MEMORANDUM OPINION AND ORDER ON
DEFENDANTS' MOTION TO DISMISS PURSUANT TO
F.R.C.P. 12(b)(6) Doc. # 8
This is an action for damages and injunctive relief by plaintiff Edwin Pattison ("Plaintiff") against defendants Calaveras County Water District ("District") and Joone Lopez ("Lopez") (collectively, "Defendants"). Plaintiffs claims for relief arise out of his termination from the position of Water Resources Manager on or about March 9, 2012. This action was originally filed in the Superior Court of Calaveras County and was removed to this court on the basis of federal subject matter jurisdiction. Currently before the court is Defendants' motion to dismiss all claims alleged in Plaintiff's First Amended Complaint ("FAC") as to Lopez and to dismiss all claims as to District except Plaintiff's fifth claim for relief for discrimination in violation of California's Fair Employment and Housing Act ("FEHA"). Subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Prior to the termination of his employment at District on March 9, 2012, Plaintiff had been employed as a Water Resources Manager for approximately 7 years. Plaintiff alleges his job performance met or exceeded all requirements and expectations of his employment. Plaintiff was placed on "administrative leave" on February 28, 2012, without any explanation of the action. The FAC alleges that on March 5, 2012, "a 'Board Workshop' was held which eliminated [P]laintiff's position with no pre or post termination due process." Doc. # 1-1 at ¶7. On March 6, 2012, Plaintiff was notified by mail that his last day of employment was to be March 9, 2012. In paragraph 8 of the FAC, Plaintiff alleges that "[o]n March 8, 2012, [he] responded through counsel and requested, among other things, a due process hearing." Plaintiff alleges that District responded through counsel on March 16, 2012, stating that it had no plans to reconsider the elimination of the Resource Manager's position previously held by Plaintiff. In the prior paragraph of the FAC, Plaintiff references a "claim" that was rejected by District. The reference to a "claim" is ambiguous, but the court presumes for purposes of this discussion that the "claim" referenced in paragraph 7 is the same as the request for a due process hearing referenced in paragraph 8. The court notes that the "claim" referenced in paragraph 7 is not the same as the claim filed with the Department of Fair Employment and Housing ("DFEH") in connection with Plaintiff's discrimination claim under FEHA.
Several facts are conspicuous by their absence from Plaintiff's FAC, but they are suggested by the parties' arguments and appear not to be disputed. Plaintiff alleges without opposition that District is a public agency and, although not directly alleged, it appears undisputed that District is governed by an elected Board which possesses legislative or quasi-legislative authority over such District matters as budgeting and position allocation. The FAC alleges that the action taken at the "Board Workshop" resulted in the elimination of a number of positions, but that the position occupied by Plaintiff was the only currently filled position that was eliminated. Plaintiff's fifth claim for relief alleges there was a discriminatory motive behind the selection of his position, but Plaintiff appears to concede that, at least formally, Plaintiff was not terminated for cause. Finally, although Plaintiff alleges he was give to believe through conversations with Lopez that he would not be terminated except for cause, Plaintiff does not allege that there existed any formal employment contract between Plaintiff and District and does not allege that Plaintiff was represented through any formal agreement by a union or other bargaining group.
The action was removed to this court on January 9, 2013. The instant motion to dismiss was filed on January 29, 2013. After a stipulated continuance of the filing deadline, Plaintiff's opposition was filed on March 8, 2013, and Defendants' reply was filed on March 13, 2013. The hearing on the motion to dismiss and the matter was taken under submission as of March 20, 2013.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("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"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).
"If a complaint is dismissed for failure to state a claim, 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." Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986).
Plaintiff's FAC alleges six claims for relief. Except for Plaintiff's fifth claim for relief for discrimination based on gender in violation of FEHA, which is not being directly challenged by Defendants' motion, Plaintiff's claims allege the depravation of a proprietary right in his employment with District. Plaintiff's FAC alleges two theories by which these proprietary rights arise. Plaintiff's first and second claims for relief are based in the contention that an employee has a property right in his employment as a matter of law and that due process rights under the Fourteenth Amendment and the California constitution, respectively, are violated if employment is terminated without a proper hearing. Plaintiff's third, fourth and sixth claims for relief allege that, in plaintiff's case, a ...