IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
June 3, 2005
ANTHONY L. WILLIAMS, PLAINTIFF,
UNITED AIRLINES, INC., RON KING AND DOES 1 THROUGH 50, DEFENDANTS.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION TO STRIKE
Defendants United Airlines, Inc. and Ron King move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss counts two through four in the first amended complaint (FAC) filed by Plaintiff Anthony L. Williams. Plaintiff, in propria persona, opposes the motion. Plaintiff also moves to strike all non-management persons listed in Defendants' initial disclosures. The matters were heard on May 6, 2005. Having considered the parties' papers and oral argument on the motions, the Court GRANTS Defendants' motion to dismiss and DENIES Plaintiff's motion to strike.
The following facts are alleged in the FAC. Plaintiff was employed by United as an airframe maintenance mechanic in Oakland from 1989 until his termination in May, 2003. King was, at all times relevant to this action, Plaintiff's direct supervisor.
On July 16, 2002, Plaintiff and a co-worker were issued a job card ordering them to perform maintenance that included lubricating cables and pulleys on a particular aircraft wing. After viewing the aircraft, Plaintiff did not think he could complete the task as ordered unless parts of the wing surface were removed. The crew leads informed Plaintiff that it would not be necessary to remove the wing surface, but Plaintiff nevertheless stated that he would refuse to sign the work order unless the surface was removed. King, the team leader, then came to the scene and told Plaintiff that he should complete the job as ordered by the crew leads and sign the order. Plaintiff refused, despite severe and constant badgering, including threats of termination, by King. Eventually, Plaintiff's co-worker completed the job without removing the wing surface and King signed the maintenance card.
On July 23, 2002, Plaintiff issued a "letter of concern," reporting to United management and his union that King had falsified information and violated United's aircraft maintenance rules. On September 28, 2002, United's operating manager sent Plaintiff a "letter of closure" stating that the company could not substantiate any of Plaintiff's claims.
On December 15, 2002, Plaintiff told his foreman, Larry Trickett, that he was interested in taking vacation time in January of the following year. Trickett informed Plaintiff that he should ask general manager Ron Torres for vacation time.
When Plaintiff did, Torres told him that only the resource center could grant vacation. Upon Plaintiff's request, resource center foreman Steve Blackwood granted him fifteen days of vacation; Plaintiff was scheduled to return to work on January 20, 2003. Blackwood also told Plaintiff that if he wanted additional vacation days, he should call Blackwood or his stand-in to request them and they would be granted.
On January 18, Plaintiff called the resource center from Thailand to request additional vacation days. He was informed by a secretary that Blackwood had retired, and that only Trickett could approve additional vacation days. When Plaintiff called Trickett, Trickett informed him that he would not be granted an extension. Nevertheless, Plaintiff did not return to work until January 28. On March 8, Plaintiff was charged with unauthorized absence and issued a level four disciplinary report.
On May 8, 2003, Plaintiff was called by union representative Robert Walton into a meeting to discuss his upcoming disciplinary hearing on the unauthorized absence charge. Also present at the meeting were union representatives Mike Fitzpatrick and Javier Lectora. During the meeting, Plaintiff alleges, Lectora began verbally abusing him and, when he attempted to leave, pushed him with both hands. After the altercation, Plaintiff left the meeting and called the police. According to the police report,*fn1 Walton and Fitzpatrick both told responding officers that Plaintiff had initiated the verbal and physical confrontation with Lectora and had bumped him chest-to-chest as Lectora tried to leave.
As a result of the May 8 incident, Plaintiff was issued a level five disciplinary report and terminated. Plaintiff has since suffered from headaches, anxiety, anger and an inability to sleep. He filed his initial complaint on September 8, 2004, alleging four causes of action: (1) retaliatory discrimination under the Airline Deregulation Act's Whistleblower Protection Program (WPP), (2) intentional infliction of emotional distress, (3) intentional misrepresentation, and (4) negligent misrepresentation.
On November 8, 2004, Defendants moved to dismiss each count in the initial complaint. On February 16, 2005, the Court issued an order granting Defendants' motion in part and denying it in part. Specifically, the Court denied Defendants' motion to dismiss the first count (retaliatory discrimination) and granted Defendants' motion to dismiss the remaining causes of action, granting Plaintiff leave to amend. On March 9, 2005, Plaintiff filed the FAC, which alleges the same four causes of action, but which amends slightly the second, third and fourth claims. Defendants now move to dismiss the second (intentional infliction of emotional distress), third (intentional misrepresentation) and fourth (negligent misrepresentation) counts in the FAC. Plaintiff filed his motion to strike all non-management persons listed in Defendants' initial disclosures on April 15, 2005.
A motion to dismiss for failure to state a claim will be denied unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Fed. R. Civ. P. 8(e). These rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Leave to amend should be liberally granted, but an amended complaint cannot allege facts inconsistent with the challenged pleading. See id. at 296-97.
"In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b). The allegations must be "specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Statements of the time, place and nature of the alleged fraudulent activities are sufficient, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987), provided the plaintiff sets forth "what is false or misleading about a statement, and why it is false." In re GlenFed, Inc., Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994). Scienter may be averred generally, simply by saying that it existed. Id. at 1547; Fed. R. Civ. P. 9(b)("Malice, intent, knowledge, and other condition of mind of a person may be averred generally").
I. Intentional Infliction of Emotional Distress
In the February 16 order, the Court dismissed Plaintiff's second cause of action for intentional infliction of emotional distress against King because Plaintiff filed his initial complaint on September 8, 2004, more than two years after the July 16, 2002 incident that gave rise to the claim. According to California Code of Civil Procedure section 335.1, "An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another" must be brought within two years of the alleged wrongful act. In the February 16 order, the Court ruled that Plaintiff's claim was time-barred unless he could truthfully allege that either the doctrine of equitable tolling or the doctrine of equitable estoppel applied.
Here, Defendants renew their argument that Plaintiff's second cause of action is time-barred. In the FAC, Plaintiff alleges that the doctrine of equitable tolling applies because, as a union member, Plaintiff was required by the collective bargaining agreement to exhaust the union's grievance procedures prior to initiating a lawsuit. The FAC alleges that the letter of concern, which was sent to union management as well as United representatives, was effectively a union grievance. United issued its letter of closure on September 28, 2002, thus allegedly ending the grievance process and causing Plaintiff's September 8, 2004 initial complaint to fall within the applicable two-year statute of limitations.
Defendants posit two arguments why equitable tolling does not apply. First, Defendants argue that Plaintiff's letter of concern did not constitute a union grievance because it was not properly filed with the union. Defendants note that, if the letter of concern was not a union grievance, equitable tolling does not apply. Defendant also argue in the alternative. If, Defendants maintain, the letter of concern was a union grievance, as Plaintiff alleges, Plaintiff did not exhaust the grievance process mandated by the collective bargaining agreement. In support of this argument, Defendants cite the four-step administrative process for exhausting a union grievance that is stated in the collective bargaining agreement.*fn2
Plaintiff acknowledged at the May 6, 2005 hearing that he had not exhausted these four steps. Thus, if this claim does require a union grievance, Plaintiff did not exhaust his administrative remedies, and his claim is therefore preempted by section 301 of the Labor and Management Rights Act. And, if Plaintiff's letter of concern was not a union grievance, equitable tolling does not apply. Under both scenarios, Plaintiff's claim for intentional infliction of emotional distress cannot be equitably tolled, and it is time-barred.
For the foregoing reasons, Defendants' motion to dismiss the second cause of action is granted.
II. Intentional Misrepresentation
The FAC's claim for intentional misrepresentation appears to arise out of Plaintiff's allegations (1) that United employees made it difficult for him to schedule vacation, and (2) that Blackwood assured him that he would be granted a vacation extension. In the initial complaint, Plaintiff's claim for intentional misrepresentation arose only out of his allegations that he had difficulty securing vacation time. In the February 16 order on Defendants' motion to dismiss, the Court ruled that Plaintiff had failed to satisfy the pleading requirements for a claim sounding in fraud because he had failed to plead injury.
The elements of intentional misrepresentation, or fraud, are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages. Cicone v. URS Corp., 183 Cal. App. 3d 194, 200 (1986). Plaintiff has again failed to plead adequately that he suffered an injury caused by the alleged acts of several United employees who made it difficult for him to schedule vacation. Plaintiff did, he acknowledges, successfully schedule several weeks of vacation time. In addition, Plaintiff has failed to satisfy the pleading requirements for his intentional misrepresentation claim arising out of Blackwood's alleged statements because Plaintiff does not allege that Blackwood knew that his statements to Plaintiff were false. Thus, the FAC has failed to cure the deficiencies identified in the Court's February 16 order, and its new allegations fail to meet the pleading requirements for intentional misrepresentation. Because the Court has already given Plaintiff the opportunity to cure the deficiencies in his claim for intentional misrepresentation, the third cause of action must be dismissed with prejudice.
III. Negligent Misrepresentation
The FAC's claim for negligent misrepresentation arises out of Plaintiff's allegation that he was assured that either Blackwood or his stand-in would grant a vacation extension. The elements of a claim for negligent misrepresentation are identical to those of a fraud claim except for the knowledge of falsity requirement; the plaintiff must instead show that the defendant lacked reasonable grounds for believing the misrepresentation to be true. Id. at 208.
In the February 16 order, the Court ruled that Blackwood's alleged statement was merely a prediction of a possible future event, and thus not actionable. See Tarmann v. State Farm Mutual Auto. Ins. Co., 2 Cal. App. 4th 152, 158 (1991). The Court also ruled that Plaintiff's initial complaint failed to allege the required elements of (1) intent to induce reliance or (2) justifiable reliance. The Court specifically stated that, in order for Plaintiff to state a claim for negligent misrepresentation arising out of his pre-vacation conversation with Blackwell, Plaintiff would have to allege, inter alia, that Blackwell intended that Plaintiff would rely on his statements.
The FAC's claim for negligent misrepresentation suffers from several of the same deficiencies identified by the Court's February 16 order. First, Plaintiff has again failed to allege that Blackwood's statement was anything other than a prediction of a future event, which under California law is generally not actionable. Second, Plaintiff has failed to allege that Blackwood intended Plaintiff to rely upon his statements to Plaintiff's detriment. Thus, Plaintiff's fourth cause of action, for negligent misrepresentation, must be dismissed with prejudice.
IV. Plaintiff's Request for Criminal Penalties
In the FAC, Plaintiff requests criminal penalties, including imprisonment, against King and two other United employees. Those requests in a civil complaint are inappropriate as a matter of law, and are hereby stricken. See Fed. R. Civ. P. 12(f).
V. Plaintiff's Motion to Strike
Plaintiff cites no legal authority or argument in support of his motion to strike all non-management persons listed in Defendants' initial disclosures. As Defendants note, they are obliged under Federal Rule of Civil Procedure 26(a)(1) to identify individuals likely to have discoverable information relevant to disputed facts in this case. Thus, Plaintiff's motion to strike must be denied.
For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss the second, third and fourth causes of action in the FAC (Docket No. 37). The second (intentional infliction of emotional distress), third (intentional misrepresentation) and fourth (negligent misrepresentation) causes of action are dismissed with prejudice. In addition, the Court DENIES Plaintiff's motion to strike all non-management persons listed in Defendants' initial disclosures (Docket No. 41). The FAC does not demand a jury trial. Thus, if Defendants desire a jury trial, they must demand one in their answer, or jury is waived.
IT IS SO ORDERED.