United States District Court, D. Montana, Billings Division
ROBERT A. EATON, Plaintiffs,
MONTANA SILVERSMITHS, Defendant.
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.
Plaintiff Robert A. Eaton brings this action alleging
generally that Defendant Montana Silversmiths discriminated
against him, maintained a hostile work environment, and
wrongfully terminated his employment. (Doc. 12.) Montana
Silversmiths has moved to dismiss all claims asserted in
Eaton's Second Amended Complaint for lack of subject
matter jurisdiction under Fed.R.Civ.P. 12(b)(1), and failure
to state a claim upon which relief can be granted under
Fed.R.Civ.P. 12(b)(6). (Doc. 16.) For the following reasons,
the Court recommends the motion be GRANTED
in part and DENIED in part.
to his complaint, Eaton worked at Montana Silversmiths in
Columbus, Montana until he was laid off on June 15, 2017.
(Doc. 12 at 2-3.) Prior to being laid off, Montana
Silversmiths employed a man in his early twenties to train
for Eaton's job between August of 2016 and January of
2017. Id. at 1.
January 24, 2017, Eaton raised concerns with a director of
the company regarding his supervisor's alleged sexual and
racial harassment. Id. Thereafter, Montana
Silversmiths' vice president insisted Eaton change his
work hours, making it difficult for Eaton to pick up his
children from school. Id. at 2. On April 4, 2017,
Eaton's supervisor gave him subpar ratings on his yearly
evaluation. Id. The following day, Eaton attended a
meeting with his supervisor and Montana Silversmiths'
vice president. Id. Eaton was sent home at the end
of the meeting. Id. Eaton wrote a grievance letter
to the company regarding this incident. Id.
April 10, 2017, Eaton returned to work. Id. Four
days later, however, Eaton underwent surgery for a
work-related injury. Id. In May and June of 2017,
Eaton communicated with Montana Silversmiths' human
resources department regarding his grievance letter.
Id. But on June 15, 2017, Montana Silversmiths'
called Eaton to inform him he was being laid off.
motion to dismiss under Rule 12(b)(1) challenges the
court's subject matter jurisdiction over the action. As
the party asserting jurisdiction, the plaintiff bears the
burden of proving its existence. Kingman Reef Atoll
Investments, L.L.C. v. United States, 541 F.3d 1189,
1197 (9th Cir. 2008.)
defendant may pursue a Rule 12(b)(1) motion to dismiss either
as a facial challenge to the jurisdictional allegations of a
pleading, or as a substantive challenge to the facts
underlying those allegations. Savage v. Glendale Union
High School, Dist. No. 205, Maricopa Cty., 343 F.3d
1036, 1039 (9th Cir. 2003). A facial challenge contests
whether the allegations “are insufficient on their face
to invoke federal jurisdiction.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
The challenge does not involve resolution of factual
disputes; it only concerns the allegations in the complaint.
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
2004). Therefore, the court must assume the allegations in
the complaint are true and “draw all reasonable
inferences in [plaintiff's] favor.” Id.
12(b)(6) motion to dismiss tests the legal sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). “Dismissal under Rule 12(b)(6) is proper
when the complaint either (1) lacks a cognizable legal theory
or (2) fails to allege sufficient facts to support a
cognizable legal theory.” Zixiang Li v. Kerry,
710 F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.
2008)). The Court's standard of review under Rule
12(b)(6) is informed by Rule 8(a)(2), which requires that a
pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009)
(quoting Fed. R. Civ. P 8(a)).
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678
(quoting Bell Atlantic 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.” Id. A
plausibility determination is context specific, and courts
must draw on judicial experience and common sense in
evaluating a complaint. Levitt v. Yelp! Inc., 765
F.3d 1123, 1135 (9th Cir. 2014).
Eaton is a pro se plaintiff, the Court must construe his
complaint liberally, and the complaint, “however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers[.]”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nevertheless, pro se litigants must adhere to the rules of
procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th
Second Amended Complaint alleges six counts against Montana
Silversmiths: retaliation (Count 1); wrongful termination
(Count 2); disability discrimination (Count 3); age
discrimination (Count 4); hostile work environment (Count 5);
and defamation of character (Count 6). (Doc. 12.) Eaton does
not specify any particular statute, act, or constitutional
provisions he relies upon for the basis of his claims.
Silversmiths moves to dismiss for lack of jurisdiction and
failure to state a claim upon which relief can be granted.
Montana Silversmiths argues Eaton's complaint fails to
establish subject matter jurisdiction because his complaint
fails to state federal question jurisdiction, and diversity
jurisdiction does not exist because Eaton alleges both
parties are citizens of Montana. (Doc. 17 at 3.) Montana
Silversmiths also argues Eaton's complaint fails to state
a plausible claim for relief. Id. at 4.
party asserting federal diversity jurisdiction, Eaton bears
the burden of pleading and proving its existence. NewGen,
LLC v. Safe Cig, LLC, 840 F.3d 606, 613-14 (9th Cir.
2016). Diversity jurisdiction exists where the action is
between citizens of different states and the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332.
“The essential elements of diversity jurisdiction,
including the diverse residence of all parties, must be
affirmatively alleged in the pleadings.” Bautista
v. Pan American World Airlines, Inc., 828 F.2d 546, 552
(9th Cir. 1987) (quoting In re Mexico City Aircrash,
708 F.2d 400, 404 n. 4 (9th Cir. 1983)). Eaton's
complaint must therefore plead and establish he and Montana
Silversmiths are citizens of different states and the matter
in controversy exceeds $75, 000.
alleges that Montana Silversmiths is a corporation. (Doc. 12
at ¶ 2.) A corporation is a citizen of the state under
whose laws it is incorporated, and a citizen of the state of
its “principal place of business.” 28 U.S.C.
§ 1332(c)(1); Davis v. HSBC Bank Nevada, N.A.,
557 F.3d 1026, 1028 (9th Cir. 2009). Eaton fails to allege
facts establishing where Montana Silversmiths is
incorporated, and whether its principal place of business is
in Montana or another state. Rather, Eaton's complaint
alleges he and Montana Silversmiths are residents of Montana.
(Doc. 12 at 1.) When uncertainty as to jurisdictional
existence arises, any doubt is normally resolved against a
finding of such jurisdiction. Kantor v. ...