Juarez v. Walmart Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 VICTOR CAMARGO JUAREZ, Case No. 3:23-cv-00326-ART-CLB 4 Plaintiff, ORDER v. — 5 — WALMART INC., — 6 — Defendant. — 7 — 8 Pro se Plaintiff Victor Camargo Juarez brings this action against his former 9 employer, Defendant Walmart, Inc., for employment discrimination under the 10 American with Disabilities Act (“ADA”) and racial discrimination under Title VII 11 of the Civil Rights Act. Now pending are two motions: Defendant’s Motion to 12 Dismiss (ECF No. 10) and Defendant’s Motion to Stay Case (ECF No. 18). For the 13 reasons stated, the Court will grant Defendant’s Motion to Dismiss and deny as 14 moot Defendant’s Motion to Stay Case. 15 I. FACTUAL AND PROCEDURAL HISTORY 16 Plaintiff is a former employee of Defendant. His employment ended in July 17 of 2021. (ECF No. 4.) Plaintiff brought a complaint before the Equal Employment 18 Opportunity Commission (“EEOC”) on September 9, 2021. (ECF No. 10-3.) In that 19 complaint, Plaintiff alleged violations of the ADA and Title VII of the Civil Rights 20 Act. (Id.) The EEOC issued a Dismissal and Notice of Rights (“Right-to-Sue”) letter 21 that Plaintiff received on October 3, 2021. (ECF No. 4 at 10-12.) The Right-to-Sue 22 letter informed Plaintiff that he must file any lawsuit related to his Title VII and 23 ADA claims within ninety days of his receipt of the letter. (Id.) 24 Plaintiff submitted his first pro se complaint against Defendant for approval 25 to file in forma pauperis on December 30, 2021. (ECF No. 10-4.) The Court 26 approved his application and Plaintiff’s complaint was thereafter filed in Case No. 27 3:21-CV-00525-MMD-WGC on January 5, 2022. (ECF No. 10-5.) Plaintiff, 28 however, did not effectuate proper service on Defendant in that case, and on June 1 2, 2022, Chief Judge Du, after providing several opportunities for Plaintiff to 2 properly serve Defendant over the course of eleven months as well as ordering 3 him to do so within a specified timeframe, dismissed the case for failure to 4 prosecute. (ECF Nos. 10-6. 10-7, 10-8.) 5 Plaintiff submitted his second pro se complaint against Defendant for 6 approval to file in forma pauperis on July 3, 2023. (ECF No. 1.) The Court 7 approved his application and Plaintiff’s complaint was thereafter filed in Case No. 8 in this matter. (ECF Nos. 3, 4.) Defendant later moved to dismiss on the theory 9 that Plaintiff’s claims are time-barred and not administratively exhausted. (ECF 10 No. 10.) Plaintiff responded (ECF No. 13), and Defendant replied (ECF No. 14). 11 II. DISCUSSION 12 Fed. R. Civ. P. 12(b)(6) allows for challenges based on a failure to state a 13 claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). To survive a 14 motion to dismiss, a complaint must contain sufficient factual matter to “state a 15 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 16 (2009). But even a facially plausible claim may be dismissed under Fed. R. Civ. 17 P. 12 (b)(6) for “lack of a cognizable legal theory.” Solida v. McKelvey, 820 F.3d 18 1090, 1096 (9th Cir. 2016). Thus, to survive a motion to dismiss a claim must be 19 both facially plausible and legally cognizable. 20 Here, Plaintiff’s claims are not legally cognizable because they are time21 barred, and those that are not time-barred have not been administratively 22 exhausted. 23 Plaintiff failed to oppose Defendant's argument that his claims are time24 barred and must be dismissed. The Court finds that Ninth Circuit precedent 25 compels dismissal of this case. See O'Donnell v. Vencor Inc., 466 F.3d 1104 (9th 26 Cir. 2006). In O'Donnell, the court held that "[i]n instances where a complaint is 27 timely filed and later dismissed, the timely filing of the complaint does not toll or 28 suspend the 90–day limitations period.” Id. at 1111 (internal quotation marks 1 || and citation omitted). Further, the court held that a second complaint does not 2 || relate back to a previous complaint because a second complaint is not an 3 || amendment to the previous complaint, but rather a separate filing. Id. 4 The Court finds that the facts of this case are sufficiently similar to 5 || O'Donnell so that its holding applies. Plaintiffs claims are therefore time-barred. 6 To the extent Plaintiff alleges claims not brought before the EEOC, the 7 || Court finds those claims are not administratively exhausted. 8 || III. CONCLUSION 9 IT IS THEREFORE ORDERED that Defendant’s Motions to Dismiss 10 || Plaintiffs Complaint is GRANTED. (ECF No. 10.) Plaintiffs complaint is therefore 11 || dismissed with prejudice as to the time-barred claims and without prejudice as 12 || to any other claims. 13 IT IS FURTHER ORDERED that Defendant’s Motion to Stay Case is denied 14 || as moot. (ECF No. 18.) 15 The Clerk of the Court is direct to enter judgment accordingly. — 16 — 17 DATED THIS 29t day of March 2024. 18 oun 19 Awe / ANNE R. TRAUM 20 UNITED STATES DISTRICT JUDGE — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —