Oliver v. Iron Workers Union Local 229 et al

MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim

S.D. Cal.June 19, 2017

NOTICE OF MOTION AND MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16147714.1 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Thomas A. Lenz (CA Bar No. 152624) TLenz@aalrr.com Brian M. Wheeler (CA Bar No. 266661) BWheeler@aalrr.com 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 Telephone: (562) 653-3200 Fax: (562) 653-3333 Attorneys for Defendants SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Sylvester T. Oliver, Plaintiffs, v. Iron Workers Union Local 229, SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC., Defendants. Case No. 3:17-cv-00001-LAB-MDD Hon. Larry Alan Burns DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT BY SME STEEL CONTRACTORS, INC. AND SME INDUSTRIES, INC.; ORAL ARGUMENT REQUESTED Hearing Date: July 24, 2017 Time: 11:30 a.m. Courtroom: 14A Complaint Filed: January 3, 2017 Case 3:17-cv-00001-LAB-MDD Document 13 Filed 06/19/17 PageID.1240 Page 1 of 2 - 1 - NOTICE OF MOTION AND MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16147714.1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that at 11:30 a.m. on July 24, 2017, or as soon thereafter as this matter may be heard, in the courtroom of the Honorable Larry Alan Burns of the United States District Court for the Southern District of California, in Courtroom No. 14A, 333 West Broadway, San Diego, California 92101, Defendants SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC. (collectively, “SME Defendants”) will and hereby do move the Court for an Order, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(5), and 12(b)(6), dismissing Plaintiff Sylvester T. Oliver’s Complaint on the grounds that the Court lacks subject matter jurisdiction, that there was insufficient service of process, and that the Complaint fails to state a claim upon which relief can be granted. The SME Defendants will and hereby do also join in the Union’s motion, in the alternative, for an order to strike the following immaterial and impertinent allegations and exhibits in the Complaint pursuant to Fed. R. Civ. P. 12(f): Paragraphs 1, 2, 6, 9-10, 12-13, 30, and Exhibit A. SME Defendants hereby also requests oral argument on the Motion. This Motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the records and files of this Court, any matters of which the Court may take judicial notice, and such further evidence and argument as may be presented at or before the hearing on this matter. Dated: June 19, 2017 ATKINSON, ANDELSON, LOYA, RUUD & ROMO By: /s/BRIAN M. WHEELER Thomas A. Lenz Brian M. Wheeler Attorneys for Defendants SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC. Case 3:17-cv-00001-LAB-MDD Document 13 Filed 06/19/17 PageID.1241 Page 2 of 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16149657.4 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Thomas A. Lenz (CA Bar No. 152624) TLenz@aalrr.com Brian M. Wheeler (CA Bar No. 266661) BWheeler@aalrr.com 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 Telephone: (562) 653-3200 Fax: (562) 653-3333 Attorneys for Defendants SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Sylvester T. Oliver, Plaintiff, v. Iron Workers Union Local 229, SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC., Defendants. Case No. 3:17-cv-00001-LAB-MDD Hon. Larry Alan Burns MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT BY SME STEEL CONTRACTORS, INC. AND SME INDUSTRIES, INC.; ORAL ARGUMENT REQUESTED Hearing Date: July 24, 2017 Time: 11:30 a.m. Courtroom: 14A Complaint Filed: January 3, 2017 Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1242 Page 1 of 32 TABLE OF CONTENTS Page - i - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16149657.4 MEMORANDUM OF POINTS AND AUTHORITIES ........................................... 1 Preliminary Statement .................................................................................. 1 Statement of Facts ......................................................................................... 2 Argument........................................................................................................ 4 I. THE COURT SHOULD DISMISS THE COMPLAINT WITH PREJUDICE BECAUSE PLAINTIFF FAILED TO FILE SUIT WITHIN NINETY DAYS OF RECEIVING HIS NOTICE OF RIGHT TO SUE ........................................................................................................... 4 A. Plaintiff Was Required To File Suit Within Ninety Days of Receiving The Notice of Right To Sue ................................................. 4 B. Plaintiff’s Ninety-Day Limitations Period Began Running No Later Than September 27, 2016, And Expired No Later Than December 27, 2016 ............................................................................... 5 C. The Complaint Is Time-Barred And Must Be Dismissed With Prejudice ................................................................................................ 7 D. Plaintiff’s Pro Se Status Does Not Save His Time-Barred Claims; Dismissal With Prejudice Is Appropriate ................................ 7 II. THE COURT SHOULD DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION BASED ON PLAINTIFF’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES...................... 9 A. Plaintiff Failed to Exhaust Administrative Remedies for Alleged Race or National Origin Discrimination Against the SME Defendants............................................................................................. 9 B. Plaintiff Failed to Exhaust Administrative Remedies for Alleged Harassment and Hostile Work Environment ...................................... 11 III. PLAINTIFF’S FIVE-MONTH DELAY IN SERVING DEFENDANTS REQUIRES DISMISSAL FOR INSUFFICIENT SERVICE OF PROCESS ...................................................................................................... 12 IV. THE COMPLAINT FAILS TO STATE ANY PLAUSIBLE CLAIM FOR RELIEF AGAINST THE SME DEFENDANTS ................................. 13 A. Plaintiff Is Required To Plead Specific Facts That Give Rise To A Plausible Claim As To Each Defendant .......................................... 13 B. All Claims Against SME Steel Contractors Should Be Dismissed Because The Complaint Contains No Facts At All To Support Any Claim Against SME Steel Contractors ....................................... 14 C. The Complaint Fails To Allege Factual Allegations That Support Its Conclusory Claims Specific To The SME Defendants ................. 16 Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1243 Page 2 of 32 TABLE OF CONTENTS (CONTINUED) Page - ii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16149657.4 D. Any Claim For Race or National Origin Discrimination Against The SME Defendants Should Be Dismissed Because The Complaint Fails To State Facts To Support A Plausible Claim ......... 18 E. Plaintiff’s Claim For Retaliation Against The SME Defendants Should Be Dismissed Because The Complaint Fails To Allege A Plausible Claim ................................................................................... 20 F. The Claim For Hostile Work Environment Should Be Dismissed Because Plaintiff Failed To State Any Facts That Would State A Claim Against The SME Defendants .................................................. 21 1. Plaintiff Does Not Allege Any Verbal or Physical Conduct By The SME Defendants Because of Plaintiffs Race or National Origin ......................................................................... 22 2. Plaintiff Does Not Allege Sufficiently Severe or Pervasive Conduct ..................................................................................... 23 3. Any Section 1981 Claim Based on Plaintiff’s Failure To Hire Allegations Is Time-Barred .............................................. 23 4. Plainitff Fails To Allege Facts To Support A Failure To Hire Claim Against The SME Defendants ............................... 23 V. IF THE COMPLAINT SURVIVES DISMISSAL, THE COURT SHOULD STRIKE PLAINTIFF’S IMMATERIAL AND IMPERTINENT ALLEGATIONS AND EXHIBITS .................................. 24 Conclusion .................................................................................................... 25 Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1244 Page 3 of 32 TABLE OF AUTHORITIES Pages - iii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 FEDERAL CASES Aaron v. Aguirre 2007 WL 959083 (S.D. Cal. Mar. 8, 2007) ..................................................... 15, 16 Amfac Mortg. Corp. v. Arizona Mall of Tempe, Inc. 583 F.2d 426 (9th Cir. 1978) ................................................................................ 6 Ashcroft v. Iqbal 556 U.S. 662 (2009) ........................................................................................... 17 Atkins v. Governing Bd. of Creighton Sch. Dist. No. 15-16242, 2017 WL 745705 (9th Cir. Feb. 27, 2017) .................................. 7 Atuahene v. City of Hartford 10 Fed. App’x. 33 (2d Cir. 2001) ....................................................................... 16 B.K.B. v. Maui Police Dep’t 276 F.3d 1091 (9th Cir. 2002) .............................................................................. 9 Baldwin Cty. Welcome Ctr. v. Brown 466 U.S. 147 (1984) ................................................................................. 1, 5, 7, 8 Bell Atl. Corp. v. Twombly 550 U.S. 544 (2007) ........................................................................................... 13 Cason v. San Diego Transit Corp. No. 10-CV-0098-IEG MDD, 2011 WL 1596315 (S.D. Cal. Apr. 25, 2011) ...... 7 Conley v. Gibson 355 U.S. 41 (1957) ............................................................................................. 13 Corazon v. Aurora Loan Servs., LLC No. 11-00542 SC, 2011 WL 1740099 (N.D. Cal. May 5, 2011) ...................... 16 Dandino, Inc. v. U.S. Dep’t of Transp. 729 F.3d 917 (9th Cir. 2013) ................................................................................ 5 De Los Reyes v. Sw. Gas Corp. 319 F. App’x 639 (9th Cir. 2009) ..................................................................... 6, 7 Dichter-Mad Family Partners, LLP v. United States 707 F. Supp. 2d 1016 (C.D. Cal. 2010) aff’d, 709 F.3d 749 (9th Cir. 2013)..... 21 EEOC v. Farmer Bros. Co. 31 F.3d 891 (9th Cir. 1994) .................................................................................. 9 Encinas v. Tucson Elec. Power Co. 76 F. App’x 762 (9th Cir. 2003) ......................................................................... 10 Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1245 Page 4 of 32 - iv - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 Estrada v. Gate Gourmet, Inc. No. CV 17-1100-MWF(FFMX), 2017 WL 2468773 (C.D. Cal. June 6, 2017) ................................................................................................................... 20 Fang-Yuh Hsieh v. Shinseki 342 F. App’x 295 (9th Cir. 2009) ......................................................................... 7 Garza v. City of Inglewood 874 F.2d 816 (9th Cir. 1989) ................................................................................ 9 Gauvin v. Trombatore 682 F. Supp. 1067 (N.D. Cal. 1988) ...................................................................... 13 Hal Roach Studios, Inc. v. Richard Feiner & Co. 896 F.2d 1542 (9th Cir. 1989) .............................................................................. 5 Hurst v. City of Los Angeles 171 F. App’x 103 (9th Cir. 2006) ......................................................................... 9 Kang v. U. Lim Am., Inc. 296 F.3d 810 (9th Cir. 2002) .............................................................................. 22 Killingsworth v. State Farm Mut. Auto. Ins. Co. 254 F. App’x 634 (9th Cir. 2007) ....................................................................... 10 Lukovsky v. City & Cty. of San Francisco 535 F.3d 1044 (9th Cir. 2008) ............................................................................ 23 Manatt v. Bank of Am., NA 339 F.3d 792 (9th Cir. 2003) .............................................................................. 22 Marano v. Neotti No. 16CV0189-LAB (JLB), 2016 WL 7443136 (S.D. Cal. Dec. 21, 2016) (Burns, J.) ............................................................................................................. 5 McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973) ........................................................................................... 18 Medina v. Bauer No. 02 Civ. 8839(DC), 2004 WL 136636 (S.D.N.Y., Jan. 27, 2004) ................ 15 Mohasco Corp. v. Silver 447 U.S. 807 (1980) ......................................................................................... 1, 8 Nagar v. Found. Health Sys., Inc. 57 F. App’x 304 (9th Cir. 2003) ......................................................................... 23 NLRB. v. United Food & Commercial Workers Union, Local 23, AFL-CIO 484 U.S. 112 (1987) ............................................................................................. 3 Nunez v. City of Los Angeles 147 F.3d 867 (9th Cir. 2000) .............................................................................. 23 Payan v. Aramark Mgmt. Servs. Ltd. P’ship 495 F.3d 1119 (9th Cir. 2007) .......................................................................... 5, 7 Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1246 Page 5 of 32 - v - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 Pollard v. Quest Diagnostics 610 F. Supp. 2d 1 (D.D.C. 2009) ....................................................................... 19 Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133 (2000) ........................................................................................... 18 Regents of the Univ. of Cal. v. Aisen No. 15-CV-1766-BEN (BLM), 2016 WL 4096078 (S.D. Cal. Apr. 22, 2016) ................................................................................................................... 14 Robbins v. Oklahoma 519 F.3d 1242 (10th Cir. 2008) .................................................................... 16, 17 Saad v. Burns Int’l Security Servs., Inc. 456 F.Supp. 33 (D.D.C.1978)............................................................................... 9 In re Sagent Tech., Inc., Derivative Litig. 278 F. Supp. 2d 1079 (N.D. Cal. 2003) ........................................................... 13, 15 Saterbak v. Nat’l Default Servicing Corp. 2017 WL 272469 (S.D. Cal. Jan. 19, 2017) ....................................................... 12 Shah v. Mt. Zion Hosp. & Med. Ctr. 642 F.2d 268 (9th Cir. 1981) .............................................................................. 10 Stones v. Los Angeles Cmty. Coll. Dist. 572 F. Supp. 1072 (C.D. Cal. 1983), aff’d, 796 F.2d 270 (9th Cir. 1986) ......... 18 Stones v. Los Angeles Cmty. Coll. Dist. 796 F.2d 270 (9th Cir. 1986) .............................................................................. 18 Stuart v. Teamsters Local Union No. 117 24 F. App’x 675 (9th Cir. 2001) ....................................................................... 7, 8 Uche-Uwakwe v. Shinseki 972 F. Supp. 2d 1159 (C.D. Cal. 2013) .............................................................. 11 United States v. Ritchie 342 F.3d 903 (9th Cir. 2003) ............................................................................ 3, 5 Vasquez v. Cnty. of Los Angeles 349 F.3d 634 (9th Cir. 2003) .............................................................................. 11 Wei v. State of Hawaii 763 F.2d 370 (9th Cir. 1985) .............................................................................. 12 Wilkinson v. Clark Cty. Sch. Dist. 478 F. App’x 434 (9th Cir. 2012) ......................................................................... 7 FEDERAL CODES/STATUTES 29 U.S.C. § 160(f) ...................................................................................................... 3 42 U.S.C. § 1981 ...................................................................................... 8, 11, 17, 18 Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1247 Page 6 of 32 - vi - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 42 U.S.C. § 2000e-5(f)(1) ......................................................................................... 5 STATE CODES/STATUTES Cal. Civ. Proc. Code § 335.1 ................................................................................... 23 Title VII of the Civil Rights Act of 1964 .................................................................. 3 Fed. R. Civ. P. Rule 4 .............................................................................................. 12 Fed. R. Civ. P. Rule 4(m) ........................................................................................ 12 Fed. R. Civ. P. Rule 8 ........................................................................................ 15, 21 Fed. R. Civ. P. Rule 8(a)(2) .................................................................................. 13, 16 Fed. R. Civ. P. Rule 12(b)(1) ................................................................................... 11 Fed. R. Civ. P. Rule 12(b)(5) ................................................................................... 12 Fed. R. Civ. P. Rule 12(b)(6) ............................................................................... 6, 11 Fed. R. Civ. P. Rule 12(f) ........................................................................................ 24 Fed. R. Evid. Rule 201 ............................................................................................... 3 Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1248 Page 7 of 32 - 1 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 MEMORANDUM OF POINTS AND AUTHORITIES Preliminary Statement Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. . . . “[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”1 Plaintiff’s claims are time-barred by a trifecta of statutory limitations that are evident from the four corners of the Complaint and its myriad attachments. First, Plaintiff failed to file suit within ninety days of receiving his notice of right-to-sue from the U.S. Equal Employment Opportunity Commission (“EEOC”). Second, Plaintiff’s claims based on an alleged failure to hire are barred by the substantive statute of limitations. Third, Plaintiff failed to serve Defendants within the time allowed under the Federal Rules of Civil procedure. In addition, because Plaintiff failed to exhaust administrative remedies as to his claims of racial discrimination, national discrimination, and hostile work environment, the Courts lacks subject matter jurisdiction to consider Plaintiff’s claims. Moreover, even if the Court had subject matter jurisdiction (it does not) and Plaintiff’s claims were not statutorily time-barred (they are), the Complaint would still be subject to dismissal because Plaintiff has failed to plead sufficient factual allegations to state a claim that is plausible on its face. Indeed, as to Defendant SME Contractors, Inc., Plaintiff failed to allege a single factual allegation to support any claim against the company. The non-specific conclusory allegations against Defendant SME Industries, Inc., if any, fair no better to state a plausible, timely 1 Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1249 Page 8 of 32 - 2 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 claim. Accordingly, the Court should dismiss the Complaint against Defendants SME Steel Contractors, Inc. and SME Industries, Inc. in its entirety. Further, because any amendment could not cure Plaintiff’s time-barred claims, the Court should dismiss the claims with prejudice and without leave to amend. Statement of Facts Defendants SME Steel Contractors, Inc. and SME Industries, Inc. (collectively, the “SME Defendants”) are engaged in the business of fabricating and erecting large structural steel buildings. SME Contractors, Inc. is headquartered in West Jordan, Utah. For the California projects alleged in the Complaint, the SME Defendants use “field labor” employees who are dispatched to project jobsites by local ironworkers’ union to erect the prefabricated structural steel. The assignment of union ironworkers to particular projects and jobsites is the subject of collective bargaining agreements between the SME Defendants and the respective ironworkers’ unions. (Compl. Ex. G, ECF Doc. No. 1-8, at 5.) Plaintiff Sylvester T. Oliver (“Plaintiff”) alleges that in September 2014, he was dispatched by his local union, Defendant Iron Workers Union Local 229 (“Union”), to an SME Industries, Inc. jobsite in San Clemente, California. (Compl. ¶ 21.) After Plaintiff was turned around from the San Clemente jobsite “because there was no work available” (Compl. Ex. G, ECF Doc. 1-8, at 29), he filed a Charge of Discrimination against the SME Defendants with the EEOC on October 15, 2014 (“Charge”).2 (Compl. ¶ 21; Compl. Ex. G, ECF Doc. 1-8, at 3.) Plaintiff’s 2 Plaintiff also filed a grievance with the Union and, eventually, filed an amended EEOC Charge against the Union, which added allegations regarding the September 2014 dispatch and turnaround to an earlier EEOC charge against the Union that Plaintiff had originally filed in 2013. (Compl. ¶ 6; Compl. Ex. G at 28-29.) Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1250 Page 9 of 32 - 3 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 sole basis for the Charge against the SME Defendants was alleged discrimination based on retaliation between September 5 and September 8, 2014. (Compl. Ex. G, ECF Doc. 1-8, at 3.) Plaintiff’s “particulars” for the Charge were: I. On or about September 5, 2014, I was dispatched off a hiring list from Ironworkers Local 229 to work on the Bolt-On team as a Journeyman Ironworker at SME Industries, Inc. jobsite in San Clemente, CA starting on September 8, 2014. On or about September 8, 2014, I was laid off by Dennis Davis, Caucasian, Foreman. I have previously raised concerns about discriminatory hiring practices by SME Industries, Inc. in 2011 and 2012. II. No reason by Davis was given for my layoff. I was told by Brandon Otto, Caucasian, Superintendent, that he can layoff anyone he wants. I (sic) III. I believe that I have been discriminated against in retaliation for having previously engaged in protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended. (Compl. Ex. G, ECF Doc. 1-8, at 3.) In addition, Plaintiff filed a charge with the National Labor Relations Board (“NLRB”). The NLRB subsequently approved a unilateral settlement with SME Steel Contractors, and the SME Defendants paid Plaintiff in accordance with the settlement agreement. (Compl. ¶ 21, Ex. G, ECF Doc. 1-8, at 11-27.) The NLRB denied Plaintiff’s objections to the settlement and closed the case against SME Steel Contractors in January 2017. See NLRB Docket, SME Steel Contractors Inc., case no. 21-CA-143729, available at https://www.nlrb.gov/case/21-CA-143729. Because Plaintiff (i) attached the NLRB complaint and settlement agreement to the Complaint in this case, (ii) incorporates by reference in the Complaint his objection to the settlement, and (iii) because the status of the NLRB proceeding is an appropriate matter for judicial notice under Federal Rule of Evidence 201, the Court may consider these materials “without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice” may be considered “without converting the motion to dismiss into a motion for summary judgment”). While Plaintiff states in the Complaint before this Court that he “does not believe the [NLRB settlement amount] is satisfactory” (Compl. ¶ 21), he does not purport to state a claim to invalidate or object to the settlement or the NLRB’s closure of the case against SME Steel Contractors. Even had Plaintiff challenged the NLRB decision in the Complaint, however, this Court would lack jurisdiction to review the NLRB decision. Indeed, the NLRB approval of the settlement and closure of the case is only reviewable at all if it was a final order of the actual Board. NLRB. v. United Food & Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 133 (1987). If the decision is reviewable as a final order of the Board, Plaintiff may only obtain review in the Ninth or D.C. Circuit Court of Appeals. 29 U.S.C. § 160(f). Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1251 Page 10 of 32 - 4 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 On September 22, 2016, the EEOC mailed Plaintiff the Dismissal and Notice of Right to Sue as to Plaintiff’s EEOC Charge against the SME Defendants, EEOC Charge No. 488-2015-00021. (Compl. Ex. G, ECF Doc. 1-8, at 9-10.) The EEOC specifically provided notice to Plaintiff in the Notice of Right to Sue that any lawsuit against the SME Defendants must be filed within ninety (90) days, and that if he failed to file suit within ninety days his “right to sue based on this charge will be lost.” (Compl. Ex. G, ECF Doc. 1-8, at 10.) Similarly, the EEOC’s transmittal letter to Plaintiff informed him that if he did not file suit within the ninety-day limitations period, his “right to file a lawsuit in this matter will expire and cannot be restored by EEOC.” (Compl. Ex. G, ECF Doc. 1-8, at 9-10.) Plaintiff filed this action on January 3, 2017-104 days after the EEOC mailed the Notice of Right to Sue on September 22, 2016. In addition to the allegations of purported retaliation that Plaintiff included in the EEOC Charge against the SME Defendants, Plaintiff also alleges for the first time in this judicial action racial and national origin discrimination and hostile work environment, none of which was included in his Charge of Discrimination filed with the EEOC. (Compare Compl. ¶¶ 9, 25-28 with Compl. Ex. G, ECF Doc. 1-8, at 3.) The SME Defendants were not served in this action until May 30, 2017-148 days after Plaintiff filed the action. Argument I. THE COURT SHOULD DISMISS THE COMPLAINT WITH PREJUDICE BECAUSE PLAINTIFF FAILED TO FILE SUIT WITHIN NINETY DAYS OF RECEIVING HIS NOTICE OF RIGHT TO SUE A. Plaintiff Was Required To File Suit Within Ninety Days of Receiving The Notice of Right To Sue “[A] party may only file a civil suit in federal district court under Title VII upon receiving a right-to-sue letter from the Equal Employment Opportunity Commission [EEOC]. Upon receiving the letter, a party must file suit ‘within ninety Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1252 Page 11 of 32 - 5 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 days after the giving of such notice.’” Dandino, Inc. v. U.S. Dep’t of Transp., 729 F.3d 917, 922 (9th Cir. 2013) (quoting 42 U.S.C. § 2000e-5(f)(1)). As the Ninth Circuit has repeatedly held, “this ninety-day period operates as a limitations period. If a litigant does not file suit within ninety days [of] the date EEOC dismisses a claim, then the action is time-barred.” Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007) (internal quotations and citation omitted). B. Plaintiff’s Ninety-Day Limitations Period Began Running No Later Than September 27, 2016, And Expired No Later Than December 27, 2016 In the Ninth Circuit, courts measure the ninety-day limitations period “from the date on which a right-to-sue notice letter arrived at the claimant’s address of record.” Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1122 (9th Cir. 2007). Plaintiff does not specifically allege the date he received the EEOC Notice of Right to Sue (“Notice”), but when, as here, actual receipt is not disputed but the actual date of receipt is not known, Plaintiff is presumed to have received the Notice three days after the date the Notice indicates the EEOC mailed it. Id. at 1125-26 (adopting three-day presumption) (citing Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 (1984)). Here, Plaintiff attached the Notice to the Complaint. (Comp. Ex. G, ECF Doc. 1-8 at 10.) As this Court has ruled, “in deciding whether Plaintiff has stated a plausible claim for relief, the Court may consider exhibits attached to his Complaint.” Marano v. Neotti, No. 16CV0189-LAB (JLB), 2016 WL 7443136, at *3 (S.D. Cal. Dec. 21, 2016) (Burns, J.). By attaching the Notice to the Complaint, Plaintiff unquestionably admits that he actually received the Notice. Moreover, because Plaintiff attached the Notice to the Complaint, the Court may properly consider the Notice without converting the motion to dismiss into a motion for summary judgment. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (the Court may consider “documents attached to the complaint . . . without converting the motion to dismiss into a motion for summary judgment.”); Hal Roach Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1253 Page 12 of 32 - 6 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (“[M]aterial which is properly submitted as part of the complaint may be considered” in ruling on a motion to dismiss.”); Amfac Mortg. Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426, 429-30 (9th Cir. 1978) (documents attached to the complaint are part of the complaint and “are properly a part of the court’s review as to whether plaintiff can prove any set of facts in support of its claim”). Therefore, the Court can calculate the date of receipt to determine if the claim is time-barred for purposes of this Motion to Dismiss by examining the date indicated in the Notice that EEOC mailed the Notice to Plaintiff and applying the three-day presumption of receipt. De Los Reyes v. Sw. Gas Corp., 319 F. App’x 639, 641 (9th Cir. 2009) (affirming dismissal of complaint with prejudice under Rule 12(b)(6) because plaintiff failed to file the complaint within ninety days of the presumed date of receipt of the notice of right to sue, as calculated by the court). As indicated on the face of the Notice attached to the Complaint, the Notice was mailed to Plaintiff on September 22, 2016. (Comp. Ex. G, ECF Doc. 1-8 at 10.) Accordingly, Plaintiff is presumed to have received the Notice no later than September 27, at which time the ninety-day limitations period began running. 3 Therefore, at the latest, Plaintiff had until December 27, 2016, to file his suit against the SME Defendants.4 Plaintiff did not file the Complaint until January 3, 2017, however-104 days after receipt of the Notice and thus two weeks after the expiration of the ninety-day limitations period. 3 September 27, 2016, is the most generous application of the three-day presumption because it excludes Saturday and Sunday, September 24-25, 2016, even though the United States Postal Service has long maintained Saturday delivery service, and the Ninth Circuit has included Saturday and Sunday in calculating the three-day presumption for receipt of an EEOC notice of right to sue. See De Los Reyes, 319 F. App’x at 641 (EEOC notice dated Friday, February 10, 2006, was presumed received by plaintiff on Monday, February 13, 2006). 4 The 90th day would have been Monday, December 26, 2016, but because the 2016 Christmas Day federal holiday was observed on that date, this calculation continues Plaintiff’s last day to file to the next day, Tuesday, December 27, 2016. Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1254 Page 13 of 32 - 7 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 C. The Complaint Is Time-Barred And Must Be Dismissed With Prejudice Because Plaintiff failed to file suit against the SME Defendants within ninety days of receiving the EEOC Notice of Right to Sue, his claim is time-barred. See Fang-Yuh Hsieh v. Shinseki, 342 F. App’x 295, 297 (9th Cir. 2009) (Title VII claims time-barred for failure to file suit within ninety days of receiving the right-to- sue letter). Further, because an amended complaint “could not correct his time- barred statutory claims,” the Court should dismiss the complaint with prejudice and without leave to amend. De Los Reyes, 319 F. App’x at 641 (affirming dismissal of Title VII claim without leave to amend because plaintiff failed to file suit within ninety days of receiving his notice to sue and therefore an amendment “could not correct his time-barred statutory claims”); Stuart v. Teamsters Local Union No. 117, 24 F. App’x 675, 676 (9th Cir. 2001) (affirming dismissal of Title VII discrimination claim as time-barred because plaintiff failed to file suit within ninety days of receiving her notice of right-to-sue); Cason v. San Diego Transit Corp., No. 10-CV-0098-IEG MDD, 2011 WL 1596315, at *3 (S.D. Cal. Apr. 25, 2011) (dismissing Title VII claims with prejudice because plaintiff filed suit after the ninety-day limitations period expired). D. Plaintiff’s Pro Se Status Does Not Save His Time-Barred Claims; Dismissal With Prejudice Is Appropriate The ninety-day limitations period to bring suit under Title VII is strictly applied, and following the Supreme Court’s lead, the Ninth Circuit has made clear that Plaintiff’s “pro se status does not afford [him] different treatment under these standards.” Payan, 495 F.3d at 1127 (affirming dismissal of pro se Title VII complaint as untimely where it was filed “three days beyond the ninety-day period”) (citing Baldwin, 466 U.S. 147); Atkins v. Governing Bd. of Creighton Sch. Dist., No. 15-16242, 2017 WL 745705, at *1 (9th Cir. Feb. 27, 2017) (affirming dismissal of pro se Title VII claim as time-barred for failure to file suit within ninety days of receiving the right-to-sue letter); Wilkinson v. Clark Cty. Sch. Dist., 478 F. App’x Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1255 Page 14 of 32 - 8 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 434, 435 (9th Cir. 2012) (affirming dismissal of pro se claims brought under Title VII and section 1981 because plaintiff failed to file suit within ninety days of notice of right-to-sue and failed to exhaust administrative remedies); Stuart, 24 F. App’x at 676 (affirming dismissal of pro se complaint with prejudice as time-barred for failure to file within ninety days of receiving notice of right to sue). As the Supreme Court ruled in holding a pro se litigant to the strict ninety-day limitations period, “Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. . . . ‘[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.’” Baldwin, 466 U.S. at 152 (1984) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). No extraordinary circumstances exist for Mr. Oliver to suggest a less lenient standard should apply to him than the Supreme Court and Ninth Circuit have applied to scores of other pro se plaintiffs. Rather, quite the opposite. Plaintiff had undisputed actual notice of the strict ninety-day limitations bar. “The simple fact is that [Plaintiff] was told three times what [he] must do to preserve [his] claim, and [he] did not do it. One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.” Baldwin, 466 U.S. at 151. For one, the EEOC advised Plaintiff in the Notice itself that he was required to file suit within ninety days, and that if he did not file within ninety days, his “right to sue based on this charge will be lost.” (Compl. Ex. G, ECF Doc. 1-8 at 10.) Second, in the EEOC transmission letter, also attached to the Complaint, the Commission similarly advised Plaintiff: “If you do not file a lawsuit within the required 90-day period, your right to file a lawsuit in this matter will expire and cannot be restored by EEOC.” (Id. at 9.) Third, Plaintiff was apprised of the strict ninety-day limitations period again when he received his separate notice of right to sue as to the Union defendant. (Compl. Ex. H, ECF Doc. 1-9 at 2.) Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1256 Page 15 of 32 - 9 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 II. THE COURT SHOULD DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION BASED ON PLAINTIFF’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES To establish federal subject matter jurisdiction of a Title VII claim, Plaintiff is required to exhaust his administrative remedies. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). “Where a plaintiff alleges a distinct category of discrimination in his EEOC charge, a separate claim ‘which [was] not raised during the administrative process[ ] must be dismissed.’” Hurst v. City of Los Angeles, 171 F. App’x 103, 104 (9th Cir. 2006) (affirming dismissal of race discrimination claims for lack of subject matter jurisdiction) (quoting Saad v. Burns Int’l Security Servs., Inc., 456 F.Supp. 33, 36 (D.D.C.1978)). Because Plaintiff’s claim for race and national origin discrimination were neither included in the EEOC charge nor reasonably related to allegations contained in the EEOC charge, the Court lacks jurisdiction over those claims. Garza v. City of Inglewood, 874 F.2d 816 (9th Cir. 1989) (plaintiff’s omission of race and color as bases for discrimination in his EEOC charge required dismissal of later claims on those bases for lack of subject matter jurisdiction). A. Plaintiff Failed to Exhaust Administrative Remedies for Alleged Race or National Origin Discrimination Against the SME Defendants The sole basis alleged in Plaintiff’s Charge of Discrimination filed with the EEOC against the SME Defendants was alleged “retaliation for having previously engaged in protected activity” in connection with his September 2014 dispatch and turnaround layoff at an “SME Industries, Inc. jobsite in San Clemente, CA.” (Compl. Ex. G, ECF Doc. 1-8, at 3.) Nowhere in the Charge did Plaintiff allege the SME Defendants, or either of them, discriminated against Mr. Oliver on the basis of race or national origin. Indeed, the Charge makes no mention of Plaintiff’s race or national origin, nor does it allege his turnaround in September 2014 was on account of either his race or Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1257 Page 16 of 32 - 10 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 national origin. (Compl. Ex. G at 3.) This is consistent with Plaintiff’s single purported bases for discrimination indicated on the Charge, which only included a check in the box for “RETALIATION,” and not for any other form of discrimination, including “RACE,” “COLOR,” or “NATIONAL ORIGIN.” (Compl. Ex. G at 3.) This omission is dispositive of Plaintiff’s claims. See Encinas v. Tucson Elec. Power Co., 76 F. App’x 762, 763-64 (9th Cir. 2003) (affirming dismissal of race discrimination claim for lack of subject matter jurisdiction where plaintiff “did not mention race either by checking the ‘race’ box or including any reference to race in her statement” in the EEOC charge). In addition, unlike the Charges filed against the Union, the Charge filed against the SME Defendants makes no reference to the alleged failure to refer work or dispatch Plaintiff to any SME jobs, let alone failure to refer work or dispatch Plaintiff on account of his race, national origin, or in retaliation for any protected activity. (Compare Compl. Ex. G at 3 with Compl. Ex. G at 28-29.) This is further evidenced on the face of Plaintiff’s Charge, which indicates his contention that the “Earliest” date of alleged discrimination was September 5, 2014, and the “Latest” date of alleged discrimination was September 8, 2014. (Compl. Ex. G at 3.) The EEOC would not have reasonably investigated any allegations outside this narrow date range, nor would it have investigated any basis for discrimination other than retaliation. Accordingly, Plaintiff failed to exhaust his administrative remedies as to the alleged claims for race and national origin discrimination. Therefore, the Court lacks subject matter jurisdiction to hear those claims and must dismiss. Killingsworth v. State Farm Mut. Auto. Ins. Co., 254 F. App’x 634, 636 (9th Cir. 2007) (affirming dismissal of race and age discrimination claims for lack of subject matter jurisdiction because the plaintiff “did not raise the [age discrimination] claim in his original EEOC charge” and “excluded the racial discrimination claim from his EEOC charge”); Shah v. Mt. Zion Hosp. & Med. Ctr., 642 F.2d 268, 271 (9th Cir. Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1258 Page 17 of 32 - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 1981) (affirming dismissal for lack of subject matter jurisdiction as to claims for race, color, and religious discrimination because Plaintiff failed to raise these bases for discrimination in his EEOC charge). B. Plaintiff Failed to Exhaust Administrative Remedies for Alleged Harassment and Hostile Work Environment Plaintiff was also required to exhaust administrative remedies by including allegations of a hostile work environment or harassment in his EEOC charge. See Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1195 (C.D. Cal. 2013) (citing Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“Because Vasquez did not present the legal theory of unlawful retaliation, and the operative facts regarding this part of his claim were not related to the facts in the EEOC charge, he did not exhaust his administrative remedies.”)). He failed to do so. Therefore, to the extent Plaintiff purports to include the SME Defendants in his ubiquitous and non-specific reference to “Defendants” in his Second Claim for Relief for Hostile Work Environment in Violation of § 1981, Plaintiff likewise failed to exhaust his administrative remedies as to this claim.5 Uche-Uwakwe, 972 F. Supp. 2d at 1196 (dismissing “harassment/hostile work environment claim because Plaintiff failed to exhaust her administrative remedies with respect to this claim.”). As described above, the only allegations in the EEOC Charge of Discrimination - and the only indicated dates of alleged discrimination - relate to Plaintiff’s dispatch to and turnaround from the SME Industries jobsite in San Clemente. There is no mention of any “harassment” or “hostile work environment.” Indeed, the keystone of the Charge - and the allegations against SME Industries - is 5 While Plaintiff’s failure to exhaust administrative remedies deprives the Court of subject matter jurisdiction and therefore requires dismissal under Rule 12(b)(1), even if the Court had jurisdiction over the claims, Plaintiff’s failure to plead facts as to each SME Defendant provides an independent basis to dismiss this Complaint under Rule 12(b)(6) for failure to state a claim as set forth in Section IV, below. Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1259 Page 18 of 32 - 12 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 that Plaintiff was turned around upon arrival and was therefore effectively denied work before he ever started work, not that the SME Defendants or their employees harassed Plaintiff or created a hostile work environment. Moreover, to the extent Plaintiff seeks to rely on the alleged statement by Mr. Otto included in the Charge “that he can layoff anyone he wants,” Plaintiff’s Charge alleges this statement was made after he was already “laid off,” not part of any hostile work environment. III. PLAINTIFF’S FIVE-MONTH DELAY IN SERVING DEFENDANTS REQUIRES DISMISSAL FOR INSUFFICIENT SERVICE OF PROCESS The Court should dismiss the Complaint for insufficient service of process. Plaintiff filed the instant action on January 3, 2017, but failed to serve Defendants SME Steel Contractors, Inc. and SME Industries, Inc. until May 30, 2017-nearly five months later. Under the Federal Rules of Civil Procedure, Plaintiff must serve Defendants within 90 after the complaint is filed. Fed. R. Civ. P. 4(m). Plaintiff’s tardy service, however, comes 148 after he filed the complaint. Accordingly, absent a showing of good cause for Plaintiff’s untimely service, the Court should dismiss the Complaint under Rule 12(b)(5) for insufficient service of process. See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (affirming dismissal for failure to serve within the time specified in Rule 4 even though such dismissal would render plaintiff’s Title VII claims time-barred upon re-filing); Saterbak v. Nat’l Default Servicing Corp., 2017 WL 272469, at *6 (S.D. Cal. Jan. 19, 2017) (concluding the plaintiff failed to demonstrate good cause for failing to timely serve defendant where, “[i]n the opposition to the motion to dismiss, Plaintiff does not contend or provide any authority to support a finding that she had good cause for the untimely service.”). / / / / / / / / / Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1260 Page 19 of 32 - 13 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 IV. THE COMPLAINT FAILS TO STATE ANY PLAUSIBLE CLAIM FOR RELIEF AGAINST THE SME DEFENDANTS A. Plaintiff Is Required To Plead Specific Facts That Give Rise To A Plausible Claim As To Each Defendant In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007), the Supreme Court “retired” the formulation of the pleading standard set forth in Conley v. Gibson, 355 U.S. 41, 47 (1957). To survive a motion to dismiss, a complaint must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). “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. The Supreme Court has adopted a two-step approach to determine whether a complaint complies with these standards. First, the Court must disregard legal conclusions because they are “not entitled to be assumed true.” Id. at 678-81. Second, the Court must consider the remaining well-pleaded and non-conclusory factual allegations and determine whether they, standing alone, suffice to state a plausible claim for relief. Id. “Plaintiff must allege the basis of his claim against each defendant to satisfy Federal Rule of Civil Procedure 8(a)(2), which requires a short and plain statement of the claim to put defendants on sufficient notice of the allegations against them.” Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988) (dismissing claim where “all defendants are lumped together in a single, broad allegation”). Indeed, “[a] complaint that lumps together [multiple] ‘individual defendants’ . . . fails to give ‘fair notice’ of the claim to those defendants.” In re Sagent Tech., Inc., Derivative Litig., 278 F. Supp. 2d 1079, 1094-95 (N.D. Cal. 2003) (granting motion to dismiss because plaintiff’s allegations in the complaint against “the Individual Defendants” Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1261 Page 20 of 32 - 14 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 did “not indicate which individual defendant or defendants were responsible for which alleged wrongful act.”). Applying this approach to the Complaint, it is clear that Plaintiff’s claims against the SME Defendants fail to satisfy the Supreme Court’s pleading requirements. Because none of these claims allege sufficient facts to state a plausible claim against the SME Defendants, they should be dismissed. B. All Claims Against SME Steel Contractors Should Be Dismissed Because The Complaint Contains No Facts At All To Support Any Claim Against SME Steel Contractors As to Defendant SME Steel Contractors, Inc., Plaintiff fails to allege any acts, let alone any wrongful conduct. Indeed, other than its inclusion in the case caption, SME Steel Contractors, Inc. is never mentioned in the text of the Complaint whatsoever. And to the extent Plaintiff’s reference to “SME Steel Corporation, Inc.” in Paragraph 4 was included erroneously and should have referred to “SME Steel Contractors, Inc.,” that reference in Paragraph 4 is the only mention of the entity, and merely alleges “SME Steel Corporation, Inc. is a Utah corporation with its principal place of business in Utah.” (Compl. ¶ 4.) This is insufficient to provide adequate notice of the asserted claims against SME Steel Contractors, Inc., if any. Therefore, the Complaint must be dismissed. Regents of the Univ. of Cal. v. Aisen, No. 15-CV-1766-BEN (BLM), 2016 WL 4096078, at *2-4 (S.D. Cal. Apr. 22, 2016) (dismissing complaint as to certain defendants only named on the complaint and identified as residents, but who were otherwise “mentioned only once in the body of the amended complaint and even there as part of an undifferentiated group.”). Moreover, Plaintiff’s general, non-descript allegations against “Defendants” and “SME” without alleging any conduct specific to SME Steel Contractors, Inc. are insufficient to provide notice to SME Steel Contractors, Inc. and therefore do not save the Complaint from dismissal as to SME Steel Contractors, Inc. Id. (collecting cases and holding, “Because [the individual defendants] are mentioned only once in Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1262 Page 21 of 32 - 15 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 the substantive allegations, and even in that mention only as members of a larger collective group of individuals, the amended complaint does not give [the individual defendants] the opportunity to effectively defend themselves and unfairly subjects these particular Defendants to the expense of litigation.”); In re Sagent Tech., 278 F. Supp. 2d at 1094-95 (granting motion to dismiss, and ruling “[a] complaint that lumps together [multiple] ‘individual defendants’ . . . fails to give ‘fair notice’ of the claim to those defendants.”); Aaron v. Aguirre, 2007 WL 959083, at *16 n.6 (S.D. Cal. Mar. 8, 2007) (“[U]ndifferentiated pleading against multiple defendants is improper.”); Medina v. Bauer, No. 02 Civ. 8839(DC), 2004 WL 136636, *6 (S.D.N.Y., Jan. 27, 2004) (“By lumping all the defendants together and failing to distinguish their conduct, plaintiff’s amended complaint fails to satisfy the requirements of Rule 8.”). Even if the claims against the SME Defendants were not time-barred (they are), as shown above, the only claim for which Plaintiff arguably exhausted administrative remedies was his retaliation claim. But even as to those allegations, the basis for Plaintiff’s claim is that he was dispatched to and laid off from an ironworker job, which job he alleged in his EEOC Charge (attached to and incorporated in the Complaint) was “at SME Industries, Inc.,” and that the basis for his alleged retaliation was his having “previously raised concerns about discriminatory hiring practices by SME Industries, Inc. in 2011 and 2012.” (Compl. Ex. G at 3 (emphasis added).) Plaintiff has not alleged SME Contractors, Inc. had any role in his dispatch or turnaround in September 2014, nor that SME Contractors, Inc. exercised any control or authority over the alleged conduct, or any basis for liability for any of the alleged acts. Accordingly, Plaintiff has not alleged any facts to state any plausible claim against SME Contractors, Inc. For this reason, the Court should dismiss all claims against SME Contractors, Inc. / / / / / / / / / Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1263 Page 22 of 32 - 16 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 C. The Complaint Fails To Allege Factual Allegations That Support Its Conclusory Claims Against The SME Defendants The bulk of the Complaint is improperly pleaded against “Defendants,” without distinguishing between the Union or either of the SME Defendants. As demonstrated above, this is improper. See, e.g., Aaron v. Aguirre, 2007 WL 959083, at *16 n.6 (S.D. Cal. Mar. 8, 2007) (“[U]ndifferentiated pleading against multiple defendants is improper.”). The Complaint’s non-specific allegations of conduct by “Defendants” (most of which is inferably, if at all, pleaded against the Union) - or even against the non- descript “SME” - is insufficient as a matter of law to meet Plaintiff’s burden “to provide fair notice of the grounds for the claims made against each of the defendants. Given the complaint’s use of either the collective term ‘Defendants’ or a list of the defendants named individually but with no distinction as to what acts are attributable to whom, it is impossible for any of these [defendants] to ascertain what particular [discriminatory] acts they are alleged to have committed.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (reversing and remanding with instructions to dismiss complaint indiscriminately pleaded against “Defendants”); see also Atuahene v. City of Hartford, 10 Fed. App’x. 33, 34 (2d Cir. 2001) (“By lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct, [Plaintiff’s] complaint failed to satisfy this minimum standard.”). A defendant “should not be required to guess which allegations pertain to it. By failing to differentiate among defendants or specify which defendant is the subject of Plaintiff’s various allegations, Plaintiff’s Complaint violates Rule 8(a)(2) because it fails to provide [Defendant] with fair notice of its alleged misconduct.” Corazon v. Aurora Loan Servs., LLC, No. 11-00542 SC, 2011 WL 1740099, *4 (N.D. Cal. May 5, 2011) (granting motion to dismiss without leave to amend). Even construing the allegations against the non-differentiated “SME” to mean Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1264 Page 23 of 32 - 17 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 SME Industries, Inc., 6 Plaintiff’s only allegations of conduct by “SME” are conclusory allegations that “SME took adverse actions against [Plaintiff]” and that “Plaintiff was turned around and treated differently from and worse than other employees who had not filed Charges of Discrimination.” (Compl. ¶ 28.) Such legal conclusions and conclusory allegations, however, are not accepted as true for the purposes of this Motion to Dismiss. Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The only factual allegations to support Plaintiff’s conclusions of any action (or inaction) by “SME” are (1) that Plaintiff was laid off in 2011 and, vaguely, that “it was noted” (presumably by Plaintiff) that all African American workers in Plaintiff’s group were allegedly laid off (Compl. ¶ 9); (2) that in 2012, “Plaintiff waited at hall for dispatch to the [SME Industries, Inc.] job site which never happened” (Compl. ¶ 11); (3) that on September 5, 2014, he “received a dispatch slip to show up to SME jobsite in San Clemente on . . . September 8, 2014” (Compl. ¶ 21); and (4) that “Plaintiff showed up to the jobsite ready to work [on September 8, 2014] only to be turned away.” (Compl. ¶ 21.) For the reasons set forth below, these allegations are insufficient, as a matter of law, to state a claim against the SME Defendants for racial or national origin discrimination, retaliation, or hostile work environment under either Title VII or 42 U.S.C. § 1981. 6 This speculative interpretation is meant for illustrative purposes only. The Court should not presumptively interpret “SME” to mean SME Industries, Inc. Indeed, the Court and the SME Defendants “need not speculate, because the burden rests on the plaintiffs to provide fair notice of the grounds for the claims made against each of the defendants.” Robbins, 519 F.3d at 1250 (reversing and remanding with instructions to dismiss complaint). Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1265 Page 24 of 32 - 18 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 D. Any Claim For Race or National Origin Discrimination Against The SME Defendants Should Be Dismissed Because The Complaint Fails To State Facts To Support A Plausible Claim “Claims for employment discrimination pursuant to § 1981 are treated in a similar manner as are disparate treatment cases brought pursuant to Title VII, 42 U.S.C. § 2000e-3(a).” Stones v. Los Angeles Cmty. Coll. Dist., 572 F. Supp. 1072, 1079 (C.D. Cal. 1983), aff’d, 796 F.2d 270 (9th Cir. 1986). Therefore, to establish a prima facie case of discrimination under Title VII or section 1981, Plaintiff must prove (1) that he was a member of a protected group; (2) that he was qualified for the position; (3) that he was discharged or suffered an adverse employment action; and (4) that similarly-situated non-protected group employees were treated more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143-149 (2000). Moreover, to prevail on his section 1981 claim, Plaintiff will also have to prove that the defendant acted against him with discriminatory intent. Stones v. Los Angeles Cmty. Coll. Dist., 796 F.2d 270, 272 (9th Cir. 1986). The Complaint utterly fails to plead sufficient factual allegations to state a claim against the SME Defendants for racial or national origin discrimination. Plaintiff’s only allegation of his race or national origin is pleaded only in his Second Claim for Hostile Work Environment, in which he alleges he is “African American and was born in the United States.” (Compl. ¶ 26.) Even if this allegation was incorporated into Plaintiff’s First Claim for Relief as well, Plaintiff’s stated race may bestow upon him protected class status, but his place of birth in the United States is insufficient. Plaintiff alleges that the SME Defendants are United States corporations organized under the laws of Nevada and Utah and which are doing business California. (Compl. ¶¶ 3-4.) In addition, Plaintiff does not allege that any of the purported actors who he claims engaged in alleged discrimination were born in any county other than the United States, nor that any foreign-born Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1266 Page 25 of 32 - 19 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 individual was treated more favorably because of their non-U.S. national origin. Plaintiff also fails to allege he was qualified for any position he alleges he was denied or suffered an adverse employment action in relation to. Indeed, the word “qualified” does not appear anywhere in the Complaint. Plaintiff also fails to allege any facts that would tend to support a claim that similarly-situated non-protected group employees were treated more favorably than he was. For example, Plaintiff does not allege that when he was “laid off” or turned away from the San Clemente jobsite on September 8, 2014, that any similarly- situated employees were not also laid off, turned away, or otherwise treated more favorably. In fact, Plaintiff admitted in his EEOC Charge filed against the Union that “SME Steel laid me off in September 2014 because there was no work available.” (Compl. Ex. G, ECF Doc. 1-8, at 29.) Plaintiff also claimed in the EEOC Charge against the Union that “it was the Union who was responsible for the [September 2014] lay off” and “for not referring me employment since September 2014.” (Compl. Ex. G, ECF Doc. 1-8, at 29.) Finally, Plaintiff fails to allege any facts to support discriminatory animus and discriminatory intent by the SME Defendants on account of Plaintiff’s race or national origin necessary to state a claim under Section 1981. Nor do the scant factual allegations in the Complaint - such as merely alleging the race of the superintendent - support a reasonable inference of racial discrimination. See, e.g., Pollard v. Quest Diagnostics, 610 F. Supp. 2d 1, 22 (D.D.C. 2009) (“there can be no reasonable inference of racial discrimination where an individual just happens to be a member of a protected class-actionable discrimination only occurs when any employer acts ‘because of’ the plaintiff's status as a member of a protected class.”). The closest Plaintiff gets to alleging even a potentially viable claim for racial discrimination in the Complaint is Plaintiff’s allegation that in June 2011, Plaintiff and “all African American workers for SME had been laid off” from “the SME Downtown San Diego Federal Courthouse jobsite.” (Compl. ¶ 9.) As for this Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1267 Page 26 of 32 - 20 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 alleged 2011 adverse action, however, not only does Plaintiff fail to allege he was qualified for the position and that non-African American workers at the jobsite were treated more favorably, but because he did not allege this in his EEOC Charge against the SME Defendants, Plaintiff failed to exhaust administrative remedies and therefore the Court lacks subject matter jurisdiction to consider these allegations as a basis for a claim for relief. In addition, because Plaintiff did not file the EEOC Charge against the SME Defendants until October 15, 2014 - more than three years after the alleged lay off - any claim arising out of the June 2011 actions would have already been time-barred under the EEOC 300-day limitations period for bringing a charge. Moreover, even if he had timely filed a charge and for this 2011 lay off and exhausted his administrative remedies, by the time Plaintiff filed the Complaint in January 2017, the statute of limitations has long expired on Plaintiff’s section 1981 claim for any adverse actions in 2011. E. Plaintiff’s Claim For Retaliation Against The SME Defendants Should Be Dismissed Because The Complaint Fails To Allege A Plausible Claim To establish his claim for retaliation, Plaintiff must prove (1) that he undertook a protected activity under Title VII; (2) that the SME Defendants subjected Plaintiff to an adverse employment action; and (3) that the adverse employment action was because of Plaintiff’s protected activity. Model Civ. Jury Instr. 9th Cir. 10.3 (2007). Plaintiff fails to state any facts which, even if accepted as true, would establish a causal connection between Plaintiff’s September 2014 lay off and his protected activity. “Plaintiff merely concludes that he was fired because of his [protected activity], but fails to factually allege a causal connection between the [protected activity] and his ultimate termination. Plaintiff has failed to plead ‘more than a sheer possibility that a defendant has acted unlawfully’” Estrada v. Gate Gourmet, Inc., No. CV 17-1100-MWF(FFMX), 2017 WL 2468773, at *6 (C.D. Cal. June 6, 2017) (granting motion to dismiss) (quoting Iqbal, 556 U.S. at 678). Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1268 Page 27 of 32 - 21 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 Indeed, Plaintiff does not even allege that the individuals whom he claims laid him off at the jobsite on September 8, 2014, had any knowledge of Plaintiff’s prior charges and complaints against the Union and the SME Defendants, let alone that he laid Plaintiff off because of Plaintiff’s participation in that activity. Rather, Plaintiff admits in his EEOC Charge against the Union that “SME Steel laid me off in September 2014 because there was no work available,” and that “it was the Union who was responsible for the [September 2014] lay off” and “for not referring me employment since September 2014.” (Compl. Ex. G, ECF Doc. 1-8, at 29.) Plaintiff cannot merely levy conclusory allegations devoid of any factual support in hopes of uncovering some indicia of discriminatory intent during discovery. Protecting against such fishing expeditions is part of the Court’s gatekeeping function in assessing whether a complaint has sufficient well-pleaded facts to state a plausible claim. “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678- 79. Because Plaintiff has failed to meet his pleading burden, the Court should dismiss all claims against the SME Defendants. Dichter-Mad Family Partners, LLP v. United States, 707 F. Supp. 2d 1016, 1052 (C.D. Cal. 2010) aff’d, 709 F.3d 749 (9th Cir. 2013) (“Rule 8 pleading requirements prevent parties from filing complaints in order to conduct aimless fishing expeditions in the hope that some helpful evidence might possibly be uncovered.”). F. The Claim For Hostile Work Environment Should Be Dismissed Because Plaintiff Failed To State Any Facts That Would State A Claim Against The SME Defendants To the extent Plaintiff purports to include the SME Defendants in his ubiquitous and non-specific reference to “Defendants” in his Second Claim for Relief for “Hostile Work Environment in Violation of § 1981 on behalf of Plaintiff,” the Complaint is devoid of any facts to support a plausible claim against the SME Defendants for Hostile Work Environment under section 1981. Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1269 Page 28 of 32 - 22 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 To establish the prima facie hostile work environment claim under either Title VII or section 1981, Plaintiff must demonstrate (1) he was “subjected to verbal or physical conduct” because of his race or national origin; (2) “the conduct was unwelcome,” and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of [Plaintiff’s] employment and create an abusive work environment.” Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003); Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002).7 1. Plaintiff Does Not Allege Any Verbal or Physical Conduct By The SME Defendants Because of Plaintiffs Race or National Origin First, nowhere in the Complaint does Plaintiff allege that he was “subjected to verbal or physical conduct because of his race or national origin” by the SME Defendants or any of their respective employees. The only allegations of any “verbal or physical conduct” concern Plaintiff’s alleged interactions with other members of the Union in the Union dispatch hall. Indeed, the only arguable allegations of any verbal interaction whatsoever between the SME Defendants’ employees and Plaintiff is the alleged statement by the San Clemente jobsite superintendent that he had “the authority to lay anyone off that [he] wanted or whatever reason [he] chose to.” (Compl. ¶ 21.) Plaintiff fails to allege any basis to support even an inference that this alleged “verbal conduct,” if deemed as such, was because of Plaintiff’s race or national origin, or even his so-called protected activity. 8 Iqbal, 556 U.S. at 678 (requiring factual allegations “that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). 7 Plaintiff’s three categories of “Defendant’s treatment of Plaintiff” in the Second Claim for Relief for hostile work environment under section 1981 appear to primarily be directed at the Union, not the SME Defendants. (Comp. ¶ 26.) 8 Indeed, as stated above, Plaintiff admits in his EEOC Charge against the Union that “SME Steel laid me off in September 2014 because there was no work available.” (Compl. Ex. G, ECF Doc. 1-8, at 29 (emphasis added).) Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1270 Page 29 of 32 - 23 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 2. Plaintiff Does Not Allege Sufficiently Severe or Pervasive Conduct Plaintiff also fails to allege facts tending to show that the alleged verbal conduct, if any, was “sufficiently severe or pervasive to alter the conditions of [Plaintiff’s] employment and create an abusive work environment.” Nagar v. Found. Health Sys., Inc., 57 F. App’x 304, 306 (9th Cir. 2003) (“offhand comments and isolated incidents of . . . offensive remarks and conduct were insufficiently severe or pervasive to alter the terms and conditions of her employment and thus to create an actionable hostile work environment.”); accord Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 2000) (“All he has shown is that he was bad- mouthed and verbally threatened. It would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation.”). 3. Any Section 1981 Claim Based on Plaintiff’s Failure To Hire Allegations Is Time-Barred Moreover, to the extent Plaintiff’s section 1981 claim is based on Plaintiff’s allegations that the SME Defendants failed to hire him for discriminatory reasons, the claim is barred by the applicable analogous two-year statute of limitations. Lukovsky v. City & Cty. of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (California’s limitations period for personal injury torts applies to a discriminatory failure to hire claim under section 1981); Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for personal injury torts). Plaintiff’s failure to hire claim is based on allegations that Plaintiff was not dispatched from the Union dispatch hall for “job referrals to SME job sites” in between 2012 and 2014. (Compl. ¶¶ 11, 25, 28). These claims are time-barred. Id. 4. Plainitff Fails To Allege Facts To Support A Failure To Hire Claim Against The SME Defendants In addition to the incurable statute of limitations problems as to these allegations, Plaintiff does not allege facts to support a claim that the SME Defendants engaged in any conduct to deny Plaintiff work other than the layoff, Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1271 Page 30 of 32 - 24 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 which he admits “was because there was no work available.” (Compl. Ex. G, ECF Doc. 1-8, at 29.) For example, the Complaint does not allege the SME Defendants had any role in operating the Union dispatch hall or administrating the dispatch procedures, nor does it allege that the SME Defendants controlled the conduct of the Union members in the dispatch hall. Plaintiff’s allegation that “Defendants” used non-descript “job call tactics so they could bypass Plaintiff” are insufficient to provide notice to the SME Defendants of any alleged claim. See supra, Sections IV.A-C. Plaintiff suggests that these co-called tactics involved referring jobs based on using “name calls and call backs” rather than the “out of work list” that Plaintiff was apparently on, not a nefarious design to specifically avoid referring work to Plaintiff based on any protected status. (Compl. ¶ 28.) In fact, Plaintiff admits he was eventually dispatched to the SME Industries San Clemente jobsite. (Compl. ¶ 28.) In short, Plaintiff has failed to state sufficient facts to support a plausible claim for relief against the SME Defendants. V. IF THE COMPLAINT SURVIVES DISMISSAL, THE COURT SHOULD STRIKE PLAINTIFF’S IMMATERIAL AND IMPERTINENT ALLEGATIONS AND EXHIBITS In the event the Complaint survives this Motion to Dismiss, the SME Defendants join in the Union Defendant’s Motion to Strike under Rule 12(f) those portions of the Complaint and attached exhibits that are immaterial and impertinent, including, among other things, allegations regarding the NLRA, NLRB, punitive damages, and the other immaterial and impertinent allegations and exhibits set forth in the Union’s moving papers. The SME Defendants specifically incorporate by reference that portion of the Union’s Memorandum of Points and Authorities in Support of Motion to Dismiss or in the Alternative Motion to Strike that sets for the basis for the motion to strike in the alternative. ECF Doc. No. 10-1 at 21-24. Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1272 Page 31 of 32 - 25 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY SME DEFENDANTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 Conclusion For the foregoing reasons, the Court should grant the SME Defendants’ Motion and Dismiss the Complaint with prejudice. Dated: June 19, 2017 ATKINSON, ANDELSON, LOYA, RUUD & ROMO By: /s/BRIAN M. WHEELER Thomas A. Lenz Brian M. Wheeler Attorneys for Defendants SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC. Case 3:17-cv-00001-LAB-MDD Document 13-1 Filed 06/19/17 PageID.1273 Page 32 of 32 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16238435.1 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Thomas A. Lenz (CA Bar No. 152624) TLenz@aalrr.com Brian M. Wheeler (CA Bar No. 266661) BWheeler@aalrr.com 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 Telephone: (562) 653-3200 Fax: (562) 653-3333 Attorneys for Defendants SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Sylvester T. Oliver, Plaintiffs, v. Iron Workers Union Local 229, SME STEEL CONTRACTORS, INC. and SME INDUSTRIES, INC., Defendants. Case No. 3:17-cv-00001-LAB-MDD Hon. Larry Alan Burns PROOF OF SERVICE BY U.S. MAIL AND CM/ECF Hearing Date: July 24, 2017 Time: 11:30 a.m. Courtroom: 14A Complaint Filed: January 3, 2017 Case 3:17-cv-00001-LAB-MDD Document 13-2 Filed 06/19/17 PageID.1274 Page 1 of 3 - 2 - PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16238435.1 CERTIFICATE OF SERVICE [FRCP 5(B)] STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 12800 Center Court Drive South, Suite 300, Cerritos, California 90703-9364. On June 19, 2017, I served the following documents described as: 1) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT BY SME STEEL CONTRACTORS, INC. AND SME INDUSTRIES, INC.; ORAL ARGUMENT REQUESTED; 2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT BY SME STEEL CONTRACTORS, INC. AND SME INDUSTRIES, INC.; ORAL ARGUMENT REQUESTED; and 3) PROOF OF SERVICE BY U.S. MAIL on the interested parties in this action as follows: Sylvester T. Oliver 1328 N. Cuyamaca Street, Unit 1 El Cajon, CA 92020 In Persona Pro Se Tel: (619) 251-5216 E-mail: 619sly@gmail.com  BY MAIL: I placed a true and correct copy of the document(s) in a sealed envelope for collection and mailing following the firm’s ordinary business practices. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. David A Rosenfeld Weinberg Roger & Rosenfeld 1001 Marina Village Parkway Suite 200 Alameda, CA 94501 Defendant Iron Workers Union Local 229 E-mail: courtnotices@unioncounsel.net  BY CM/ECF: I sent such document(s) to the email address(es) listed above. Such document(s) was scanned and emailed via CM/ECF of the United States District Court to such recipient(s) and email confirmation(s) will be maintained indicating the recipients’ email address(es) and time of transmission. Case 3:17-cv-00001-LAB-MDD Document 13-2 Filed 06/19/17 PageID.1275 Page 2 of 3 - 3 - PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AT KI NS ON , A ND EL SO N, L OY A, R UU D & RO M O A PR OF ES SI ON AL C OR PO RA TI ON AT TO RN EY S AT L AW 12 80 0 CE NT ER C OU RT D RI VE S OU TH , S UI TE 3 00 CE RR IT O S, C AL IF O RN IA 9 07 03 -9 36 4 TE LE PH ON E: (5 62 ) 65 3- 32 00 FA X: (5 62 ) 65 3- 33 33 009703.00030 16238435.1 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on June 19, 2017, at Cerritos, California. Julie A. Garcia Case 3:17-cv-00001-LAB-MDD Document 13-2 Filed 06/19/17 PageID.1276 Page 3 of 3