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EMBURY v. KING
December 13, 2001
STEPHEN EMBURY, M.D., PLAINTIFF,
TALMADGE E. KING JR., M.D., ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Claudia Wilken, Judge
ORDER DENYING MOTION TO DISMISS
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
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.
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).
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.
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. § 1441 (c) (providing for removal of "entire case"); ...