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Hollenback v. Brandon

United States District Court, D. Nevada

December 3, 2019

THOMAS BRANDON, et al., Defendants.



         I. SUMMARY

         Pro 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”).[1] (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.


         Plaintiff 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.)

         Plaintiff 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.)


         A. Failure to State a Claim

         A court 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).

         In 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.

         B. Insufficient Service of Process

         In 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).


         Defendants 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 ...

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