White v. Relay Resource et al, No. 2:2019cv00284 - Document 82 (W.D. Wash. 2019)
Court Description: ORDER denying Plaintiff's leave to amend, and in light of its prior orders, strikes her amended complaint (Dkt. No. 47 ) in its entirety. The Court also DENIES ZVRS's motion to dismiss (Dkt. No. 53 ) as moot. Finally, the Court DISMISSES ZVRS from the case. Signed by U.S. District Judge John C Coughenour. (TH)
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White v. Relay Resource et al Doc. 82 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DEBRA VANESSA WHITE, 10 Plaintiff, ORDER v. 11 12 CASE NO. C19-0284-JCC RELAY RESOURCES and GENERAL SERVICES ADMINISTRATION, 13 Defendants. 14 15 This matter comes before the Court on Defendant CSDVRS, LLC’s (“ZVRS”) motion to 16 17 18 19 20 21 22 23 24 25 26 dismiss (Dkt. No. 59). Having considered the parties’ briefing and the relevant record, the Court STRIKES Plaintiff’s amended complaint (Dkt. No. 47) in its entirety and DENIES ZVRS’s motion to dismiss as moot. I. BACKGROUND The Court previously set forth the underlying facts of this case and will not repeat them here. (See Dkt. No. 40 at 1–3.) On July 9, 2019, the Court dismissed all but one of Plaintiff’s claims against Defendants General Services Administration (“GSA”) and Relay Resources. (See Dkt. Nos. 40–41.) In doing so, the Court granted Plaintiff leave to amend her breach of contract claim. (See Dkt. Nos. 40 at 5–7, 41 at 7.) Plaintiff subsequently filed an amended complaint, but she did not amend her breach of contract claim. (See Dkt. No. 47.) Instead, Plaintiff added ORDER C19-0284-JCC PAGE - 1 Dockets.Justia.com 1 several new defendants, including ZVRS, and asserted 10 new claims. (See id.) ZVRS now 2 moves to dismiss Plaintiff’s claims against it on the grounds that (1) the amended complaint fails 3 to state a claim against ZVRS, (see Dkt. No. 59 at 5–9), and (2) Plaintiff failed to properly serve 4 ZVRS, (see id. at 4–5). 5 II. DISCUSSION 6 A. The Court’s Treatment of Plaintiff’s Amended Complaint 7 As the Court previously explained in a different order, the Court will construe Plaintiff’s 8 amended complaint as a motion for leave to amend. (See Dkt. No. 80 at 2–4). Accordingly, the 9 Court must analyze Plaintiff’s implied “motion” under Rule 15(a) instead of Rule 12(b). 10 Rule 15(a)(2) states that “[the] court should freely give leave [to amend] when justice so 11 requires.” However, leave “need not be granted where the proposed amendment is futile.” 12 Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011). A proposed amendment is futile if it 13 would be “subject to dismissal.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 14 1998). The test for whether a proposed amendment is futile is, therefore, identical to the test for 15 whether a pleading survives a challenge under Rule 12(b)(6). 1 See Nordyke, 644 at 788 n.12 16 (citing Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). Accordingly, Plaintiff 17 must allege sufficient facts, accepted as true, to state a claim for relief that is plausible on its 18 face. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). A claim has facial plausibility when a 19 plaintiff pleads factual content that allows the court to draw the reasonable inference that each 20 defendant is liable for the misconduct alleged. Id. at 678. 21 B. 22 Plaintiff proposes to add 10 claims against ZVRS. For the reasons explained below, the 23 The Merits of Plaintiff’s New Claims Court finds that those claims are futile. 24 25 1 26 Given that the tests are identical, the Court will treat ZVRS’s arguments under 12(b)(6) as arguments for why Plaintiff’s proposed amendments are futile. ORDER C19-0284-JCC PAGE - 2 1 2 1. Count I In Count I, Plaintiff brings a claim under 18 U.S.C. § 371 for “Defrauding the United 3 States.” (See Dkt. No. 47 at 8.) But Plaintiff fails to allege how ZVRS defrauded the United 4 States. Plaintiff’s amended complaint mentions ZVRS only three times: once to provide 5 information about the company, (see Dkt. No. 47 at 3); once to state that “Vanessa White” is “the 6 name used at . . . ZVRS,” (see id.); and once to explain that ZVRS provides telecommunications 7 services for federal agencies, including GSA, (see id. at 6). These fleeting references do not 8 establish that ZVRS engaged in any type of fraud. More importantly, 18 U.S.C. § 371 “do[es] 9 not provide for a private right of action.” Henry v. Universal Tech. Inst., 559 Fed. App’x 648, 10 650 (9th Cir. 2014). Count I therefore fails to state a claim. 11 2. Count II 12 For Count II, Plaintiff brings a claim under 18 U.S.C. Chapter 47. Chapter 47, like the 13 rest of the United States Criminal Code, “provide[s] no basis for civil liability.” See Aldabe v. 14 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Accordingly, Count II fails to state a claim. 3. 15 16 Count III Count III appears to be a due process claim. Plaintiff alleges that “Defendants” violated 17 her “liberty to work” by “treating [her] as if she is a criminal . . . and requir[ing] [her] to provide 18 an opportunity to appeal to EEOC and GSA EEO to explain her side of the story.” (See Dkt. No. 19 47 at 9.) However, Plaintiff fails to allege that ZVRS acted in a way that violated Plaintiff’s due 20 process rights. (See id.) Nor is it plausible that ZVRS could have done so given that Relay 21 Resources and GSA, not ZVRS, were Plaintiff’s alleged employers. (See id. at 7.) Accordingly, 22 Count III fails to state a claim against ZVRS. See Iqbal, 556 U.S. at 676 (“[A] plaintiff must 23 plead that each . . . defendant . . . has violated the Constitution.”). 24 25 26 4. Count IV Count IV is a claim for “Violation of the Wagner Act Known as the National Labor Relations Act of (1935).” (See Dkt. No. 47 at 9–10.) The National Labor Relations Board has ORDER C19-0284-JCC PAGE - 3 1 exclusive jurisdiction over claims brought under the NLRA for unfair labor practices by 2 employers. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108 (1989). Count 3 IV therefore fails to state a claim over which the Court has jurisdiction. 4 5 5. Count V In Count V, Plaintiff alleges that Defendants violated Title VII by refusing to enter into a 6 contract with Plaintiff because of her “deaf accent.” (See Dkt. No. 47 at 10.) A person’s accent 7 can sometimes serve as a proxy for their race or national origin. See Conti v. Corp. Servs. Group, 8 Inc., 2013 WL 2297140, slip op. at 7 (W.D. Wash. 2013) (citing Fragrante v. City & County of 9 Honolulu, 888 F.2d 591, 596 (9th Cir. 1989)) (“[B]ecause accent is often tied to national origin 10 in a way that language ability is not, the law is suspicious of decisions based on accent.”). 11 Accordingly, discrimination based on a person’s accent can be actionable under Title VII. See id. 12 at 7–8. Yet, Title VII does not prohibit discrimination based on a person’s disability. See 42 13 U.S.C. § 2000e-2. And in this case, Plaintiff’s “deaf accent” serves as a proxy for (or is a part of) 14 her disability—not her race or national origin. As a result, Count V fails to state a claim. 15 16 6. Count VI Count VI is a restatement of Plaintiff’s disability discrimination claim from her original 17 complaint. (Compare Dkt. No. 47 at 10–11, with Dkt. No. 3 at 12–16.) Those claims relate to 18 Relay Resources and GSA, who were Plaintiff’s alleged employers; the claims do not in any way 19 relate to ZVRS, who was merely GSA’s vendor. (See Dkt. No. 47 at 7.) Accordingly, Count VI 20 does not state a claim against ZVRS. 21 22 7. Count VII For Count VII, Plaintiff cites 29 C.F.R. § 1606.7, appears to allege that GSA required her 23 to “Speak English” (as opposed to sign language), and concludes that this is why the agency 24 refused to enter into a contract with her. (See Dkt. No. 47 at 11–12.) These allegations do relate 25 to ZVRS. Moreover, § 1606.7 does not provide an additional private cause of action. Section 26 1606.7, like all Equal Employment Opportunity Commission guidelines, does not have the force ORDER C19-0284-JCC PAGE - 4 1 of law; it merely reflects “a body of experience and informed judgment to which courts and 2 litigants may properly resort for guidance.” Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141–42 3 (1976); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975). 4 5 8. Count VIII Plaintiff labels Count VIII “Negligence/Misrepresentation.” (See Dkt. No. 47 at 12.) The 6 factual allegations in Count VIII are impossible for the Court to decipher. Those allegations are 7 as follows: 8 69. Defendant knew of this circumstances or requirements of the telephone at the 9 time the contract was prepare for the Plaintiff. 10 70. Without a contract in place, Vanessa can’t use the computer at GSA. 11 71. Without a contract in place, RR and GSA will not obtain a videophone. 12 72. Reiteration in her social media account and Apple ID cause damages to her in 13 not having communication access at home. 14 73. As a promate usof defendant’s actions, Plaintiff has suffered lost wages and 15 benefits. 16 These allegations fail to state a claim for negligence, negligent misrepresentation, or any 17 other cause of action of which the Court is aware. See Ranger Ins. Co. v. Pierce County, 18 192 P.3d 886, 889 (Wash. 2008) (listing the elements for negligence); Merriman v. Am. 19 Guarantee & Liab. Ins. Co., 396 P.3d 351, 360–61 (Wash. Ct. App. 2017) (listing the 20 elements for negligent misrepresentation). 21 22 9. Count IX Count IX purports to be a claim under the Racketeer Influenced and Corrupt 23 Organization Act, 18 U.S.C. §§ 1961–1968. To state a claim under RICO, a plaintiff must allege 24 “one or more defendant ‘persons’ conducted or participated in the activities of an ‘enterprise’ 25 through a pattern of racketeering activity consisting of at least two predicate acts cognizable 26 under RICO.” Capitol West Appraisals, LLC v. Countrywide Fin. Corp., 759 F. Supp. 2d 1267, ORDER C19-0284-JCC PAGE - 5 1 1272 (W.D. Wash. 2010). These allegations must be made “with particularity” and must include 2 “‘the who, what, when, where, and how,’ of the misconduct charged.” See id. at 1271 (quoting 3 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1104–05 (9th Cir. 2003)). Count IX, however, 4 does not state with particularity the wrongful acts that ZVRS engaged in. Count IX instead 5 begins with an unclear statement about “Defendants[’]” efforts to “manipulate the legal system.” 6 (See Dkt. No. 47 at 13–14.) It then asserts that “Defendants have actively sought to hamper 7 government anti-extremists by direct propaganda.” (See id.) Finally, Count IX ends by listing 8 provisions of the United States Code that Defendants have allegedly violated. (See id.) These 9 allegations do not satisfy the pleading standard for a civil RICO claim. See Capitol West 10 Appraisals, 759 F. Supp. 2d at 1271–72. 11 10. Count X Count X is titled “Americans with Disability Notification Act of 2011.” (See Dkt. No. 47 12 13 at 14.) “[T]he ADA Notification Act has been introduced multiple times . . . [but it] never 14 became law.” Raetano v. Kally K’s, Inc., 2009 WL 651808, slip op. at 7 n.3 (M.D. Fla. 2009). 15 The Act cannot, therefore, provide the basis for any claim in this case. 16 III. 17 CONCLUSION For the foregoing reasons, the Court concludes that it would be futile for Plaintiff to 18 amend her complaint to add claims against ZVRS. The Court therefore DENIES Plaintiff leave 19 to amend and, in light of its prior orders, STRIKES her amended complaint (Dkt. No. 47) in its 20 entirety. (See Dkt. Nos. 80–81.) The Court also DENIES ZVRS’s motion to dismiss (Dkt. No. 21 53) as moot. Finally, the Court DISMISSES ZVRS from the case. 22 DATED this 31st day of October 2019. 25 A 26 John C. Coughenour UNITED STATES DISTRICT JUDGE 23 24 ORDER C19-0284-JCC PAGE - 6
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