Rinallo v. CAPSA Solutions, LLC
Opinion and Order: The Court GRANTS Defendant's Motion 18 to Dismiss and DISMISSES this matter with prejudice. Signed on 3/27/2017 by Judge Anna J. Brown. See attached 12 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MIA R. RINALLO,
CAPSA SOLUTIONS, LLC, a
GLENN N. SOLOMON
1001 S.W. Fifth Avenue, #1414
Portland, OR 97204
Attorney for Plaintiff
CODY M. WESTON
Perkins Coie, LLP
1120 N.W. Couch Street
Portland, OR 97209-4128
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
This matter comes before the Court on the Motion (#18) to
Dismiss Plaintiff’s Amended Complaint filed by Defendant CAPSA
For the reasons that follow, the Court GRANTS
Defendant’s Motion and DISMISSES this matter with prejudice.
The following facts are taken from Plaintiff’s Amended
Complaint and accepted as true for purposes of Defendant’s
Defendant CAPSA Solutions, LLC, hired Plaintiff Mia R.
Rinallo as an Information Security/Regulatory Engineer on
July 13, 2015.
During her employment Plaintiff’s supervisor had the words
“Pussy Riot” displayed on the whiteboard in her office.
point Plaintiff complained about the whiteboard to her supervisor
and to Defendant’s Human Resources Department.
complained, her supervisor retaliated against her by “subjecting
her to unwarranted criticism.”
Amended Compl. at ¶ 9.
On December 18, 2015, Plaintiff filed a Complaint with the
Oregon Bureau of Labor and Industries (BOLI) in which she
alleged, among other things, that she was terminated after she
complained to her supervisor about the whiteboard display.
Plaintiff asserted she believed she was terminated in retaliation
2 - OPINION AND ORDER
for her “complaint about sexual harassment.”
Decl. of Katrina
Mollenkopf, Ex. 1 at 5.
On March 3, 2016, BOLI issued Plaintiff a Notice of Right to
File Civil Suit in which BOLI advised Plaintiff that she had the
right to file an action “within 90 days from the date of this
On April 19, 2016, Plaintiff filed a Complaint in this Court
on the basis of diversity jurisdiction in which she alleged,
among other things, that she was wrongfully terminated by
Defendant “for resisting sexual harassment in violation of common
law and ORS 659A.199.”
Compl. at ¶¶ 15.
On August 8, 2016, a Summons was issued to Defendant.
Defendant received the Summons and Complaint on August 11, 2016.
On August 31, 2016, Defendant filed a Motion to Dismiss.
On November 28, 2016, the Court issued an Opinion and Order
in which it concluded Plaintiff’s Complaint did not allege any
federal claims for relief and her state-law claims were untimely
because she failed to file this action within 90 days of her BOLI
The Court, therefore, granted Defendant’s
Motion to Dismiss and dismissed Plaintiff’s state-law claims with
The Court, however, granted Plaintiff leave to file
an Amended Complaint to state claims arising from the factual
allegations in her Complaint “but without prejudice to Defendant
raising any time-limit defenses thereto.”
3 - OPINION AND ORDER
On December 8, 2016, Plaintiff filed an Amended Complaint in
which she brings claims of retaliation for resisting sexual
harassment in violation of Oregon Revised Statute § 659A.199 and
Title VII, 42 U.S.C. § 2000e, et seq.
On January 10, 2017, Defendant filed a Motion to Dismiss
Plaintiff’s Amended Complaint on the grounds that her claims are
time-barred or, in the alternative, that Plaintiff fails to state
The Court took Defendant’s Motion under advisement on
February 24, 2017.
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as
true, to “state a claim to relief that is
plausible on its face.” [Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. A
claim has facial plausibility when the plaintiff
pleads factual content that allows the court to
draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 556.
. . . The plausibility standard is not akin to a
“probability requirement,” but it asks for more
than a sheer possibility that a defendant has
acted unlawfully. Ibid. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of
‘entitlement to relief.’” Id. at 557, 127 S. Ct.
1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Atlantic, 550 U.S. at 555-56.
See also Bell
The court must accept as true the
allegations in the complaint and construe them in favor of the
Novak v. U.S., 795 F.3d 1012, 1017 (9th Cir. 2015).
4 - OPINION AND ORDER
The pleading standard under Federal Rule of Civil
Procedure 8 “does not require ‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.”
550 U.S. at 555).
Iqbal, 556 U.S. at 678 (quoting Twombly,
See also Fed. R. Civ. P. 8(a)(2).
that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’”
Twombly, 550 U.S. at 555).
A complaint also does not suffice if
it tenders “naked assertion[s]” devoid of “further factual
Id. at 557.
"In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
A court, however, "may consider a
writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."
Swartz v. KPMG LLP, 476 F.3d 756,
763 (9th Cir. 2007)(citation omitted).
As noted, Defendant moves to dismiss Plaintiff’s claims on
the ground that they are time-barred.
5 - OPINION AND ORDER
Plaintiff’s claim for violation of § 659A.199 is timebarred.
As noted, in her Amended Complaint Plaintiff again asserts a
claim for retaliation for resisting sexual harassment in
violation of § 659A.199.
The Court dismissed this claim with
prejudice in its November 28, 2016, Opinion and Order on the
ground that Plaintiff failed to commence this action against
Defendant within 90 days after BOLI mailed her Right-to-Sue
As the Court previously explained, Oregon Revised Statute
§ 659A.875(2) provides a claimant who has filed a BOLI complaint
“must commence a civil action under ORS 659A.885 within 90 days
after a 90-day notice is mailed to the complainant.”
See also Stewart v. Rock Tenn CP, LLC, No. 3:13-CV-02147-
SC, 2015 WL 1883910, at *7 (D. Or. Apr. 24, 2015)(“If a claimant
files a complaint with BOLI and receives a right-to-sue letter,
the claimant ‘must commence a civil action under ORS 659A.885
within 90 days after a 90–day notice is mailed to the
As noted, BOLI mailed Plaintiff a Right-to-Sue
letter on March 3, 2016.
Plaintiff, therefore, was required to
commence her action against Defendant no later than June 1, 2016.
The Supreme Court has held in diversity cases that state law
governs the commencement of an action for calculating the statute
Walker v. Armco Steel Corp., 446 U.S. 740,
See also Montgomery v. City of Portland Fire &
6 - OPINION AND ORDER
Rescue, No. 08–CV-1006–MO, 2009 WL 1329850, at *4 (D. Or. May 8,
The Ninth Circuit has noted
“[s]tatutes of limitations, which dictate the life of state
causes of action, are too intimately connected with the substance
of the state-created right to be disregarded by the federal
Harvey's Wagon Wheel, Inc. v. Van Blitter, 959 F.2d
153, 157 (9th Cir. 1992)(quotation omitted).
The Ninth Circuit,
therefore, has held the federal civil rule governing the
commencement of an action “does not commence a suit based on
state law for purposes of the statute of limitations.”
City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002)(internal
Oregon Revised Statute § 12.020(2) provides when a plaintiff
serves the defendant with the summons “before the expiration of
60 days after the date on which the complaint in the action was
filed, the action . . . shall be deemed to have been commenced
upon the date on which the complaint in the action was filed.”
If a plaintiff does not serve the defendant with the summons
within 60 days of the date the complaint was filed, the action is
“deemed commenced . . . when the complaint is filed, and the
summons served on the defendant.”
Or. Rev. Stat. § 12.020(1)
As noted, Plaintiff filed the Complaint in this matter on
April 19, 2016.
Plaintiff, however, did not serve Defendant with
7 - OPINION AND ORDER
a summons until August 11, 2016, which is more than 60 days after
Plaintiff filed the Complaint.
Thus, § 12.020(2) does not apply,
and this matter is deemed to have been filed on August 11, 2016,
when, according to Defendant, it received the Summons.
Plaintiff, therefore, failed to file this action within 90 days
of her BOLI Right-to-Sue letter.
The Court, therefore, finds it correctly concluded in its
November 28, 2016, Opinion and Order that Plaintiff’s claim for
violation of § 659A.199 was time-barred.
Moreover, Plaintiff has
not alleged new or different facts in her Amended Complaint that
indicate the Court’s ruling was in error.
Accordingly, the Court grants Defendant’s Motion to Dismiss
Plaintiff’s claim for violation of § 659A.199 with prejudice.
Plaintiff’s claim for violation of Title VII is time-barred.
The Ninth Circuit has held a plaintiff is required to file
an action for violation of Title VII within 90 days of receiving
her right-to-sue letter from the EEOC.
See Bullock v. Berrien,
688 F.3d 613, 616 (9th Cir. 2012)(“The employee may file a civil
action in federal district court within 90 days of receiving
notice of final agency action on the employee's formal
See also 42 U.S.C. § 2000e-16(c); 29 C.F.R.
The 90-day period “operates as a limitations period”
that bars the action if a plaintiff does not file a civil action
within 90 days.
Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495
8 - OPINION AND ORDER
F.3d 1119, 1121 (9th Cir. 2007).
The limitations period begins on the date the right-to-sue
notice “arrive[s] at the claimant's address of record.”
When the date the plaintiff received the right-to-sue
notice is unknown, the court presumes the plaintiff received the
notice three days after the date it was mailed.
Id. at 1123-26.
A plaintiff may rebut the three-day presumption.
Although in this case Plaintiff does not allege and the
record does not reflect the date on which she received her rightto-sue letter from the EEOC, the record reflects the EEOC mailed
the right-to-sue letter on March 14, 2016.
The Court, therefore,
presumes Plaintiff received her right-to-sue letter on March 18,
Plaintiff, however, did not assert her claim against
Defendant for violation of Title VII until she filed her Amended
Complaint on December 8, 2016, which is beyond 90 days.
Plaintiff’s claim for violation of Title VII, therefore, is
Nevertheless, Plaintiff contends her claim for violation of
Title VII is not time-barred because she asserted a claim for
violation of Title VII in her original Complaint.
relies solely on the fact that she listed 42 U.S.C. § 2000e in
the case caption of her original Complaint.
The Court, however,
March 17, 2016, was a Sunday. The Court, therefore,
presumes Plaintiff received the right-to-sue letter the following
Monday, March 18, 2016.
9 - OPINION AND ORDER
already concluded in its November 28, 2016, Opinion and Order
that Plaintiff’s original Complaint did not allege a claim for
violation of Title VII.
In reaching that conclusion the Court
noted Plaintiff stated in her Complaint that “[t]his court has
diversity jurisdiction under 28 USC 1331.
[Plaintiff] is a
citizen of Oregon and [Defendant] is a citizen of Delaware.
amount in controversy exceeds $75,000.”
Compl. at ¶ 4.
Plaintiff did not make any allegation of federal-question
Similarly, Plaintiff alleged she was terminated
“for resisting sexual harassment in violation of common law and
Compl. at ¶¶ 15.
Plaintiff did not cite to or
rely on any federal statute in the body of her Complaint.
Finally, Plaintiff cited only Oregon cases that relied on Oregon
statutes to support her allegation that she was terminated for
pursuing her right to be free from sexual harassment.
Plaintiff’s assertion that citing Title VII in the case
caption is sufficient to assert a claim for violation of Title
VII is unsupported by any authority.
In fact, courts have held
merely referencing a claim in a case caption is insufficient to
assert a claim.
See, e.g., Newfield v. City Nat’l Bank, NA,
No. CV 16-3833 DSF (JPRx), 2017 WL 540944, at *2 (C.D. Cal.
Jan. 27, 2017)(concluding the plaintiff did not allege claims for
intentional infliction of emotional distress and malicious
prosecution when he listed them on the caption page of his
10 - OPINION AND ORDER
complaint but did not “assert these claims in the body of the
complaint.”); Abdul-Haqq v. Kaiser Emergency in San Leandro,
No. 16-cv-05454-PJH, 2017 WL 550235, at *7 (N.D. Cal. Feb. 10,
2017)(concluding the plaintiff did not allege claims that were
named only in the case caption and not asserted in the body of
The Court, therefore, adheres to its earlier
conclusion that Plaintiff did not allege a claim for violation of
Title VII in her original Complaint.
Moreover, the Court
concludes Plaintiff alleged her Title VII claim for the first
time in her Amended Complaint, which was filed after the 90-day
limitations period had passed.
Finally, the Supreme Court has stated Federal Rule of Civil
Procedure 15(c) allows a plaintiff to relate back her amended
pleading “to the date of a timely filed original pleading” and
renders the amended pleading “timely even though it was filed
outside an applicable statute of limitations period.”
Costa Crociere S.p.A., 560 U.S. 538, 538 (2010)(emphasis added).
The Ninth Circuit has not addressed whether a plaintiff may
relate back an amended pleading to an untimely original pleading.
The Seventh Circuit, however, addressed the issue in Henderson v.
Bolanda, 253 F.3d 928 (7th Cir. 2001), in which it concluded Rule
15(c) does not permit an amended complaint to relate back to an
earlier, untimely complaint.
The Seventh Circuit explained an
untimely original complaint is “a nullity” that cannot “act as a
11 - OPINION AND ORDER
life-line for a later complaint, filed after the . . . statute of
limitations for the claims which it contained.”
Id. at 932.
Thus, the court concluded the plaintiff’s federal claim that he
raised for the first time in his amended complaint was barred by
the applicable statute of limitations because the plaintiff’s
original complaint, which had alleged only state-law claims, was
Id. at 931–32.
The Court adopts the reasoning of Henderson and concludes
Plaintiff’s Title VII claim does not relate back to her original
Complaint because Plaintiff’s original Complaint was untimely.
Accordingly, the Court grants Defendant’s Motion to Dismiss
Plaintiff’s Title VII claim.
For these reasons, the Court GRANTS Defendant’s Motion (#18)
to Dismiss and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 27th day of March, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
12 - OPINION AND ORDER
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