origin, so as to invoke

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Title VII’s protections.

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The court also notes that Title VII has exhaustion requirements that must be met prior to

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filing a court action. 42 U.S.C. § 2000e-5; Sommatino v. United States, 255 F.3d 704, 708 (9th Cir.

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2001). A person seeking relief under Title VII must first file a charge with the Equal Employment

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Opportunity Commission (EEOC) within 180 days of the alleged unlawful employment practice,

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or, if the person initially instituted proceedings with the state or local administrative agency, within

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300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). If the EEOC

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does not bring suit based on the charge, it will issue a right to sue letter. 42 U.S.C. § 2000e-5(f)(1).

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Once a person receives the letter, he or she has ninety days to file suit. Id. Plaintiff does not state

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whether she exhausted her administrative remedies prior to filing suit, but the court discerns it is

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unlikely she did given her allegation that she resigned on May 9, 2018, and filed this action on

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May 14, 2018.

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Plaintiff will nevertheless be given leave to amend to attempt to state a claim under Title

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VII. To reiterate, Title VII is implicated by alleged discrimination, i.e. that she was subjected to a

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hostile work environment on the basis of race, color, religion, sex, or national origin.

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Plaintiff also makes a reference to 42 U.S.C. § 1983. Section 1983, however, governs

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alleged violations of rights protected by the Constitution or federal law caused by a person acting

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under color of state law. Plaintiff has sued Tesla, a private company, which is not a person acting

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under color of state law; therefore, Plaintiff does not state any claim under 42 U.S.C. § 1983.

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III. CONCLUSION

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(1) Plaintiff’s IFP application (ECF No. 1) is GRANTED. Plaintiff is permitted to maintain

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this action without the necessity of prepayment of fees or costs or the giving of security therefor.

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This order granting IFP status does not extend to the issuance of subpoenas at government expense.

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(2) The Clerk shall FILE the complaint (ECF No. 1-1);

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(3) The complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff has THIRTY

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DAYS from the date of this Order to file an amended complaint correcting the deficiencies noted

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above. The amended complaint shall be complete in and of itself without reference to any previous

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complaint. Any allegations, parties or requests for relief from prior pleadings that are not carried

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forward in the amended complaint will no longer be before the court. Plaintiff shall clearly title

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the amended pleading as “AMENDED COMPLAINT.” If Plaintiff fails to file an amended

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complaint within the time period prescribed, the action may be dismissed.

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DATED: May 17, 2018.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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