IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MIA R. RINALLO,

Plaintiff,

v.

CAPSA SOLUTIONS, LLC, a

foreign corporation,

Defendant.

3:16-CV-00678-BR

 

OPINION AND ORDER 

GLENN N. SOLOMON

1001 S.W. Fifth Avenue, #1414

Portland, OR 97204

(503) 241-3508 

Attorney for Plaintiff

CODY M. WESTON

EDWARD CHOI

Perkins Coie, LLP

1120 N.W. Couch Street

10th Floor

Portland, OR 97209-4128

(503) 727-2000 

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 1 of 12
BROWN, Judge.

This matter comes before the Court on the Motion (#18) to

Dismiss Plaintiff’s Amended Complaint filed by Defendant CAPSA

Solutions, LLC. For the reasons that follow, the Court GRANTS

Defendant’s Motion and DISMISSES this matter with prejudice.

BACKGROUND

The following facts are taken from Plaintiff’s Amended

Complaint and accepted as true for purposes of Defendant’s

Motion.

Defendant CAPSA Solutions, LLC, hired Plaintiff Mia R.

Rinallo as an Information Security/Regulatory Engineer on 

July 13, 2015. 

During her employment Plaintiff’s supervisor had the words

“Pussy Riot” displayed on the whiteboard in her office. At some

point Plaintiff complained about the whiteboard to her supervisor

and to Defendant’s Human Resources Department. After Plaintiff

complained, her supervisor retaliated against her by “subjecting

her to unwarranted criticism.” Amended Compl. at ¶ 9.

On December 18, 2015, Plaintiff filed a Complaint with the

Oregon Bureau of Labor and Industries (BOLI) in which she

alleged, among other things, that she was terminated after she

complained to her supervisor about the whiteboard display. 

Plaintiff asserted she believed she was terminated in retaliation

2 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 2 of 12
for her “complaint about sexual harassment.” Decl. of Katrina

Mollenkopf, Ex. 1 at 5.

On March 3, 2016, BOLI issued Plaintiff a Notice of Right to

File Civil Suit in which BOLI advised Plaintiff that she had the

right to file an action “within 90 days from the date of this

letter.”

On April 19, 2016, Plaintiff filed a Complaint in this Court

on the basis of diversity jurisdiction in which she alleged,

among other things, that she was wrongfully terminated by

Defendant “for resisting sexual harassment in violation of common

law and ORS 659A.199.” Compl. at ¶¶ 15.

On August 8, 2016, a Summons was issued to Defendant. 

Defendant received the Summons and Complaint on August 11, 2016.

On August 31, 2016, Defendant filed a Motion to Dismiss. 

On November 28, 2016, the Court issued an Opinion and Order

in which it concluded Plaintiff’s Complaint did not allege any

federal claims for relief and her state-law claims were untimely

because she failed to file this action within 90 days of her BOLI

Right-to-Sue letter. The Court, therefore, granted Defendant’s

Motion to Dismiss and dismissed Plaintiff’s state-law claims with

prejudice. The Court, however, granted Plaintiff leave to file

an Amended Complaint to state claims arising from the factual

allegations in her Complaint “but without prejudice to Defendant

raising any time-limit defenses thereto.”

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Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 3 of 12
On December 8, 2016, Plaintiff filed an Amended Complaint in

which she brings claims of retaliation for resisting sexual

harassment in violation of Oregon Revised Statute § 659A.199 and

Title VII, 42 U.S.C. § 2000e, et seq.

On January 10, 2017, Defendant filed a Motion to Dismiss

Plaintiff’s Amended Complaint on the grounds that her claims are

time-barred or, in the alternative, that Plaintiff fails to state

a claim. The Court took Defendant’s Motion under advisement on

February 24, 2017.

STANDARDS

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.” [Bell Atlantic v.

Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. 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. Ibid. 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, 127 S. Ct.

1955 (brackets omitted).

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). See also Bell

Atlantic, 550 U.S. at 555-56. The court must accept as true the

allegations in the complaint and construe them in favor of the

plaintiff. Novak v. U.S., 795 F.3d 1012, 1017 (9th Cir. 2015). 

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The pleading standard under Federal Rule of Civil 

Procedure 8 “does not require ‘detailed factual allegations,’ but

it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 555). See also Fed. R. Civ. P. 8(a)(2). “A pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation

of the elements of a cause of action will not do.’” Id. (citing

Twombly, 550 U.S. at 555). A complaint also does not suffice if

it tenders “naked assertion[s]” devoid of “further factual

enhancement.” Id. at 557.

"In ruling on a 12(b)(6) motion, a court may generally

consider only allegations contained in the pleadings, exhibits

attached to the complaint, and matters properly subject to

judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

2012)(citation omitted). A court, however, "may consider a

writing referenced in a complaint but not explicitly incorporated

therein if the complaint relies on the document and its

authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756,

763 (9th Cir. 2007)(citation omitted).

DISCUSSION

As noted, Defendant moves to dismiss Plaintiff’s claims on

the ground that they are time-barred.

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I. Plaintiff’s claim for violation of § 659A.199 is timebarred.

As noted, in her Amended Complaint Plaintiff again asserts a

claim for retaliation for resisting sexual harassment in

violation of § 659A.199. The Court dismissed this claim with

prejudice in its November 28, 2016, Opinion and Order on the

ground that Plaintiff failed to commence this action against

Defendant within 90 days after BOLI mailed her Right-to-Sue

letter.

As the Court previously explained, Oregon Revised Statute 

§ 659A.875(2) provides a claimant who has filed a BOLI complaint

“must commence a civil action under ORS 659A.885 within 90 days

after a 90-day notice is mailed to the complainant.” Emphasis

added. See also Stewart v. Rock Tenn CP, LLC, No. 3:13-CV-02147-

SC, 2015 WL 1883910, at *7 (D. Or. Apr. 24, 2015)(“If a claimant

files a complaint with BOLI and receives a right-to-sue letter,

the claimant ‘must commence a civil action under ORS 659A.885

within 90 days after a 90–day notice is mailed to the

complainant.’”). As noted, BOLI mailed Plaintiff a Right-to-Sue

letter on March 3, 2016. Plaintiff, therefore, was required to

commence her action against Defendant no later than June 1, 2016.

The Supreme Court has held in diversity cases that state law

governs the commencement of an action for calculating the statute

of limitations. Walker v. Armco Steel Corp., 446 U.S. 740,

752–53 (1980). See also Montgomery v. City of Portland Fire &

6 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 6 of 12
Rescue, No. 08–CV-1006–MO, 2009 WL 1329850, at *4 (D. Or. May 8,

2009)(discussing Walker). The Ninth Circuit has noted

“[s]tatutes of limitations, which dictate the life of state

causes of action, are too intimately connected with the substance

of the state-created right to be disregarded by the federal

courts.” Harvey's Wagon Wheel, Inc. v. Van Blitter, 959 F.2d

153, 157 (9th Cir. 1992)(quotation omitted). The Ninth Circuit,

therefore, has held the federal civil rule governing the

commencement of an action “does not commence a suit based on

state law for purposes of the statute of limitations.” Sain v.

City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002)(internal

citations omitted).

Oregon Revised Statute § 12.020(2) provides when a plaintiff

serves the defendant with the summons “before the expiration of

60 days after the date on which the complaint in the action was

filed, the action . . . shall be deemed to have been commenced

upon the date on which the complaint in the action was filed.” 

If a plaintiff does not serve the defendant with the summons

within 60 days of the date the complaint was filed, the action is

“deemed commenced . . . when the complaint is filed, and the

summons served on the defendant.” Or. Rev. Stat. § 12.020(1)

(emphasis added). 

As noted, Plaintiff filed the Complaint in this matter on

April 19, 2016. Plaintiff, however, did not serve Defendant with

7 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 7 of 12
a summons until August 11, 2016, which is more than 60 days after

Plaintiff filed the Complaint. Thus, § 12.020(2) does not apply,

and this matter is deemed to have been filed on August 11, 2016,

when, according to Defendant, it received the Summons. 

Plaintiff, therefore, failed to file this action within 90 days

of her BOLI Right-to-Sue letter. 

The Court, therefore, finds it correctly concluded in its 

November 28, 2016, Opinion and Order that Plaintiff’s claim for

violation of § 659A.199 was time-barred. Moreover, Plaintiff has

not alleged new or different facts in her Amended Complaint that

indicate the Court’s ruling was in error. 

Accordingly, the Court grants Defendant’s Motion to Dismiss

Plaintiff’s claim for violation of § 659A.199 with prejudice.

II. Plaintiff’s claim for violation of Title VII is time-barred.

The Ninth Circuit has held a plaintiff is required to file

an action for violation of Title VII within 90 days of receiving

her right-to-sue letter from the EEOC. See Bullock v. Berrien,

688 F.3d 613, 616 (9th Cir. 2012)(“The employee may file a civil

action in federal district court within 90 days of receiving

notice of final agency action on the employee's formal

complaint.”). See also 42 U.S.C. § 2000e-16(c); 29 C.F.R. 

§ 1614.407. The 90-day period “operates as a limitations period”

that bars the action if a plaintiff does not file a civil action

within 90 days. Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495

8 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 8 of 12
F.3d 1119, 1121 (9th Cir. 2007).

The limitations period begins on the date the right-to-sue

notice “arrive[s] at the claimant's address of record.” Id. at

1122. When the date the plaintiff received the right-to-sue

notice is unknown, the court presumes the plaintiff received the

notice three days after the date it was mailed. Id. at 1123-26. 

A plaintiff may rebut the three-day presumption.

Although in this case Plaintiff does not allege and the

record does not reflect the date on which she received her rightto-sue letter from the EEOC, the record reflects the EEOC mailed

the right-to-sue letter on March 14, 2016. The Court, therefore,

presumes Plaintiff received her right-to-sue letter on March 18,

2016.1

 Plaintiff, however, did not assert her claim against

Defendant for violation of Title VII until she filed her Amended

Complaint on December 8, 2016, which is beyond 90 days. 

Plaintiff’s claim for violation of Title VII, therefore, is

untimely.

Nevertheless, Plaintiff contends her claim for violation of

Title VII is not time-barred because she asserted a claim for

violation of Title VII in her original Complaint. Plaintiff

relies solely on the fact that she listed 42 U.S.C. § 2000e in

the case caption of her original Complaint. The Court, however,

1 March 17, 2016, was a Sunday. The Court, therefore,

presumes Plaintiff received the right-to-sue letter the following

Monday, March 18, 2016.

9 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 9 of 12
already concluded in its November 28, 2016, Opinion and Order

that Plaintiff’s original Complaint did not allege a claim for

violation of Title VII. In reaching that conclusion the Court

noted Plaintiff stated in her Complaint that “[t]his court has

diversity jurisdiction under 28 USC 1331. [Plaintiff] is a

citizen of Oregon and [Defendant] is a citizen of Delaware. The

amount in controversy exceeds $75,000.” Compl. at ¶ 4. 

Plaintiff did not make any allegation of federal-question

jurisdiction. Similarly, Plaintiff alleged she was terminated

“for resisting sexual harassment in violation of common law and

ORS 659A.199.” Compl. at ¶¶ 15. Plaintiff did not cite to or

rely on any federal statute in the body of her Complaint. 

Finally, Plaintiff cited only Oregon cases that relied on Oregon

statutes to support her allegation that she was terminated for

pursuing her right to be free from sexual harassment. 

Plaintiff’s assertion that citing Title VII in the case

caption is sufficient to assert a claim for violation of Title

VII is unsupported by any authority. In fact, courts have held

merely referencing a claim in a case caption is insufficient to

assert a claim. See, e.g., Newfield v. City Nat’l Bank, NA, 

No. CV 16-3833 DSF (JPRx), 2017 WL 540944, at *2 (C.D. Cal. 

Jan. 27, 2017)(concluding the plaintiff did not allege claims for

intentional infliction of emotional distress and malicious

prosecution when he listed them on the caption page of his

10 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 10 of 12
complaint but did not “assert these claims in the body of the

complaint.”); Abdul-Haqq v. Kaiser Emergency in San Leandro, 

No. 16-cv-05454-PJH, 2017 WL 550235, at *7 (N.D. Cal. Feb. 10,

2017)(concluding the plaintiff did not allege claims that were

named only in the case caption and not asserted in the body of

the complaint). The Court, therefore, adheres to its earlier

conclusion that Plaintiff did not allege a claim for violation of

Title VII in her original Complaint. Moreover, the Court

concludes Plaintiff alleged her Title VII claim for the first

time in her Amended Complaint, which was filed after the 90-day

limitations period had passed.

Finally, the Supreme Court has stated Federal Rule of Civil

Procedure 15(c) allows a plaintiff to relate back her amended

pleading “to the date of a timely filed original pleading” and

renders the amended pleading “timely even though it was filed

outside an applicable statute of limitations period.” Krupski v.

Costa Crociere S.p.A., 560 U.S. 538, 538 (2010)(emphasis added). 

The Ninth Circuit has not addressed whether a plaintiff may

relate back an amended pleading to an untimely original pleading. 

The Seventh Circuit, however, addressed the issue in Henderson v.

Bolanda, 253 F.3d 928 (7th Cir. 2001), in which it concluded Rule

15(c) does not permit an amended complaint to relate back to an

earlier, untimely complaint. The Seventh Circuit explained an

untimely original complaint is “a nullity” that cannot “act as a

11 - OPINION AND ORDER

Case 3:16-cv-00678-BR Document 24 Filed 03/27/17 Page 11 of 12
life-line for a later complaint, filed after the . . . statute of

limitations for the claims which it contained.” Id. at 932. 

Thus, the court concluded the plaintiff’s federal claim that he

raised for the first time in his amended complaint was barred by

the applicable statute of limitations because the plaintiff’s

original complaint, which had alleged only state-law claims, was

untimely. Id. at 931–32. 

The Court adopts the reasoning of Henderson and concludes

Plaintiff’s Title VII claim does not relate back to her original

Complaint because Plaintiff’s original Complaint was untimely. 

Accordingly, the Court grants Defendant’s Motion to Dismiss

Plaintiff’s Title VII claim.

CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion (#18)

to Dismiss and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 27th day of March, 2017.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

12 - OPINION AND ORDER

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