this claim prior to, or even after, removal to this Court. The rationale
behind this rule is clear: "[i]f a state were allowed first to litigate
the merits of its case but then to assert immunity after becoming
dissatisfied with the proceedings, the state could make unfair offensive
use of its Eleventh Amendment shield. Such conduct would "undermine the
integrity of the judicial system.'" Id. (citing Hill v. Blind Indus. And
Servs. of Md., 179 F.3d 754, 756 (9th Cir. 1999).
In this case, Defendant has made no attempt to litigate the § 1981
claim. Indeed, Defendant has made every effort to notify opposing counsel
of Defendant's sovereign immunity rights before filing the present motion
to dismiss. (Kalt Decl Ex. 1 attached thereto.) If Defendant had
attempted to litigate the § 1981 claim, and then asserted sovereign
immunity after an adverse judgment, this Court would unequivocally agree
that Defendant had waived its immunity. However, these are not the facts
before the Court. Here, there is simply no allegation to suggest that
Defendant ever litigated the merits of Plaintiff's § 1981 claim.
Consistent with this Court's duty to make all presumptions in favor of
immunity, this Court finds that removal alone does not constitute a
waiver of sovereign immunity. See College Sav. Bank, 527 U.S. at 682.
Defendant is protected from any liability on Plaintiffs' § 1981 claim
by way of sovereign immunity. As such, the Court GRANTS Defendant's
motion to dismiss Plaintiffs' second cause of action. The claim is
dismissed with prejudice.*fn2
B. PLAINTIFFS' FIFTH CAUSE OF ACTION SATISFIES FEDERAL PLEADING
Defendant next seeks dismissal of Plaintiffs' claim for intentional
infliction of emotional distress ("IIED") based on Plaintiffs' alleged
failure to plead "outrageous conduct." Defendant further argues that
California state courts have adopted a heightened pleading standard
examining the sufficiency of IIED allegations. As this Court has
previously noted, "[w]here state law directly conflicts with applicable
provisions of the Federal Rules of Civil Procedure, federal courts must
apply the Federal Rules — not state law." Clark v. Allstate Ins.
Co., 106 F. Supp.2d 1016, 1018 (S.D.Cal. 2000) (citing Hanna v. Plumer,
380 U.S. 460, 471 (1965)).
California's heightened pleading standard irreconcilably conflicts with
Rule 8 of the Federal Rules of Civil Procedure — the provisions
governing the adequacy of pleadings in federal court. See, e.g.,
Bureerong v. Uvawas, 922 F. Supp. 1450, 1480 (C.D.Cal. 1996).
Specifically, Rule 8(a) requires only that Plaintiff's Complaint include
"a short and plain statement of the claim showing that [Plaintiff] is
entitled to relief, and . . . a demand for judgment for the relief [he]
seeks." Fed.R.Civ.P. 8(a). Therefore, Plaintiffs herein need not adhere
to California's heightened pleading standard with respect to the IIED
Having thoroughly reviewed the allegations presented, the Court finds
that Plaintiffs have satisfied Rule 8's liberal pleading requirements.
Plaintiffs need not provide every detail on which they base their claim;
rather, they need only provide a claim for relief and its grounds. See
Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). In the
present case, Defendant is on notice that Plaintiffs' IIED claim is
largely based on Defendant's alleged discriminatory conduct. Assuming the
allegations are true, as the Court must in a motion to dismiss, the Court
finds that Plaintiffs have stated sufficient facts to potentially support
a valid TIED claim. The Court therefore DENIES Defendant's motion to
dismiss the fifth claim for relief.
C. PLAINTIFFS' SIXTH CLAIM FAILS AS A MATTER OF LAW
Finally, Plaintiffs seek recovery for negligent infliction of emotional
distress ("NIED"). In order to state a claim for NIED, Plaintiffs must
point to negligent conduct that fundamentally caused the harm. See Molien
v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 921 (1980). Employment
decisions are inherently intentional. See Cole v. Fair Oaks Fire
Protection Dist., 43 Cal.3d 148, 160 (1987). As the Northern District
stated, "where the conduct is intentional, it cannot be used as the basis
for a negligent infliction of emotional distress claim." Edwards v. U.S.
Fidelity & Guar. Co., 848 F. Supp. 1460, 1466 (N.D.Ca1. 1994) aff'd
74 F.3d 1245 (9th Cir. 1996).
In this case, Plaintiffs' proposed NIED claim deals exclusively with
prior and intentional employment decisions. There are simply no facts
which would implicate negligence of any kind on behalf of Defendant.
Because Plaintiff can plead no set of facts in support of this claim,
Plaintiffs' sixth claim fails as a matter of law. See Levine, 950 F.2d at
1482. Accordingly, the Court DISMISSES Plaintiffs' sixth claim with
prejudice and without leave to amend.
IV. CONCLUSION AND ORDER
In light of the foregoing, the Court GRANTS Defendant's motion to
dismiss on the second, third, fourth and sixth claims, and DENIES
Defendant's motion to dismiss Plaintiffs' fifth claim. (Doc. No. 2.)
Plaintiffs may file and serve a First Amended Complaint consistent with
the terms of this order no later than March 29, 2002.
IT IS SO ORDERED.