The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court are (1) Defendants' motions to dismiss, quash, and for summary judgment (Docket Nos. 65, 71, 93, 95, 126 & 142); (2) Maune's motions for summary judgment, motions for stalking, motions to amend, and motion regarding attorney conduct (Docket Nos. 85, 88, 107, 113, 131, 134, 149, 150, 159, 161 & 177); and (3) Bankers Life and Casualty Co., Conseco Insurance Company, and the Individual Defendant' motion for sanctions (Docket No. 165); and (4) other miscellaneous motions. (Docket Nos. 111, 114, 136, 178 & 179). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the pleadings and the record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, and now issues the following decision.
Plaintiff Ardis A. Maune filed a Complaint against numerous defendants,*fn1 alleging three causes of action: (1) sexual harassment and discrimination on the basis of gender, age, and disability; (2) retaliation; and (3) defamation. See Compl. (Docket No. 1).On April 7, 2010, the Court dismissed the claims against Defendant American Family Insurance Companywithout prejudice but granted Maune leave to amend her Complaint.
For the reasons set forth below, the Court will dismiss the claims against the remaining Defendants as follows: (1) the claims against the Non-Resident Individual Defendants and Van Zile Travel Services are dismissed for lack of personal jurisdiction; (2) the claims against Coventry Health and Life Insurance Company and Conseco Insurance Company are dismissed with prejudice for failure to state a claim; and (3) partial summary judgment is granted on the discrimination and retaliation claims against the Idaho Defendants. Maune's motion for summary judgment is denied. All claims against Bankers Life and Casualty Co. and the defamation claim againstthe Idaho Defendants, Kim Drake, Gary Macarty Jr. and Todd Stevenson, remain, but service against them is quashed. Plaintiff Ardis A. Maune must perfect service against these defendants in compliance with the Federal Rules of Civil Procedure by June 10, 2010.
The Court will deny Maune's motions for stalking, her motions to amend, and her motion regarding attorney conduct.
The court will grant in part and deny in part Bankers Life and Casualty Co., Conseco Insurance Company, and the Individual Defendants' motion for sanctions. The Court directs Plaintiff to: 1) fully comply with the Federal Rules of Civil Procedure and the Local Rules, specifically including Rule 11; 2) refrain from filing repetitive requests asking for the same relief over and over; and 3) refrain from filing any request for relief that is not warranted by existing law or is based upon a frivolous argument for extending, modifying, or reversing existing law, or is based upon a request that the Court establish new law. If Plaintiff does not obey this order, the Court will consider a second motion for sanctions, up to and including the award of monetary sanctions against Plaintiff and dismissal.
The remaining pending motions are denied as moot.
I. Motion to Dismiss for Lack of Personal Jurisdiction
The Individual Defendants residing in Illinois, Washington, Indiana, and Iowa,*fn2 and corporate defendant Van Zile Travel Services, a New York corporation with its principal place of business in Rochester, New York, challenge personal jurisdiction.
A. Applicable Legal Standards
In response to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), Maune bears the burden of proving that jurisdiction is appropriate. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008), cert. denied, 129 S.Ct. 1318 (2009). Where, as here, the motion is based on written materials rather than an evidentiary hearing, Maune need only establish a prima facie showing of jurisdictional facts to withstand the motion to dismiss. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). The Court must take Maune's uncontroverted allegations in the complaint as true. Dole Food Co. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002).
Where there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Because Idaho's long-arm statute, codified in Idaho Code § 5-514, allows a broader application of personal jurisdiction than the Due Process Clause, the Court need look only to the Due Process Clause to determine personal jurisdiction. See, e.g., Smalley v. Kaiser, 130 Idaho 909, 950 P.2d 1248 (Idaho 1997).
The exercise of personal jurisdiction over a defendant comports with federal due process only if the defendant "has certain minimum contacts with the relevant forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1205 (9th Cir. 2006) (en banc) (internal quotation marks omitted). Sufficient minimum contacts gives rise to general jurisdiction or specific jurisdiction. Doe v. Unocal Corp., 248 F.3d 915, 923 (9th Cir. 2001). General jurisdiction applies if the defendants' activities in the forum "are substantial, continuous and systematic." Specific jurisdiction applies if the defendants' "less substantial contacts with the forum give rise to the cause of action before the court." Id.
B. Non-Resident Individual Defendants and Van Zile's Motion to Dismiss
General jurisdiction exists when a defendant's contacts with the forum state approximate physical presence. Schwarzenegger, 374 F.3d at 801. Maune does not allege any facts suggesting Van Zile, or the individual defendants residing in Illinois, Washington, Indiana, and Iowa had substantial, continuous, and systematic contacts with Idaho.
But these defendants may still be subject to specific jurisdiction if Maune can satisfy the Ninth Circuit's three prong test:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
Yahoo!, 433 F.3d at 1205-06. Maune bears the burden of satisfying the first two prongs of the test. See Menken v. Emm, 503 F.3d 1050, 1057 (9th Cir. 2007). If Maune succeeds in satisfying both of the first two prongs, the burden then shifts to the Defendants to " 'present a compelling case' that the exercise of jurisdiction would not be reasonable." See id. (quoting Schwarzenegger, 374 F.3d at 802).
Maune cannot satisfy the first two prongs of the test with respect to Van Zile. Van Zile has come forward with evidence that it has no contacts with Idaho: Van Zile is a New York corporation and it conducts no business in Idaho; it does not maintain offices in Idaho; it has no employees in Idaho; and it has no property in Idaho. See Van Zile Affidavit at ¶ ¶ 2-4, 6 (Docket No. 72). And Maune's sole allegation against Van Zile is that Van Zile was her "mandatory travel agency of Bankers Life." See Compl. at ¶ 13 (Docket No. 1). Maune fails to explain how this allegation demonstrates Van Zile committed an intentional act expressly aimed at Idaho; or, more importantly, how it relates to her claims for discrimination, retaliation, and defamation.
Maune's generic allegations of a conspiracy between all defendants also does not support personal jurisdiction against Van Zile. Maune alleges that each defendant "may have been the agent, servant and/or employee of each of the remaining defendants and may have acted pursuant to a common plan...." See Compl. at ¶ 11 (Docket No. 1). However, Maune cites no facts that show how Van Zile actively participated in a plan to harm Maune. "[T]he law is clear that [a federal] court cannot rest a finding of jurisdiction wholly on Plaintiffs' conclusory allegations of a conspiracy." Swisher v. Collins, 2008 WL 687305, *18 (D.Idaho March 10,2008) (quoting McCabe v. Basham, 450 F.Supp.2d 925-26 (N.D.Iowa 2006). Therefore, this Court cannot assert jurisdiction over Van Zile.
This same reasoning applies to the Individual Defendants residing in Illinois, Washington, Indiana, and Iowa. They do not reside in Idaho and do not have sufficient contact in this state to provide the Court with jurisdiction. Maune does not allege they regularly conduct business here or they own property here. Nor does Maune describe a specific act directed toward Maune by these Individual Defendants that could warrant the exercise of jurisdiction over them.
As they note in their brief, the closest Maune comes to identifying such an act by any of them is her assertion that Defendants Harmon, Vining, Buttner and Tolle refused to talk, accept, or return any of her calls. See Compl. at ¶ 27. She also alleges Tolle yelled at her and told her she was prohibited from talking to Maune. Id. But failing to take a phone call or refusing to talk to a resident of this state does not allow the Court to exercise jurisdiction over Harmon, Vining, Brune, Tolle, or any other Individual Defendant not residing in this state. C.f. Sher v. Johnson, 911 F.2d 1357, 1366 (9th Cir. 1990) (finding that the making of phone calls and sending letters to client in California and visiting California three times did not confer jurisdiction in California). There is no jurisdiction over the Individual Defendants residing in Illinois, Washington, Indiana, and Iowa. Accordingly, the claims against those Defendants will be dismissed.
II. Motion to Dismiss under Rule 12(b)(6)
Coventry Health and Life Insurance Company and Conseco Insurance Company have moved to dismiss pursuant to Rule 12(b)(6) for failure to state a claim.
A. Applicable Legal Standards
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. 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. at 570. A claim has facial plausibility when the plaintiff pleads facts allowing the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.
A. Coventry Health and Life Insurance Company 's Motion to Dismiss
Maune lists Coventry in the caption of the Complaint, but does not identify, name, refer to, or address Coventry in the complaint other than to state "Birkman, Plaintiff's Underwriting Manager Coventry (Insurance) Company, Plaintiff's Advantage and Rx appointment with and of Bankers Life." See Compl. at 12 (Docket No. 1). Standing alone, this assertion means nothing. Maune has therefore failed to state in the Complaint a plausible claim for relief against Coventry, and the Court will accordingly grant Coventry's motion to dismiss.
B. Conseco Insurance Company 's Motion to Dismiss
The Court will also grant Conseco's motion to dismiss. With respect to Conseco, Maune has again failed to allege any facts that would support a plausible claim for relief. Maune asserts employment related claims against Conseco, but Maune never alleges facts that might give rise to any sort of employment relationship between her and Conseco. See Compl. (Docket No. 1). The omission of such an allegation warrants the dismissal of her discrimination and retaliation claims. See E.E.O.C. v. Pacific Maritime Ass'n, 351 F.3d 1270, 1273 (9th Cir. 2003)(finding defendant could not be liable to plaintiff absent some connection with an employment relationship).
In addition, aside from generic allegations against all defendants, Maune has failed to allege any facts that would give rise to a plausible claim for defamation against Conseco. See Compl. (Docket No. 1). To survive a motion to dismiss, Maune must assert acts performed by Conseco that would give rise to a plausible claimfor defamation. Twombly, 550 U.S. at 555. Liability cannot be imposed on Conseco based solely on a claim that Bankers Life, Maune's purported former employer, and Conseco are owned by the same parent corporation and share the same president. They are separate entities and Conseco is not liable for acts performed by Bankers Life. Ross v. Coleman Co., Inc., 114 Idaho 817, 831, 761 P.2d 1169, 1183 (1988).
C. Bankers Life and Casualty Co.'s Motion to Dismiss
Bankers Life and Casualty Co. has withdrawn its motion to dismiss for failure to exhaust administrative remedies because Maune obtained a right to sue letter from the EEOC on April 12, 2010 (Docket No. 144). This motion is therefore terminated.
III. Motion for Summary Judgment
The Individual Defendants seek dismissal of the discrimination and retaliation claims against them on the grounds that Title VII and other similar statutory schemes do not impose liability on individual officers or employees of the ...