1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SINAA KHAMIS, Case No. 24-cv-02565-VKD

9 Plaintiff, ORDER GRANTING DEFNDANT'S 10 v. PARTIAL MOTION TO DISMISS THE THIRD AMENDED COMPLAINT 11 DANIEL DRISCOLL, Secretary, WITH LEAVE TO AMEND Department of the Army 12 Re: Dkt. No. 39 Defendant.

13 14 Plaintiff Sinaa Khamis brings this action against defendant Daniel Driscoll1 in his official 15 capacity as Secretary of the Army for violations of Title VII of the Civil Rights Act of 1964.2 Dkt. 16 No. 1. Pursuant to the parties’ stipulation, Ms. Khamis filed a first and then a second amended 17 complaint, alleging five claims under Title VII: sexual harassment in violation of Title VII (claim 18 1); discrimination based on gender/sex in violation of Title VII (claim 2); discrimination based on 19 religion in violation of Title VII (claim 3); discrimination based on national origin in violation of 20 Title VII (claim 4); and retaliation in violation of Title VII (claim 5). Dkt. No. 18. On October 21 18, 2024, the Secretary moved to dismiss, without prejudice, the second amended complaint 22 (SAC) under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim and 23 for a more definite statement of the pleading under Rule 12(e). Dkt. No. 25. On January 27, 24 1 Daniel Driscoll is substituted for Christine Wormuth as Secretary of the United States 25 Department of the Army pursuant to Federal Rule of Civil Procedure 25(d). As discussed during the hearing on this motion, it appears that the Secretary is the only proper defendant in this matter. 26 Dkt. No. 55.

27 2 All named parties have expressly consented that all proceedings in this matter may be heard and 1 2025, the Court granted in part and denied in part the Secretary’s motion to dismiss, granted the 2 motion for a more definite statement, and allowed Ms. Khamis to amend her pleading. Dkt. No. 3 37. 4 On February 18, 2025, Ms. Khamis filed her third amended complaint (TAC), which is the 5 operative complaint. Dkt. No. 38. In the TAC, Ms. Khamis asserts only three claims: sexual 6 harassment in violation of Title VII (claim 1); discrimination based on gender in violation of Title 7 VII (claim 2); and retaliation in violation of Title VII (claim 3). Id. The Secretary now moves to 8 dismiss only claim 2. Dkt. No. 39. Ms. Khamis opposes this motion but seeks leave to amend 9 once more. Dkt. No. 45. The Court held a hearing on May 13, 2025. 10 Upon consideration of the moving and responding papers and arguments at the hearing, the 11 Court grants the Secretary’s partial motion to dismiss with leave to amend. 12 I. BACKGROUND 13 The Court’s prior order contains a lengthy summary of Ms. Khamis’s factual allegations, 14 most of which are also included in the TAC. See Dkt. No. 37 at 2-5. The Court will not repeat 15 that summary here. 16 II. LEGAL STANDARD 17 A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal 18 sufficiency of the claims in the complaint. Navarro v. Block,

(9th Cir. 2001). 19 Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts 20 alleged to support a cognizable legal theory.

(citing Balistreri v. Pacifica Police Dep’t, 901

(9th Cir. 1990)). In such a motion, all material allegations in the complaint must be 22 taken as true and construed in the light most favorable to the claimant.

However, 23 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 24 statements, do not suffice,” Ashcroft v. Iqbal,

(2009), and “[f]actual allegations 25 must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 26

(2007) (citations omitted). 27 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the 1 must be enough to raise a right to relief above the speculative level.” Twombly,

2 (citations omitted). However, only plausible claims for relief will survive a motion to dismiss. 3 Iqbal,

. A claim is plausible if the facts pled permit the court to draw a reasonable 4 inference that the defendant is liable for the alleged misconduct.

A plaintiff does not have to 5 provide detailed facts, but the pleading must include “more than an unadorned, the-defendant- 6 unlawfully-harmed-me accusation.”

. 7 III. DISCUSSION 8 The Secretary challenges claim 2 of the TAC on two grounds. First, the Secretary argues 9 that Ms. Khamis fails to state a claim for gender or sex discrimination, either on a standalone basis 10 or in combination with other protected factors (such as religion or national origin), because the 11 TAC does not plausibly allege any facts from which such discrimination may be inferred. Dkt. 12 No. 39 at 5-7. Second, the Secretary argues that Ms. Khamis fails to state a claim for gender or 13 sex discrimination based on an adverse employment action because the TAC does not plausibly 14 allege any such adverse employment action.

Ms. Khamis responds that claim 2 and the TAC 15 as whole adequately pleads that she faced a hostile work environment, experienced sexual 16 harassment, and suffered adverse employment actions, namely that she “was constantly 17 humiliated, demoted, transferred, made to suffer sexual advances, investigated, and ultimately 18 terminated.” Dkt. No. 45 at 10-12. 19 As an initial matter, the Court notes that claim 2 as pled in the TAC is nearly identical to 20 claim 2 as pled in the SAC. Dkt. No. 18 at 14-16; Dkt. No. 38 at 16-18. While the Secretary 21 challenged claim 2 on several grounds in his first motion to dismiss the SAC, he did not challenge 22 claim 2 on the ground that Ms. Khamis failed to allege an adverse employment action—the 23 objection he now raises to claim 2 in his second motion to dismiss. Dkt. No. 25 at 2. Generally, a 24 party may not bring a new challenge to a claim in a second motion to dismiss if the challenge 25 could have been raised in a previous motion to dismiss. See Fed. R. Civ. P. 12(g)(2) (“[A] party 26 that makes a motion under this rule must not make another motion under this rule raising a defense 27 or objection that was available to the party but omitted from its earlier motion.”). However, the 1 consider a successive Rule 12(b)(6) motion if the motion does not prejudice the plaintiff and 2 expedites resolution of this case.” Harrell v. City of Gilroy, No. 17-cv-05204-LHK,

452039, at *8 (N.D. Cal. Feb. 5, 2019); see also Banko v. Apple, Inc., No. 13-02977 RS,

6623913, at *2 (N.D. Cal. Dec. 16, 2013) (“Although Rule 12(g) technically prohibits successive 5 motions to dismiss that raise arguments that could have been made in a prior motion . . . courts 6 faced with a successive motion often exercise their discretion to consider the new arguments in the 7 interests of judicial economy.”) (cleaned up). The Court will exercise that discretion here. 8 As discussed at the hearing on the Secretary’s motion to dismiss claim 2 of the TAC, Ms. 9 Khamis’s theory of liability for claim 2 and the allegations that support that theory are unclear. 10 Although the Court granted the Secretary’s prior motion for a more definite statement and gave 11 Ms. Khamis an opportunity to amend her claims, she made no substantive changes to claim 2. 12 Specifically, it remains unclear whether Ms. Khamis is attempting to plead in claim 2 a standalone 13 claim of gender discrimination or a claim of discrimination based on a combination of sex, 14 religion, and national origin. Compare Dkt. No. 38 at 16 (caption of claim 2 states 15 “[d]iscrimination based on [g]ender”) with id. ¶ 113 (“[d]uring Plaintiff’s employment, Plaintiff 16 was subject to discrimination based on her religion and national origin . . . .”). It is also unclear 17 what factual allegations support claim 2 and whether those allegations differ from the allegations 18 supporting Ms. Khamis’s other claims. Ms. Khamis’s opposition to the Secretary’s motion 19 discusses both discrimination based on a hostile work environment as well as discrimination based 20 on an adverse employment action or actions, and relies on assertions that are not among the 21 allegations pled in support of claim 2. Dkt. No. 45 at 10-12. 22 Nevertheless, it appears that claim 2 may be amended to address these ambiguities. As 23 discussed at the hearing, if Ms. Khamis wishes to proceed with claim 2, she must clarify the 24 theory of liability on which she relies and the factual allegations that support that theory. 25 IV. CONCLUSION 26 For the reasons explained above, the Court grants the Secretary’s partial motion to dismiss 27 with leave to amend. If she wishes to proceed with claim 2, Ms. Khamis shall file an amended 1 the amended complaint no later than June 17, 2025. 2 IT IS SO ORDERED. 3 Dated: May 13, 2025 4

Virginia K. DeMarchi 6 United States Magistrate Judge 7 8 9 10 11 12

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