The opinion of the court was delivered by: Thomas J. Whelan, United States District Judge
ORDER GRANTING IN
PART AND DENYING IN
MOTION TO DISMISS
Defendant Regents of the University of California (erroneously sued as
UCSD Medical Center) ("Defendant") moves to dismiss for failure to state
a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiffs Anh T. Tu and Rhoda Wallace ("Plaintiffs") oppose.
All parties are represented by counsel. The Court decides the matter on
the papers submitted and without oral argument pursuant to Civil Local
Rule 7.1 (d. 1).
Plaintiffs were Clinical Laboratory Scientists in Defendant's San Diego
Microbiology Department. Plaintiff Tu is an Asian female, and Plaintiff
Wallace is an African-American female. Plaintiffs allege that Defendant's
failure to promote them to Clinical Laboratory Technician Specialists
when positions became available was discriminatory. Plaintiff Tu
continues to work for UCSD. In April 2001, Plaintiff Wallace resigned.
On December 26, 2001 Plaintiffs filed a complaint in San Diego County
Superior Court alleging eight causes of action: (1) discrimination in
violation of Title VII; (2) violation of 42 U.S.C. § 1981; (3) breach
of contract; (4) breach of the implied covenant of good faith and fair
dealing; (5) intentional infliction of emotional distress ("IIED"); (6)
negligent infliction of emotional distress ("NIED"); (7) constructive
wrongful termination in violation of public policy (as to Plaintiff
Wallace only); and (8) failure to prevent discrimination and harassment
(Cal. Gov. Code § 12940(k)).
On February 6, 2002 Defendants removed the action to this Court.
Defendant now seeks to dismiss the second, third, fourth, fifth and sixth
claims for relief.
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of
the complaint. See North Star Int'l v. Arizona Corp. Comm'n., 720 F.2d 578,
581 (9th. Cir. 1983). Dismissal of a claim under this Rule is appropriate
only where it "appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitled him to relief."
Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
A complaint may be dismissed as a matter of law for two reasons: (1)
lack of a cognizable legal theory, or (2) insufficient facts under a
cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,
533-34 (9th Cir. 1984); Neitzke v. Williams, 490 U.S. 319, 326-327 (1989)
("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a
dispositive issue of law."). In reviewing a motion to dismiss pursuant to
Rule 12(b)(6), the court must
assume the truth of all factual allegation
and must construe them in the light most favorable to the non-moving
party. North Star, 720 F.2d 580. Legal conclusions need not be taken as
true merely because they are case in the form of factual allegations.
Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); see
also In re Verifone Sec. Litig., 11 F.3d 865, 868 (9th Cir. 1993).
Defendant argues the second through sixth causes of action should be
dismissed under Rule 12(b)(6). Because Plaintiffs' second, third,
fourth, and sixth claims fail as a matter of law, the Court agrees that
dismissal is warranted. However, the Court finds that Plaintiffs' fifth
claim satisfies federal pleading requirements. The Court will separately
address each claim in turn.
A. PLAINTIFFS' SECOND CAUSE OF ACTION IS BARRED BY THE ELEVENTH
Plaintiffs' second claim seeks relief for Defendant's alleged violation
of 42 U.S.C. § 1981, which mandates equal rights under the law.*fn1
Defendant contends that Plaintiffs' § 1981 claim is barred by state
sovereign immunity. Plaintiffs counter that Defendant's removal to
federal court waived Defendant's sovereign immunity.
Sovereign immunity protects a State from private suits commenced by
individuals. See U.S. Const., Amdt. 11. As the Supreme Court noted,
"Congress lacks power under Article I to abrogate the States' sovereign
immunity from suits commenced or prosecuted in the federal courts." See
Alden v. Maine, 527 U.S. 706, 712 (1999); see also Seminole Indian Tribe
v. Florida, 517 U.S. 44 (1996). State sovereign immunity is not only an
essential part of the Eleventh Amendment, but also is broader than the
amendment's literal terms. See Alden, 527 U.S. at 713 ("the sovereign
immunity of the States neither derives from, nor is limited by, the terms
of the Eleventh Amendment."). State sovereign immunity waivers require
either state consent or Congressional abrogation. See College Sav. Bank
v. Florida Prepaid Secondary Expense Bd., 527 U.S. 666, 670 (1999).
Moreover, "[c]ourts indulge in every reasonable presumption against
waiver of fundamental constitutional rights. State sovereign immunity, no
less than the right to trial by jury in criminal cases, is
constitutionally protected." Id. at 682. As the Central District noted in
an analogous case, relevant case law makes it clear that in determining
whether a state has `voluntarily invoked the jurisdiction' of a federal
court, the most important factor to consider is whether the state has