Neill v. YMCA of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANGEL MICHAEL NEILL, Case No.: 23-CV-457 JLS (DEB)

12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED 14 YMCA OF SAN DIEGO, COMPLAINT 15 Defendant. (ECF No. 27) 16

17 Presently before the Court are Defendant YMCA of San Diego’s Motion to Dismiss 18 Plaintiff’s Second Amended Complaint (“Mot.,” ECF No. 27); Memorandum of Points and 19 Authorities (“Mem.,” ECF No. 27-1); and Request for Judicial Notice (“RJN,” ECF 20 No. 27-3). Plaintiff Angel Michael Neill submitted an Opposition to the Motion (“Opp’n,” 21 ECF No. 32), to which Defendant replied (“Reply,” ECF No. 33). The Court took the 22 matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). 23 ECF No. 31. Having carefully reviewed Plaintiff’s Second Amended Complaint (“SAC,” 24 ECF No. 24), the Parties’ arguments, and the law, the Court GRANTS Defendant’s 25 Motion. 26 BACKGROUND 27 The Court provided a thorough recitation of this action’s factual and procedural 28 background in the November 13, 2023, Order Granting Defendant’s Motion to Dismiss 1 Plaintiff’s First Amended Complaint (the “Order,” ECF No. 22). The Court repeats the 2 relevant facts below, for ease of reference, with the addition of more recent developments. 3 I. Plaintiff’s Initial Complaint 4 Plaintiff, proceeding pro se, initiated this action on March 14, 2023, by filing a 5 Complaint utilizing this District’s Form Complaint (“Compl.,” ECF No. 1). Liberally 6 construed, the Complaint appeared to raise one or more claims for employment 7 discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and California’s 8 Fair Employment and Housing Act (“FEHA”). See generally Compl. Specifically, the 9 Complaint alleged Plaintiff had suffered discrimination on the basis of his “gender, race, 10 and medical disability” while he was employed by Defendant. Id. at 3.1 The Complaint 11 also alleged that Plaintiff had been sexually assaulted by a coworker, Tyler Lamar. See id. 12 at 2. The relief Plaintiff sought included (1) the recission of a settlement agreement he 13 entered into with Defendant, (2) an investigation into the alleged discrimination, and (3) an 14 investigation into the alleged sexual assault. Id. 15 Plaintiff attached over 100 pages of exhibits to the Complaint. See ECF Nos. 1-3, 4. 16 Among other documents, the exhibits included a “Notice of Right to Sue” issued by the 17 U.S. Equal Employment Opportunity Commission (“EEOC”), ECF No. 1-3 at 1; Plaintiff’s 18 “Confidential Mediation Brief” submitted to California’s Civil Rights Department 19 (“CRD”),2 id. at 10; pages of what appeared to be a narrative written by Plaintiff, see id. 20 at 49–72; and various records pertaining to Plaintiff’s former employment with Defendant, 21 see generally ECF No. 4. 22 / / / 23 / / / 24

25 1 Pin citations to docketed material in this Order refer to the CM/ECF page numbers electronically stamped 26 at the top of each page.

27 2 The CRD was previously known as the California Department of Fair Employment and Housing, or 28 “DFEH.” See, e.g., Frohm v. City & Cnty. of San Francisco, No. 22-CV-06002-JST, 2023 WL 4828685, 1 II. Plaintiff’s First Amended Complaint and Defendant’s First Motion to Dismiss 2 Plaintiff then filed his First Amended Complaint (“FAC,” ECF No. 6) on 3 March 27, 2023. The FAC’s allegations were narrower than those in the Complaint. The 4 FAC did not reference any of the discrimination claims discussed in the Complaint, but 5 instead focused solely on Plaintiff’s sexual assault allegation. However, many of the 6 exhibits Plaintiff provided with the FAC pertained to allegations included in the Complaint 7 but omitted from the FAC. See ECF No. 8. 8 On July 19, 2023, Defendant moved for dismissal of the FAC, arguing, inter alia, 9 that (1) Plaintiff had failed to exhaust his administrative remedies as required under both 10 Title VII and FEHA, and (2) the FAC failed to state any claim upon which relief could be 11 granted. See generally ECF No. 13 (“First MTD”). The Court agreed on both counts. 12 First, the Court explained that Plaintiff had failed to sufficiently plead exhaustion because 13 the administrative charge he had filed with the CRD did not include—and was not related 14 to—any of the sexual assault allegations raised in the FAC. See Order at 11–12. The Court 15 further found that the FAC failed to comply with Federal Rule of Civil Procedure 8’s “short 16 and plain statement” requirement. Not only was the FAC difficult to decipher, but Plaintiff 17 had also failed to identify the theories of liability he sought to employ and the type of relief 18 he hoped to recover. See id. at 16–17. 19 Given its deficiencies, the Court dismissed the FAC in its entirety without prejudice 20 and with leave to amend. See id. at 17. Plaintiff was given forty-five days to file a second 21 amended complaint, though he was cautioned that any such filing needed to be complete 22 in itself without reference to the FAC. See id. 23 III. Plaintiff’s Second Amended Complaint 24 After receiving an extension, see ECF No. 31, Plaintiff filed the SAC on 25 December 26, 2023. The document, consisting of sixty-nine pages, is seventeen times 26 longer than the FAC and contains the following allegations. 27 After attending a YMCA lifeguard training on June 9, 2019, Plaintiff went to an art 28 gallery in San Diego with Lamar, Head Lifeguards Amy Blankenmeier and Ashley Lucas, 1 and Lifeguard Esteban Susa. SAC at 3. On the way, Lamar made some suggestive 2 comments and informed his colleagues that he was bisexual. See id. at 3–4. Those hearing 3 Lamar’s comments were “shocked” but did not speak up due to Lamar’s position of 4 authority at the YMCA. See id. 5 Later at the art gallery, Lamar approached Plaintiff and started asking questions 6 about Plaintiff’s work at the YMCA. Id. at 4. Lamar leaned in close to Plaintiff as if to 7 kiss him, causing Plaintiff to feel uncomfortable and move away. Id. Lamar then placed 8 his hand on Plaintiff’s thigh and began to rub Plaintiff’s groin. Id. Before Lamar left, he 9 said: “If you ever need anything you can come to me.” Id. (emphasis omitted). Plaintiff 10 responded by telling Lamar that his behavior constituted sexual assault. Id. Lamar then 11 sighed and walked away quickly. Id. 12 Plaintiff reported Lamar’s conduct to several individuals. The night of the assault, 13 Plaintiff confided in Blankemeier. Id. Next, Plaintiff went to Aquatics Director Janelle 14 De Santi, who reportedly told Plaintiff that he needed to try to work the conflict out with 15 Lamar on his own before he could go to human resources (“HR”). Id. at 5. The SAC also 16 alleges De Santi told Plaintiff to report the assault to Eric Snyder, who worked in HR. See 17 id. After unsuccessfully attempting to contact Snyder, Plaintiff reached out to Baron 18 Herdelin-Doherty, Defendant’s president and chief executive officer. Id. Over the phone, 19 Herdelin-Doherty promised to put Plaintiff in touch with “the right people.” Id. 20 Responding to Plaintiff’s outreach, Senior Vice President and Chief HR Officer 21 Stephanie Alexander contacted Plaintiff and organized a meeting with Snyder. See id. at 6. 22 At their request, Plaintiff provided Alexander and Snyder with the details of the alleged 23 assault. See id. After the meeting, Lamar was absent from work for a time. See id. 24 After reporting the assault, Plaintiff began noticing changes at work. First, his 25 schedule was changed; De Santi assigned him shifts on nights and weekends, though he 26 had asked to work during the day. See id. at 7. Later, Plaintiff was passed over for 27 promotions that he was qualified to receive. See id. at 6–7. Additionally, Head Lifeguards 28 William Holifield and John Martinez, both of whom were friends of Lamar, began to 1 “torment,” “harass,” and “intimidate” Plaintiff with “constant pool audits” during the 2 summer of 2019. Id. at 7. Holifield and Martinez—who treated Plaintiff kindly before the 3 assault accusation—purportedly told Plaintiff he was “not good enough to be a lifeguard” 4 and made “inappropriate jokes about [his] weight[,] gender[,] and masculinity.” Id. 5 In August of 2019, Lamar returned to work at the YMCA and behaved 6 antagonistically toward Plaintiff. See id. at 8–9. Lamar allegedly belittled Plaintiff in front 7 of other employees, forced Plaintiff to take on additional tasks, and began auditing 8 Plaintiff’s work. See id. Lamar held Plaintiff to an “unrealistic[ally]” high standard at 9 work and would yell at Plaintiff in front of coworkers when Plaintiff fell short. See id. 10 In the fall of 2020, Plaintiff sat for a performance review conducted by Snyder and 11 Executive Director Blaze Zarev. See id. at 9. Plaintiff was asked why he had not “tried to 12 promote himself” within the YMCA workforce. Id. Plaintiff responded by bringing up the 13 alleged sexual assault. Id. Zarev seems to have then fired Plaintiff after stating that 14 Plaintiff did not meet the YMCA’s professionalism standards. See id. at 9–10. 15 The allegations described above come from the first ten pages of the SAC. 16 Thereafter, the SAC spends approximately thirty pages explaining how those allegations 17 represent violations of Defendant’s Personnel Policy Manual. See id. at 10–38. The 18 remainder of the SAC consists of exhibits, some of which have no obvious connection to 19 the case. 20 LEGAL STANDARD 21 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 22 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” The 23 Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in 24 light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement 25 of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not 26 require ‘detailed factual allegations,’ . . . it [does] demand[] more than an unadorned, the- 27 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 28 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a 1 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 2 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 3 will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citing Papasan v. Allain, 4 478 U.S. 265, 286 (1986)). 5 To survive a motion to dismiss, “a complaint must contain sufficient factual 6 matter . . . to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 7 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the facts pled 8 “allow[] the court to draw the reasonable inference that the defendant is liable for the 9 misconduct alleged.” Id. That is not to say that the claim must be probable, but there must 10 be “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the 11 well-pleaded facts do not permit the court to infer more than the mere possibility of 12 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 13 entitled to relief.’” Id. at 679 (second alteration in original) (quoting 14 Fed. R. Civ. P. 8(a)(2)). 15 When reviewing a motion to dismiss under Rule 12(b)(6), the Court applies its 16 “judicial experience and common sense.” Id. (citation omitted). “[A] district court must 17 accept as true all facts alleged in the complaint” and “draw all reasonable inferences in 18 favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 382 F. Supp. 3d 1012, 1020 19 (S.D. Cal. 2019) (citing Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 20 768 F.3d 938, 945 (9th Cir. 2014)). Where a complaint does not survive 12(b)(6) review, 21 the Court will grant leave to amend unless it determines that no modified contention 22 “consistent with the challenged pleading . . . could cure the deficiency.” DeSoto v. Yellow 23 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. 24 Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). 25 ANALYSIS 26 Defendant seeks the SAC’s dismissal on two grounds that were also raised in the 27 First Motion to Dismiss: (1) Plaintiff has failed to adequately plead exhaustion of his 28 administrative remedies, and (2) the SAC does not comply with Federal Rules of Civil 1 Procedure 8 and 10. The Court addresses each argument in turn. 2 I. Title VII and FEHA Claims 3 First, Defendant argues that any Title VII or FEHA claims the SAC may attempt to 4 state should be dismissed because Plaintiff has failed to plead exhaustion of his 5 administrative remedies. See Mem. at 9–14. Neither the SAC nor Plaintiff’s Opposition 6 acknowledge this issue. 7 A. Legal Framework 8 Generally, a plaintiff is required to exhaust his administrative remedies before suing 9 under Title VII or FEHA. See Dornell v. City of San Mateo, 19 F. Supp. 3d 900, 905 10 (N.D. Cal. 2013). To properly exhaust one’s claims, a claimant must timely file a charge 11 with the appropriate agency (here, the EEOC or the CRD),3 allow the agency to investigate, 12 and receive a right-to-sue notice. See id. at 905–06. Title VII and FEHA call for the same 13 exhaustion analysis, meaning “a plaintiff who exhausts his administrative remedies under 14 Title VII also exhausts his remedies under the FEHA.” Freeman v. Cnty. of Sacramento 15 Dep’t of Hum. Assistance, No. 2:19-CV-02418-KJM-CKD PS, 2020 WL 2539268, at *2 16 (E.D. Cal. May 19, 2020). 17 Not only must a plaintiff exhaust her claims to bring suit, but she must also plead 18 exhaustion. Specifically, plaintiffs need to plead “substantial compliance” with 19 administrative exhaustion requirements to state Title VII or FEHA claims.4 See Williams 20 v. Wolf, No. 19-CV-00652-JCS, 2019 WL 6311381, at *6 (N.D. Cal. Nov. 25, 2019). To 21 satisfy this requirement, “the allegations of a plaintiff’s judicial complaint must be ‘like or 22 23 24 3 Under the work-sharing agreement between the EEOC and the CRD, an administrative charge filed with one agency is deemed to have been constructively filed with the other. See, e.g., Stiefel v. Bechtel Corp., 25 624 F.3d 1240, 1244 (9th Cir. 2010).

26 4 Title VII’s exhaustion requirement is a “mandatory claim-processing rule,” Fort Bend Cnty v. Davis, 139 S. Ct. 1843, 1851 (2019), whereas FEHA treats the issue as jurisdictional, see Johnson v. City of Loma 27 Linda, 5 P.3d 874, 879 (Cal. 2000). The result under either statute is, however, the same for present 28 purposes: “[P]laintiff must allege compliance with the exhaustion requirement in order to state a claim on 1 reasonably related to the allegations’ in [their] administrative [charge].’” Cloud v. 2 Brennan, 436 F. Supp. 3d 1290, 1302 (N.D. Cal. 2020) (quoting Sosa v. Hiraoka, 3 920 F.2d 1451, 1456 (9th Cir. 1990)). Allegations are sufficiently related where “they 4 would fall within ‘the scope of an EEOC investigation which [could] reasonably be 5 expected to grow out of the [administrative] charge.’” Id. (alterations in original) (quoting 6 Sosa, 920 F.2d at 1456). 7 Courts evaluating the similarities between judicial complaints and administrative 8 charges consider several factors, including “the alleged basis of the discrimination, dates 9 of discriminatory acts specified within the [administrative] charge, perpetrators of 10 discrimination named in the charge, and any locations at which discrimination is alleged 11 to have occurred.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) 12 (citation omitted). Courts also consider the extent to which the “plaintiff’s civil 13 claims . . . are consistent with [her] original theory of the case” as laid out in the 14 administrative charge. Id. 15 During this analysis, courts construe administrative charges “with utmost liberality.” 16 See Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting 17 B.K.B., 276 F.3d at 1100). That said, an administrative charge that “merely mention[s] the 18 word ‘discrimination’” will generally not suffice. Id. at 637. Rather, the claims reported 19 in an administrative charge—and thus exhausted for the purposes of this analysis—are 20 defined by “the factual allegations made in the charge itself” (i.e., those “describing the 21 discriminatory conduct about which a plaintiff is grieving”). Id. 22 When conducting this inquiry, “the Court may look beyond the face of the [SAC] to 23 public records concerning Plaintiff’s [administrative] complaints.”5 Mattioda v. 24 Bridenstine, No. 20-CV-03662-SVK, 2021 WL 75665, at *5 (N.D. Cal. Jan. 8, 2021). In 25 so doing, the Court takes notice only of the existence of those records and does not accept 26 as true any disputed facts therein. 27

28 1 B. Plaintiff’s CRD Charge 2 To support its failure-to-exhaust argument, Defendant points to an Amended 3 Complaint of Discrimination (“CRD Charge”) Plaintiff filed against Defendant on 4 June 27, 2022. See Snyder Decl. Supp. Mot. (“Snyder Decl.”) at 6–11, ECF No. 27-2. 5 Defendant contends that the CRD Charge contains almost none of the allegations Plaintiff 6 makes in the SAC. See Mem. at 10–13. 7 Per the CRD Charge, De Santi “subjected [Plaintiff] to different terms and 8 conditions of employment due to [his] color, national original (Mexican), sexual 9 orientation (heterosexual),” “gender identity (cisgender male),” and disability. Snyder 10 Decl. at 7. Plaintiff alleges De Santi gave him “fewer work hours” and “less favorable 11 work shifts” after he “suffered a job-related injury” on September 28, 2019. Id. When he 12 complained to her about this “employment discrimination,” she “subjected [him] to 13 retaliation” and scrutinized his work more closely. Id. During his two-year recovery from 14 the injury, Plaintiff contends he was denied positions that would have “better 15 accommodate[d] [his] disability” and that he “was fully qualified for.” Id. Finally, on 16 May 28, 2021, Plaintiff states he was discharged by HR professionals Cathy Gonzalez and 17 Osmar Abad. Id. Plaintiff was told that he was fired for “sleeping in the pool,” but he 18 maintains in the CRD Charge that his termination was the result of discrimination. See id. 19 C. Discussion 20 Considering the B.K.B. factors and construing Plaintiff’s filings liberally, the Court 21 finds that the SAC fails to plead substantial compliance with the exhaustion requirements 22 of Title VII and FEHA. 23 The SAC’s sexual assault allegations are not reasonably related to the allegations in 24 the CRD Charge. The Charge does not (1) mention the assault; (2) name Lamar, Holifield, 25 or Martinez; (3) discuss the post-assault bullying Plaintiff experienced at their hands; nor 26 (4) touch on how individuals listed in the SAC (such as Snyder) handled—or failed to 27 handle—his allegations against Lamar. In short, nothing in the CRD Charge suggests the 28 CRD or the EEOC would have investigated the SAC’s principal allegations. Plaintiff has 1 thus failed to plead exhaustion with respect to any Title VII or FEHA claims arising out of 2 the alleged sexual assault. See Freeman, 291 F.3d at 637 (finding plaintiff failed to exhaust 3 where charge alleged discrimination regarding “specific election” at work, but the 4 complaint did not refer to said election). 5 The only factual allegations addressed in both the CRD Charge and the SAC relate 6 to a potential retaliation claim, including the allegation that Plaintiff had his schedule 7 reduced and work scrutinized by De Santi. See Snyder Decl. at 7; SAC at 7. But the CRD 8 Charge and the SAC use these allegations to support distinct theories of retaliation. In his 9 CRD Charge, Plaintiff alleges De Santi retaliated against Plaintiff for complaining of 10 “employment discrimination” after his “job-related injury” resulted in his “hours [being] 11 reduced.” Snyder Decl. at 7. Meanwhile, the SAC indicates De Santi’s actions came “after 12 [Plaintiff] reported this [s]exual assault by Tyler Lamar.” SAC at 7. The inconsistency 13 between these theories prevents the Court from finding that Plaintiff exhausted his 14 administrative remedies as to the retaliation allegations in the SAC.6 15 Accordingly, the Court GRANTS Defendant’s Motion as to any Title VII and 16 FEHA claims Plaintiff sought to bring in the SAC. 17 II. Federal Rule of Civil Procedure 41 18 Defendant also argues the SAC should be dismissed pursuant to Federal Rule of 19 Civil Procedure 41(b), which allows a defendant to move for dismissal if “the plaintiff 20 fails . . . to comply with [the Federal Rules of Civil Procedure].” Fed. R. Civ. P. 41(b). 21 Defendant contends that the SAC does not conform to the requirements of Federal Rules 22 of Civil Procedure 8 and 10. See Mem. at 8. At least as to Rule 8, the Court agrees. 23 24 25 6 See Franklin v. City of Kingsburg, No. 1:18-CV-0824 AWI SKO, 2019 WL 3004016, at *5 (E.D. Cal. July 10, 2019) (“Plaintiff’s employment discrimination claims are limited to theories of retaliation 26 covered by [his] EEOC Charge . . . .”); Verduzco v. Conagra Foods Packaged Foods, LLC, No. 1:18-CV- 01681-DAD-SKO, 2021 WL 2322522, at *8 (E.D. Cal. June 7, 2021) (noting courts have found failures 27 to exhaust “where the administrative charge alleged retaliation based on certain protected activity (e.g., 28 complaining of race discrimination) and the complaint . . . alleges retaliation based on completely 1 A. Federal Rule of Civil Procedure 8 2 1. Legal Standard 3 Rule 8 requires a complaint to contain “a short and plain statement of the claim 4 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “The Supreme Court 5 has interpreted [this] requirement to mean that the complaint must provide ‘the defendant 6 [with] fair notice of what the . . . claim is and the grounds upon which it rests.’” Oliver v. 7 Ralphs Grocery Co., 654 F.3d 903, 908 (9th Cir. 2011) (second and third alterations in 8 original) (quoting Twombly, 550 U.S. at 555). A claim, in turn, “is the ‘aggregate of 9 operative facts which give rise to a right enforceable in the courts.’” Bautista v. Los 10 Angeles Cnty., 216 F.3d 837, 840 (9th Cir. 2000) (quoting Original Ballet Russe, Ltd. v. 11 Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir. 1943)). 12 A complaint falls short under Rule 8 if “one cannot determine from [it] who is being 13 sued, for what relief, and on what theory.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 14 1996). Though Rule 8 does not provide grounds to dismiss an excessively-long-but- 15 otherwise-well-organized-and-coherent complaint, it does support the dismissal of 16 labyrinthine and incomprehensible pleadings. See Gottschalk v. City & Cnty. of San 17 Francisco, 964 F. Supp. 2d 1147, 1154 (N.D. Cal. 2013); Hearns v. San Bernardino Police 18 Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (finding dismissal appropriate where a 19 complaint is “so ‘verbose, confused and redundant that its true substance, if any, is well 20 disguised’” (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969))). 21 2. Discussion 22 Defendant argues the SAC—like the FAC before it—fails to comply with Rule 8 23 because it “does not [1] list any causes of action, [2] identify theories of liability, or [3] seek 24 any particular relief.” Mem. at 15. On Defendant’s first point, the Court need not decide 25 whether the SAC sufficiently identifies Title VII or FEHA causes of action;7 as Plaintiff 26

27 7 Notably, this question is closer than Defendant admits. Indeed, the allegations and stray legal citations 28 in the SAC at least suggest that Plaintiff intends to rely on Title VII and FEHA. Still, the SAC does not 1 did not adequately plead exhaustion, the SAC fails to state claims under either statute 2 regardless. See supra Section I. As to the rest of its Rule 8 argument, Defendant prevails. 3 As an initial matter, the Court notes that the SAC represents an improvement over 4 the FAC in terms of Rule 8 compliance, at least in some respects. For example, the SAC 5 includes more detailed factual allegations than the relatively sparse FAC. On the other 6 hand, though, the SAC—which consists of sixty-nine pages—is rife with repetitive 7 allegations and contains several exhibits that have no obvious connection to the case. So, 8 while the SAC provides greater insight into the scope of Plaintiff’s allegations, it remains 9 difficult to understand exactly how some of his allegations relate to each other. 10 Any improvements aside, the Court concludes the SAC—to the extent it 11 contemplates non-FEHA or non-Title VII claims—falls short of Rule 8’s requirements. 12 Despite its length, the SAC does not hint at what other causes of action Plaintiff might 13 assert. Nor can Plaintiff rely on Defendant or this Court to match the SAC’s factual 14 allegations to an unknown list of claims that those facts might support. Cf. Byrd v. Cal. 15 Super. Ct., No. C 08-04387MHP, 2009 WL 2031761, at *11 (N.D. Cal. July 8, 2009) 16 (“[P]laintiff lumps together all of her constitutional claims without the necessary facts to 17 support each of them, leaving it to the court . . . to match facts to claims. This the court 18 will not do.”). And setting causes of action aside, the SAC also runs afoul of Rule 8 by 19 neglecting to indicate the type of relief Plaintiff seeks. See McHenry, 84 F.3d at 1178. 20 Accordingly, the Court GRANTS Defendant’s Motion and DISMISSES the SAC 21 for failure to comply with Rule 8(a)(2) to the extent it raises non-Title VII or non-FEHA 22 claims. See, e.g., Liljegren v. U.S. Air Force, No. 2:21-CV-03105-MCS-MAR, 23 2022 WL 18214394, at *2 (C.D. Cal. July 22, 2022) (“Plaintiff once again does not 24 identify any causes of action in his response. This alone presents a ground upon which the 25

26 by discussing, inter alia, quid pro quo harassment and retaliation, the Court cannot “consider factual 27 allegations and legal bases asserted for the first time in Plaintiff’s Opposition” in “deciding whether the 28 [SAC] satisfies Rule 8.” Martin v. Johnson, No. 2:20-CV-11342-FWS-SHK, 2022 WL 20273644, at *5 1 complaint may be dismissed.”). 2 B. Federal Rule of Civil Procedure 10 3 Defendant also argues the SAC does not conform to Rule 10(b), under which “[a] 4 party must state its claims . . . in numbered paragraphs, each limited as far as practicable 5 to a single set of circumstances.” Fed. R. Civ. P. 10(b). The Court previously declined to 6 dismiss the FAC on this ground, noting that the lack of numbered paragraphs contributed 7 little to the FAC’s defects. See Order at 16. Plaintiff’s noncompliance with Rule 10(b) is 8 more apparent in the SAC, which features longer paragraphs that do not connect to specific 9 claims. Still, given the Court’s rulings regarding exhaustion and Rule 8, the Court need 10 not decide whether Rule 10(b) presents an additional basis for dismissing the SAC. The 11 Court does, however, instruct Plaintiff to comply with Rule 10(b) going forward. 12 III. Leave to Amend 13 Generally, “leave to amend should be freely granted ‘when justice so requires.’” 14 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Fed. R. Civ. P. 15(a)). 15 Courts must apply that policy “with extreme liberality.” Owens v. Kaiser Found. Health 16 Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians 17 v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). When contemplating the propriety of 18 granting leave to amend, courts consider five factors: “bad faith, undue delay, prejudice to 19 the opposing party, futility of amendment, and whether the plaintiff has previously 20 amended the complaint.” See United States v. Corinthian Colleges, 655 F.3d 984, 995 21 (9th Cir. 2011). 22 Here, Defendant asks the Court to withhold leave to amend because Plaintiff “has 23 already been given an opportunity to amend his complaint.” Mem. at 18. And indeed, 24 Plaintiff’s failure to address the deficiencies noted in the Court’s prior Order weighs against 25 granting leave. As touched on above, however, the SAC represents an improvement over 26 the FAC in some ways. For example, the SAC cites to some statutes, like Title VII and 27 FEHA, suggesting Plaintiff—though perhaps ultimately unsuccessful—made some effort 28 to identify specific causes of action. And while the Court is mindful of Defendant’s 1 concerns, the remaining relevant factors do not, in the Court’s view, justify dismissal 2 without leave to amend at this time. The Court will thus grant Plaintiff one more 3 opportunity to amend. 4 CONCLUSION 5 In light of the foregoing, the Court GRANTS Defendant’s Motion to Dismiss 6 Plaintiff’s Second Amended Complaint (ECF No. 27) and DISMISSES the SAC (ECF 7 No. 24) WITHOUT PREJUDICE and WITH LEAVE TO AMEND. 8 Within thirty (30) days of the date of the Order, Plaintiff either (1) SHALL FILE a 9 third amended complaint (“TAC”), or (2) SHALL INDICATE to the Court that he will 10 not do so. Failure to timely select one of these options may result in the dismissal of this 11 action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). See Applied 12 Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890–91 (9th Cir. 2019) (explaining 13 courts may dismiss an action under Rule 41(b) when a plaintiff fails to comply with a court 14 order requiring the filing of an amended complaint). 15 If Plaintiff chooses to file a TAC, the TAC must comply with Federal Rule of Civil 16 Procedure 8(a) and contain a “short and plain” statement of Plaintiff’s claim(s) and the 17 facts showing that he is entitled to relief. Along those lines, Plaintiff shall (1) identify the 18 legal and factual basis for each cause of action he pursues, and (2) specify the relief he 19 seeks. If Plaintiff wishes to raise Title VII and/or FEHA claims, he must also plead 20 substantial compliance with the administrative exhaustion requirements discussed, supra, 21 in Section I. Additionally, any TAC shall comply with Federal Rule of Civil 22 Procedure 10(b) as detailed, supra, in Section II.B. Finally, Plaintiff is reminded that any 23 TAC must be complete in itself without reference to Plaintiff’s original Complaint, FAC, 24 or SAC, see S.D. Cal. CivLR 15.1; and that any claim not re-alleged in Plaintiff’s TAC 25 will be considered waived, see Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 26 / / / 27 / / / 28 / / / 1 || (noting that claims dismissed with leave to amend that are not realleged in an amended 2 || pleading may be considered waived). 3 IT IS SO ORDERED. 4 Dated: April 29, 2024 jae L. Lo memeaite- 5 on. Janis L. Sammartino ‘ United States District Judge

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