Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Ernest Calderon (#007677) Faith C. Klepper (#018444) CALDERON LAW OFFICES 2020 N. Central Ave., Suite 1110 Phoenix, AZ 85004 (602) 265-0004 Attorneys for Defendant Chase BankCard Services, Inc.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JOYCE A. CORRALES,
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No. CIV 02-2157-PHX-SRB DEFENDANT'S RESPONSE TO PLAINTIFF'S FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND MOTION TO DISMISS QUID PRO QUO CLAIM

Plaintiff,
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vs.
CHASE BANKCARD SERVICES, INC., a Delaware corporation., Defendant.

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(Honorable Susan R. Bolton)

Pursuant to Rules 12(b)( 6) and l5( a), Federal Rule of Civil Procedure, Defendan Chase Bankcard Services, Inc., requests that this Court reject Plaintiff Joyce A. Corrales'

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FirstAmendedComplaintfor her failureto act in good faithand statea claimuponwhic
relief can be granted. This request is supported by the following Memorandum of Pointsl and Authorities, incorporated herein by reference. RESPECTFULLY SUBMITTED this 19th day of August, 2005. CALDERON LAW OFFICES

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~ Calderon C-!~ Ernest
Faith C. Klepper Attorneys for Defendant Chase Bankcard 1

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MEMORANDUM OF POINTS AND AUTHORITIES FACTS
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I. On April 10, 2001, Plaintiff Joyce A. Corrales filed a complaint with the EEOC

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alleging she was subjected to a hostile work environment due to an interview she ha
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with Chase Bankcard Services employee Chase Bright, who was investigating employe Brooke King's sexual harassment complaint. (Pl.'s Complaint, Exh. 1.) After the EEOcl issued a right to sue letter, Plaintiff filed a Complaint in this Court alleging two counts 0 sexual harassment (hostile work environment) and one count of invasion of privacy 0 October 28,2003. (Id. at 8.)

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Defendant filed a motion to dismiss for failure to properly serve the Complain
and failure to state a claim. (Def.'s Motion to Dismiss Pl.'s Complaint.) The cou

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granted the motion to dismiss all but the invasion of privacy claim pursuant to Rul 12(b)(6), Federal Rules of Civil Procedure. (Order, November 14, 2003 at 19.) 0

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January 21, 2004, the remaining count was dismissed from this Court for lack 0 jurisdiction. (Order, January 21, 2004 at 1.)

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On February 20, 2004, Plaintiff filed her notice of appeal of the District Court'
dismissal of Count One of her Complaint but did not appeal the court's dismissal 0

Count Two of her Complaint. (Pl.'s Notice of Appeal.) In her Opening Brief, Plaintif
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asserted a quid pro quo claim for the first time. (App.'s Opening Brief at 15-16.) Afte Defendant objected to this improper action in its brief to the court, the Ninth Circui Court of Appeals properly declined to consider it because Plaintiff failed to raise i below. (Memorandum Order, April 11, 2005 at 3.) 2

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Upon remand, on August 9, 2005, Plaintiff filed a Motion for Leave to File Firs

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Amended Complaint, adding a quid pro quo claim. No new factual allegations wer
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made nor were any new case law cited. Plaintiff gave no explanation for her failure t

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plead this charge in her original Complaint. Additionally, she sent Defendant her Rul
26.1 Initial Disclosure in which she listed as witnesses plaintiffs from other completel unrelated sexual harassment clams against Defendant. (Exhibit A, attached.)

II.
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LEGAL ARGUMENT
A. This Court has discretion to deny leave to amend for bad faith amendments or amendments whichfail to state a claim.

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Generally, leave to amend a complaint should be liberally granted under th
Federal Rules of Civil Procedure. us. v. Webb, 655 F. 2d 977 (9th Cir. 1981). However,

that liberality is subject to the qualification that the amendment is not sought in bad faith,!
does not cause undue prejudice to the defendant and is not futile. Thornton v. McClatch Newspapers, Inc., 261 F.3d 789,799 (9th Cir. 2001) citing Bowles v. Reade, 198 F.3d 752,

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757 (9th Cir. 1999) (plaintiff s "history of dilatory tactics and the doubtful value of th proposed amendment" were proper basis upon which to reject her proposed amende complaint). Moreover, a district court does not err in denying leave to amend where th

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II

amended complaint would be subject to dismissal. Saul v. United States, 928 F.2d 829,1 843 (9th Cir. 1991). Finally, a court may also properly deny amendment where th

plaintiff is merely seeking to prolong the litigation by adding new but baseless lega theories. Griggs v. Pace American Group, Inc., 170 F.3d 877 (9thCir. 1999). Here, th( 3

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Court should deny Plaintifr s motion to amend in this case because the new claim is mad

in bad faith and is subject to dismissal for failure to state an actionable claim.
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B.

Plaintiff's new claim is made in badfaith.

First, it should be noted that Plaintiff, who has been assisted from the start of thi litigation by suspended attorney Roger McKee, has known about the alleged facts of thisl case from the start. Yet, she never made any quid pro quo claim, either to the EEOC 0

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to this Court, until after Defendant turned down her repeated settlement requests and thi
Court dismissed her first complaint. It was not until her opening brief to the Nint

Circuit Court of Appeals that she tried to salvage her case by inappropriately adding th quid pro quo claim, which the Court of Appeals rightly rejected.

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Now, based on no new discovery of fact or law, she filed an amended complaint t
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add a quid pro quo claim where none had previously been asserted. It is clear from he
amended complaint and her initial disclosure list that this new claim did not arise base

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on any information she did not previously have, but is merely a litigation tactic designe to attempt to force Defendant into settlement negotiations. In her initial disclosure, sh
lists completely irrelevant witnesses from prior sexual harassment litigation agains Defendant in which those plaintiffs, unlike her, made quid pro quo harassment claims.

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See e.g. Storey v. Chase Bankcard Services, Inc., 970 F. Supp. 722 (D. Ariz. 1997). It isl clear that Plaintiff is trying to piggy back on the claims of those plaintiffs to bolster he own unsubstantiated charges and increase the cost of litigation by baselessly adding

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quid pro quo claim in hopes of coercing Defendant into settlement. 4

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Plaintiff s failure to provide any reason, much less any valid reason, why she ha not previously pled this claim, her history of dilatory tactics, 1 and her overt attempts t coerce Defendant into settlement negotiations demonstrate that this new claim was file

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in bad faith and therefore should be dismissed.
C. Plaintiff's quid pro quo charge fails to add an actionable claim. This court should also dismiss Plaintiff's quid pro quo claim because it fails tol

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state a claim upon which relief can be granted. Rule l2(b)(6), Federal Rules of Civi
Procedure. An actionable quid pro quo claim requires that a plaintiff allege facts that sh

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was subjected to sexual advances by a supervisor in exchange for some job benefit or th absence of some job detriment. "A complainant establishes a case of quid pro quo sexua harassment by showing that a supervisor explicitly or implicitly condition(ed] a job, a jo

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benefit, or the absence of a job detriment, upon an employee's acceptance of sexua conduct. Without the authority to act as an agent of the employer, a supervisor has n
quid to give." Holly D. v. California Institute of Technology, 339 F. 3d 1158, 1170 (9t Cir. 2003) (internal citations omitted).

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First, Plaintiff's Complaint does not state an actionable claim because she presentsl no factual allegation that indicates that Chase Bright was her supervisory or had an actual authority over her. In fact, she repeatedly refers to other persons as her supervisor.
(Pl.'s Complaint at ~~ 13, 15.) Thus, she implicitly acknowledges that Mr. Bright wasl

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1 In addition to her attempts to improperly add this claim on appeal, Plaintiff has shown a patte of disregard for this Court through her repeated failure to follow court orders. (See Def.' Motion to Dismiss for Rule 41 Violation.) 5

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not her supervisor.

Moreover, nothing in Plaintiff's Complaint alleges any facts tha

could lead one to reasonably conclude that Mr. Bright supervised anyone or, in othe
words, had any "quid to give." Thus, her claim fails to meet this element of a quid pr quo charge and must be dismissed. Second, Plaintiff's Complaint does not allege any facts demonstrating tha

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Defendant or its agent conditioned her employment or a benefit of employment on he
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performance or acceptance of sexual conduct. Plaintiff's Complaint never alleges tha
Mr. Bright attempted to gain her acceptance of any sexual conduct. At most, Plaintif:

alleges that Mr. Bright informed her that as an employee she was required to cooperat with a sexual harassment investigation and to provide information. (Complaint at,-r,-r10,1

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11.) Likewise, Plaintiff does not allege that Mr. Bright offered to promote Ms. Corrales,
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raise her pay, or grant her employment if she would divulge information he allegedl

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requested regarding her sexual conversations or sexual activity. Conversely, she does no
allege that Mr. Bright threatened to fire her if she refused. Indeed, the Complaint doesl

not allege any threats, let alone unfulfilled threats, for her failure to answer any question
during the investigation. (1998) ("Because See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 75 only unfulfilled threats, it should b

Ellerth' s claim involves

categorized as a hostile work environment claim which requires a showing of severe 0

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pervasive conduct."). Thus, even taking all of her allegations pleaded in the Complain as true, Plaintiff failed to state a claim for relief under a quid pro quo sexual harassmen

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