The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING WITH PREJUDICE DEFENDANT'S MOTION TO DISMISS AND MOOTING ORDER TO SHOW CAUSE
On July 10, 2007, plaintiff Joseph Janulewicz ("Plaintiff") filed a first amended complaint ("FAC") against defendant Bechtel Corporation ("Defendant") alleging a claim for violation of section 6310 of California's Labor Code. (Doc. No. 33.) On July 27, 2007, Defendant filed a motion to dismiss Plaintiff's FAC and a motion to strike Plaintiff's jury demand and his request for certain damages. (Doc. No. 34.) On August 14, 2007, Plaintiff filed an opposition to Defendant's motions. (Doc. No. 36.) On August 17, 2007, Defendant filed a reply. (Doc. No. 37.)
On August 20, 2007, the Court filed an order to show cause why this suit should not be dismissed for failure of either party to appear at, or request a continuance of, the previously scheduled pretrial conference on August 20, 2007. (Doc. No. 38.)
On August 27, 2007, the Court held a hearing on Defendant's motions. Attorney Marcus Jackson appeared for Plaintiff and attorney Thomas M. McInerney appeared telephonically for Defendant at the hearing. For the following reasons, the Court GRANTS WITH PREJUDICE Defendant's motion to dismiss Plaintiff's claim pursuant to § 6310 of California's Labor Code and concludes the order to show cause is moot.
Plaintiff began working for Defendant at the San Onofre Nuclear Generating Station ("SONGS") in June 2000 as a journeyman ironworker, and worked there intermittently until October 2004 pursuant to rotating jobs and hiring practices. (FAC ¶¶ 7, 10.) Defendant performs services at SONGS pursuant to a contract it has with Southern California Edison ("SCE"). (Id. ¶ 7.)
In June 2006, Plaintiff filed a complaint in San Diego County Superior Court for wrongful termination in violation of public policy, violations of California's Labor Code, negligent supervision, and intentional infliction of emotional distress. (Compl. ¶¶ 1-38 (Doc. No. 1).) Defendant removed the suit to federal court. (Notice Removal, at 1-4 (Doc. No. 1).) On June 11, 2007, the Court granted with prejudice Defendant's motion to dismiss Plaintiff's claims for wrongful termination in violation of public policy, intentional infliction of emotional distress, violations of sections 6402, 6403, and 6404 of California's Labor Code, and negligent supervision. (Doc. No. 28.) The Court also granted without prejudice Defendant's motion to dismiss Plaintiff's claims for violations of sections 98.6, 1102.5, 6310, and 6311 of California's Labor Code. (Id.) On July 10, 2007, Plaintiff filed a FAC against Defendant alleging a claim for violation of section 6310 of California's Labor Code.
Judicial notice may be taken of facts not subject to reasonable dispute in that they are "generally known" in the community or "capable of accurate and ready determination by reference to sources whose accuracy cannot be reasonably questioned." See Fed. R. Evid. 201(b). The Court has previously taken judicial notice of the fact that SONGS is located within the federal enclave of Camp Pendleton, which was acquired by the United States no later than December 31, 1942 (Doc. No. 28), and does so again for purposes of this motion. Although Plaintiff asks the Court to consider minutes from California's State Land Commission that discuss the retrocession of property from the federal government to California that borders the property on which SONGS is located, as he did in association with Defendant's motion to dismiss Plaintiff's original complaint, the Court again concludes that these documents support the conclusion that SONGS is located on a federal enclave. (See Req. Judicial Notice Opp. Motion Dismiss (Doc. No. 24-2), Ex. A, at 7 (defining land retroceded as "extending southeasterly a distance of eighteen thousand, two hundred twenty feet (18,220) from the southeast boundary of an easement for construction and operation of a nuclear generating station, granted to Southern California Edison Company and San Diego Gas and Electric Company . . . .").)
A. Legal Standards For Motion to Dismiss
A motion to dismiss for failure to state a claim pursuant to section 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims in the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 12(b)(6) permits dismissal of a claim either where that claim lacks a cognizable legal theory, or where insufficient facts are alleged to support plaintiff's theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). While a complaint does not need detailed factual allegations to survive a motion to dismiss, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, or a formulaic recitation of the elements of a cause of action. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Rather, to survive a motion to dismiss pursuant to Rule 12(b)(6), factual allegations must be sufficient to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact. See id. at 1965.
Dismissal is proper if a complaint is vague, conclusory, and fails to set forth any material facts in support of the allegation. See North Star Intern. v. Arizona Corp. Com'n, 720 F.2d 578, 583 (9th Cir. 1983). Furthermore, a court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). If a complaint is found to fail to state a claim, the court should grant leave to amend unless it determines that the ...