Mehboob Shah v. Desert Auto Group V LLC

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BILAL MEHBOOB, Case No.: 23cv1073-JO-BGS

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Plaintiff,

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ORDER GRANTING LEAVE TO

12 PROCEED IN FORMA PAUPERIS

DESERT AUTO GROUP V LLC,

AND DISMISSING COMPLAINT

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Defendants.

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18 On June 8, 2023, pro se Plaintiff Bilal Mehboob filed a complaint alleging that his

19 former employer, Defendant Desert Auto Group V LLC (“Desert Auto”), discriminated

20 against him and retaliated against him for complaining about that discrimination. Dkt. 1

21 (“Compl.”). Plaintiff also filed a motion to proceed in forma pauperis (“IFP”) and a motion

22 to appoint counsel. Dkts. 2–3. For the following reasons, the Court grants Plaintiff’s IFP

23 request, dismisses his complaint under 28 U.S.C. § 1915(e)(2), and denies his motion to

24 appoint counsel as moot.

25 I. BACKGROUND

26 Plaintiff, a former employee of Desert Auto, alleges that the company discriminated

27 against him and then unlawfully terminated him in retaliation for complaining about that

28 discrimination. See Compl. at 2. Plaintiff is a Pakistani male that began working for Desert

1 Auto as a sales manager on or around September 21, 2021. Id. During his employment,

2 Desert Auto allegedly showed “favorable treatment to Hispanic employees” and treated

3 Plaintiff less favorably. Id. Plaintiff also claims that Desert Auto refused his request for

4 a disability accommodation. Dkt. 1-3 at 4. When Plaintiff complained regarding the racial

5 discrimination that he suffered, Desert Auto allegedly terminated him in retaliation. Id.

6 Following his termination, Plaintiff raised these grievances with the Equal

7 Employment Opportunity Commission (“EEOC”) in November. Dkt. 1-2 at 5. He

8 received a right to sue letter from the EEOC on March 8, 2023, permitting him to pursue

9 his claims against Desert Auto in federal court. Id.

10 Based on the above facts, Plaintiff brings three federal claims and one state claim

11 against Defendant Desert Auto before this Court: (1) discrimination on account of race and

12 national origin under Title VII of the Civil Rights Act of 1964, (2) retaliation under Title

13 VII, (3) discrimination in violation of the Americans with Disabilities Act (“ADA”), and

14 (4) retaliation under California Labor Code § 1102.5.

15 II. PLAINTIFF’S IFP MOTION

16 Upon review of Plaintiff’s affidavit in support of his IFP motion, the Court finds that

17 Plaintiff has made a sufficient showing of inability to pay the filing fee required to

18 prosecute this action. See Dkt. 2. Accordingly, the motion is granted.

19 III. LEGAL STANDARD

20 Because Plaintiff was granted leave to proceed IFP, his Complaint must undergo a

21 sua sponte screening for dismissal. A complaint filed by any person proceeding IFP

22 pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and

23 dismissal by the Court to the extent it is frivolous, malicious, fails to state a claim upon

24 which relief may be granted, or seeks monetary relief from a defendant immune from such

25 relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

26 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).

27 “The standard for determining whether a plaintiff has failed to state a claim upon

28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

2 1108, 1112 (9th Cir. 2012); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

3 1998) (noting that “[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal

4 Rule of Civil Procedure 12(b)(6).”). Rule 12(b)(6) requires that a complaint “contain

5 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

6 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

8 cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Pro

9 se complaints are construed “liberally” and may be dismissed for failure to state a claim

10 only “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his

11 claim which would entitle him to relief.” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

12 Cir. 2012) (internal quotation marks omitted).

13 IV. IFP SCREENING

14 Upon screening Plaintiff’s complaint, the Court notes that Plaintiff’s federal

15 discrimination, retaliation, and disability claims may be invalid because they are untimely.

16 The Court will first examine the timeliness of Plaintiff’s federal claims and then discuss

17 its jurisdiction over the remaining state law claim.

18 A. Plaintiff’s Title VII and ADA Claims are Untimely

19 First, the Court considers whether Plaintiff’s claims under Title VII and the ADA

20 are untimely. A plaintiff wishing to sue under Title VII or the ADA must first file a charge

21 with the EEOC and receive a letter permitting suit in court. 42 U.S.C. § 2000e-5; 42 U.S.C.

22 § 12117(a); Scott v. Gino Morena Enterprises, LLC, 888 F.3d 1101, 1104 (9th Cir. 2018).

23 Once the EEOC has issued this right-to-sue letter, a plaintiff has ninety days to file his or

24 her Title VII or ADA claims in court. See 42 U.S.C. § 2000e-5(f)(1); Mann v. American

25 Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Because this ninety-day period acts as a

26 statute of limitations, claims filed after the ninety-day limitations period must be dismissed

27 unless the plaintiff has pleaded facts that support extending the deadline in the interests of

28 fairness. Scholar v. Pac. Bell, 963 F.2d 264, 266–67 (9th Cir. 1992) (noting failure to

1 comply with 90-day deadline requires dismissal); Baldwin County Welcome Center v.

2 Brown, 466 U.S. 147, 151 (1984) (equitable tolling only available in exceptional

3 circumstances such as when a plaintiff is misled about a deadline or given inadequate

4 notice).

5 Here, Plaintiff failed to file his claims within ninety days of receiving a right-to-sue

6 letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Mann, 324 F.3d at 1090. Plaintiff

7 alleges that he received a right-to-sue letter from the EEOC on March 8, 2023, and

8 therefore, he had until June 6, 2023 to timely file his Title VII and ADA claims. Dkt. 1-2

9 at 5. Plaintiff filed his complaint in this action two days late on June 8, 2023, without

10 explaining in his complaint why he could not meet the deadline. Although the deadline

11 can be extended in rare circumstances, such as when a plaintiff was misled about the

12 deadline or received inadequate notice, Plaintiff has not alleged that any such

13 circumstances exist here. See, e.g., Baldwin, 466 U.S. at 151. Accordingly, the Court

14 dismisses Plaintiff’s Title VII and ADA discrimination, retaliation, and disability claims

15 as untimely.

16 B. Leave to Amend the Federal Claims

17 The Court dismisses the above claims without prejudice because it is not clear at this

18 juncture that Plaintiff could not remedy the legal insufficiency of his claims with additional

19 factual allegations. Dismissal with prejudice is only warranted where amendment would

20 be futile because flaws in the claims cannot be cured. Chaset v. Fleer/Skybox Int’l, LP,

21 300 F.3d 1083, 1088 (9th Cir. 2002) (finding leave to amend futile where “plaintiffs cannot

22 cure the basic flaw in their pleading”). Here, Plaintiff may be able to plead that he filed

23 this action late for reasons that would warrant an extension of the ninety-day deadline.

24 Accordingly, Plaintiff has 45 days from the date of this order to amend his complaint.

25 C. The Court Declines Jurisdiction Over Plaintiff’s Remaining State Law Claim

26 Because the Court has dismissed Plaintiff’s federal claims, it declines to exercise

27 supplemental jurisdiction over Plaintiff’s remaining state law claim. A court may exercise

28 supplemental jurisdiction to hear a plaintiff’s state law claims that “derive from a common

1 nucleus of operative fact[s]” as his or her federal claims. 28 U.S.C. § 1367(c); Mendoza v.

2 Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir. 2002). But where it has dismissed all

3 federal claims over which it had original jurisdiction, it may decline to extend its

4 jurisdiction to the remaining state claims. See id.; Sanford v. MemberWorks, Inc., 625 F.3d

5 550, 561 (9th Cir. 2010). In deciding whether to continue to exercise supplemental

6 jurisdiction, the court considers the interests of judicial economy, convenience, fairness,

7 and comity. City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 173 (1997); Smith

8 v. Lenches, 263 F.3d 972, 977 (9th Cir. 2001). Here, the Court declines to exercise

9 supplemental jurisdiction over Plaintiff’s remaining state law claim. Because the Court

10 has dismissed all of Plaintiff’s federal claims––the claims that conferred original

11 jurisdiction––the Court need not exercise supplemental jurisdiction over the remaining

12 state law claim. See 28 U.S.C. § 1367(c); Sanford, 625 F.3d at 561 (“[I]n the usual case in

13 which all federal-law claims are eliminated before trial, the balance of factors to be

14 considered under the pendent jurisdiction doctrine—judicial economy, convenience,

15 fairness, and comity—will point toward declining to exercise jurisdiction over the

16 remaining state-law claims.”) (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343,

17 350 n. 7 (1988)). Thus, Plaintiff’s state law claim is dismissed without prejudice to refiling

18 in state court.

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I V. CONCLUSION

2 For the reasons set out above, the Court GRANTS Plaintiff's motion to proceed IFP

3 || [Dkt. 2] and DISMISSES Plaintiff's complaint in full under 28 U.S.C. § 1915(e)(2) [Dkt.

4 Plaintiff's motion to appoint counsel is dismissed without prejudice as moot [Dkt. 3].

5 || Plaintiff has 45 days from the date of this order to file an amended complaint. Failure to

6 || do so will result in dismissal of this action.

7 IT IS SO ORDERED.

8 || Dated: June 16, 2023

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i “Tinsook Ohta

12 United States District Judge

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