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Abraham Magallanez v. Engineers and Scientists of California

July 10, 2012


The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge


Defendant The Permanente Medical Group, Inc. ("TPMG") moves under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for dismissal of Plaintiff's breach of contract and breach of the duty of fair representation claims. TPMG argues, inter alia, these claims are barred by the statute of limitations. Plaintiff filed an opposition brief.


Decision on TPMG's Rule 12(b)(6) dismissal motion requires determination of "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). "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." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

When determining the sufficiency of a claim, "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (citation and internal quotation marks omitted); see also Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555) (stating "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do'").


TPMG supports its motion with a request that judicial notice be taken of the collective bargaining agreement between TPMG and the Engineers and Scientists of California, Local 20, International Federation of Professional and Technical Engineers (hereinafter, "the Union"), to which Plaintiff belongs. Plaintiff references and relies on the collective bargaining agreement between TPMG and the Union in his claims, and Plaintiff has not questioned the authenticity of the referenced collective bargaining agreement. Therefore, the judicial notice request need not be decided, since "a court may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the [writing] and its authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).

Plaintiff also requests that the following documents be considered in the decision on the motion: a transcript of a voicemail Plaintiff received from a representative of the Union while it was pursuing his grievance; letters the Union sent to Plaintiff dated March 22, April 12, June 28, July 21, and August 23, 2011; letters Plaintiff sent to the Union dated March 25 and April 26, 2011; and a "copy of a Decision by [an] Unemployment Insurance Appeals Board ALJ . . . dated April 21, 2011." (Magallanez Decl. Exs. A-I.) Plaintiff argues his "[c]omplaint refers to the[se] documents and conversations, they are central to [his] claim[s,] and no party can legitimately question their authenticity." (Pl.'s Opp'n ("Opp'n") 5:25-28.)

Since Plaintiff refers to the Union's letters dated March 22 and July 21, 2011 in his complaint and these letters are relevant to deciding TPMG's motion, and in light of the fact that TPMG does not dispute the authenticity of the referenced letters, these letters are considered. However, Plaintiff has not shown that the other documents are pertinent to the decision on the motion; therefore, the other documents are not considered. See Ventura Mobilehome Communities Owners Ass'n v. City of San Buenaventura, 371 F.3d 1046, 1052 n.5 (9th Cir. 2004) (denying judicial notice request where the facts "d[id] not alter . . . determination of the case").


This case concerns a grievance the Union filed against TPMG on Plaintiff's behalf, following Plaintiff's employment termination. Plaintiff alleges he was employed with TPMG "as a Staff Optometrist for . . . approximately four years." (Compl. ¶ 11.) Plaintiff alleges TPMG terminated his employment on December 30, 2010 because he used his "employee electronic access to view his family's medical records[,]" which is alleged to have violated TPMG's company policies and the Health Insurance Portability and Accountability Act ("HIPAA") privacy rules. Id.

"Subsequent to his termination, Plaintiff contacted his Union representative . . . [to] initiat[e] a grievance . . . in order to mediate, resolve, and retain [his] employment with [TPMG]." Id. ¶ 12. "In implementing the Union grievance procedures, Plaintiff was advised by [a senior union representative] that . . . the Union would . . . proceed with grievance procedures as necessary through all levels." Id.

Plaintiff alleges the Union was not successful in "restor[ing] [his] employment status" during the first or second "level[s] of grievance procedures." Id. ¶¶ 12-13. Plaintiff further alleges the Union "notified [him] in a letter dated March 22, 2011 of [its] withdrawal of [his] grievance" and its decision not to pursue arbitration. Id. ¶ 14; Union's Letter to Pl., Mar. 22, 2011 (attached as Ex. B to Magallanez Decl.). "[The] letter further notified Plaintiff that he had one year from December 30, 2011 to file suit against [TPMG]." Id.

Plaintiff alleges he "requested a review of his grievance by [the Union], and was informed . . . [in a letter] dated June 28, 2011 that [his] case would be referred back for additional review by the Optometry Unit Board, [which] would be meeting on July 18, 2011." Id. ΒΆ 15. Plaintiff "received written notification dated July 21, 2011 from [the Union] that his grievance had been reviewed by the ...

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