Perry v. White et al

Filing 33

ORDER granting Defendants' 29 Motion to Dismiss for Failure to State a Claim. This case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Tana Lin. (MJV)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CASE NO. 2:22-cv-00477-TL

ADRIENNE R. PERRY,
v.

Plaintiff,

ORDER GRANTING MOTION TO
DISMISS

TERRY WHITE General Manager, King
County Metro; DOW CONSTANTINE,
County Executive, King County,

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Defendants.

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This matter comes before the Court on Defendants Terry White and Dow Constantine’s

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Motion to Dismiss (Dkt. No. 29) Plaintiff Adrienne R. Perry’s action for failure to serve and

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failure to state a claim. Having reviewed the relevant record and governing law, the Court

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GRANTS the

motion.

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I.

BACKGROUND

Plaintiff Adrienne R. Perry is a former employee of King County Metro. Dkt. No. 6 at 4.
She brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and
ORDER GRANTING MOTION TO DISMISS - 1

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the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq. Id. at 3.

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Plaintiff alleges that the complained-of discriminatory conduct includes retaliation and bullying

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on seven separate occasions based on their 1 race, color, gender/sex, and age. Id. at 5.

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Plaintiff is proceeding pro se (without an attorney) and used a Court-provided form to file

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their complaint. On the form, the only descriptions that Plaintiff provided about the complained-

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of discrimination are the two statements reproduced here: (1) “Bullying occurred, despite my

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making reports to the Chiefs it remained ongoing” (Dkt. No. 6 at 5 (response to “The facts of my

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case are as follows”)); and (2):

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I was employed with King County Metro for over three years. During
this time I was constantly subjected to harassment in the form of
bullying, by supervisors and some drivers, all backed by the Chiefs.
Despite my making reports, and pursuing a relief it was constantly
ignored. When my property was damaged at the base nothing was
done beyond the filing of a report with the King County Sheriff. I’m
requesting loss of salary, mental anguish, and a restructuring which
will prevent on going harassment, due to the window dressing of in
house EEOC, Chiefs, and others who failed to take action.

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Dkt. No. 6 at 4 (“Statement of Claim”).

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Plaintiff did not file a response to the motion to dismiss.

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II.

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A.

LEGAL STANDARDS

Failure to Properly Serve Process
The Federal Rules of Civil Procedure (“FRCP”) allow a party to move for dismissal of an

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action in which there has been deficient service of process of the complaint and summons. Fed.

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R. Civ. P. 12(b)(5). Under FRCP 4, it is the plaintiff’s responsibility to ensure that these

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documents are served within ninety (90) days after filing the complaint. Fed. R. Civ. P. 4(c)(1),

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(m). While “Rule 4 is a flexible rule that should be liberally construed so long as a party receives

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Plaintiff’s gender has not been stated in the complaint or in Plaintiff’s subsequent filings (see Dkt. Nos. 1, 6, 8, 30),
so the Court uses gender-neutral pronouns to refer to Plaintiff.

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sufficient notice of a complaint,” even where defendants have actual notice of a lawsuit, a district

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court cannot exercise personal jurisdiction over defendants who have not been served “in

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substantial compliance with Rule 4.” Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013)

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(quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987),

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and Jackson v. Hayawaka, 682 F.2d 1344, 1347 (9th Cir. 1982)).

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Particularly with regard to pro se litigants, courts within the Ninth Circuit have applied a

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four-factor test to determine whether to excuse the failure to provide personal service under Rule

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4: (a) the party to be personally served received actual notice, (b) the defendant would not be

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prejudiced by the service defect, (c) there is justifiable excuse for the failure, and (d) the plaintiff

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would be severely prejudiced if the complaint were dismissed. DiMaio v. Cnty. of Snohomish,

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Dep’t of the Sheriff, C17-128, 2017 WL 3288177, at *3 (W.D. Wash. Aug. 2, 2017) (citing, inter

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alia, Borzeka v. Heckler, 739 F.3d 444, 447 (9th Cir. 1984)).

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B.

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Failure to State a Claim
A defendant may also seek dismissal when a plaintiff fails to state a claim upon which

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relief can be granted. Fed. R. Civ. P. 12(b)(6). In reviewing a FRCP 12(b)(6) motion to dismiss,

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the Court takes all well-pleaded factual allegations as true and considers whether the complaint

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“state[s] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements” are

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insufficient, a claim has “facial plausibility” when the party seeking relief “pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 672. “When reviewing a dismissal pursuant to Rule . . .

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12(b)(6), ‘we accept as true all facts alleged in the complaint and construe them in the

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light most favorable to plaintiff[ ], the non-moving party.’” DaVinci Aircraft, Inc. v. United
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States, 926 F.3d 1117, 1122 (9th Cir. 2019) (alteration in original) (quoting Snyder & Assocs.

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Acquisitions LLC v. United States, 859 F.3d 1152, 1156–57 (9th Cir. 2017)).
III.

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A.

ANALYSIS

Failure to Serve

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Over one year has passed since Plaintiff filed the complaint in April 2022. See Dkt. No.

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6. Defendants claim that they have not yet been served. Dkt. No. 29 at 8. Though Plaintiff filed

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certified mail receipts in an attempt to demonstrate service on both defendants on May 17, 2022

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(Dkt. Nos. 9, 10), service by mail was never authorized by this Court and is insufficient under

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the FRCP. See Fed. R. Civ. P. 4(e)(2) (allowing, in the general course, for a domestic defendant

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to be served personally by delivering a copy to the individual personally, leaving a copy “at the

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individual’s dwelling or usual place of abode with someone of suitable age and discretion who

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resides there,” or via an authorized agent).

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Applying the four-factor test regarding the failure to provide personal service, Defendants

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have actual notice of the lawsuit, as evidenced by their appearance and filing of the present

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motion to dismiss. As to the second factor, Defendants have not demonstrated any prejudice

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caused by the failure (see Dkt. No. 29 at 8–9). As to the third factor, Plaintiff has not provided

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any cause for their failure to personally serve Defendants, let alone a justifiable excuse for that

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failure. As Plaintiff failed to respond to Defendant’s motion, 2 Plaintiff also has not provided any

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argument as to the final factor—the prejudice Plaintiff will suffer if the case is dismissed,

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especially considering that the current complaint fails to state a claim, as discussed in the

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following section.

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The Court notes that Plaintiff filed a change of address notice three days after Defendants filed their motion
dismiss. Dkt. No. 30. However, Plaintiff had previously enrolled for e-service (Dkt. No. 19), so they should still
have received a copy of Defendant’s motion via email.
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Thus, dismissal of the complaint would be proper on this ground alone.
B.

Failure to State a Claim
Insufficient Allegations

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Plaintiff has failed to make out a prima facie case for any of their claims. Title VII of the

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Civil Rights Act prohibits an employer from discriminating against an employee due to that

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employee’s opposition to an unlawful employment practice or their participation “in an

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investigation, proceeding, or hearing” as provided under the Act. Ray v. Henderson, 217 F.3d

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1234, 1240 (9th Cir. 2000) (citing 42 U.S.C. § 2000e–3a). To make out a prima facie retaliation

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claim, a plaintiff must show: (1) they engaged in a protected activity, (2) the employer subjected

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them to an adverse employment action, and (3) there is a causal link between the protected

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activity and the adverse employment action. Id. (internal citation omitted). None of these

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elements are satisfied by the complaint, which merely alleges that Plaintiff made “reports”

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(seemingly regarding bullying) to which no one responded and “pursu[ed]” some unspecified

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type of “relief.” Plaintiff does not even state what actions constituted the alleged bullying, nor

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does Plaintiff explain what protected activity they were engaged in. Plaintiff also makes no

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allegations with regard to what allegedly unlawful action either of the named Defendants

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committed.

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Defendants point out that even interpreting the complaint to raise a hostile work

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environment claim would not salvage it. See Dkt. No. 29 at 5. To succeed on such a claim, “the

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plaintiff must show that the work environment was so pervaded by discrimination that the terms

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and conditions of employment were altered.” Vance v. Ball State Univ., 570 U.S. 421, 427

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(2013). Nothing in Plaintiff’s complaint describes any discrimination faced; simply ticking off

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boxes indicating that there was alleged discrimination based on race, color, gender/sex, and age

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is not enough to allege discrimination. See Dkt. No. 6 at 5. Indeed, the only specific fact
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provided about the alleged discrimination is the number “57” written next to the “age” box

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which asks complainants to indicate their year of birth when alleging age discrimination. Id.

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As for Plaintiff’s ADEA claim, it also fails due to the lack of development of the

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complaint. The ADEA prohibits employment discrimination due to age, such as by refusing to

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hire or otherwise discriminating against an individual, depriving themof employment

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opportunities “or otherwise adversely affect[ing their] status as an employee,” or reducing their

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wage rate based on their age. 29 U.S.C. § 623(a). To prove an ADEA claim, a plaintiff must

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prove that their age was the “but-for” cause of an adverse employment action, not “simply a

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motivating factor.” Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012) (quoting Gross v. FBL

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Financial Servs., Inc., 557 U.S. 167, 173–74, 176 (2009)). Plaintiff has only stated what appears

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to be their age (though “57” could possibly also be a reference to 1957 as their year of birth). See

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Dkt. No. 6 at 5. Again, the complaint does not even specify an adverse employment action, so

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Plaintiff has not come close to meeting their burden at this early stage.
Qualified Immunity

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2.

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Defendants also raise a qualified immunity defense. Dkt. No. 29 at 7. In determining

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whether a public official sued in their individual capacity is entitled to qualified immunity, courts

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consider whether “the official’s conduct violated a clearly established constitutional right.”

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Pearson v. Callahan, 555 U.S. 223, 232 (2009). At this stage, because the operative complaint

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has alleged so few facts and fails to state a claim, the Court need not reach this issue.

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C.

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Leave to Amend
Usually, “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro

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se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior

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to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). If this were

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the only issue in the case, the Court would allow Plaintiff one chance to amend their Complaint.
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However, Plaintiff also failed to properly serve the Defendants in this case and then further failed

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to respond in any way to Defendant’s motion pointing out this failure. As the Court previously

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stated, that reason alone is a basis for dismissal. Indeed, ninety-eight days have passed since

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Plaintiff’s response to the motion was due under the Local Civil Rules (see LCR 7(b)(3); see also

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Dkt. No. 19), and in that time Plaintiff has not once requested an extension of the deadline to

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respond nor taken any action to the cure the deficiencies in the complaint or in service of

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process.
IV.

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CONCLUSION

For the above reasons and under the circumstances in this case, Defendants’ Motion to

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Dismiss (Dkt. No. 29) is GRANTED. However, this case is DISMISSED WITHOUT PREJUDICE, which

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means Plaintiff may re-file a new case if appropriate.

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Dated this 13th day of November 2023.

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A

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Tana Lin
United States District Judge

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