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December 13, 2001


The opinion of the court was delivered by: Claudia Wilken, Judge


Defendants move to dismiss pursuant to Federal Rule of Civil procedure 12(b)(6). Plaintiff Stephen Embury opposes the motion. The matter was heard on October 26, 2001. Having considered all of the papers filed by the parties and oral argument on the motion, the Court DENIES the motion (Docket #36).


From approximately 1985 to December 31, 1999, plaintiff Stephen Embury was employed as an Associate Professor in Residence at the University of California, San Francisco, School of Medicine. Plaintiff contends that his employment at UCSF was governed by the same terms and conditions as the employment of tenured faculty at the University, including the right not to be terminated arbitrarily and the right to a full evidentiary hearing before termination of employment.

In January, 1998, a researcher in Plaintiff's laboratory filed an internal complaint against him alleging sexual harassment.

In May, 1999, the researcher who had filed the sexual harassment complaint filed a lawsuit against Plaintiff. In June, 1999, plaintiff asked Defendant Regents to defend the lawsuit pursuant to California Government Code § 995. plaintiff alleges that his request for representation provided part of the motive for adverse employment actions subsequently taken against him.

On December 22, 1999, plaintiff wrote to Defendants King and Goldman. In his correspondence, Plaintiff asserted that, because of his position as an Associate professor in Residence with "the moral equivalent of tenure," dismissal was improper. He requested continued employment and research support and asked for a "face to face" meeting prior to termination. Defendant King responded the next day, agreeing to meet on December 30, 1999 or some time thereafter, but reaffirming that Plaintiff's employment with UCSF would be terminated as of January 1, 2000 and his lab space would be reassigned to another faculty member.

On December 31, 1999, plaintiff was terminated from his position. On May 8, 2000, he filed a grievance with the UCSF Committee on Privilege and Tenure (Committee) objecting to his termination. The Committee conducted an ex parte investigation into Plaintiff's grievance. Plaintiff was interviewed by the Committee at least once. In January, 2001, the Committee denied all relief to Plaintiff. The Committee specifically denied Plaintiff a hearing at which he would have the opportunity to prove that he had a right to reappointment.

While the grievance was pending, Defendant King agreed to permit Plaintiff to return to employment at UCSF. In approximately September, 2000, Plaintiff returned to UCSF, but under terms and conditions of work substantially inferior to those he enjoyed prior to his termination.

On December 29, 2000, Plaintiff filed similar complaints in both State and federal courts. In April, 2001, Defendants removed Plaintiff's State court action. Also in April, 2001, Plaintiff brought a petition for a writ of mandate in State court seeking relief as a third party beneficiary of a contract between UCSF and the National Institute of Health (NIH). On July 6, 2001, Plaintiff's federal court action and removed State court action were dismissed with leave to amend. Plaintiff filed the amended complaint, which is the subject of this motion, on August 6, 2001. In his amended complaint, Plaintiff alleges that the named individual and institutional Defendants deprived him of property without due process of law when they terminated his employment without a hearing. He seeks relief for this deprivation under both 42 U.S.C. § 1983 and the California Constitution, Article I, §§ 7 & 15. In addition, Plaintiff alleges that Defendant Regents contravened a fundamental public policy of the State of California when it terminated his employment. Finally, Plaintiff sues the Regents for breach of contract, alleging that he was a third party beneficiary of a contract between UCSF and the NIH.

Defendants move to dismiss. The Regents invokes Eleventh Amendment immunity with respect to all claims. Defendants further contend that all claims are barred by Plaintiff's failure to exhaust available administrative and judicial remedies. In addition, with respect to the Section 1983 claims, Defendants raise a statute of limitations defense. With respect to the public policy tort claim and the breach of contract claim, Defendants argue that Plaintiff has failed to allege facts upon which relief can be granted.


A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Fidelity Fin. Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986) Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied, 484 U.S. 944 (1987).

Dismissal of a complaint can be based on either the lack of a cognizable legal theory or the lack of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).


A. Immunity

It is undisputed that the Regents is an instrumentality of the State of California. As such, it is immune under the Eleventh Amendment from a suit in federal court for damages. Alabama v. Pugh, 438 U.S. 781 (1978) ("the Eleventh Amendment prohibits federal courts from entertaining suits by private parties against States and their agencies"). The Eleventh Amendment is not, however, an automatic bar to this Court's authority. "Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so. The State can waive the defense." Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389 (1998).

The "test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999) (internal citations omitted) This "stringent" test is met where there is "unequivocal[] evidence [of] the state's intention to subject itself to the jurisdiction of the federal court." Hill v. Blind Industries and Services of Maryland, 179 F.3d 754, 758-759 (9th Cir. 1999) (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). Though a State's waiver of immunity must be "unequivocal," it need not amount to `an express written waiver. . . . On the contrary, we have recognized that a State may waive its Eleventh Amendment immunity by conduct that is incompatible with an intent to preserve that immunity." Id.

Although originally sued in State court, the Regents removed this case to federal court. See April 12 Notice of Removal. Removal is proper only where all defendants consent to removal and join in the removal petition. Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986); Chicago R.I. & P.R. Co. v. Martin, 178 U.S. 245 (1900). Plaintiff contends that consent to removal constituted a waiver of the Regents' Eleventh Amendment immunity. "Although under no compulsion to appear in federal court, [the State defendant] voluntarily invoke[d] its jurisdiction" by joining in the notice of removal. Schacht, 524 U.S. at 395 (Kennedy, J. concurring)

Plaintiff finds support for this contention in Justice Kennedy's opinion concurring in the judgment in Wis. Dept. of Corrections v. Schacht. In his concurrence, Justice Kennedy argued for a "rule of waiver in every case where the State, through its attorneys, consents to removal from the state court to the federal court." Id. at 397. Justice Kennedy reasoned that because "a State which is made a defendant to a state-court action is under no compulsion to appear in federal court any appearance the State makes in federal court may well be regarded as voluntary." Id. at 395-96. The State's consent to removal, therefore, "amounted to a direct invocation of the jurisdiction of the federal courts. . . ." Id. at 397. Only Justice Kennedy addressed this issue. The unanimous opinion of the Court resolved the dispute on other grounds. Id. at 398 (because "the [removal] issue was not addressed either by the parties or the Court of Appeals, the proper course is for us to defer addressing the question until it is presented for our consideration, supported by full briefing and argument, in some later case").

Several circuit courts have found the reasoning employed by Justice Kennedy persuasive. See Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226 (10th Cir. 1999) (by removing case to federal court, State unequivocally waived its immunity); Newfield House, Inc. v. Mass. Dept. of Public Welfare, 651 F.2d 32, 36 n. 3 (1st Cir. 1981) (State waived immunity by removing case to federal court); Estate of Porter v. Illinois, 36 F.3d 684, 691 (7th Cir. 1994) (holding that removal may constitute a waiver if State official has authority to waive immunity).*fn1 In Hill, 179 F.3d at 758, the Ninth Circuit noted that it had "not had occasion to address the issue," but commented that "[w]e find persuasive Justice Kennedy's thoughtful concurrence in [Schacht]."

In Hill, moreover, the court found that the State had waived its Eleventh Amendment immunity when it waited until the first day of trial before raising its immunity defense. Id. at 756. The court reasoned that allowing the tardy invocation of the Eleventh Amendment would undermine "the integrity of the judicial process" by permitting a party "anticipating defeat" to "void the entire proceeding and begin anew in a different forum." Id. at 757. By requiring a timely assertion of the immunity privilege, the court hoped to "minimize[] the opportunity for improper manipulation of the judicial process." Id. at 758. Similar fairness concerns informed Justice Kennedy's concurring opinion. "Under a rule inferring waiver from the failure to raise the objection at the outset of the proceedings, States would be prevented from gaining an unfair advantage." Schacht, 524 U.S. at 395 (Kennedy, J. concurring).

This case exemplifies the risks of "improper manipulation of the judicial process" that informed the Ninth Circuit's decision in Hill, 179 F.3d at 758, and Justice Kennedy's Schacht concurrence. In this case, Plaintiff brought State and federal claims against both the Regents and individual Defendants in State court. Defendants then removed to federal court on the basis of the federal question presented by Plaintiff's civil rights claim. Without the Regents' consent, the individual Defendants could not have removed the claims to federal court. See, supra, Chicago R.I. & P.R. Co., 178 U.S. at 245; Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999) (Section 1446 requires all proper defendants to join or consent to the removal notice). In federal court, however, the Regents sought immunity as to both federal and State claims. The Regents was not entitled to immunity on Plaintiff's State claims so long as they remained in State court.

If the Regents were successful in invoking immunity, therefore, the State claims against it either would be remanded to State court or dismissed and refiled there. See Schacht, 524 U.S. at 391-92 (28 U.S.C. § 1447 (c) could be read to require remand of those claims foreclosed by the Eleventh Amendment); Lee v. American National Ins. Co., 260 F.3d 997, 1007 (9th Cir. 2001) (court should remand rather than dismiss "an otherwise viable state-law claim" if "that claim was part of a removed . . . case which was subsequently determined to be beyond the federal court's power to decide"). The federal claim against the individual Defendants, however, would remain in federal court. See Schacht, 524 U.S. at 392-93 (remand of entire case improper if federal question jurisdiction exists on any claims) Consequently, removal followed by invocation of the immunity privilege would result in the removal of a single cause of action from a unified complaint. This result is not contemplated by the statutory scheme governing removal. See 28 U.S.C. ยง 1441 (c) (providing for removal of "entire case"); ...

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