3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 VALERIE A. HOLLENBACK, Case No. 3:19-cv-00151-MMD-WGC
7 Plaintiff, ORDER 8 v.
9 THOMAS BRANDON, et al.,
10 Defendants.
11 12 I. SUMMARY 13 Pro Se Plaintiff Valerie A. Hollenback sued several defendants who were her 14 supervisors at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) for 15 employment discrimination and retaliation based on her race, sex, and national origin 16 under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17) (“Title 17 VII”). (ECF No. 1.) Before the Court is Defendants’ motion to dismiss for naming the wrong 18 defendants, and for insufficient service of process (the “Motion”).1 (ECF No. 8.) As further 19 explained below, the Court will grant the Motion and dismiss Plaintiff’s case without 20 prejudice because the Court agrees she named exclusively improper defendants, and has 21 not properly served the defendants she named in her Complaint. 22 II. BACKGROUND 23 Plaintiff generally alleges as follows in her Complaint. (ECF No. 1.) Plaintiff was 24 hired by ATF in April 2013. (Id. at 7.) She started in the ATF office in Stockton, California, 25 but was temporarily reassigned to Sacramento, California. (Id.) Jolene Blair was assigned 26 to train her in Sacramento. (Id.) Some hours after Plaintiff met with Blair to discuss how 27 1 she needed to be more professional, Blair walked by Plaintiff’s desk and asked her what 2 she was doing. (Id. at 7-8.) Plaintiff said she was tracking a package containing a bathing 3 suit. (Id. at 8.) Blair replied, “are you sure it was a bathing suit, and not a vibrator?” (Id.) 4 Plaintiff told other ATF employees “that it was hypocritical for SA Blair to question 5 [Plaintiff’s] professionalism and then make an unprofessional comment herself.” (Id.) 6 Plaintiff then basically alleges that she was transferred from ATF office to ATF office, and 7 ultimately terminated, because she reported the fact that Blair made this comment to 8 others. (Id. at 8-13.) Further, at a subsequent meeting with a supervisor, that supervisor 9 told Plaintiff that “she will have a hard time with the ATF since she is female and a 10 minority.” (Id. at 9.) Plaintiff also alleges that she was disciplined and then terminated for 11 not timely filling out required forms after being involved in an on-duty car accident where 12 she was not at fault, but another male agent was not, though something similar happened 13 to him. (Id. at 11.) Thus, Plaintiff alleges that she was discriminated against because she 14 is a woman of Filipino ancestry. (Id. at 4, 13.) 15 III. LEGAL STANDARD 16 A. Failure to State a Claim 17 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 18 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a 19 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 20 R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 21 does not require detailed factual allegations, it demands more than “labels and 22 conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. 23 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555.) “Factual allegations 24 must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to 25 survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a 26 claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted). 27 1 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 2 apply when considering motions to dismiss. First, a district court must accept as true all 3 well-pled factual allegations in the complaint; however, legal conclusions are not entitled 4 to the assumption of truth. See id. at 678-79. Mere recitals of the elements of a cause of 5 action, supported only by conclusory statements, do not suffice. See id. at 678. Second, 6 a district court must consider whether the factual allegations in the complaint allege a 7 plausible claim for relief. See id. at 679. A claim is facially plausible when the plaintiff’s 8 complaint alleges facts that allow a court to draw a reasonable inference that the 9 defendant is liable for the alleged misconduct. See id. at 678. Where the complaint does 10 not permit the court to infer more than the mere possibility of misconduct, the complaint 11 has “alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679 12 (internal quotation marks omitted). When the claims in a complaint have not crossed the 13 line from conceivable to plausible, the complaint must be dismissed. See Twombly, 550 14 U.S. at 570. 15 B. Insufficient Service of Process 16 In addition, a defendant may move to dismiss for insufficient service of process. 17 See Fed. R. Civ. P. 12(b)(5). “A Rule 12(b)(5) motion is the proper vehicle for challenging 18 the mode of delivery or lack of delivery of the summons and complaint.” Wasson v. 19 Riverside County, 237 F.R.D. 423, 423 (C.D. Cal. 2006) (citation omitted). “Plaintiffs bear 20 the burden of establishing the validity of service of process when defendants make a 21 motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5).” Carr v. Int’l Game 22 Tech., 770 F. Supp. 2d 1080, 1100 (D. Nev. 2011) (citation omitted). 23 IV. DISCUSSION 24 Defendants make two arguments. The Court is persuaded by both of them. The 25 Court first addresses below Defendants’ argument that Plaintiff named improper 26 defendants, then Defendants’ service of process argument, and then explains it will grant 27 Plaintiff leave to amend. 1 A. Improper Defendants 2 Defendants first argue that the only proper defendant in this Title VII case is William 3 Barr, the attorney general of the United States Department of Justice. (ECF No. 8 at 2-3.) 4 Because Plaintiff named several defendants, but not him, Defendants argue Plaintiff’s 5 Complaint must be dismissed. (Id.) Plaintiff concedes that she did not name William Barr 6 as a defendant, and asks that Defendants be dismissed without prejudice so she may sue 7 them in their individual capacities. (ECF No. 10 at 1-3.) The Court agrees with Defendants. 8 Whether Plaintiff seeks to sue Defendants in their official or individual capacities, 9 the only proper defendant in this Title VII employment discrimination is the Attorney 10 General of the United States Department of Justice, currently William Barr. See 42 U.S.C. 11 § 2000e-16(c) (“in which civil action the head of the department, agency, or unit, as 12 appropriate, shall be the defendant.”); White v. Gen. Servs. Admin., 652 F.2d 913, 916-17 13 (9th Cir. 1981) (holding that Title VII is the exclusive remedy for federal government 14 employee-plaintiffs alleging discrimination, and that Title VII does not allow those plaintiffs 15 to sue defendants in their individual capacities); Tamayo v. U.S.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 VALERIE A. HOLLENBACK, Case No. 3:19-cv-00151-MMD-WGC
7 Plaintiff, ORDER 8 v.
9 THOMAS BRANDON, et al.,
10 Defendants.
11 12 I. SUMMARY 13 Pro Se Plaintiff Valerie A. Hollenback sued several defendants who were her 14 supervisors at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) for 15 employment discrimination and retaliation based on her race, sex, and national origin 16 under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17) (“Title 17 VII”). (ECF No. 1.) Before the Court is Defendants’ motion to dismiss for naming the wrong 18 defendants, and for insufficient service of process (the “Motion”).1 (ECF No. 8.) As further 19 explained below, the Court will grant the Motion and dismiss Plaintiff’s case without 20 prejudice because the Court agrees she named exclusively improper defendants, and has 21 not properly served the defendants she named in her Complaint. 22 II. BACKGROUND 23 Plaintiff generally alleges as follows in her Complaint. (ECF No. 1.) Plaintiff was 24 hired by ATF in April 2013. (Id. at 7.) She started in the ATF office in Stockton, California, 25 but was temporarily reassigned to Sacramento, California. (Id.) Jolene Blair was assigned 26 to train her in Sacramento. (Id.) Some hours after Plaintiff met with Blair to discuss how 27 1 she needed to be more professional, Blair walked by Plaintiff’s desk and asked her what 2 she was doing. (Id. at 7-8.) Plaintiff said she was tracking a package containing a bathing 3 suit. (Id. at 8.) Blair replied, “are you sure it was a bathing suit, and not a vibrator?” (Id.) 4 Plaintiff told other ATF employees “that it was hypocritical for SA Blair to question 5 [Plaintiff’s] professionalism and then make an unprofessional comment herself.” (Id.) 6 Plaintiff then basically alleges that she was transferred from ATF office to ATF office, and 7 ultimately terminated, because she reported the fact that Blair made this comment to 8 others. (Id. at 8-13.) Further, at a subsequent meeting with a supervisor, that supervisor 9 told Plaintiff that “she will have a hard time with the ATF since she is female and a 10 minority.” (Id. at 9.) Plaintiff also alleges that she was disciplined and then terminated for 11 not timely filling out required forms after being involved in an on-duty car accident where 12 she was not at fault, but another male agent was not, though something similar happened 13 to him. (Id. at 11.) Thus, Plaintiff alleges that she was discriminated against because she 14 is a woman of Filipino ancestry. (Id. at 4, 13.) 15 III. LEGAL STANDARD 16 A. Failure to State a Claim 17 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 18 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a 19 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 20 R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 21 does not require detailed factual allegations, it demands more than “labels and 22 conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. 23 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555.) “Factual allegations 24 must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to 25 survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a 26 claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted). 27 1 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 2 apply when considering motions to dismiss. First, a district court must accept as true all 3 well-pled factual allegations in the complaint; however, legal conclusions are not entitled 4 to the assumption of truth. See id. at 678-79. Mere recitals of the elements of a cause of 5 action, supported only by conclusory statements, do not suffice. See id. at 678. Second, 6 a district court must consider whether the factual allegations in the complaint allege a 7 plausible claim for relief. See id. at 679. A claim is facially plausible when the plaintiff’s 8 complaint alleges facts that allow a court to draw a reasonable inference that the 9 defendant is liable for the alleged misconduct. See id. at 678. Where the complaint does 10 not permit the court to infer more than the mere possibility of misconduct, the complaint 11 has “alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679 12 (internal quotation marks omitted). When the claims in a complaint have not crossed the 13 line from conceivable to plausible, the complaint must be dismissed. See Twombly, 550 14 U.S. at 570. 15 B. Insufficient Service of Process 16 In addition, a defendant may move to dismiss for insufficient service of process. 17 See Fed. R. Civ. P. 12(b)(5). “A Rule 12(b)(5) motion is the proper vehicle for challenging 18 the mode of delivery or lack of delivery of the summons and complaint.” Wasson v. 19 Riverside County, 237 F.R.D. 423, 423 (C.D. Cal. 2006) (citation omitted). “Plaintiffs bear 20 the burden of establishing the validity of service of process when defendants make a 21 motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5).” Carr v. Int’l Game 22 Tech., 770 F. Supp. 2d 1080, 1100 (D. Nev. 2011) (citation omitted). 23 IV. DISCUSSION 24 Defendants make two arguments. The Court is persuaded by both of them. The 25 Court first addresses below Defendants’ argument that Plaintiff named improper 26 defendants, then Defendants’ service of process argument, and then explains it will grant 27 Plaintiff leave to amend. 1 A. Improper Defendants 2 Defendants first argue that the only proper defendant in this Title VII case is William 3 Barr, the attorney general of the United States Department of Justice. (ECF No. 8 at 2-3.) 4 Because Plaintiff named several defendants, but not him, Defendants argue Plaintiff’s 5 Complaint must be dismissed. (Id.) Plaintiff concedes that she did not name William Barr 6 as a defendant, and asks that Defendants be dismissed without prejudice so she may sue 7 them in their individual capacities. (ECF No. 10 at 1-3.) The Court agrees with Defendants. 8 Whether Plaintiff seeks to sue Defendants in their official or individual capacities, 9 the only proper defendant in this Title VII employment discrimination is the Attorney 10 General of the United States Department of Justice, currently William Barr. See 42 U.S.C. 11 § 2000e-16(c) (“in which civil action the head of the department, agency, or unit, as 12 appropriate, shall be the defendant.”); White v. Gen. Servs. Admin., 652 F.2d 913, 916-17 13 (9th Cir. 1981) (holding that Title VII is the exclusive remedy for federal government 14 employee-plaintiffs alleging discrimination, and that Title VII does not allow those plaintiffs 15 to sue defendants in their individual capacities); Tamayo v. U.S. Dep’t of Labor, 129 F.3d 16 127 (Table), 1997 WL 697454, at *1 (9th Cir. 1997) (“Under Title VII, there is no personal 17 liability for employees, including [the plaintiff’s] direct supervisors.”); Latson v. Sessions, 18 239 F. Supp. 3d 163 (D.D.C. 2017) (providing an example of a case where an ATF 19 employee alleging discrimination under Title VII sued the Attorney General of the United 20 States Department of Justice); Wright v. Lynch, 196 F. Supp. 3d 76 (D.D.C. 2016) (same). 21 The Court will therefore dismiss Plaintiff’s Complaint for naming improper defendants. 22 The only proper defendant is the Attorney General of the United States Department of 23 Justice if she chooses to file an amended complaint. 24 B. Insufficient Service of Process 25 Defendants next move to dismiss Plaintiff’s Complaint for insufficient service of 26 process. (ECF No. 8 at 3-4.) Plaintiff counters by apologizing for “any misinterpretation of” 27 Fed. R. Civ. P. 4, and asks for another chance to perfect service. (ECF No. 10 at 1-3.) As 1 further explained below, the Court will give her that chance—assuming she chooses to file 2 an amended complaint. 3 Defendants argue in pertinent part that Plaintiff has not complied with Fed. R. Civ. 4 P. 4(c)(2) because the record shows Plaintiff herself attempted service on the defendants 5 she served. (ECF No. 8 at 3-4.) The Court agrees. (ECF No. 7 (showing Plaintiff herself 6 attempted to serve the Complaint and the summons).) As Defendants point out, someone 7 who is not a party to the case must serve a complaint and its corresponding summons. 8 See Fed. R. Civ. P. 4(c)(1)-(2); see also Lawrence v. Krahne, Case No. 2:16-cv-00762- 9 JCM-VCF, 2016 WL 4492839, at *2 (D. Nev. July 14, 2016), report and recommendation 10 adopted, 2016 WL 4487846 (D. Nev. Aug. 24, 2016), aff’d, 698 F. App’x 504 (9th Cir. 11 2017) (“As a party to the case[, the plaintiff] may not serve the Defendants.”). The Court 12 could, therefore, also dismiss Plaintiff’s Complaint on this basis. See, e.g., Direct Mail 13 Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 14 1988) (citation omitted) (“A federal court does not have jurisdiction over a defendant unless 15 the defendant has been served properly under Fed. R. Civ. P. 4.”). But the Court has 16 already found the Complaint must be dismissed for naming improper defendants. The 17 Court includes this discussion here to advise Plaintiff of the importance of complying with 18 Fed. R. Civ. P. 4 to the extent she files an amended complaint. 19 C. Leave to Amend 20 “The Ninth Circuit has made clear that when a pro se plaintiff fails to state a claim, 21 leave to amend should be granted unless the pleading could not possibly be cured by the 22 allegation of other facts.” Knight v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 23 No. 3:13-CV-01346-BR, 2013 WL 6493102, at *6 (D. Or. Dec. 10, 2013) (citation, internal 24 quotation marks, and punctuation omitted). Here, Plaintiff could name the proper 25 defendant in an amended complaint. The Court will therefore grant her leave to amend. If 26 she chooses to file an amended complaint, Plaintiff must file it within 30 days, and then 27 properly serve that complaint, paying careful attention to Fed. R. Civ. P. 4. Failure to file 1 an amended complaint within 30 days may result in the Court dismissing this case with 2 prejudice. 3 V. CONCLUSION 4 The Court notes that the parties made several arguments and cited to several cases 5 not discussed above. The Court has reviewed these arguments and cases and determines 6 that they do not warrant discussion as they do not affect the outcome of the motion 7 pending before the Court. 8 It is therefore ordered that Defendants’ motion to dismiss (ECF No. 8) is granted. 9 Dismissal is without prejudice and with leave to amend within 30 days. Failure to file an 10 amended complaint within this prescribed period may result in the Court dismissing this 11 case with prejudice. 12 The Clerk of Court is directed to mail Plaintiff a copy of this order. 13 DATED THIS 3rd day of December 2019.
15 MIRANDA M. DU 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27