Opinion
CV-23-00001-TUC-RM-BGM
05-11-2023
Lance C. Wells, an individual, Plaintiff, v. Maplebear Inc. d/b/a Instacart Defendant.
REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT AND TO COMPEL ARBITRATION (DOC. 17)
Honorable Bruce G. Macdonald United States Magistrate Judge.
Pending before the Court is Defendant Maplebear Inc. d/b/a Instacart (“Defendant”) Motion to Dismiss Amended Complaint and to Compel Arbitration (Doc. 17). Oral argument for the parties' pending motions (Docs. 12, 15, 17, 19, and 21) was held on April 12, 2023. Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Bruce G. Macdonald for all pretrial proceedings and report and recommendation. See Order (Doc. 8). The Magistrate Judge recommends the District Judge grant Defendant's Motion to Dismiss Amended Complaint and to Compel Arbitration (Doc. 17).
The Court finds Defendant's first Motion to Dismiss Complaint (Doc. 12), is rendered moot. Plaintiff filed an Amendment to Pleading (Doc. 14) asserting a second claim against Defendant and Plaintiff did not file a responsive memorandum to Doc. 12. In response, Defendant filed a second motion to dismiss (Doc. 17), addressing Plaintiff's two alleged claims.
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
Plaintiff filed his Complaint (Doc. 1) based on federal question jurisdiction alleging abridgement of free speech under the First Amendment, in part, based on the terms of the parties' settlement agreement (“Settlement Agreement”). In response, Defendant filed its first Motion to Dismiss (Doc. 12), and the same day, Plaintiff filed an Amendment to Pleading (Doc. 14) (hereinafter the Court refers collectively to Doc. 1 and Doc. 14 as the “Amended Complaint”), asserting a second claim against Defendant, based on the parties' Independent Contractor Agreement (“Independent Contractor Agreement”), alleging Defendant engages in discriminatory practices in violation of the race and gender provisions of the Civil Rights Act of 1964.
Defendant, in response to Plaintiff's amended pleading, filed Defendant's second Motion to Dismiss Amended Complaint and to Compel Arbitration. (Doc. 17.) Therein, Defendant asserts, first, that the Amended Complaint-and Plaintiff's request to declare portions of the Settlement Agreement null and void-lacks sufficient facts to meet the threshold “state-actor” requirement for Plaintiff's First Amendment claim; and second, the parties' Independent Contractor Agreement contains an arbitration provision that reserves claims under the Civil Rights Act of 1964 subject to arbitration. Alternatively, Defendant asserts dismissal of claim two is appropriate because Title VII protections do not apply to independent contractors.
The Court agrees with Defendant and finds the Amended Complaint lacks sufficient facts to meet the threshold state actor requirement for Plaintiff's First Amendment free speech claim, and Plaintiff's Civil Rights Act of 1964 claim is subject to arbitration under the Independent Contractor Agreement. (Docs. 1, 14.) The Court finds it appropriate to dismiss claim one with prejudice and finds claim two is subject to arbitration.
II. LAW
A. Jurisdiction
Under 28 U.S.C. § 1331, “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331. This federal question jurisdiction, however, is limited, in pertinent part:
Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[,] which is not to be expanded by judicial decree[.] It is to be presumed that a cause lies outside this limited jurisdiction[,] and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994).
B. Motion to Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may dismiss “based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Although a complaint need contain only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), to survive a motion to dismiss, this short and plain statement “must contain sufficient factual matter...to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The purpose of the motion to dismiss is to test the formal sufficiency of the pleadings that constitute the claim. 5A Wright & Miller, Federal Practice and Procedure § 1356 (1990). It is not “a procedure for resolving a contest about the facts or the merits of the case.” Id. A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir.1990).J.K. By & Through R.K. v. Dillenberg, 836 F.Supp. 694, 700 (D. Ariz. 1993).
Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. Griggs v. Sacramento City Unified Sch. Dist., No. 2:20-CV-0724-KJM-JDP, 2021 WL 1614405, at *2 (E.D. Cal. Apr. 26, 2021); see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
District courts employ a two-step approach when evaluating a complaint's sufficiency on a Rule 12(b)(6) motion to dismiss. The court must first accept as true all well-pled factual allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption of truth.
* * *
The court must then consider whether the well-pled factual allegations state a plausible claim for relief. A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. A complaint that does not permit the court to infer more than the mere possibility of misconduct has ‘alleged-but not shown-that the pleader is entitled to relief,' and it must be dismissed.Solomon v. Las Vegas Metro. Police Dep't, 441 F.Supp.3d 1090, 1096 (D. Nev. 2020). “A complaint cannot survive a motion to dismiss if it contains only conclusory allegations of conspiracy, but does not support those allegations with averments of the underlying material facts.” Flanagan v. Shively, 783 F.Supp. 922, 928-29 (M.D.Pa.), affd, 980 F.2d 722 (3d Cir.1992); see also Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir.1991), cert. denied, 502 U.S. 957, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991) (a mere allegation of a civil rights conspiracy without factual specificity is insufficient to support a claim).” Han v. Dep't of Just., 824 F.Supp. 1480, 1492 (D. Haw. 1993), affd sub nom. Han v. U.S. Dep't of Just., 45 F.3d 333 (9th Cir. 1995).
Pro se pleadings are “to be liberally construed” and are held to a less stringent standard than those drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89, 93 (2007).
42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress [. . . .]42 U.S.C.A. § 1983. “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Schorr v. Borough of Lemoyne, 265 F.Supp.2d 488, 491 (M.D. Pa. 2003).
Typically, only public agencies and officers act ‘under color of state law,' but private individuals can be liable under § 1983 in certain circumstances. ‘State action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself. 'Solomon v. Las Vegas Metro. Police Dep't, 441 F.Supp.3d 1090, 1097 (D. Nev. 2020).
1. State Actor Requirement for First Amendment Claim
“[T]he Free Speech Clause of the First Amendment prohibits only governmental abridgment of speech . . . [not] private, abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 204 L.Ed.2d 405, 139 S.Ct. 1921, 1924 (2019).
‘The United States Supreme Court has articulated four different factors or tests to determine state action. ' [T]hese are the nexus test, the joint action test, the public function doctrine, and the state compulsion test.O'l landlev v. Padilla, 579 F.Supp.3d 1163, 1180 (N.D. Cal. 2022), affd sub nom. O'Handley v. Weber, 62 F.4th 1145 (9th Cir. 2023).
2. Civil Rights Act of 1964/Discrimination/Race/Gender/Hostile Work Envir.
Under Title VII of the Civil Rights Act of 1964, ‘[i]t shall be an unlawful employment practice for an employer [...] to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e-2(a)(1). We have repeatedly made clear . . . the scope of the prohibition ‘is not limited to ‘economic' or ‘tangible' discrimination,' [a]nd that it covers more than ‘terms' and ‘conditions' in the narrow contractual sense.” (citations omitted)Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 2282-83 (1998). “[T]here must be some connection with an employment relationship for Title VII protections to apply. The connection with employment need not necessarily be direct.” Lutcher v. Musicians Union Loc. 47, 633 F.2d 880, 883 (9th Cir. 1980). In Lutcher, the court found “[a]t most, the Union interfered with an independent contractor relationship between Lutcher and the School District. This does not state a cause of action against the Union under Title VII.” Lutcher, 633 F.2d at 884.
D. Arbitration Provision in Independent Contractor Agreement
The [Federal Arbitration Act] FAA reflects the fundamental principle that arbitration is a matter of contract. Section 2, the ‘primary substantive provision of the Act,' [p]rovides:
‘A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' 9 U.S.C. § 2.
The FAA thereby places arbitration agreements on an equal footing with other contracts[,] and requires courts to enforce them according to their terms[.] Like other contracts, however, they may be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability[.]”Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67-68, 130 S.Ct. 2772, 2776 (2010).
III. ISSUE
“Did respondent, as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that petitioners deprived him of his clearly established constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 666, 129 S.Ct. 1937, 1942-43, 173 L.Ed.2d 868 (2009).
IV. PARTIES' POSITIONS
Plaintiff submits Defendant abridged his First Amendment right to free speech, in part, due to “an extremely broad non-disparagement clause” in the Settlement Agreement and Defendant's “ongoing questionable business practices and sociopolitical activism.” (Doc. 1 at 4, Sec. III.) Plaintiff's second claim alleges discrimination based on the race and gender provisions of the Civil Rights Act due to Defendant's policies and statements expressing “favoritism towards certain demographic groups and denigration towards others.” (Doc. 14.) Plaintiff acknowledges, however, “[h]e did in fact agree to the terms” of the Independent Contractor Agreement, and he does not claim to have been a direct victim of discrimination in the course of his work as an Independent Contractor. (Doc. 18 at 2.)
Defendant submits the Amended Complaint lacks sufficient facts to meet the state actor requirement of a First Amendment free speech claim and contends Plaintiff's second claim is subject to arbitration, as the Independent Contractor Agreement specifically directs claims alleged under the Civil Rights Act of 1964 are subject to arbitration.
V. ANALYSIS
Plaintiff's Complaint does not plead a cognizable legal theory and alleges virtually no facts, let alone any facts sufficient to support a cognizable legal theory. It is also unclear from the Amended Complaint, under what legal theory Plaintiff is attempting to sue. His pleading does not contain a short and plain statement of the claim, or any facts that show Plaintiff is entitled to relief. See Fed.R.Civ.P. 8(a).
Assuming arguendo Plaintiff meant to identify 42 U.S.C. § 1983 as the statutory bases for his lawsuit, he fails to state a claim for relief. Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and law' of the United States.” Wilder v. Virginia Hosp. Ass n, 496 U.S. 498, 508 (1990). Thus, to state a claim under Sec. 1983, “a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Indeed, Plaintiff does not identify 42 U.S.C. § 1983, as the basis for his two claims, until his responsive memorandum to Defendant's Motion to Dismiss Amend Complaint and to Compel Arbitration; therein, Plaintiff states, “As with Plaintiff's claim pertaining to the freedom of speech, his Amendment is intended to address a Civil Rights Act question pursuant to 42 U.S.C. § 1983. (Doc. 18 at 2.)
A. Claim One: First Amendment
Plaintiff's Complaint (Doc. 1), lacks any indication that Defendant Maplebear Incorporated d/b/a Instacart is a governmental entity or a “state-actor.” Demonstration of state action is “a necessary threshold” that a plaintiff must cross before a Court can consider whether a plaintiff's First Amendment rights have been infringed. George v. Furlough, 91 F.3d 1227, 1230 (9th Cir.1996). “Individuals bringing actions against private parties for infringement of their constitutional rights, therefore, must show that the private parties' infringement somehow constitutes state action.” George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996) citing Dworkin v. Hustler Magazine, 867 F.2d 1188, 1200 (9th Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 59, 107 L.Ed.2d 26 (1989).
Under the Complaint's section entitled “List the specific federal statues, federal treaties, and/or provisions of the Unites States Constitution that are at issue in this case,” Plaintiff's Complaint merely states: “The First Amendment to the United States Constitution.” (Doc. 1 at 3). And under Section III, “Statement of Claim,” Plaintiff's Complaint states:
Plaintiff contends that provisions of a settlement agreement between the parties-including, but not limited to, an extremely broad non-disparagement clause-violate the plaintiff's right to freedom of speech. This violation is particularly egregious in light of ongoing questionable business practices and sociopolitical activism by the defendant.(Doc. 1 at 4.) And, under Section IV, “Relief,” Plaintiff's Complaint includes:
The aforementioned provision(s) are intended to be lifelong, so the abridgment is ongoing. Plaintiff seeks to have all pertinent portions of the settlement agreement declared null and void. (Id.)
At the motion to dismiss stage of the proceedings, the Court is tasked with determining the sufficiency of the complaint. Even accepting as true, Plaintiff's allegations of an “extremely broad non-disparagement clause” and “questionable business practices” and “sociopolitical activism,” the Court finds no other facts alleged to support a plausible inference of governmental action. Moreover, Plaintiff does not identify 42 U.S.C. § 1983 as the basis for his claim(s) until Plaintiff's Response to Defendant's Motion to Dismiss. (Doc. 18 at 2.)
At oral argument, Plaintiff attempted to cure the deficiencies of the Amended Complaint by arguing that he could meet at least three of the “state-actor” tests (public function, nexus, and entwinement) for the Court to find that Instacart is a “state actor.” O'Handley, supra. Plaintiff further argued that a liberal construction of the Complaint cures any deficiency, and the Court's ability to draw an inference is apparent from the facts alleged in the Complaint. However, on its face, Plaintiff's Complaint fails to identify sufficient facts for the Court to infer state action. Plaintiff's end run does not provide Defendant the intended notice requirement under Fed. R. Civ. P., Rule 8, nor has Plaintiff's Complaint [u]nder Twombly's construction of Rule 8, ‘nudged [his] claims' of discrimination ‘across the line from conceivable to plausible.' Ashcroft, 556 U.S. at 681, 129 S.Ct. at 1950-51, citing Twombly, supra.
Accordingly, Plaintiff's First Amendment claim, fails to state a claim for relief upon which relief can be granted, and must therefore be dismissed under Fed. R. Civ. P., Rule 12(b)(6).
B. Claim Two: Civil Rights Act of 1964
Plaintiff's Amendment to Pleading (Doc. 14) alleges a second claim for relief, stated as follows: “Violation(s) of the CIVIL RIGHTS ACT OF 1964.” (Doc. 14.) Plaintiff further asserts his second claim as follows:
Statement of Claim: Plaintiff contends that the Defendant consistently and publicly engages in discriminatory practices, specifically with regard to the race and gender provisions of the Civil Rights Act. These ongoing practices date to June of 2021 or earlier, and can be demonstrated via the company's official policies and the published statements of company representative(s). Plaintiff alleges that these practices have the effect of creating a hostile work environment, and thus deprive the subject(s) of their right to maintain longstanding employment and the accompanying income without concern for loss of position, loss of further employment and advancement opportunities, and loss of the personal dignity which all citizens are due.(Doc. 14.)
Under Solomon, supra, “[t]he court must first accept as true all well-pled factual allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption of truth.” Plaintiff's second claim is lacking in identification of facts the Court can accept as true and instead relies on legal conclusions that are “not entitled to the assumption of truth.” Solomon, 441 F.Supp.3d at 1096. For example, “engages in discriminatory practices” and “have the effect of creating a hostile work environment”; both are legal conclusions, with legal import, and lack facts demonstrating how the defendant creates a hostile work environment and how the defendant engages in discriminatory practices. These legal conclusions are not entitled to the assumption of truth under Solomon.
At the second step under Solomon, supra:
The court must then consider whether the well-pled factual allegations state a plausible claim for relief. A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. A complaint that does not permit the court to infer more than the mere possibility of misconduct has ‘alleged-but not shown-that the pleader is entitled to relief,' and it must be dismissed.Id. at 1096. Plaintiff's Amendment to Pleading (Doc. 14) asks the Court to assume as true legal conclusions and fails to allege facts to allow the Court to draw the inference that Defendant is liable for misconduct, all without identification of what legal theory on which Plaintiff relies, or indication of Defendant as a state actor. No matter how liberally this Court construes the Complaint, as amended, Plaintiff altogether fails to state a claim upon which relief can be granted.
Indeed, Plaintiff's responsive memorandum to Defendant's Motion to Dismiss, indicates, “[Plaintiff] did in fact agree to the terms of that contract [Independent Contractor Agreement] as demonstrated by Defendant, and [Plaintiff] does not claim to have been a direct victim of discrimination in the course of his work as an Independent Contractor (“Shopper”).” (Doc. 18 at 2.)
Normally, a litigant cannot assert the rights of absent third parties. United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557 (1996). “As an aspect of justiciability, the standing question is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal- court jurisdiction and to justify exercise of the court's remedial powers on his behalf. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
Aside from the potential issue of Plaintiff's standing under the second claim, Plaintiff does not dispute that the Independent Contractor Agreement contains an arbitration clause specifically covering claims under the Civil Rights Act of 1964 and not did argue the point at hearing, other than to say “Instacart cannot hide behind an arbitration clause any more than a federal agency.”
As a general rule, ‘a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.' (citation omitted). Rule 12(b)(6) expressly provides that when:
matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P. 12(b)(6) (emphasis added). There are, however, two exceptions to the requirement that consideration of extrinsic evidence converts a 12(b)(6) motion to a summary judgment motion. First, a court may consider ‘material which is properly submitted as part of the complaint' on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment. (citation omitted).
If the documents are not physically attached to the complaint, they may be considered if the documents' ‘authenticity ... is not contested' and ‘the plaintiff's complaint necessarily relies' on them. (citation omitted). Second, under Fed.R.Evid. 201, a court may take judicial notice of ‘matters of public record.' (citation omitted).Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
Attached as Exhibit 1 to Defendant's Motion to Dismiss Amended Complaint and to Compel Arbitration (Doc. 17) is a Declaration of Katherine Son (Doc. 17 at 18) attesting to “[t]he arbitration agreement entered into between Plaintiff and Instacart in March 2022 is reflected in Section 9 of the Independent Contractor Agreement attached hereto as Exhibit A.” See Doc. 17 at 18, Decl. of Katherine Son at 6, ¶ 22; see also Exh. A, Section 9 (“Mutual Agreement Arbitrate Disputes”). The Court excludes the Declaration of Katherine Son in deciding the motion to dismiss under 12(b)(6).
The Court will, however, consider the Independent Contractor Agreement, attached to the Decl. of Katherine Son, as Exhibit A (Doc. 17 at 25). See Defendant's Motion to Dismiss Amended Complaint and to Compel Arbitration (Doc. 17); see also Exh. 1, Decl. of Katherine Son (Doc. 17 at 18); see also Exh. A, Independent Contractor Agreement (Doc. 17 at 25).
The Court finds, regarding the Independent Contractor Agreement, that under Lee, supra, the “authenticity is not contested,” and Plaintiffs Amended Complaint (Docs. 1, 14), “necessarily relies on,” the Independent Contractor Agreement (“Exhibit A”). Lee, supra. The Court's consideration of Exhibit A, therefore, falls under one of the available exceptions under Lee, supra, and the Court's consideration of Exhibit A does not convert Defendant's motion to dismiss into one for summary judgment.
Relevant to the arbitration provision of the parties' Independent Contractor Agreement, case law dictates, in pertinent part:
As with any other contract, however, ‘the parties' intentions control' [a]nd ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit' (citation omitted). ‘This axiom recognizes the fact that
arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.' (citation omitted)
Thus, when determining threshold issues regarding arbitrability of a particular dispute, federal arbitration law requires courts to ‘presume that the parties intend courts, not arbitrators, to decide ... ‘whether the parties are bound by a given arbitration clause,' or ‘whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.'Cooper v. Agrify Corp., No. C21-0061RSL-JRC, 2022 WL 2374587, at *2 (W.D. Wash. June 2, 2022), appeal dismissed, No. 22-35512, 2022 WL 4553243 (9th Cir. Aug. 23, 2022)
Upon review of Exhibit A, i.e., the parties' Independent Contractor Agreement, the Court finds Plaintiff's claim two, alleged under the Civil Rights Act of 1964, falls under the arbitration provision of Section 9.3, “Covered Claims,” which states, in pertinent part,
Except as otherwise provided in this Arbitration Provision, the disputes and claims covered by this arbitration Provision include any and all disputes and claims BETWEEN YOU AND INSTACART arising out of or relating to this Agreement, your classification as an independent contractor, or the Services performed under this Agreement which could otherwise be heard before a court of competent jurisdiction (a “Claim”), including but not limited to . . . discrimination or harassment, including but not limited to discrimination or harassment based on race, sex, color, . . .; violation of any local, state, or federal constitution, statute, . . . Title VII of the Civil Rights Act of 1964, and all other federal, state or local statutory and legal claims arising out of or relating to your relationship with Instacart[.](Doc. 17 at 30) (emphasis added). It is important to note, here, that the Ninth Circuit recognizes, as stated in Dennis v. Nevada, “In this circuit, however, Title VII does not necessarily in all cases preclude a concurrent action under § 1983.” Dennis v. Nevada, 282 F.Supp.2d 1177, 1186 (D. Nev. 2003) citing Roberts v. College of the Desert, 870 F.2d 1411, 1415 (9th Cir.1988). The court in the case of Roberts v. College of the Desert, explained:
The Ninth Circuit has not expressly decided this question but has implicitly recognized that Title VII and section 1983 are not mutually exclusive. See, e.g., Lowe v. City of Monrovia,
775 F.2d 998, 1010-11 (9th Cir.1985), as amended, 784 F.2d 1407 (9th Cir.1986) (Title VII and section 1983 claims of sex and race discrimination both considered without ruling on exclusivity of Title VII remedies); Padway v. Palches, 665 F.2d 965, 968-69 (9th Cir.1982) (Section 1983 claim of denials of due process and equal protection cognizable in case alleging Title VII violations as well).
We agree with the reasoning of those courts that have held that Title VII does not preempt an action under section 1983 for a violation of the fourteenth amendment.Roberts v. Coll. of the Desert, 870 F.2d 1411, 1415 (9th Cir. 1988).
In reviewing the language of the Independent Contractor Agreement, and provisions for claims reserved for arbitration, he Court finds broad language for any claims involving “discrimination or harassment based on race, sex, color.” Therefore, any alleged dispute regarding whether Plaintiff's second claim arises under 42 U.S.C. § 1983, or, Title VII of the Civil Rights Act of 1964, versus, solely, the Civil Rights Act of 1964, is irrelevant, because any claims involving “discrimination or harassment based on race, sex, color” are subject to arbitration, according the Independent Contractor Agreement. Thus, any amendment to the complaint would be futile.
Accordingly, Plaintiff's Claim Two, asserted under the Civil Rights Act of 1964, is subject to arbitration.
VI. CONCLUSION
As to Plaintiff's First Amendment claim, Plaintiff has failed to meet his burden to establish sufficient facts to state a claim to relief that is plausible on its face. Specifically, a claim of abridgment of free speech requires Plaintiff establish the threshold state-action question, and here, the Amended Complaint is facially insufficient.
As to Plaintiff's second claim, in addition to the question raised by the Court, herein, regarding Plaintiff's standing, the Court finds claim two is subject to arbitration under the terms of the parties' Independent Contractor Agreement.
“If a court ‘determines that an arbitration clause is enforceable, it has the discretion to either stay the case pending arbitration, or to dismiss the case if all of the alleged claims are subject to arbitration.'” Chandler v. TA Operating LLC, No. 220CV02091TLNDMC, 2022 WL 597581, at *1 (E.D. Cal. Feb. 28, 2022) citingHoekman v. Tamko Bldg. Prod., Inc., No. 2:14-cv-01581-TLN-KJN, 2015 WL 9591471, at *2 (E.D. Cal. Aug. 26, 2015) (citation omitted).
The Court finds it appropriate to dismiss Plaintiff's claim one under Rule 12(b)(6) for failure to state a claim for which relief may be granted, and the Court finds it appropriate for the parties to submit claim two to arbitration under the Independent Contractor Agreement, accordingly, the Court recommends dismissing this case in toto.
Because amendment would be futile, the Court grants Defendant's Motion to Dismiss (Doc. 17), without leave to amend. “Although leave to amend should be given freely, a district court may dismiss without leave where a plaintiff's proposed amendments would fail to cure the pleading deficiencies and amendment would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) citing Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990) (per curiam). Here, Plaintiff amended the Complaint as a matter of course when Plaintiff filed the Amendment to Pleading, submitting a second claim against Defendant, however, Plaintiff did not argue and or reference 42 U.S.C. § 1983 until Plaintiff's responsive memorandum (Doc. 18.) At oral argument, the Court heard Plaintiff's argument that if the Court infers Title VII on behalf of Defendants argument in support of the arbitration clause in the Independent Contractor Agreement, then the Court should apply a similar inference to Plaintiff's Complaint, and or Amended Complaint, and find that Plaintiff originally did plead claim(s) under 42 U.S.C. § 1983.
As stated in the case of O 'Guinn v. Lovelock Correctional Center, in pertinent part:
[T]he only indication that [Plaintiff] intended to file a § 1983 claim is the caption on the pre-printed form which [Plaintiff] claims the NDOC required him to use. Notably, [Plaintiff's] complaint does not allege that Defendants deprived him of a constitutional right while acting ‘under color' of state law, a necessary element of a § 1983 claim. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991). As we held in Bogovich v. Sandoval, when a [ ] complaint ‘asserts only, and details facts related to, potential ADA violations,' the district court errs in characterizing the suit as a § 1983 claim[.]O'Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007). Here, Plaintiff did not allege his claim(s) under 42 U.S.C. § 1983-not in his Complaint (Doc. 1), and not in his Amendment to Pleading (Doc. 14)-in addition, he did not allege that Defendant deprived him of a constitutional right while acting ‘under color' of state law, a necessary element of a § 1983 claim. The court in O 'Guinn, supra, further instructs, “[C]ourts should not undertake to infer in one cause of action when a complaint clearly states a claim under a different cause of action. ‘[T]he party who brings a suit is master to decide what law he will rely upon.'” Id. at 1060. Here, Plaintiff failed to allege sufficient facts to meet the threshold state-actor requirement for a § 1983 claim, failed to allege Defendant acted under color of state law, and did not assert his claims under Section 1983 until his responsive memorandum to Defendant's motion to dismiss.
VII. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter the following:
IT IS ORDERED GRANTING Defendant's Motion to Dismiss Amended Complaint and to Compel Arbitration (Doc. 17).
1. As to Plaintiff's Claim One under the First Amendment alleging Defendant violated Plaintiff's First Amendment right to free speech based on the non-disparagement provision of the parties' Settlement Agreement:
IT IS ORDERED dismissing Claim One, with prejudice, for failure to state a claim upon which relief can be granted under Rule 12(b)(6).
“When ruling on a motion to dismiss without prejudice, the district court must determine whether the defendant will suffer some plain legal prejudice as a result of the dismissal.” Steele v. Extendicare Health Servs., Inc., No. C08-1332-JCC, 2009 WL 481295, at *1 (W.D. Wash. Feb. 24, 2009) citing Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir.1996).
2. As to Plaintiff's Claim Two under the Civil Rights Acts of 1964 alleging Defendant's policies and statements discriminate based on race and gender:
IT IS ORDERED compelling the parties to participate in arbitration for Claim Two, as the Court finds Claim Two is subject to the arbitrability clause of the Independent Contractor Agreement.
In addition, pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-23-00001-TUC-RM.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.