Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gilmore v. Union Pacific Railroad Co.

May 20, 2010



This matter comes before the Court on Defendants' Union Pacific Railroad Company, Dennis Magures, John Parker, and Leo Marin ("Defendants'") Motion to Dismiss (Doc. #27) Plaintiffs' Jeremy Gilmore and Dana Gilmore's ("Plaintiffs'") Second Amended Complaint ("SAC") (Doc. #20) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants also move to strike portions of the SAC pursuant to Federal Rule of Civil Procedure 12(f). Plaintiffs oppose the motion to dismiss and strike.*fn1


Plaintiffs' SAC alleges a claim for relief for violation of the Federal Employers Liability Act ("FELA"), 45 U.S.C. §51 et seq., as well as state law claims for relief, stemming from Defendants' discipline and dismissal of Plaintiffs from their jobs at Union Pacific. Plaintiffs' First Amended Complaint ("FAC") was brought in Superior Court, and removed to federal court by Defendants under federal question jurisdiction. Defendants previously brought a motion to dismiss and strike claims from the FAC. The Court granted in part and denied in part the motion to dismiss, and denied the motion to strike. Specifically, the Court denied the motion to dismiss with respect to Plaintiffs' claims for wrongful discharge and invasion of privacy. The Court granted the motion to dismiss, without prejudice, with respect to Plaintiff's claims for marital status discrimination, and with prejudice with respect to the claims for intentional infliction of emotional distress. Defendant Carolyn Will was dismissed from the suit.

Plaintiffs were granted leave to amend the FAC, and consequently filed the SAC. Plaintiffs also filed a Motion for Reconsideration of the dismissal of the intentional infliction of emotional distress claims. The Court denied the Motion for Reconsideration (Docket #43). Plaintiffs re-plead the intentional infliction of emotional distress claims in the SAC, and Defendants have asked the Court to again dismiss these claims with prejudice. The Court reiterates its previous order dismissing those claims with prejudice.

The present Motion to Dismiss seeks dismissal of Plaintiff's amended marital status discrimination claim, dismissal or striking of the new claim for retaliation, and dismissal of individual defendants from the suit. Defendants also request Judicial Notice of the original complaint filed by Plaintiffs in Superior Court.


A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. . . Motions to strike are disfavored an infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Bassett v. Ruggles et al., 2009 WL 2982895 at *24(E.D. Cal. Sept. 14, 2009)(internal citations omitted).

Generally, the Court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. Sherman v. Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations omitted). There are two exceptions: when material is attached to the complaint or relied on by the complaint, or when the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. Id. Accordingly, the Court takes judicial notice as requested by Defendants of Plaintiffs' original Superior Court complaint, as it is a matter of public record.

B. Marital Status Discrimination Claim

Plaintiff Dana Gilmore ("Dana") amended her marital status discrimination claim, and now cites Union Pacific's work rules and conflict of interest policy as sources of discrimination, in addition to her previous allegations. As explained in the Court's previous order, marital status discrimination cases fall into two categories: status cases (where the person is discriminated against for being married, single, etc.) and conduit cases where the discrimination is based on the identity of who the person is married to. See Chen v. County of Orange, 96 Cal. App. 4th 926, 939-43 (2002). In conduit cases, the marital status serves only as a conduit for some other kind of animus. Such cases may be divided into cases where the animus is unlawful (such as race discrimination), and cases where the animus is not unlawful (such as political animus). Id. at 949. In conduit cases, "the plaintiff is the object of adverse action because of something about his or her spouse... However, conduit cases not based on some wrongful animus... have been universally met with rejection as valid marital status discrimination claims. Perhaps the best explanation for that is this: In such cases, the marriage qua marriage is irrelevant to the adverse action taken by the employer. What the employer really cares about is the substantive relationship between the plaintiff and someone else." Id.

Here, Dana continues to advance her marital status discrimination claim under both status and conduit theories, but ultimately fails to state a claim under either theory. Dana did not plead facts alleging an unlawful animus towards Jeremy based on his identity. Nor do the quoted workplace rules or conflict of interest policy form the basis of a marital status discrimination claim. Rule 1.6 states that, "Any act of hostility, misconduct or willful disregard or negligence affecting the interest of the company of its employees is cause for dismissal and must be reported. Indifference to duty, or to the performance of duty, will not be tolerated." Rule 1.2.7 states that, "Employees must not withhold information or fail to give all the facts to those authorized to receive information regarding unusual events, accidents, personal injuries or rule violations." Lastly, the conflict of interest policy states that, "A conflict of interest is a conflict between the private interests of an employee and his or her responsibilities as an employee for the corporation. All such conflicts should be avoided. No employee shall place ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.