The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
The Court has before it Defendants' Motion to Dismiss (Dkt. 8) and Plaintiff's Motion to Strike (Dkt. 11). For the reasons explained below, the Court will grant Defendants' motion in part and deny it in part, and deny Plaintiff's motion to strike.*fn1
Plaintiff, Habib Sadid, a tenured associate professor in Idaho State University's ("ISU") Civil Engineering Department, was terminated by ISU through its president, Defendant Arthur Vailas, based upon a recommendation by Defendant Richard Jacobsen, Dean of the ISU's College of Engineering. Compl. at ¶¶ 60, 77, Dkt. 1.
Mr. Sadid has alleged that a number of events and circumstances culminated in his termination. First, Mr. Sadid publicly criticized ISU on various matters which he alleges are of public concern. Id. at ¶¶ 15, 17, 19, 24-25, 32, 37. In September 2008, Mr. Sadid initiated a state court action against ISU for declining to appoint him as Civil Engineering Department Chair, despite a faculty vote in his favor. Id. at ¶¶ 21-23, 30. Mr. Sadid engaged Defendant Jacobsen in a "private discussion at a public venue" on April 9, 2009, Id. at Intro. ¶, for which he was issued a letter of reprimand by Defendant Jacobsen. Id. at ¶ 40. At a College of Education faculty meeting on April 21, 2009, Mr. Sadid "engaged in the discussions during the meeting where he felt he had input" and allegedly "was very direct, very professional and not intimidated by others during this discourse." Id. at 47. As a result of his behavior in this meeting, Defendant Jacobsen issued a Notice of Contemplated Action to Mr. Sadid, stating his intent to recommend terminating Mr. Sadid because of his "continued pattern of behavior" at ISU. Id. at 50-51. Finally, Mr. Sadid "received a letter of reprimand in regard to purchases made," from ISU Provost, Gary Olson, dated July 2, 2009. Id. at ¶ 53.
On July 17, 2009, Mr. Sadid and his counsel met with Defendant Jacobsen and ISU's counsel, allowing Mr. Sadid "to present [mitigating] evidence or information" on his "pattern of behavior." Id. at ¶¶ 52, 56. Allegedly, the focus of this meeting was Mr. Sadid's behavior at the April 21 College of Engineering meeting. Id. at ¶ 58. On August 3, 2009, Defendant Jacobsen recommended terminating Mr. Sadid for his behavior on April 9 and 21; "unprofessional behavior in past academic years" that adversely affected ISU, its fundraising efforts and "staff and administrator [sic] that had left ISU"; "[c]reating a hostile work environment . . . which caused some faculty to leave and others to consider leaving ISU," "[n]on-conformance with purchasing policies"; and "[c]onsistent disruptive behavior." Id. at ¶ 61. Mr. Sadid alleges that the only ground for termination he was aware of was for his behavior on April 9 and 21, id. at ¶ 60, though it is clear he was also aware of the purchasing issues prior to the July 17 conference. Id. at ¶ 53. The next day, Defendant Vailas notified Mr. Sadid that he was being recommended for termination. Id. at 62.
Mr. Sadid submitted a Notice of Grievance on August 18, 2009. Id. at ¶ 63. ISU held a grievance hearing for Mr. Sadid, and he alleges that "during the hearing process, ISU raised issues in support of [his] termination that were never a part of the [Notice of Contemplated Action] issued to [him] and of which [he] never received notice." Id. at 65-66. Based on the hearing, ISU's Faculty Appeals Board found "insufficient evidence" warranting termination. Id. at 67. The 4 to 1 majority was particularly concerned by what it termed a "lack of due process." Id. at 68. ISU's Faculty Senate -- though not related or privy to the hearing -- also called for Professor Sadid's reinstatement. Id. at ¶71-72. Defendant Vailas nevertheless terminated Mr. Sadid effective October 30, 2009. Id. at ¶ 77. "One of the principle [sic] reasons" for terminating Mr. Sadid "was that [he] posed a safety threat to the health and welfare of the students and faculty of ISU and the security of ISU." Id. at 75.
Mr. Sadid's alleged danger to the ISU community was leaked to the ISU campus at large allegedly through the lone Faculty Appeals Board dissenter's minority report, which landed in the press "through an anonymous source." Id. at 82-84. And despite Mr. Sadid's "demand[ ] that ISU and its employees cease and desist in their efforts to further tarnish [his] reputation," id. at 85, an ISU employee's comments were published in a student newspaper stating generally that Mr. Sadid "presented 'a lot of safety issues.'" Id. at 86, see also id. at Exhibit D.
Mr. Sadid initiated this action on March 15, 2011 against ISU and Defendants Vailas and Jacobsen in both their official and individual capacities. Dkt. 1. He alleged a violation of 42 U.S.C. § 1983 for denial of his First Amendment, Substantive and Procedural Due Process and Equal Protection rights and the following state law claims: Breach of Contract, Defamation and Intentional Infliction of Emotional Distress. Id. Defendants' moved to dismiss under Rule 12(b)(6), asserting an 11th Amendment immunity defense and that Mr. Sadid failed to meet Rule 8(a)'s pleading requirements. Dkt. 8. Because Defendants' Reply brief (Dkt. 10-1) exceeded the ten-page limit by three pages, Mr. Sadid moved to strike the Reply in its entirety. Dkt. 11.
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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). 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. at 555. 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 factual content that allows 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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. at 557.
In a more recent case, the Supreme Court identified two "working principles" that underlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n. 1 (9th Cir. 1997) (stating that "[i]f the pleadings establish facts compelling a decision one way, that is as good as if depositions and other . . . evidence on summary judgment establishes the identical facts").
A dismissal without leave to amend is improper unless it is beyond doubt that the complaint "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (issued two months after Iqbal).*fn2 The Ninth Circuit has held that "in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but ...