United States District Court, D. Nevada
VALERIE A. HOLLENBACK, Plaintiff,
THOMAS BRANDON, et al., Defendants.
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
Se Plaintiff Valerie A. Hollenback sued several
defendants who were her supervisors at the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”) for
employment discrimination and retaliation based on her race,
sex, and national origin under Title VII of the Civil Rights
Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17)
(“Title VII”). (ECF No. 1.) Before the Court is
Defendants' motion to dismiss for naming the wrong
defendants, and for insufficient service of process (the
“Motion”). (ECF No. 8.) As further explained below,
the Court will grant the Motion and dismiss Plaintiff's
case without prejudice because the Court agrees she named
exclusively improper defendants, and has not properly served
the defendants she named in her Complaint.
generally alleges as follows in her Complaint. (ECF No. 1.)
Plaintiff was hired by ATF in April 2013. (Id. at
7.) She started in the ATF office in Stockton, California,
but was temporarily reassigned to Sacramento, California.
(Id.) Jolene Blair was assigned to train her in
Sacramento. (Id.) Some hours after Plaintiff met
with Blair to discuss how she needed to be more professional,
Blair walked by Plaintiff's desk and asked her what she
was doing. (Id. at 7-8.) Plaintiff said she was
tracking a package containing a bathing suit. (Id.
at 8.) Blair replied, “are you sure it was a bathing
suit, and not a vibrator?” (Id.)
told other ATF employees “that it was hypocritical for
SA Blair to question [Plaintiff's] professionalism and
then make an unprofessional comment herself.”
(Id.) Plaintiff then basically alleges that she was
transferred from ATF office to ATF office, and ultimately
terminated, because she reported the fact that Blair made
this comment to others. (Id. at 8-13.) Further, at a
subsequent meeting with a supervisor, that supervisor told
Plaintiff that “she will have a hard time with the ATF
since she is female and a minority.” (Id. at
9.) Plaintiff also alleges that she was disciplined and then
terminated for not timely filling out required forms after
being involved in an on-duty car accident where she was not
at fault, but another male agent was not, though something
similar happened to him. (Id. at 11.) Thus,
Plaintiff alleges that she was discriminated against because
she is a woman of Filipino ancestry. (Id. at 4, 13.)
Failure to State a Claim
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). While Rule 8 does not require detailed
factual allegations, it demands more than “labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555.) “Factual
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (internal citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions are not entitled to the assumption
of truth. See id. at 678-79. Mere recitals of the
elements of a cause of action, supported only by conclusory
statements, do not suffice. See id. at 678. Second,
a district court must consider whether the factual
allegations in the complaint allege a plausible claim for
relief. See Id. at 679. A claim is facially
plausible when the plaintiff's complaint alleges facts
that allow a court to draw a reasonable inference that the
defendant is liable for the alleged misconduct. See
Id. at 678. Where the complaint does not permit the
court to infer more than the mere possibility of misconduct,
the complaint has “alleged-but it has not show[n]-that
the pleader is entitled to relief.” Id. at 679
(internal quotation marks omitted). When the claims in a
complaint have not crossed the line from conceivable to
plausible, the complaint must be dismissed. See
Twombly, 550 U.S. at 570.
Insufficient Service of Process
addition, a defendant may move to dismiss for insufficient
service of process. See Fed. R. Civ. P. 12(b)(5).
“A Rule 12(b)(5) motion is the proper vehicle for
challenging the mode of delivery or lack of delivery of the
summons and complaint.” Wasson v. Riverside
County, 237 F.R.D. 423, 423 (C.D. Cal. 2006) (citation
omitted). “Plaintiffs bear the burden of establishing
the validity of service of process when defendants make a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(5).” Carr v. Int'l Game Tech., 770
F.Supp.2d 1080, 1100 (D. Nev. 2011) (citation omitted).
make two arguments. The Court is persuaded by both of them.
The Court first addresses below Defendants' argument that
Plaintiff named improper defendants, then Defendants'
service of process ...