Velez v. Dorrance
1:21-cv-00005
D. Haw.Feb 17, 2021Background
- Pro se plaintiff Albert S. Velez filed an employment discrimination complaint on January 4, 2021 alleging federal and Hawaii statutory claims against Bennett Dorrance, Jr., Robert Endreson, John Oliva, Kohala Mountain Fish Company, and Proservice Hawaii.
- District defendants filed motions to dismiss (Kohala Motion on Feb. 1, 2021; Proservice Motion on Feb. 8, 2021).
- The court construed the pro se complaint liberally and identified claims for ADA discrimination (42 U.S.C. § 12112), state law discrimination (Haw. Rev. Stat. § 378-32), federal and state retaliation (29 U.S.C. § 660(c); 42 U.S.C. § 12203(a); Haw. Rev. Stat. § 378-62), and relief under Haw. Rev. Stat. § 393-15.
- The court GRANTED the motions to the extent they sought dismissal for failure to state a claim, but DENIED dismissal with prejudice and instead dismissed without prejudice.
- The court granted Velez leave to file an amended complaint curing the defects by April 16, 2021, warning that failure to amend by that date would result in dismissal with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the complaint (failure to state a claim) | Velez alleges discrimination and multiple retaliation claims under federal and state law | Defendants moved to dismiss asserting the complaint is deficient (legal/factual defects asserted in motions) | Court dismissed the complaint for the reasons in the motions but allowed amendment (dismissal without prejudice) |
| Dismissal with prejudice vs. without prejudice | Velez seeks to proceed on his claims | Defendants sought dismissal (including request for prejudice) | Court denied dismissal with prejudice and granted leave to amend because defects might be curable |
| Effect of pro se status on pleading standard | Velez’s filings should be liberally construed | Defendants apply ordinary pleading standards | Court applied liberal construction (citing Erickson) but still found dismissal appropriate subject to leave to amend |
| Need for hearing or opposition memorandum | (No opposition filed) | Defendants noted no hearing or opposition memoranda required under local rules | Court found no opposition memoranda or hearing necessary under Local Rule 7.1(c) |
Key Cases Cited
- Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam) (pro se complaints are to be liberally construed)
- Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109 (9th Cir. 2013) (leave to amend should generally be granted unless complaint cannot be saved by any amendment)