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Phillips v. Henry Schein Inc.

United States District Court, D. Oregon, Medford Division

February 27, 2018

HENRY SCHEIN, INC., Defendants.


          MARK D. CLARKE, United States Magistrate Judge

         Plaintiff David N. Phillips eeks to proceed in forma pauperis ("IFP") in this action. For the reasons stated below. Plaintiffs Complaint (#1) is dismissed without prejudice and with leave to refile a First Amended Complaint within thirty days of this ruling. Plaintiffs IFP application (#2) is held in abeyance and will be considered when the amended complaint is filed. Plaintiffs Motion for Pro Bono Counsel (#3) is denied.


         Generally, all parties instituting any civil action in United States District Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for meaningful access to the federal courts despite their inability to pay the costs and fees associated with that access. To authorize a litigant to proceed IFP, a court must make two determinations. First, a court must determine whether the litigant is unable to pay the costs of commencing the action. 28 U.S.C. § l9l5(a)(1). Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         In regard to the second of these determinations, district courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before the service of the complaint on the defendants, and must dismiss a complaint if it fails to state a claim. Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and "contain sufficient factual matter, accepted as true, to "state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544. 570 (2007)). "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. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The Court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.

         Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kemer, 404 U.S. 519, 520-521 (1972). That is, the court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id.


         1. Plaintiffs Complaint is dismissed for failure to state a claim for relief because it does not indicate whether Plaintiff has received a Right To Sue Letter from the EEOC.

         Plaintiffs Complaint alleges that he requested accommodation from his employer for a disability. He does not identify the disability, but he indicates that the defendant failed to accommodate him in the manner requested. Plaintiff alleges that, as a result of this failure, he was injured at work. It appears as though Plaintiff believes his claim arises under the Americans with Disabilities Act (ADA) for failure to accommodate a disability, but he also claims economic damages for his on-the-job injury, which would likely be a separate tort claim. It is unclear whether Plaintiff is allowed to bring such a claim, however, because he does not indicate whether he was eligible for. or actually received, worker's compensation for his injuries.[1]

         However, even if the only claim brought by Plaintiff arises under the ADA, an employee must first file a charge with the Equal Employment Opportunity Commission (EEOC) before filing a complaint alleging an ADA violation against his employers. See EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994) ("An individual plaintiff must first file a timely EEOC complaint against the allegedly discriminatory party before bringing an ADA suit in federal court."); Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 2006). Plaintiff has not alleged or that he filed a timely charge against his employer with the EEOC, nor has he indicated in his Complaint that he is entitled to equitable relief from this requirement. Plaintiff must cure this deficiency before his case may proceed. His Complaint is dismissed with leave to refile.

         2. Plaintiffs Complaint is dismissed for lack of personal jurisdiction.

         Even assuming the allegations in the Complaint state a plausible claim for relief, the Complaint does not adequately state the basis for this Court to exercise personal jurisdiction over the defendant. If Plaintiff files an amended complaint, he must cure this deficiency to avoid dismissal, as discussed below.

         Where, as here, there is no federal statute governing personal jurisdiction, the law of the state in which the Court sits applies. CollegeSource. Inc. v. AcademyOne. Inc., 653 F.3d 1066, 1073 (9th Cir.2011); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998). Oregon's long arm statute, Oregon Rule of Civil Procedure ("ORCP") 4, extends personal jurisdiction to the extent permitted by federal due process. Gray & Co. v. Firstenberg Mack Co., 913 F.2d 758, 760 (9th Cir.1990); Tech Heads, Inc. v. Desktop Serv. Ctr., Inc., 105 F.Supp.2d 1142, 1144(D. Or. 2000).

         Federal due process requires that a nonresident defendant have "certain minimum contacts"' with the forum stale of such a nature that the exercise of personal jurisdiction "does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement,326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,311 U.S. 457, 463 (1940)). This constitutional test may be satisfied by showing that (1) the defendant has "substantial" or "continuous and systematic" contacts with the forum state-i.e. "general jurisdiction, " or (2) there is a strong relationship between the defendant's forum contacts and the cause of action-i.e. "specific jurisdiction." Decker ...

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