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Greta v. Surfun Enterprises

July 13, 2010


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is Defendant's motion to dismiss Plaintiff's Complaint. (Doc. No. 5.) Also before the Court is Plaintiff's opposition and Defendant's reply. (Doc. Nos. 8 & 9.) Having fully considered the parties' arguments and the law, Defendant's motion to dismiss is GRANTED.


From May 2, 2006 to October 2007, Plaintiff Edward Greta ("Plaintiff") was employed by Defendant Surfun Enterprises, LLC ("Defendant") as a first mate of the vessel Reel Pain II. (Doc. No. 1 ("Complaint") ¶ 8.) From October 16, 2007 through October 27, 2007, the Chief Executive Officer of Surfun, David James Smith ("Smith"), wanted to be taken out on a trip with his friends to Cabo San Lucas, Mexico. (Complaint ¶¶ 10-11.) Plaintiff, a crew member, and the captain were in charge of the vessel and the voyage. (Id.) Before the vessel departed, Plaintiff and his captain consulted Smith about a tropical depression, "KIKO," off the coast of Mexico. (Id. ¶ 12.) During the trip, Plaintiff and his captain monitored KIKO and advised Smith of proposed itinerary alternatives. (Id. ¶ 15.) Smith ordered the captain to continue with the trip as planned. (Id.) By October 18, 2007, KIKO was elevated to a tropical storm, but Smith still rejected proposed alternative plans. (Id. ¶ 17.) On October 19, 2007, Smith attended a meeting at the request of Plaintiff, the captain, and a crew member. (Id. ¶ 20.) At this meeting, Smith agreed to follow one of the captain's recommendations. (Id.) According to the change in plans, the vessel proceeded to Cabo San Lucas, Mexico where Smith and his friends flew back to San Diego, California. (Id.) Plaintiff and the crew immediately departed Mexico on the vessel and avoided the storm. (Id.) After Plaintiff returned to San Diego, California, he was fired by Smith for gross misconduct and lack of confidence. (Id. ¶ 21.)

Plaintiff filed his complaint in the Superior Court for the State of California for the County of San Diego on October 27, 2009. (Doc. No. 1.) The Complaint alleges two causes of action: retaliation and wrongful termination in violation of public policy. (Id.) Defendant removed the action to this Court on December 15, 2009 and filed the present motion to dismiss on January 7, 2010. (Doc. Nos. 1 & 5.) Plaintiff filed his opposition on February 9, 2010 (Doc. No. 15.), and Defendant filed its reply on February 17, 2010. (Doc. No. 18.) The hearing on Defendant's motion to dismiss was set for February 27, 2010. (Doc. No. 14.) The hearing was vacated and taken under submission without oral argument. (Id.)


Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,'... it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, -- US -, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."

Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id.

Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.


I. Jurisdiction

In Plaintiff's opposition, Plaintiff argues that the Court should remand the case to state court on jurisdictional grounds. (See Doc. No. 8.) In its reply, Defendant contends the Court has jurisdiction over the present action. (See Doc. No. 9.) Before considering the merits of Defendant's motion to dismiss, the Court finds it necessary to address the jurisdictional issues.

Under the United States Constitution, codified at 28 U.S.C. § 1333(1), a district court has original jurisdiction over "any civil case of admiralty or maritime jurisdiction.... " 28 U.S.C. § 1333; see also U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1441 ("Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant... to the district court of the United States...."). For a party to invoke federal admiralty jurisdiction over a tort claim, the party must meet both a location test and a connection test. Mission Bay Jet Sports, LLC v. Colombo, 570 F.3d 1124, 1126 (9th Cir. 2009) (citation omitted). This generally means that the tort occurred on navigable waters and bears a "significant relationship to traditional maritime activity." Id. (citation omitted). Under the location test, a court considers "whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water." Id. (quoting Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)); see also Lewinter v. Genmar Indus., Inc., 26 Cal. App. 4th 1214, 1218 (Ct. App. 1994) (finding that "under the first test, known as the 'locality' test, '[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas on navigable waters, is of admiralty cognizance.'") (citation omitted); ...

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