Kimber v. Grant
| Decision Date | 13 October 2017 |
| Docket Number | Case No.: 3:16-cv-01472-BEN-AGS |
| Court | U.S. District Court — Southern District of California |
| Parties | BART D. KIMBER, Plaintiff, v. TRACY GRANT, et al., Defendants. |
On March 27, 2017, Defendants filed a Motion to Dismiss Plaintiff's Complaint. (Docket No. 41.) On May 18, 2017, Plaintiff filed an untimely opposition to Defendants' motion. (Docket No. 44.) The Court finds the Motion suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, Defendants' Motion is GRANTED.
From approximately 1999 to June 2006, Plaintiff Bart D. Kimber ("Kimber") was employed as a firefighter for the Camp Pendleton Fire Department at Fire Station 8 ("Station 8"). (Compl. ¶¶ 6, 9-10, 43.) In May 2003, Defendant Tracy Grant ("Grant"),who at that time was a probationary female firefighter, was assigned to Station 8. (Id. ¶ 12.) Sometime "late on a work night" in June 2003, Grant made "unsolicited, unexpected, and unwelcome" sexual advances toward Kimber, which he did not reciprocate and ultimately declined. (Id. ¶¶ 13-14.) The day after this encounter, Kimber alleges Grant and Defendant Fire Captain Dean King ("King") began creating a hostile work environment for him. (Id. ¶¶ 15-17.)
On September 23, 2003, Kimber submitted his first written request to be transferred to a different fire station, which was "ignored" by his supervisor, Defendant Fire Chief Richard Kazits ("Kazits"). (Id. ¶ 24.) On October 31, 2003, King emailed Kazits to advise that the "EEO had recommended" that Kimber be separated from Grant and to conduct sensitivity training to avoid a formal complaint. (Id. ¶ 25.)
On November 26, 2003, Grant met privately with Defendant Fire Chief Timothy Hoover ("Hoover") and two of his Assistant Fire Chiefs. (Id. ¶ 26.) Sometime after Grant's meeting, the Assistant Fire Chiefs went to Station 8 and "rude[ly] and aggressive[ly] advised Kimber that "they had put [Kimber] under an unspecified investigation." (Id. ¶ 27.) When Kimber asked for clarification, they put their palms in Kimber's face and told him to go through his chain of command. (Id.)
On December 4, 2003, Kimber hand delivered his fifth transfer request to Hoover, which Hoover verbally denied.2 (Id. ¶¶ 29-30.) On the same day, after Kimber had returned to Station 8, Kimber complained to King about Grant being on her cell phone in the sleeping area. (Id. ¶¶ 31-32.) Grant went to Fire Station 7 ("Station 7") to speak with Kazits, during which King also communicated with Kazits by phone. (Id. ¶ 33.) King advised Kimber not to communicate with Grant in any way when she returned. (Id.)
Grant returned around 8:00 p.m. that same evening and at approximately 1:00, 1:30, and 2:00 a.m., she received cell phone calls that woke Kimber from his slumber.(Id. ¶¶ 33-34.) Kimber did not say anything to Grant about the calls, and in the morning some of his fellow crew members informed him that they observed an audio monitor in his room. (Id. ¶ 35.) Plaintiff alleges Grant, King, and "management" engaged in a "micro-phoning conspiracy" to entrap him into disregarding King's order not to communicate with Grant.3 (Id. ¶¶ 33-38.)
On December 7, 2003, Grant was transferred to another fire station. (Id. ¶ 38.) Within two days of the recording incident, Kimber sought medical help from his family physician, who prescribed sedatives; within ten days, he sought psychological counseling. (Id. ¶¶ 44-45.) He eventually sought treatment for "stress-related illnesses causing the 'extreme anxiety, vertigo, shortness of breath, fatigue, rumination, . . . and a general mistrust for all." (Id. ¶ 45.) The Department of Labor acknowledges that Kimber "suffered work induced psychiatric conditions of prolonged depressive reaction and major depression with psychotic features" since December 2003. (Id. ¶ 40.)
On or about July 20, 2004, Kimber "became incapable of continuing to function as a firefighter from the extreme stressors and psychological anxiety the micro-phoning had inflicted on his psyche." (Id. ¶ 42.) In June 2006, Kimber alleges the agency wrongfully terminated him. (Id. ¶ 43.)
On June 14, 2016, Kimber filed this action against Defendants (the United States of America and ten individual federal employees or officers), containing twelve claims for relief related to his allegations of invasion of privacy, wrongful termination, employment discrimination, Civil Rights violations, negligent infliction of emotional distress, "reverse sexual discrimination," and Americans with Disabilities Act ("ADA") violations. In short, Plaintiff generally alleges that all of the Defendants acted in some way to conspire to invade his privacy, engage in employment discrimination, violate his Civil Rights, and violate the ADA, resulting in his wrongful termination and ongoingemotional distress. Defendants move to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction. The party opposing a motion to dismiss brought under Rule 12(b)(1) bears the burden of proving that the case is properly in federal court. See In re Ford Motor Co./Citibank (S. Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001) () (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). Dismissal is appropriate if the complaint, considered in its entirety, on its face fails to allege facts that are sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 985 (9th Cir. 2008) (citing Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990)).
"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted in original)). In a facial attack, the moving party contends that the complaint's allegations are insufficient on their face to invoke federal jurisdiction. Id. In contrast, the moving party in a factual attack disputes the truth of the allegations that, by themselves, would otherwise establish federal jurisdiction. Id. A district court considering a factual attack need not presume the truthfulness of a plaintiff's allegations, id. (citing White, 227 F.3d at 1242), and may review evidence beyond the complaint without converting the motion into a motion for summary
///judgment. Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003)).
When the government invokes its sovereign immunity in a Rule 12(b)(1) motion to dismiss, a district court must examine whether it has subject matter jurisdiction. Singh v. United States, No. 16-CV-01919 NC, 2017 WL 635476, at *2 (N.D. Cal. Feb. 16, 2017) () (citing Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995)). Because Defendants rely on extrinsic evidence to support their motion to dismiss claims against Defendant United States of America (hereinafter "the government"), the Court treats their motion as a factual 12(b)(1) attack and considers all admissible evidence in the record. Righthaven LLC v. Newman, 838 F. Supp. 2d 1071, 1074 (D. Nev. 2011) () (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003)).
Under Federal Rule of Civil Procedure 12(b)(6), dismissal is appropriate if, taking all factual allegations as true, the complaint fails to state a plausible claim for relief on its face. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (). Under this standard, dismissal is appropriate if the complaint fails to state enough facts to raise a reasonable expectation that discovery will reveal evidence of the matter complained of, or if the complaint lacks a cognizable legal theory under which relief may be granted. Twombly, 550 U.S. at 556. "A claim is facially plausible 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). "Threadbare recitals of the elements ofa cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
The Court must assume the truth of the facts presented in a plaintiff's complaint and construe inferences from them in the light most favorable to the nonmoving party when reviewing a motion to dismiss under Rule 12(b)(6). Erickson v. Pardus, 551 U.S. 89, 94 (2007). The complaint is considered in its entirety, "as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Defendants attached nine exhibits in support of their motion to dismiss ), which they assert are judicially noticeable pursuant to Rule 201 of the Federal Rules of Evidence. The nine documents, to which Kimber did not object, appear to be...
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