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David Logan v. Vsi Meter Services

March 19, 2012

DAVID LOGAN,
PLAINTIFF,
v.
VSI METER SERVICES, INC.,
DEFENDANT.



ORDER GRANTING WITH PREJUDICE MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

[doc. #11]

Plaintiff David Logan filed this action in the Superior Court for the State of California, County of San Diego. Defendant VSI removed the action on the basis of the Court's diversity jurisdiction. The Court granted defendant's motion to dismiss with prejudice the first, second and third causes of action and granted plaintiff leave to file a first amended complaint with respect to the remainder of his complaint. Plaintiff filed his FAC. Defendant has moved to dismiss the FAC. The motion has been fully briefed and is determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).

Background

In his FAC, Logan alleges that he was employed as a Project Manager by defendant since May 14, 2007. On July 9, 2010, VSI terminated plaintiff's employment. Logan asserts the reason for his termination was because of his participation in union-related activities. Since his termination, plaintiff has not been successful in finding new employment which he contends is a result of defendant's interference with his job search. Specifically, plaintiff alleges, on information and belief, that VSI provided false and slanderous information related to his work performance and the reason for his termination.

Logan asserts three causes of action: defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendant seeks to dismiss each of these claims without leave to amend.

Legal Standard for Motion to Dismiss

A Rule 12(b)(6) motion tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir .1988). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337--38 (9th Cir. 1996). Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir.1995).

After accepting as true all non-conclusory allegations and drawing all reasonable inferences in favor of the plaintiff, the Court must determine whether the complaint alleges a plausible claim to relief. See Ashcroft v. Iqbal 129 S. Ct 1937, 1950 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (A complaint cannot survive a motion to dismiss unless it provides "sufficient factual matter, . . . to 'state a claim to relief that is plausible on its face.'"). "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." at 1949. In determining facial plausibility, whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

Motion to Dismiss

1. Defamation

The tort of defamation "involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage." Price v. Operating Engineers Local Union No. 3, 195 Cal. App.4th 962, 970 (2011).

Plaintiff alleges on information and belief that defendant made false and defamatory comments to potential employers about his work situation. Plaintiff admits that he "cannot plead verbatim the wording of the false statement made by defendant to [plaintiff's] prospective employers because he was not informed of the exact wording and discovery has not yet begun. . . ." (Opp. at 5). Plaintiff contends, however, that even though he can neither obtain nor provide additional facts, he has "sufficiently alleged for the purposes of pleading the substance of the statements made, as well as their falsity, how and when they were made, and the identity of the entities to whom they were made." Id.

Plaintiff's FAC makes no showing that it is entitled to a different result from the Court's prior order. Plaintiff has alleged no new material facts sufficient to support his claim for defamation. As noted above, a plaintiff must provide the grounds of his entitlement to relief with 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. Because plaintiff has failed to provide any factual basis concerning allegedly defamatory statements, ...


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