Naa-Anorkor Okai v. Kaiser Permanente CSC

NAA-ANORKOR OKAI, Plaintiff, v. KAISER PERMANENTE CSC, LACEY LEE, DIANE NIETHAMER, and OPEIU LOCAL 30, Defendants.

No. 22-CV-112 TWR (BGS)

United States District Court, S.D. California

February 21, 2023

ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P 12(B)(5); (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(B)(6); (3) AND DENYING DEFENDANTS' MOTION TO STRIKE

(ECF NO. 25)

HONORABLE TODD W. ROBINSON, UNITED STATES DISTRICT JUDGE.

Presently before the Court is Defendants Kaiser Foundation Health Plan, Inc.,^[1]Lacey Lee, and Diane Niethamer's Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) and to Strike Pursuant to Federal Rule of Civil Procedure 12(f). (ECF No. 25, “Mot.”) Also before the Court are Plaintiff Naa-Anorkor Okai's Opposition to (ECF No. 40, “Opp'n”)^[2] and Defendants' Reply in Support of the Motion (ECF No. 42, “Reply”). The Court took this matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (See ECF No. 43.) Having carefully considered Plaintiff's Complaint (ECF No. 1, “Compl.”), the Parties' arguments, and the relevant law, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5), GRANTS IN PART AND DENIES IN PART Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and DENIES Defendants' Motion to Strike pursuant to Federal Rule of Civil Procedure 12(f).

BACKGROUND

I. Factual Background

Plaintiff is a former employee of Defendant Kaiser Foundation Health Plan, Inc. (“KFHP”). (Compl. at 3, 5; Mot. at 10.) Plaintiff was terminated from her job as an Account Administrative Representative in January 2020. (Compl. at 5; Mot. at 10.) Defendants Diane Niethamer and Lacey Lee are individual current or former employees of KFHP-Defendant Lee was Plaintiff's last supervisor at KFHP and Defendant Niethamer is KFHP's Disability Coordinator. (Compl. at 2; Mot. at 9-10.) Plaintiff alleges she was wrongfully terminated from her employment for having a perceived disability and that her use of a “Reasonable Accommodation” caused her to lose her job. (Compl. at 5.) She also alleges she was retaliated against for opposing the accommodation process. (Id.)^[3]

II. Procedural History

In January 2022, Plaintiff and a friend named James Kevin Tillory, filed a Complaint against Defendants KFHP, Niethamer, and Lee.^[4] (See Compl. at 1-2.) Liberally viewed, the Complaint alleges that Defendants: (1) wrongfully terminated and retaliated against Plaintiff in violation of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112-12117, and the California Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code §§ 12900-12996; and (2) violated the standards of the Occupational Safety and Health Administration (“OSHA”), 29 U.S.C. §§ 651-654; 29 C.F.R. § 1910.141. (Compl. at 3, 5.) In the section of the Complaint explaining the basis for this Court's jurisdiction over Plaintiff's claims, Plaintiff, in passing and without further explanation, also states the Court has jurisdiction under the First and Fourteenth Amendments. (Id. at 3.)

In June 2022, the Court ordered James Kevin Tillory to show cause why he should not be dismissed as a plaintiff in this case for lack of Article III standing. (See ECF No. 13 at 5.) The Court subsequently dismissed Tillory from the action for failure to show that he had such standing. (ECF No. 27 at 1.)

Plaintiff continued to prosecute the case and in July 2022, she filed proofs of service showing that she mailed the Summons, Complaint, and an acknowledgment of receipt of service pursuant to California Code of Civil Procedure section 415.30 to all Defendants. (ECF Nos. 18-21.) As to Defendant Lee, Plaintiff mailed the Summons and Complaint to “Lacey Lee, c/o: Kaiser Permanente California Service Center” at an address on Murphy Canyon Road and to “Melisa N. McKellar, Attorney” at an address on Executive Square. (ECF No. 19 at 1-2.) As to Defendant Niethamer, Plaintiff mailed the Summons and Complaint to “Diane Niethamer” at an address in Corona, California and to “Melisa N. McKellar, Attorney” at an address on Executive Square. (ECF No. 20 at 1-2.) Attorney Melisa McKellar is named on the docket as the attorney for Defendants KFHP, Niethamer, and Lee. (See generally Docket.) In communications between Attorney McKellar and Plaintiff, McKellar told Plaintiff that she had agreed to accept service for Defendant KFHP but did not agree to accept service on behalf of Defendants Niethamer and Lee. (ECF No. 22 at 19; ECF No. 25-1 (“McKellar Decl.”) ¶ 4; ECF No. 25-3 (“Ex. 2”) at 2.) Defendant KFHP returned the acknowledgment of receipt to Plaintiff, (ECF No. 23), but Plaintiff did not receive an acknowledgment of receipt from Defendant Niethamer or Defendant Lee, (see generally Docket; ECF No. 41-1 at 10). Shortly after, the Court ordered Plaintiff to show cause why her Complaint should not be dismissed for failure to timely and properly serve Defendants. (See ECF No. 27 at 2-3.) Plaintiff responded by refiling the same proofs of service. (ECF Nos. 29-30.)

In the meantime, in August 2022, before the Court had dismissed Tillory from the action, Defendants KFHP, Niethamer, and Lee filed the instant Motion asking the Court to dismiss certain parties and claims from the Complaint. (See Mot. at 6-10.) First, Defendants move to dismiss Plaintiff's Complaint against Defendants Niethamer and Lee for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). (Id. at 7, 10.) Second, Defendants move to dismiss the following claims in Plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6): (1) Tillory's ADA and FEHA claims; (2) Plaintiff's ADA and FEHA claims for retaliation and disability discrimination against Defendants Niethamer and Lee; (3) Plaintiff's OSHA claims; and (4) Plaintiff's First and Fourteenth Amendment claims. (Id. at 6-7, 9.) Finally, pursuant to Federal Rule of Civil Procedure 12(f), Defendants move to strike Plaintiff's prayer for attorney's fees because Plaintiff, as a pro se litigant, is not entitled to attorney's fees. (Id. at 7, 10.) Plaintiff opposes Defendants' Motion, but also admits that, in general, she filed a deficient Complaint due to time constraints. (See ECF No. 40 at 7 (“I unintentionally filed a deficient Complaint our [sic] of necessity to avoid expiration of statutory limits.”).) Plaintiff thus requests leave to amend her Complaint to cure any deficiencies. (See id.)

LEGAL STANDARDS

I. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(5)

“Service of process is the mechanism by which the court acquires” jurisdiction over a defendant. United States v. 2,164 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 771 (9th Cir. 2004). Accordingly, a plaintiff's failure to adequately serve process results in the Court's lack of jurisdiction over the defendant. See id.; Omni Capital Int'l, LTD v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on other grounds, Futures Trading Practices Act of 1992, Pub. L. No. 102-546, § 211, 106 Stat. 3590, 3607-08. A defendant may mount a defense by claiming insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). In that case, the plaintiff “bear[s] the burden of establishing that service was valid under [Federal Rule of Civil Procedure] 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “[I]n the absence of proper service of process, the district court has no power [over the defendant] unless the defendant has consented to jurisdiction or waived the lack of process.” SEC v. Ross, 504 F.3d 1130, 1138-39 (9th Cir. 2007).

II. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.'” Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint...