United States District Court, D. Alaska
THERESA DUTCHUK, ANNALISA HEPPNER, LIZ ORTIZ, RANNA WELLS, NORMA JOHNSON, and JANE DOE IV, Plaintiffs,
DAVID YESNER, UNIVERSITY OF ALASKA BOARD OF REGENTS, and UNIVERSITY OF ALASKA SYSTEM, Defendants.
Russel Holland United States District Judge.
David Yesner moves to dismiss all claims asserted against him
by plaintiff Liz Ortiz. This motion is opposed. Oral argument was
not requested on the motion to dismiss and is not deemed
pending in this case is plaintiffs' unopposed motion to
file a second amended complaint to change the name of
plaintiff Ranna Wells to her legal name, Joanna
Ortiz was a student at the University of Alaska. Yesner is a
former professor at the University of Alaska.
plaintiffs' original complaint, Ortiz alleged that she
first met Yesner in 2016 “when she enrolled at
Defendant University as a first-year graduate student. . .
Ortiz alleged that she “was immediately warned by other
female students to not be alone in a room with Defendant
Yesner under any circumstances due to his predatory
behavior[.]” Ortiz alleged that “each time she
had an interaction with Defendant Yesner he would stare
lasciviously at her breasts for the duration of the
conversation[.]” Ortiz alleged that in October 2017, she
was alone in a classroom performing a necropsy on a bear when
Yesner “suddenly appeared in the doorway, intensely
staring at [her] and standing in silence just watching
her.” Ortiz alleged that “[w]ithin a few
minutes, Defendant Yesner began to walk slowly towards [her]
in a threatening manner, still without saying
anything.” Ortiz alleged that “[i]n an attempt
to protect herself, [she] chose to jump over the bear carcass
on the floor instead of going around the table so she could
be out of arms reach” of Yesner. Ortiz also
alleged that when she was taking a geology class in the Fall
of 2017, Yesner would sit behind her and “lean in close
where [she] could feel his breath down her neck” and he
would “make bizarre, inappropriate
comments.” These are the exact same allegations
that Ortiz makes in plaintiffs' first amended
basis of these allegations, in the original complaint, Ortiz
asserted assault, battery, and intentional infliction of
emotional distress claims against Yesner. In the first
amended complaint, Ortiz no longer asserts an intentional
infliction of emotional distress claim. And, although the
first amended complaint could be read as asserting a battery
claim against Yesner on behalf of Ortiz, in her opposition to
the instant motion, Ortiz contends that she “is not
asserting a battery claim against Defendant
Yesner.” Ortiz does continue to assert an assault
claim against Yesner in the first amended complaint, and in
the briefing on the instant motion to dismiss, the parties
also make reference to a claim for sexual harassment.
to Rule 12(b)(6), Federal Rules of Civil Procedure, Yesner
moves to dismiss all of Ortiz's claims against him.
Yesner's motion was filed prior to plaintiffs' filing
their first amended complaint, which generally would moot
Yesner's motion. However, the court will consider
Yesner's motion on its merits because Ortiz's
allegations in both complaints are identical and because
Ortiz and Yesner have both addressed the arguments raised by
Yesner in the context of the first amended complaint.
“It would waste both the court's and the
parties' resources to deny the motion and require
[Yesner] to file” what would surely be an
“identical motion directed to the first amended
complaint.” Shame on You Productions, Inc. v.
Banks, 120 F.Supp.3d 1123, 1140 (C.D. Cal. 2015).
survive a [Rule 12(b)(6)] 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.'”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir.
2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim is facially plausible ‘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. (quoting
Iqbal, 556 U.S. at 678). “The plausibility
standard requires more than the sheer possibility or
conceivability that a defendant has acted unlawfully.”
Id. “‘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. (quoting Iqbal, 556 U.S. at 678).
“[T]he complaint must provide ‘more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.'” In re Rigel
Pharmaceuticals, Inc. Securities Litig., 697 F.3d 869,
875 (9th Cir. 2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “In evaluating
a Rule 12(b)(6) motion, the court accepts the complaint's
well-pleaded factual allegations as true and draws all
reasonable inferences in the light most favorable to the
plaintiff.” Adams v. U.S. Forest Srvc., 671
F.3d 1138, 1142-43 (9th Cir. 2012). “However, the trial
court does not have to accept as true conclusory allegations
in a complaint or legal claims asserted in the form of
factual allegations.” In re Tracht Gut, LLC,
836 F.3d 1146, 1150 (9th Cir. 2016).
to the extent that any of Ortiz's claims are based on
conduct that occurred prior to May 14, 2017, Yesner argues
that they are barred by the statute of limitations. In
Alaska, a two-year statute of limitations applies to tort
claims. AS 09.10.070. Plaintiffs filed their original
complaint on May 15, 2019. Thus, in order for Ortiz's
tort claims to be timely, they must be based on conduct that
occurred on or after May 14, 2017. Yesner argues that because
Ortiz has not stated when the alleged breast staring took
place, any claims based on this allegation are barred by the
statute of limitations.
response, Ortiz contends that the alleged breast staring
occurred after May 14, 2017 and that Yesner would stare at
her breasts during the geology class she took in the fall of
2017. But, as Yesner is quick to point out, that is not what
Ortiz has alleged in the first amended complaint. Rather,
Ortiz generally alleges that Yesner would stare at her
breasts. She has not alleged exactly when the alleged breast
staring took place. To the extent that any of Ortiz's
claims are based on the allegation of breast staring, they
are dismissed because it is not clear if this conduct
occurred after May 14, ...