Reynolds v. Princeton Property Management Inc et al

Motion to Dismiss for Failure to State a Claim . Oral Argument requested.

D. Or.March 16, 2017

Page 1 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 Brenda K. Baumgart, OSB No. 992160 brenda.baumgart@stoel.com Ryan S. Kunkel, OSB No. 154671 ryan.kunkel@stoel.com STOEL RIVES LLP 760 SW Ninth Avenue, Suite 3000 Portland, OR 97205 Telephone: (503) 224-3380 Facsimile: (503) 22-2480 Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION TIFFANY REYNOLDS, Plaintiff, v. PRINCETON PROPERTY MANAGEMENT, INC., a domestic business corporation; FREDDY LUNT, an individual, Defendants. Case No.: 3:16-cv-01935-YY DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT (ORAL ARGUMENT REQUESTED) LOCAL RULE 7-1 COMPLIANCE As required by LR 7-1, counsel for defendants conferred with plaintiff’s counsel regarding this Motion, but the parties were unable to agree on a resolution. MOTION Pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6), Freddy Lunt (“Ms. Lunt”) and Princeton Property Management, Inc. (“Princeton”) (collectively, “defendants”) request that the Court dismiss plaintiff’s complaint for the following reasons: Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 1 of 10 Page 2 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 (1) Plaintiff’s complaint should be dismissed because plaintiff failed to serve defendants within 90 days of filing, as required by Federal Rule of Procedure 4(m); (2) Plaintiff’s Americans With Disabilities Act (“ADA”) and state law claims should be dismissed with prejudice because, even if the Court were to grant plaintiff leave to re-file, these claims would be time-barred; and (3) Plaintiff’s aiding-and-abetting claim against Ms. Lunt should be dismissed for the additional reason that plaintiff does not state sufficient facts to establish a claim. This Motion is supported by the pleadings on file with the Court, the Memorandum below, and the Declaration of Brenda K. Baumgart in Support and its exhibits. MEMORANDUM IN SUPPORT I. INTRODUCTION The Court should dismiss plaintiff’s complaint because she failed to serve it within 90 days. Dismissal of plaintiff’s ADA and state law claims should be with prejudice because a re- filed complaint would be untimely. Finally, the Court should dismiss plaintiff’s aiding-and- abetting theory because plaintiff does not state sufficient facts to establish a claim. II. BACKGROUND A. Plaintiff’s Employment With Defendants. Princeton hired plaintiff as an administrative assistant in 1999. (Compl., ¶8.) She was promoted to Chief Financial Officer (her title was actually Director of Finance) in 2011 and held that position until she was terminated on or around June 16, 2015. (See Compl., ¶8, ¶11.) B. Plaintiff Files Discrimination Charges With BOLI and the EEOC, Which Are Dismissed. After her termination, plaintiff brought administrative charges against defendants with the Oregon Bureau of Labor and Industries (“BOLI”), which were dual filed automatically with Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 2 of 10 Page 3 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 the Equal Employment Opportunity Commission (“EEOC”). She alleged the same claims in her administrative charges as she has here: disability discrimination, interference with her medical leave rights, and aiding and abetting against Ms. Lunt individually. (Baumgart Decl., ¶ 6, Ex. 5.) BOLI dismissed those claims and issued plaintiff a right-to-sue letter on July 6, 2016. (Baumgart Decl., ¶ 2, Ex. 1.) The EEOC followed suit one month later, issuing plaintiff its notice of dismissal and right-to-sue-letter on August 18, 2016. (Baumgart Decl., ¶ 4, Ex. 3.) Each right-to-sue letter states that plaintiff had 90 days from the date she received the letter to file a civil lawsuit; once that 90-day period concludes, her right to file a lawsuit “will be lost.” (Baumgart Decl. ¶ 4, Ex. 3; ¶ 2, Ex. 1.) (emphasis added).) C. Plaintiff Files Her Complaint On October 20, 2016, But Does Not Serve It On Defendants Until February 2017. Plaintiff filed her complaint on October 20, 2016, alleging discrimination and retaliation claims under the ADA, the Family and Medical Leave Act (“FMLA”), and Oregon state law. (See Compl., Dkt. #1.) Pursuant to FRCP 4(m), plaintiff had 90 days from the date of filing her complaint to serve defendants. That deadline was January 18, 2017. Plaintiff, however, did not serve Ms. Lunt until February 23, 2017, or Princeton until February 28, 2017. (Baumgart Decl. ¶¶ 3, 5 Exs. 2, 4).1 1 For the convenience of the Court, copies of the relevant documents related to defendants’ motion to dismiss are attached to the Baumgart Decl. While a motion to dismiss typically is restricted to the pleadings, courts may consider documents and facts outside the pleadings, the authenticity or veracity of which cannot be disputed. See Battan v. Allwest Underground, Inc., No. 08-CV-707-BR, 2008 U.S. Dist. LEXIS 68735, at *3-4 (D. Or. Sept. 5, 2008) (Brown, J.) (allowing exhibits of BOLI dismissal letter and other documents relevant to statute of limitations analysis); see also Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013) (extrinsic evidence considered on motion to dismiss where “documents’ authenticity is not contested, and the plaintiff’s complaint necessarily relies on them”). Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 3 of 10 Page 4 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 III. ARGUMENT A. The Court Should Dismiss Plaintiff’s Complaint Because She Did Not Serve Defendants Within The Required 90-Day Period. Plaintiff failed to timely serve defendants as required by FRCP 4(m)) because she filed her complaint on October 20, 2016 but did not serve defendants until one month after her deadline to do so. The federal rules provide that: If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m). If “a plaintiff fails to serve a defendant within the time required by Rule 4, the Court must dismiss the matter unless the plaintiff shows good cause for her failure to timely serve the defendant.” Ferguson v. Mgmt. Training Corp., No. 3:16-CV-00706-BR, 2017 WL 107969, at *1 (D. Or. Jan. 10, 2017); Wei v. Hawaii, 763 F.2d 370 (9th Cir. 1985) (dismissal under FRCP 12(b)(5) because no showing of good cause for untimely service). Showing “good cause” is not a simple task. Plaintiffs must not only proffer a reason for untimely service, they must explain why timely service was impossible. The District of Oregon recently held that a severe illness did not constitute good cause because “‘[p]laintiff’s counsel is obliged not merely to state why service was not made, but to explain why, in the circumstances, service was not possible despite reasonable efforts.’” Ferguson, 2017 WL 107969, at *2 (emphasis added; citation omitted) (dismissal with prejudice because claims then time-barred and counsel’s declaration did not show good cause where he stated that he had “been ill for a long time, but [his] illness ha[d] been particularly acute the past couple of months[] [and he was] unable to spend any real time in the office performing legal work”). Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 4 of 10 Page 5 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 Plaintiff cannot meet her burden to show good cause for her untimely service. Although plaintiff’s position on the reason service was untimely is not entirely clear to defendants, it appears that plaintiff’s counsel simply neglected to complete service until the case had been pending for several months. (See Pl.’s Mot. to Extend Discovery, Dkt. #6 (explaining that, after mistakenly failing to file the summons and “without recognizing” that mistake, plaintiff’s counsel “waited for the court stamped summons to return.”). Plaintiff’s counsel’s mistake does not justify the failure to abide by the strictures of the Rule 4, especially if a severe illness does not even constitute good cause as in Ferguson. Simply put, plaintiff did not timely serve defendants and all of her claims must therefore be dismissed. B. The Court Should Dismiss Plaintiff’s ADA and State Law Claims With Prejudice. The ordinary practice when a complaint is dismissed for untimely process under Rule 12(b)(5) is to allow the plaintiff leave to file a new complaint. See e.g., Ferguson, 2017 WL 107969, at *2 (untimely service is typically dismissal without prejudice). The Court should not grant plaintiff leave to re-file her ADA and state law claims and should instead dismiss them with prejudice because her new complaint will be filed beyond the 90-day-right-to-sue period under the ADA and Oregon law. For this reason, plaintiff’s claims under the ADA and Oregon law will be time-barred and thus subject to immediate dismissal. The ADA requires that employees exhaust administrative remedies before bringing a suit in federal court. 42 U.S.C. § 12117(a). The employee must file a civil action within ninety days of receiving a right-to-sue letter from the EEOC. 42 U.S.C. § 12117(a). Although Oregon does not require administrative exhaustion, if a plaintiff does file a charge with BOLI, she must file a civil action within 90 days of receiving a right-to-sue letter. ORS 659A.875(2). Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 5 of 10 Page 6 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 Plaintiff was issued right-to-sue letters on July 6, 2016 by BOLI and August 18, 2016 by the EEOC, making her 90-day deadline to file her complaint October 4, 2016 and November 18, 2016, respectively. (See Baumgart Decl., ¶ 2, Ex.1; ¶ 4, Ex. 3.) But plaintiff did not file her lawsuit until October 20, 2016. (Compl., Dkt #1.) Because plaintiff filed her complaint more than 90 days after receiving her right-to-sue letter from BOLI, her state law claims are time- barred and must be dismissed with prejudice. See ORS 659A.875(2); Riggs v. Ferrellgas, Inc., No. CIV. 06-3072-CO, 2006 WL 3499188, at *2 (D. Or. Nov. 3, 2006) (dismissing Oregon discrimination claims with prejudice because plaintiff did not sue within 90 day right-to-sue period), report and recommendation adopted, 2006 WL 3498288 (D. Or. Nov. 29, 2006). This is true even though plaintiff initiated her lawsuit within 90 days of the EEOC’s right-to-sue letter. (Baumgart Decl., ¶ 4, Ex. 3.) See, Romero-Manzano, 2016 WL 4473435, at *7 (“This Court and other courts in Oregon . . . have held a plaintiff’s state-law claims under § 659A are time-barred when they are filed more than 90 days after the mailing of the BOLI letter even if filed less than 90 days after the plaintiff receives an EEOC right-to-sue letter.”); see also Sharer, 481 F. Supp. 2d at 1164 (concluding the plaintiff’s state law whistle-blower claim under § 659A was time-barred because it was filed more than 90 days after the mailing of the BOLI letter but less than 90 days after the plaintiff received an EEOC right-to-sue letter). Plaintiff’s ADA claims must also be dismissed with prejudice. Even though she initially timely filed her ADA claims, her attempt to re-file them after this Court dismisses them for untimely service will be futile. The Ninth Circuit has made clear that when “a complaint is timely filed and later dismissed, the timely filing of the complaint does not ‘toll’ or suspend the 90-day limitations period.” O’Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (internal quotation marks and citation omitted) (affirming dismissal with prejudice of Title VII Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 6 of 10 Page 7 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 claims originally timely filed, but subsequently re-filed as untimely); Ferguson, 2017 WL 107969 (dismissal with prejudice because the 90-day deadline would have expired by the time the new complaint was filed and “any attempt to refile [the] action to assert [the employee’s] statutory claims would be futile”). At this point, plaintiff is far beyond her November 18 deadline to file her ADA claims. If this Court dismisses those claims for untimely service (as it should), then plaintiff cannot re- file those claims within her 90-day deadline. Accordingly, her ADA claims must be dismissed with prejudice. C. The Court Should Dismiss Plaintiff’s Aiding and Abetting Claims Against Ms. Lunt Because Plaintiff Does Not State Sufficient Facts To Establish A Claim. Plaintiff’s aiding and abetting claims against Ms. Lunt must be dismissed for the independent reason that she fails to state a claim under Rule 12(b)(6). To survive a motion to dismiss, a complaint cannot merely assert legal conclusions, but instead must set forth facts supporting a plausible claim for relief under Rule 8. Ashcroft v. Iqbal, 556 U.S. 662, 878, 884 (2009). “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). To meet her burden on her individual claims against Ms. Lunt, plaintiff must set forth facts to show that Ms. Lunt aided, abetted, incited, compelled or coerced the disability and medical leave discrimination alleged in her complaint. See ORS 659A.030(1)(g). Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 7 of 10 Page 8 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 On several occasions, judges within this District have dismissed aiding-and-abetting claims that are based on the theory that the primary actor in the alleged discrimination aided and abetted herself. See, e.g., Hannan v. Bus. Journal Publ’ns, Inc., No. 3:14-CV-00831-SB, 2015 WL 9265959, at *18 (D. Or. Oct. 2, 2015) (granting summary judgment because bad actor cannot aid and abet himself), report and recommendation adopted, No. 3:14-CV-00831-SB, 2015 WL 7720496 (D. Or. Nov. 30, 2015); Sniadoski v. Unimart of Portland, Inc., No. 93-1051- MA, 1993 WL 797438, at *2 (D. Or. Oct. 29, 1993) (dismissing aiding and abetting claim under former ORS 659.030(1)(g) against individual manager alleged to have engaged in direct discrimination, finding that aiding and abetting liability “makes little sense against an employee alleged to be an active participant in the asserted harm”). Plaintiff’s complaint falls squarely into this category of cases. There are literally no facts alleged in plaintiff’s complaint to show that Ms. Lunt aided or abetted anyone in the discrimination allegedly perpetrated against her. Rather, plaintiff’s allegations consist largely of bare legal conclusions such as the statement that Ms. Lunt “willfully violated [ORS 659A.030(1)(g)][ when she aided and abetted Princeton Property Management in its discrimination based on disability, by exercising her hiring and firing power to terminate plaintiff’s employment.” (Compl. ¶ 28); (see also Compl. ¶ 46 (same as to medical leave discrimination). These kinds of bare legal conclusions cannot form the basis for valid complaint even under the liberal notice pleading standard. Ashcroft, 556 U.S. 662 at 884 (holding that complaint that consists of mere conclusory allegations or merely recites statutory language or elements of claims is insufficient). Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 8 of 10 Page 9 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 Further, the factual allegations plaintiff does assert against Ms. Lunt paint her as the primary bad actor in the discrimination, not an aider or abettor. (Compl. ¶ 9 (identifying Ms. Lunt as the CEO); E.g., ¶ 28 (Ms. Lunt exercised “her hiring and firing power”)); ¶ 46 (same)). Finally, as a simple matter of logic, the same factual allegations cannot simultaneously support the argument that Princeton (acting through Ms. Lunt in her capacity as Princeton’s CEO) discriminated against plaintiff and that Ms. Lunt aided-and-abetted discrimination. “Under the intracorporate conspiracy doctrine, a corporation cannot conspire with an agent when that agent is acting within the scope of their authority.” 2 William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations § 279, Westlaw (database updated Sept. 2016); see also Bliss v. S. Pac. Co., 212 Or. 634, 643, 321 P2d 324 (1958) (“A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.” (internal quotation marks and citation omitted)); Granewich v. Harding, 329 Or. 47, 53, 985 P2d 788 (1999) (aiding and abetting in civil cases requires that individual provide assistance to another (citing Restatement (Second) of Torts § 876 (1979))). Ms. Lunt, acting as the CEO, could not conspire with herself. In short, plaintiff’s claims against Ms. Lunt individually are unsupported by facts or law. They should be dismissed with prejudice. / / / / / / / / / / / / / / / / / / Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 9 of 10 Page 10 - DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT 91312163.5 0051901-00020 IV. CONCLUSION For the foregoing reasons, defendants respectfully request that the Court grant Defendants’ Motion To Dismiss. DATED: March 16, 2017. STOEL RIVES LLP s/ Brenda K. Baumgart BRENDA K. BAUMGART, OSB No. 992160 brenda.baumgart@stoel.com RYAN S. KUNKEL, OSB No. 154671 ryan.kunkel@stoel.com Telephone: (503) 224-3380 Attorneys for Defendants Case 3:16-cv-01935-YY Document 10 Filed 03/16/17 Page 10 of 10