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finding plaintiff failed to state a § 1981 claim against an IT placement firm's client where she failed to allege that the client "subjected her to an adverse employment action"
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CASE NO. 11-5378 RJB
04-11-2013
MARIYAM AKMAL, Plaintiff, v. CENTERSTANCE, INC., TRUEBLUE, INC., an agent of Labor Ready, JOHN AND JANE DOES 1-10, Defendants.
ORDER REGARDING
DEFENDANTS' MOTIONS TO
DISMISS
This matter comes before the Court for a second review of the Defendant NTT Centerstance, Inc.'s (f/k/a Centerstance Inc.) ("NTT Centerstance") Motion to Dismiss Complaint pursuant to Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B), and 12(b)(5) (Dkt. 42) and Defendant TrueBlue, Inc.'s ("TrueBlue") Joinder of Motion filed by NTT Centerstance, Inc. to Dismiss Complaint pursuant to Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B), and 12(b)(5) (Dkt. 43) in light of Plaintiff's April 5, 2013 amended complaint; and NTT Centerstance and TrueBlue's Motions to Strike or Alternatively for Relief from a Deadline to File a Responsive Pleading (Dkts. 54 and 55). The Court has reviewed the relevant pleadings, the record, and is fully advised.
As stated in the March 19, 2013 Order ("prior order") the Defendants' motions to dismiss are being considered again here in light of the pro se Plaintiff's April 5, 2013 amended complaint. Upon review of the amended complaint, Defendants' motions to dismiss Plaintiff's federal claims should be granted because Plaintiff has again failed to allege facts to state a federal claim. Her federal claims should be dismissed with prejudice, and she should not be given further leave to amend her complaint. All Plaintiff's state law claims should be dismissed except her breach of contract claim against NTT Centerstance. Plaintiff and NTT Centerstance should be ordered to show cause, if any they have, why this Court should not decline to exercise supplemental jurisdiction, and dismiss Plaintiff's state law contract claim without prejudice.
Defendants' motions to strike Plaintiff's amended complaint, because it was filed one week late, should be denied. Their motion for an extension of time to file a responsive pleading to the amended complaint should be granted.
I. PROCEDURAL HISTORY AND THE AMENDED COMPLAINT
On May 17, 2011, Plaintiff, an African American woman, filed this discrimination action. Dkt. 1. She filed her complaint in this Court on May 19, 2011. Dkt. 4. Plaintiff was granted in forma pauperis status and on May 26, 2011, Plaintiff's Application for Court Appointed Counsel was referred to the Screening Committee of this Court's pro bono panel. Dkt. 8. The Committee reviewed the case, and on August 22, 2011, declined to accept the case. Dkt. 19. Plaintiff's Application for Court Appointed Counsel was denied on August 30, 2011, and her Motion for Reconsideration of the Order Denying the Application for Court Appointed Counsel was denied on September 13, 2011. Dkts. 19 and 21.
On September 15, 2011, Plaintiff filed a Notice of Appeal regarding these two orders and the case was stayed. Dkts. 26 and 27. On January 3, 2013, the Ninth Circuit Court of Appeals dismissed Plaintiff's appeal, finding that it did not have jurisdiction to consider her appeal. Dkt. 32. That same day, January 3, 2013, Plaintiff renewed her motion to have the complaint served by the U.S. Marshals Service. Dkt. 33. The Mandate issued on January 28, 2013, and the stay of the case was lifted as of that that day by minute order. Dkts. 34 and 44. On January 28, 2013, Plaintiff's motion to have the U.S. Marshal Service serve her case on the named Defendants was granted and a new scheduling order was issued. Dkts. 35 and 36.
On March 19, 2013, Defendants' motions to dismiss (Dkt. 42 and 43) were granted, in part, and denied, in part, and renoted, in part, to give the Plaintiff an opportunity, if she wished, to file an amended complaint by March 30, 2013. Dkt. 50. Defendants' motions for a more definite statement were also granted. Id. Plaintiff filed a 26 page amended complaint on April 5, 2013. Dkt. 51. Defendants' motions to dismiss are now being reevaluated in light of the Plaintiff's April 5, 2013 amended complaint.
A. FACTS IN PLAINTIFF'S AMENDED COMPLAINT
Plaintiff alleges in her amended complaint that she "has long been the target of a stalking and harassment campaign by an anonymous group of networked individuals, some of whom work in the information technology industry, others who work within law enforcement, . . . private investigators, and a gang of computer hackers." Dkt. 51, at 2-3. She states that "as such" she has been "subjected to an ongoing barrage of vile, vulgar, sexist and racist comments directed to her and about her in email messages, chat rooms, anonymous instant messages sent to her and/or posted about her on internet message boards." Id. at 3. Plaintiff asserts that she was, at some point, referred to as "sand nigga," "dot-headed middle-eastern bitch," and "terrorist." Id., at 3. (Plaintiff does attach emails utilizing that language, but those emails are dated in February and March of 2003 (Dkt. 51-5), four years before she alleges she had any contact with Defendants and or/their employees.) She states that the "parties involved have always ensured that Plaintiff is aware that they have the ability to physically track her movements in real life and to solicit the assistance of those in her environment to reinforce on their behalf." Id., at 5. Plaintiff states that "she is not welcome- not where she resides nor in many of the places where she has worked since she found herself the target of this phenomenon." Id.
She alleges companies and "government agencies" abuse certain surveillance software to spy on their employees and feels she has been a victim. Id., at 5-6. Plaintiff asserts that she has been "accused by a Transportation Security Administration officer of possibly having a bomb hidden on her person." Id., at 20. She asserts that she has been added to the government's national security watch lists. Id., at 21.
Plaintiff states that she has a Muslim father and Christian mother. Id., at 19. When family members call on her cell phone while she is at work, she is fearful of using a traditional Arabic language greeting because of the "hostility, suspicions and paranoia of many in her environment" and she feels that "they can use that as an excuse to deny her employment and other rights . . . all in the name of the 'war on terrorism.'" Id.
Plaintiff asserts that she has had to listen to "another worker state that the only good Arab is a dead Arab and other disparaging remarks about Islam and Muslims." Id., at 6. She alleges that later she "returned to her vehicle while it was parked in the underground garage belonging to this company to discover that security personnel had been inside of it and had left a ticket on it." Id., at 7. She alleges that "[t]his was barely more than two years after the attacks on 911 yet these unlawful intrusions or 'vehicle prowls' continue to this day and last occurred . . . on April 1, 2013." Id. She states that she feels she is "being stalked and harassed by the previously referenced networked individuals working together in concert." Id. Plaintiff further alleges that "in another work related instance it was a white female with bone straight hair lamenting 'nappy hair' with other non-African American workers." Id. Plaintiff also states that she got an instant message from her boss at Cingular Wireless asking her if she was naked in a photo that she had attached to her instant messenger profile at work. Id.
Plaintiff does not, in fact, allege that any of the Defendants named here or their employees participated in any of the above allegations.
In any event, in regard to the parties before the Court, Plaintiff states that she entered into an employment agreement with "the IT placement firm Centerstance," a Defendant here, on February 11, 2007. Id.. The agreement with NTT Centerstance purportedly "involved an internal software development project with [NTT Centerstance's] client TrueBlue" also a Defendant here, "who was operating under the trade name of Labor Ready." Id., at 3-4. She alleges that the agreement had an ending date of August 14, 2007, with a possible extension. Id., at 4. Plaintiff asserts that the agreement stated that it could be terminated "without cause" with 15 days notice and NTT Centerstance terminated the agreement with only 14 days notice. Id., at 13. Plaintiff contends that while on the job, she performed her duties in accord with "industry standards," and received no complaints from the Defendants about her performance. Id., at 4.
Plaintiff asserts that while she was on the project, two of Defendant TrueBlue's employees let her know that their "significant other[s]" worked in law enforcement. Id. She states that she overheard one of them, John Davis, say to another coworker "why do you think I keep getting away with this?" Id. She states that she "could not help but wonder if this was merely a taunt in line with the comments made by the person posting online ethnic slurs. . . in response to the FBI declining to assist her." Id., at 8-9.
Plaintiff further alleges that:
It was no accident that she ended up in a hostile environment sitting next to John Davis where she was subjected to racial animosity and hostility and that she was intentionally put into that environment in violation of 42 U.S. Code § Section [sic] 1981 in order to facilitate the desired access to her so that specific employees of Centerstance, Labor Ready, and the other employment agencies which made up the Ellis team could carry out their racial harassment and retaliation.Id. Plaintiff asserts that she received an email at some point entitled 'Wanted Dead or Alive - Collections,' the body of which had to do with one of the tasks she had been assigned on the Ellis project." Id., at 10. She states that "[t]his email elicited thoughts and images in [her mind] of the FBI's terrorism wanted posters in regards to Osama bin Ladin" and "try as she might" she could not discern any connection between this phrase and the body of the email. Id. She states that it was at this point her work environment went from "feeling a little less than friendly to outright hostile." Id. She asserts that the "hostility in her environment was severe, pervasive, and the tension and anxiety of waiting for the next 'punishing act' was starting to take its toll" on Plaintiff. Id.
She requested NTT Centerstance move her away from her "antagonist," whom she asserts was John Davis, an employee of Defendant True Blue. Id., at 11. Although her request to be moved was granted, a week later her contract was terminated two months early. Id. Plaintiff asserts that she was told that there was "insufficient work to keep her on the project." Id. She states that one of the last conversations she had with "a team member" was that he wanted to see "white(s) only." Id., at 16.
Plaintiff states that Defendants continued to advertise for contractors to perform the same work she was performing until at least August of 2007. Id. Plaintiff states that she tried to return to work for Labor Ready twice, but was not rehired. Id. She further alleges that "attempts by Plaintiff's previous employer(s) to verify her employment on the project resulted in Plaintiff being told that they could no longer work with her due to what Defendants were saying about her." Id., at 12.
Plaintiff asserts a state law claim for breach of contract. Id. She cites 42 U.S.C. § 1981, "racial discrimination/disparate treatment/pretext," "racial harassment/hostile work environment," and "retaliation for participation in protected activity." Id.
B. PENDING MOTIONS
Both Defendants filed motions to dismiss (Dkts. 42 and 43), which were granted as to Plaintiff's claims under RCW 4.16.040(1)(Washington's statute of limitations on contract actions), RCW 49.6.020 [sic], and RCW 49.60.020 (the Washington Law Against Discrimination). Dkt. 50. Defendants' motions to dismiss (Dkt. 42 and 43) were renoted to be reevaluated with Plaintiff's amended complaint, if she wished to file one, in regard to Plaintiff's 42 U.S.C. § 1981 claim, the Washington Consumer Protection Act claim, and her breach of contract claim asserted against TrueBlue. Dkt. 50.
In the motion to dismiss, NTT Centerstance maintains that Plaintiff's claims should be dismissed for failure to state a claim because she has not alleged sufficient facts to support cognizable claims. Dkt. 42. Defendant TrueBlue, joins in NTT Centerstance's motion. Dkts. 43 and 49.
Defendants additionally file motions to strike Plaintiff's amended complaint because she filed the pleading one week after the date set by the prior order. Dkts. 54 and 55. Defendants move in the alternative, for more time to file a responsive pleading to Plaintiff's amended complaint. Id.
Plaintiff files a response, and indicates that she inadvertently missed her deadline. Dkt. 57. She does not state any objections to giving Defendants an extension of time. Id.
II. DISCUSSION
A. MOTIONS TO STRIKE, OR IN THE ALTERNATIVE, FOR AN EXTENSIONOF TIME
Defendants' motions to strike (Dkts. 54 and 55) Plaintiff's amended complaint because she filed it one week after the date set by the prior order should be denied. In the interest of timely resolving this matter, a one week inadvertent delay should be excused.
Defendants' motion for an extension of time to file a responsive pleading to Plaintiff's amended complaint (Dkts. 54 and 55) should be granted. The responsive pleading, if any, should be filed by May 10, 2013.
B. MOTION TO DISMISS - FED. R. CIV. P. 12(b) STANDARD
Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)(internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974.
If a claim is based on a proper legal theory but fails to allege sufficient facts, the plaintiff should be afforded the opportunity to amend the complaint before dismissal. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983). If the claim is not based on a proper legal theory, the claim should be dismissed. Id. "Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Moss v. United States Secret Service, 572 F.3d 962, 972 (9th Cir. 2009)(internal citations omitted).
C. MOTION TO DISMISS - FAILURE TO STATE A CLAIM
1. Federal Claims under 42 U.S.C. § 1981 of the Civil Rights Act of 1886
Section 1981 provides:
(a) Statement of equal rightsThe Prior Order contained the standard for evaluating a § 1981 claim. Dkt. 50. It provided:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Section 1981 "prohibits racial discrimination in the making and enforcement of private contracts." Runyon v. McCrary, 427 U.S. 160, 168 (1976). Whether a plaintiff faced intentional racial discrimination in violation of Section 1981 is governed by the McDonnell Douglas burden shifting test. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)(superseded by statue on other grounds)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
The first step of the McDonnell Douglas test requires that Plaintiff establish a prima facie case of discrimination. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005). To do so, Plaintiff must establish that (1) she belongs to a protected class, (2) she was qualified for the position (she was performing her job in a satisfactory manner), (3) she was subjected to an adverse employment action, and (4) that "similarly situated individuals outside [the] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination." Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); Coghlan, at 1094.
If the Plaintiff meets the first portion of the McDonnell Douglas test, "[t]he burden of production, but not persuasion, ... shifts to the [Defendants] to articulate some legitimate, nondiscriminatory reason for the challenged action." Chuang v. Univ. of Cal. Davis Bd. of Trustees, 225 F.3d 1115, 1123-24 (9th Cir. 2000). In the last step of the McDonnell Douglas test, should the defendant carry this burden, "the plaintiff must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." McDonnell Douglas at 802.
a. Prima Facie Test under McDonnell Douglas
Defendants' motion to dismiss Plaintiff's § 1981 claims should be granted. As stated in the prior order, although Plaintiff alleges in her amended complaint that she is African American, and was qualified for the job she was performing satisfactorily, she does not allege facts regarding Defendant TrueBlue on the third element of the McDonnell Douglas prima facie test. She does not allege that Defendant TrueBlue subjected her to an adverse employment action. She does allege that NTT Centerstance subjected her to an adverse employment action -the early termination of her contractor's agreement with NTT Centerstance.
She also fails in her amended complaint to make a showing on the fourth prima facie requirement under McDonnell Douglas as to either Defendant TrueBlue or NTT Centerstance. Plaintiff did not allege sufficient facts from which to conclude that that "similarly situated individuals outside [the] protected class were treated more favorably," or "other circumstances surrounding the adverse employment action give rise to an inference of discrimination." Peterson, at 603.
As to this fourth factor of the prima facie test, she asserts that she lost her contract because of her "race" but does not offer any facts which would support that allegation. Her allegation that NTT Centerstance, an IT placement firm, continued to advertise for computer programmers does not give rise to an inference that her contract was terminated as a result of racial discrimination. Her assertion that some unknown member of the "team" stated that he wanted to "see white(s) only" is not sufficient to tie any of the Defendants before the Court to this claim. This allegation, like many of the other extensive allegations of racial and sexual discrimination, stalking etc. in the amended complaint are not connected to the Defendants in any manner, and certainly do not meet the McDonnell Douglas prima facie test against these Defendants. She alleges that she was "harassed" but gives no facts from which to conclude she was treated in a manner which leads to a viable action under § 1981 against the Defendants named here. Plaintiff has failed to allege "enough facts to state a claim to relief that is plausible on its face" as to her § 1981 claim. Twombly, at 1974.
b. Burden Shifting Under McDonnell Douglas
Plaintiff further asserts that NTT Centerstance's purported reason for terminating her contract early was because there was insufficient work to keep her busy was a pretext for discrimination. Dkt. 51. Aside from her bare assertions, Plaintiff makes no allegations of facts in her amended complaint supporting the notion that the reasons offered by the NTT Centerstance "were not its true reasons, but were a pretext for discrimination." McDonnell Douglas at 802.
c. Conclusion for Claims under § 1981
Plaintiff's claims under § 1981 should be dismissed. Plaintiff should not be granted leave to amend her complaint again. This case has been pending for quite some time, and the events in question happened almost six years ago. Plaintiff has amended her complaint, and is still unable to articulate any facts in support of her § 1981 claims against the Defendants here. Further amendment should be denied. Telesaurus VPC, Inc. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010)(dismissal without leave to amend not error where party had opportunity to amend and failed to cure deficiencies).
2. Claims Under 42 U.S.C. § 1983
Plaintiff asserts various claims that appear to sound under 42 U.S.C. § 1983. To the extent that she does, those claims should be dismissed with prejudice as barred by the statute of limitations. State personal injury law governs that statute of limitations period for § 1983 claims. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009). Under RCW 4.16.080(2), Plaintiff had three years to bring her claims. Plaintiff filed this action more than three years after the events in question. To the extent she alleges claims pursuant to § 1983, they should be dismissed with prejudice.
3. State Law Claims
a. Contract Claim
Plaintiff reasserts her contract claim in her amended complaint. As stated in the prior order, "[t]o assert a claim for breach of contract, a plaintiff must allege the existence of a valid contract, a breach of the contract, and damages." Dkt. 50 (citing Meyers v. State, 152 Wash. App. 823, 827, 828 (2009)).
Defendant TrueBlue's motion to dismiss Plaintiff's contract claim, to the extent that she makes one, should be granted. Plaintiff, despite being given an opportunity to do so, fails to allege in her amended complaint that she had any contractual relationship with TrueBlue. Plaintiff should not be given leave to file another amended complaint. Telesaurus, at 1003.
Defendant NTT Centerstance's Motion to Dismiss Plaintiff's contract claim should be denied. Plaintiff alleges that she had an agreement with NTT Centerstance, that it was breached because she received on 14 days notice of termination of the agreement instead of 15 days, and that she was damaged. She has alleged sufficient facts which could plausibly entitle her to relief.
b. RCW 49.60.020 - Washington Law Against Discrimination
To the extent Plaintiff attempts to reassert her claims under the Washington Law Against Discrimination, they should be again dismissed. The statute of limitations for actions involving claims under RCW 49.60 is three years. Antonius v. King County, 153 Wn.2d 256 262 (2004). All of the events of which Plaintiff complains occurred well before May of 2008, that is more than three years prior to her filing her complaint in May of 2011. Further, Plaintiff should not be afforded leave to amend, because such leave would be futile.
c. RCW 19.86.070 - Washington Consumer Protection Act
In the prior order, Plaintiff was informed that she had an opportunity to amend her complaint to add facts to support her claim under the Washington Consumer Protection Act. Dkt. 50. Defendants' motions as to this claim were renoted to be considered after Plaintiff filed her amended complaint. Id. She has failed to plead any facts in support of her Washington Consumer Protection Act claim. Defendants' motions to dismiss the claim, to the extent that such a claim is made, should be granted.
D. CONCLUSION AND ORDER TO SHOW CAUSE
Defendants' motions to dismiss Plaintiff's federal law claims should be granted and Plaintiff should not be given another opportunity to amend her complaint. Telesaurus, at 1003. Defendants' motions to dismiss all of Plaintiff's state law claims should be granted, except for her state law contract claim against NTT Centerstance. The only claim remaining, then, is Plaintiff's breach of contract claim against NTT Centerstance.
Plaintiff and the remaining Defendant NTT Centerstance should be ordered to show cause, if any they have, why this Court should not decline to exercise supplemental jurisdiction on the remaining state law claim for breach of contract against NTT Centerstance.
Pursuant to 28 U.S.C. § 1367(c), district courts may decline to exercise supplemental jurisdiction over a state law claims if (1) the claims raise novel or complex issues of state law, (2) the state claims substantially predominate over the claim which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. "While discretion to decline to exercise supplemental jurisdiction over state law claims is triggered by the presence of one of the conditions in § 1367(c), it is informed by the values of economy, convenience, fairness, and comity." Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997)(internal citations omitted).
Two of the four conditions in § 1367(c) are present. As above, all Plaintiffs' federal claims are dismissed by this order. Accordingly, this Court has "dismissed all claims over which it has original jurisdiction," and so has discretion to decline to exercise supplemental jurisdiction over the state law claims under § 1367(c)(3). Moreover, the remaining state claims "raise novel or complex issues of state law" under § 1367(c)(1). Accordingly, the values of economy, convenience, and comity may well be served by this Court's declining to exercise supplemental jurisdiction. See Acri at 1001. The value of fairness is also served by the Court not exercising jurisdiction over the state law claim of breach of contract.
Although "it is generally within a district court's discretion either to retain jurisdiction to adjudicate the pendent state claims or to remand them to state court," Harrell v. 20th Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) in the interest of fairness, the remaining parties, Plaintiff and NTT Centerstance, should be given an opportunity to be heard on whether the Court should decline to exercise jurisdiction and dismiss the claim without prejudice. Plaintiff and NTT Centerstance's briefs, if any, are due April 26, 2013. Parties' briefs should not exceed three pages. Consideration of the parties' responses to the order to show cause should be noted for April 26, 2013.
III. ORDER
It is ORDERED that:
• Defendant NTT Centerstance, Inc. and Defendant TrueBlue, Inc.'s Motion to Strike Plaintiff's Untimely Amended Complaint (Dkts. 54 and 55) ARE DENIED;
• Defendant NTT Centerstance, Inc. and Defendant TrueBlue, Inc.'s Motion for Relief from a Deadline to File a Responsive Pleading (Dkts. 54 and 55) ARE GRANTED;
o The deadline for Defendants' responsive pleadings to Plaintiff's amended complaint, if any, is RESET to MAY 10, 2013;• Defendant NTT Centerstance, Inc.'s Motion to Dismiss Complaint pursuant to Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B), and 12(b)(5) (Dkt. 42) IS DENIED as to Plaintiff's contract claim, and GRANTED as to all Plaintiff's other claims;
• All Plaintiff's claims asserted against NTT Centerstance, except the contract claim, ARE DISMISSED;
• Defendant TrueBlue, Inc.'s Joinder of Motion Filed by Centerstance, Inc. to Dismiss Complaint pursuant to Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B), and 12(b)(5) (Dkt. 43) IS GRANTED;
• Plaintiff's claims asserted against TrueBlue, Inc. ARE DISMISSED; and
• Plaintiff and Defendant NTT Centerstance are ordered to show cause, if any they have, why this Court should not decline to exercise jurisdiction over the breach of contract claim. Briefs, if any, should be filed on or before April 26, 2013 and not exceed three pages. Consideration of the parties' responses to the order to show cause should be noted for April 26, 2013.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.
________________
ROBERT J. BRYAN
United States District Judge