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Daniel Ungureanu, et al v. A. Teichert & Son

October 12, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Presently pending before the court are motions to dismiss filed by defendants Thomas Anthony, Jr.; York Insurance Services Group, Inc.-California ("York"); A. Teichert & Son, Inc. ("Teichert"); Goldman, Magdalin & Krikes LLP; Frazier ("Goldman Defendants"); Smolich & Smolich, and Robert Smolich ("Smolich Defendants"); and Mark Shelub, M.D., as well as motions to strike filed by defendants York; Teichert; Goldman Defendants; and Shelub, previously submitted without oral argument. In conjunction with these motions, plaintiffs have filed a request for judicial notice, as have the Smolich defendants. Having reviewed the papers on support of and in opposition to the motions, the court now issues the following findings and recommendations.


Plaintiffs Daniel and Elizabeth Ungureanu are proceeding pro se and have paid the filing fee. This action is proceeding on the first amended complaint ("FAC"), filed February 10, 2011. Daniel Ungureanu claims that his employer, Teichert, discriminated against him and subjected him to adverse treatment because of his nationality as a Romanian immigrant, and then terminated him. He also claims he was subject to retaliation for his complaints of workplace violations. He claims he was working as a certified heavy equipment operator in May, 2004, when a co-worker intentionally bumped into him while he was operating a scraper, causing neck and back injuries. Although plaintiff reported the incident to his foreman, the foreman did not file an incident report, and the co-worker was not trained or disciplined. (FAC ¶ 16.) The FAC alleges multiple incidents of similar improper behavior by co-workers which caused plaintiff injury, but for which Teichert allegedly took no action. (Id. at ¶¶ 17, 18, 19, 20.) Eventually, plaintiff was so injured from being rammed on three separate occasions that his last day of work was July 11, 2005. (Id. at ¶ 20.) Plaintiff received many years of medical treatment through the Worker's Compensation system as a result, and alleges that the QME reports of defendant Dr. Shelub either were improperly influenced by Teichert's adjuster, Bragg & Associates,*fn1 and its defense attorney, Goldman and Mr. Frazier, or were changed based on the improper interference of these defendants. As a result, plaintiff's disability rating decreased from 50 percent to 28 percent, which is what plaintiff's workers' compensation attorney, defendant Smolich, indicated it would be.*fn2 (Id. at ¶ 22.)


I. Requests for Judicial Notice

Both plaintiffs and the Smolich defendants have filed requests for judicial notice.

(Dkt. nos. 22, 39.) Defendants have opposed plaintiffs' request for judicial notice. (Dkt. no. 47.) The Smolich defendants request judicial notice of their Exhibits A, B, and C, which are a Substitution of Attorneys in plaintiff's matter before the WCAB, dated August 10, 2005, a Petition to be Relieved as Attorney of Record for plaintiff in his matter before the WCAB, dated June 20, 2008, and an order relieving these defendants as counsel of record for plaintiff in that matter, dated July 14, 2008. Plaintiffs request judicial notice of 57 documents totaling over 200 pages from their matter before the WCAB.

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). However, not all court records are equal with respect to the ability to take judicial notice. The sine qua non for any judicial notice request is that the information sought to be noticed is of a character that is generally known, or cannot reasonably be disputed. Fed. R. Ev. 210(b). Thus, for example, the facts contained in a declaration opposing a summary judgment found in another case file could not normally be judicially noticed because those facts, with infrequent exception, would not be generally known, nor would they be facts which could not be reasonably disputed. However, the fact that a declarant uttered such facts (whether true or not) in a declaration which was filed could not be reasonably disputed assuming that proper authentication was performed. Judicial notice could be taken of the declaration in this latter example.

Because the Smolich defendants' exhibits (substitution/withdrawal of counsel) are clearly administrative court records whose accuracy cannot be reasonably doubted, i.e., their relevance is that they were filed, and are authenticated by the sworn declaration of Robert Lucas, their request for judicial notice is granted. However, it is not readily apparent that plaintiff's documents are all court records as they are submitted without foundation, and especially that the facts contained therein are not reasonably subject to dispute. It is unclear what relevance plaintiffs seek to attach to the documents. Plaintiffs have not submitted a declaration attesting that the documents are what they purport to be. Furthermore, not all of the documents are court records and it is impossible to determine if they were in fact submitted in connection with the Workers' Compensation proceeding. See e.g. Ex. 1 (Report of Dr. Shelub, dated March 18, 2007). In any event, none of the documents for which plaintiffs request judicial notice are necessary to determine the motions. Therefore, plaintiffs' request for judicial notice is denied.

II. Legal Standards

A. Rule 12(b)(6) - Failure to State a Claim

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

B. Rule 12(b)(1) - Subject Matter Jurisdiction

On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).

First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute.

Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).

Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn3

III. The Court's Jurisdiction

Plaintiffs have invoked diversity, 28 U.S.C. § 1332, as the jurisdictional basis of the complaint. These Idaho plaintiffs are suing California citizens.*fn4 Plaintiff pleads his damages in excess of $75,000.00. Because the suit is based in diversity, the theory of supplemental jurisdiction is not operative. However, two of plaintiff's (Daniel U.) claims, employment discrimination claims against defendantTeichert, are just as clearly based on federal question jurisdiction -- a jurisdiction not formally pled by plaintiffs. Because these claims have no basis in diversity jurisdiction related to state law claims, and are without doubt based on federal question jurisdiction (28 U.S.C. § 1331), the undersigned will overlook the failure to set forth federal question jurisdiction in a separate, express paragraph.

IV. The Operative Claims

The causes of action (claims) pled by plaintiff are by and large uninformative and conclusory, especially with respect to allegations of misconduct within the workers compensation claims process. Plaintiff lists as his claims:

1. Negligent Hiring (defendant Teichert only) (presumably on account of actions on the part of the Teichert employee who hit plaintiff's machine with a machine of his own);

2. Negligent Supervision (defendant Teichert only) (negligent supervision of the above employee);

3. Negligent Retention (defendant Teichert only);

4. Fraud - (all defendants);

This claim is not comprehensible except insofar as plaintiff may be claiming fraud in connection with the proceedings within the workers compensation process. Plaintiff incorporates all previous paragraphs, none of which have much, if anything to do with possible fraud, without differentiating the different defendants, and then proclaims:

Defendants , each of them, have misrepresented and deceived, Plaintiff from the beginning of the initial incidents, through the worker's compensation process to the current day, solely for the purpose of increasing profits without regard for the safety of their employees.

5. Unfair Business Practice (Cal. Bus. & Prof. Code ยง 17200) (generally asserting that all previous paragraphs give rise to an unfair ...

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