Austin v. ABC Legal

• Court: District Court, N.D. California
• Decided: March 22, 2022
• Docket: 3:21-cv-09076
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 GEORGE JARVIS AUSTIN, Case No. 21-cv-09076-SI

10 Plaintiff, ORDER (1) GRANTING 11 v. DEFENDANT'S MOTION TO DISMISS AND (2) GRANTING DEFENDANT'S 12 ABC LEGAL, MOTION TO STRIKE 13 Defendant. RE: DKT. NOS. 18, 26, 27, 41 14

15 Before the Court is defendant ABC Legal’s motion to dismiss George Jarvis Austin’s 16 complaint for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6), or in the alternative, a motion 17 for a more definite statement. Dkt. No. 18. The Court previously determined that oral argument 18 was not necessary to resolve the matter and vacated the hearing set for February 4, 2022 per Civil 19 Local Rule 7-1(b). Having considered the arguments raised in the parties’ written submissions, the 20 Court GRANTS ABC Legal’s motion to dismiss the complaint. Austin is granted leave to amend. 21 The amended complaint is due no later than April 10, 2022. 22 Also before the Court is ABC Legal’s motion to strike Austin’s amended complaint. 23 Dkt. No. 41. The amended complaint was filed two months after defendant filed the motion to 24 dismiss, or 40 days beyond the time allotted by Fed. R. Civ. P. 15(a)(1)(B). Austin failed to request 25 leave of Court to file an untimely amended complaint. The Court accordingly GRANTS the motion 26 to strike the untimely amended complaint and VACATES the hearing set for March 25, 2022. 27 1 BACKGROUND 2 ABC Legal is in the business of providing process servers and other legal services to clients 3 involved in litigation. On November 22, 2021, George Jarvis Austin filed a complaint accusing 4 ABC Legal—his putative former employer—of intentional employment discrimination, retaliation 5 under Title VII, and breach of employment contract. Dkt. No. 1 (Compl.). As Austin describes it, 6 he “took [a] position” at ABC Legal which paid “a decent wage,” but “while working” there, he 7 “experienced sabotage, intentional discrimination, and animus.” Id. at 5. 8 On December 15, 2021, ABC Legal filed a motion to dismiss the complaint for failure to 9 state a claim on which relief could be granted, and, in the alternative, to compel Austin to provide a 10 more definitive statement. Dkt. No. 18. Shortly after ABC filed its motion, this Court issued an 11 order (1) denying a premature motion for default judgment filed by Austin, (2) denying Austin’s 12 motion for recusal or disqualification of the undersigned,1 and (3) informing Austin that, if he 13 wished to amend the complaint in response to ABC Legal’s motion, he may do so as a matter of 14 course by January 5, 2022. Dkt. No. 24. Austin failed to file an amended complaint by the deadline. 15 Austin filed an untimely amended complaint on February 14, 2022, without requesting leave. 16 Dkt. No. 38. See Fed. R. Civ. P. 15(a)(1)(B); 15(a)(2). ABC Legal filed a motion to strike the 17 amended complaint, which the Court will grant.2 Dkt. No. 41. Thus, for the present motion, the 18 Court only considers the initial complaint filed on November 22, 2021. 19

20 1 On December 17, 2021, a few hours after the Court entered its order denying Austin’s motions for 21 recusal and disqualification, Austin filed a “Second MOTION to Disqualify Judge Due to Demonstrated Bias, Factual Lies on the Record, etc.” Dkt. No. 26. This second motion is identical to the initial motions at Dkt. 22 Nos. 22 and 23. The only difference is the addition of an attachment, captioned “Affidavit,” which contains a copy of a judicial misconduct complaint filed with the Judicial Counsel of the Ninth Circuit. Dkt. No. 26- 23 1. However, the allegations contained therein are identical to those raised in an email to the Ninth Circuit, a PDF of which Austin attached to the initial motion for recusal. Dkt. No. 17-1. 24 Because the second motion is substantively identical to the first, the Court DENIES the second motion for the same reasons articulated at Dkt. No. 24 at 2. Also on December 17, Austin filed a “First 25 MOTION for Declaration of Mistrial,” which contains the same arguments raised in his prior motions for recusal and disqualification. Dkt. No. 27. The motion for “Declaration of Mistrial” is also DENIED. 26 2 The amended complaint apparently abandons the position that Austin was ABC Legal’s employee, 27 and instead alleges that Austin was a customer of ABC Legal’s services and that ABC Legal wronged him by refusing to tender services. Dkt. No. 38 at 8, 11, 12. The Court is unsure what to make of this departure. 1 LEGAL STANDARD 2 To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state 3 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 4 The plausibility standard requires that the plaintiff allege facts that add up to “more than a sheer 5 possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 6 While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts 7 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 8 When deciding whether a complaint satisfies federal pleading standards, courts must accept as true 9 all factual allegations in a complaint. Iqbal, 556 U.S. 678. Notably, the presumption of truth does 10 not apply to “threadbare recitals” of the legal elements of a cause of action. Id. Similarly, 11 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences” 12 need to be accorded the presumption of truth when deciding a motion to dismiss. In re Gilead Scis. 13 Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 14 Because plaintiff is proceeding pro se in this case, the Court must “construe the pleadings 15 liberally and [] afford the [plaintiff] the benefit of any doubt.” Bretz v. Kelman, 773 F.2d 1026, 16 1027 n.1 (9th Cir. 1985) (en banc). However, sufficient facts must still be alleged from which the 17 Court can infer the existence of a plausible right of relief. Ivey v. Bd. of Regents of Univ. of Alaska, 18 673 F.2d 266, 268 (9th Cir. 1982). 19 20 DISCUSSION 21 I. Sufficiency of Complaint 22 The complaint alleges three causes of action stemming from Austin’s stint as an employee 23 at ABC Legal. Based on a careful review of the complaint, the Court finds each cause of action 24 deficient. 25 26 1. Intentional Employment Discrimination 27 To adequately plead intentional discrimination, a claimant must allege facts demonstrating 1 adverse effects upon an identifiable group.” Ashcroft, 556 U.S. at 677. The Court includes the 2 entirety of Austin’s employment discrimination claim below:

3 ABC Legal’s strange, and discriminatory conduct, singling out Plaintiff for inferior 4 treatment, lack of communication, misinformation (seemingly to set him up for a negative consequence without correction or remedy, even though it was their own mistake(s)) and 5 choices to violate policy, and their own standard operating procedures, evidence disparate treatment of Plaintiff (who disclosed protected statuses prior to entering contract with them). 6 See Jauregui v. City of Glendale, 852 F.2d 1128,1134 (9th Cir. 1988) ("An individual suffers "disparate treatment" when ... "singled out and treated less favorably.... (prima facie case 7 may he made "without any direct proof of discriminatory motivation."). ") See also McGinest 8 v. GTE Serv. Corp., 360 F.3d 1103, 1121-22 (9th Cir. 2004).. .simply...demonstrating that a discriminatory reason more likely than not motivated [is sufficient])). Compensatory, and 9 punitive, damages are available for the harm inflicted by Defendant's discriminatory behavior. See Hemmings v. Tidyman's Inc., 285 F.3d 1174,1195 (9th Cir. 2002) Utilizing the 10 statutorily defined minimum standards for first person claimant as a baseline against which disparate treatment can be measured, the Ninth Circuit has held in multiple cases that when 11 factors indicate differential treatment liability ensues. See Pacific Shores Properties, LLC v. 12 City of Newport Beach, 730 F.3d 1142,1158 (9th Cir. 2013) ("[Ninth Circuit] cases clearly establish that plaintiffs who allege disparate treatment under statutory anti-discrimination 13 laws 'need not' demonstrate ... a similarly situated entity ...treated better.) 14 Dkt. No. 1 at 6-7. Based on the above-quoted text, the complaint fails to allege facts from which 15 the requisite intent could be inferred. Elsewhere, the only facts presented in support of the 16 discrimination claims are that Austin was (1) told “the wrong timeframe for completing a set of 17 projects,” (2) not given extensions on deadlines for completing work, and (3) received less than 18 ideal communication from superiors at ABC Legal. Dkt. No. 1 at 5-6. No facts plausibly suggest 19 that such actions were taken “because of” to Austin’s race. Even absent direct evidence of 20 discriminatory intent, a plaintiff may plausibly plead discriminatory intent by suggesting that “a 21 similarly situated individual or entity outside of the plaintiff’s protected group received more 22 favorable treatment from the defendant.” Snoqualmie Indian Tribe v. City of Snoqualmie, 186 F. 23 Supp. 3d 1155, 1162 (W.D. Wash. 2016). However, the complaint here fails to identify any relevant 24 comparator group of employees from which such an inference of favoritism could be derived. 25 Instead, the complaint presents vague factual assertions and legal conclusions—which the 26 Court need not credit on a motion to dismiss. In re Gilead Scis. Sec. Litig., 536 F.3d at 1055. 27 Because the Court finds no factual basis in plaintiff’s complaint for inferring discriminatory intent, 1 2. Title VII Retaliation 2 To establish a claim of retaliation under Title VII, “a plaintiff must prove that (1) the plaintiff 3 engaged in a protected activity, (2) the plaintiff suffered an adverse employment action, and (3) 4 there was a causal link between the plaintiff’s protected activity and the adverse employment 5 action.” Poland v. Chertoff, 494 F.3d 1174, 1179–80 (9th Cir.2007). The complaint alleges:

6 Plaintiff was Retaliated against by Defendant ABC Legal for engaging in Constitutionally 7 protected activity, and alerting the company that there was misinformation provide by them, or their company representatives, causing detriment to him and his safety. [ ]Instead of a 8 proactive response, or even a response at all Plaintiff was retaliated against to his detriment, and against company policy, and the law. 9 10 Dkt. No. 1, at 7. The complaint fails to allege adequate facts as to each element. First, the complaint 11 fails to specify what “protected activity” forms the basis for the claim. See, e.g., Raad v. Fairbanks 12 N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (“Protected activity includes the 13 filing of a charge or a complaint, or providing testimony regarding an employer’s alleged unlawful 14 practices, as well as engaging in other activity intended to ‘oppose[ ]’ an employer's discriminatory 15 practices.”). Second, the complaint fails to specify the adverse employment action. To the extent 16 that the alleged “inexplicable, and without explanation, pause on [Austin’]s workflow/assignments” 17 constitutes the claimed adverse action, Dkt. No. 1 at 6, such assertions are too vague to provide 18 adequate notice. Third, the complaint fails to plausibly allege the required causal link between any 19 protected activity and any adverse employment action. Accordingly, the complaint fails to state a 20 retaliation claim. 21 22 3. Breach of Contract 23 To prevail on a breach of contract claim, a plaintiff must establish the following elements: 24 (1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) 25 defendant’s breach; and (4) damages to plaintiff as a result of the breach.” CDF Firefighters v. 26 Maldonado 158 Cal.App.4th 1226, 1239 (2008). The complaint alleges that the contractual breach

27 is multifold in that Plaintiff was provided initial misinformation, based on the companies 1 up negative response pattern, at times apparently intentionally insulting, discriminatory, or threatening by member of their team, to the point I had to ask whether that person was "OK?" 2 demonstrates breaches to the letter and spirit of the contract. 3 Dkt. No. 1, at 9. The complaint fails to allege facts as to each required element. First, the complaint 4 fails to allege facts supporting a reasonable inference that an employment contract exists. See Miles 5 v. Deutsche Bank Nat’! Tr. Co., 236 Cal. App. 4th 394, 402 (2015). Second, the complaint fails to 6 specify what was expected of Austin under the putative employment contract, and whether he 7 performed accordingly. Third, the complaint fails to allege defendant’s breach of the contractual 8 terms. Merely asserting that ABC’s “discriminatory, negligent, and retaliatory conduct and ? communication (or intentional non-communication to Plaintiffs detriment) is in breach of their own 10 contract with Plaintiff,” Dkt. No. 1 at 8, does not suffice to show breach per the terms of the putative M employment contract. Finally, the complaint fails to allege damages. Accordingly, the complaint 12 fails to state a breach of employment contract claim.

© = 13 For the foregoing reasons, the Court will GRANT ABC Legal’s motion to dismiss the

entirety of Austin’s complaint for failure to state a claim. Austin may cure the factual deficiencies

15 identified above by filing an amended complaint no later than April 10, 2022. Q 16

17 CONCLUSION

a 18 The Court GRANTS defendant’s motion to dismiss as to all claims. Plaintiff is granted 19 leave to amend by April 10, 2022. The Court also GRANTS defendant’s motion to strike the 20 untimely amended complaint. 21 22 IT IS SO ORDERED. 23 Dated: March 22, 2022 24 25 SUSAN ILLSTON United States District Judge 26 27 28