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Abiola v. ESA Management, LLC

United States District Court, N.D. California

May 27, 2014



JOSEPH C. SPERO, Magistrate Judge.


On March 3, 2014, the Court issued an order granting in part and denying in part Defendant's motion to dismiss Plaintiff's Third Amended Complaint. Docket No. 70. The Court dismissed Claims Three, Four, Eight, Nine and Ten with prejudice on the grounds that the defects in those claims could not be cured. The Court dismissed Claims Two, Seven, Eleven and Twelve without prejudice and granted leave to amend as to those claims, instructing that "[i]n [the] amended complaint Plaintiff may only amend Claims Two, Seven, Eleven and Twelve." Id. at 14 (emphasis in original). The Court further ordered that Plaintiff "may only amend those claims to address the deficiencies identified above." Id. (emphasis in original). Plaintiff, who is pro se, understood from the Court's admonition that in his amended pleading he should not re-plead the surviving causes of action that were contained in the Third Amended Complaint and that were not subject to amendment. Consequently, Plaintiff's Fourth Amended Complaint includes additional allegations to support the claims as to which he was given leave to amend but does not include Plaintiff's claims for violations of §§ 203 and 1198.5 of the California Labor Code (Claims Five and Six of the Third Amended Complaint) or for violation of ERISA (Claim One of the Third Amended Complaint).[1]

Defendant now brings a Motion to Dismiss Plaintiff's Fourth Amended Complaint, or in the Alternative, Motion for a More Definite Statement ("Motion"). In the Motion, Defendant contends the ERISA and California Labor Code claims should be dismissed, citing Civil Local Rule 10-1, which provides that "[a]ny party filing or moving to file an amended pleading must reproduce the entire proposed pleading and may not incorporate any part of a prior pleading by reference." Because Plaintiff did not include in his Fourth Amended Complaint the surviving claims from the previous complaint that were not subject to amendment, Defendant contends those claims should be dismissed or, in the alternative, that the Court should order Plaintiff to provide a more definite statement as to those claims pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. Defendant further contends that the amendments in Plaintiff's Fourth Amended Complaint as to Claims Seven (Intentional Infliction of Emotional Distress), Eleven (Wrongful Termination) and Twelve (Defamation) are not sufficient to state a claim.

The Court finds that the Motion is suitable for determination without a hearing and therefore vacates the Motion hearing set for May 30, 2014 at 9:30 a.m. The case management conference set for the same date shall be moved from 9:30 a.m. to 2:00 pm on May 30, 2014. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.[2]


A. Claim Seven (Intentional Infliction of Emotional Distress

1. Background

In the Third Amended Complaint, Plaintiff asserted a claim for Intentional Infliction of Emotional Distress based on allegations that: 1) his manager intentionally provided him with the wrong safe combination and ridiculed him in front of subordinates for his inability to open the safe, Third Amended Complaint, ¶¶ 27, 35; 2) Defendant failed to provide to Plaintiff the 7-day written notice of intention to terminate that is required under its internal policies, id., ¶¶ 23(c), 35; 3) Defendant did not provide Plaintiff with a copy of the Employment Notice, id., ¶¶ 23(a), 35; 4) Defendant did not provide Plaintiff with a written copy of its bonus plan, id., ¶¶ 23(e), 35; and 5) Plaintiff informed his employer of his "use of prescribed medicine, that causes certain condition as disclosed on the medication label" and that "lengthy exposure to the sunlight at the direct order of the Defendant during the renovation work makes the matter worsen." Id. ¶¶ 35, 39(e).

The Court found that Plaintiff's allegations in the Third Amended Complaint were insufficient to state a claim because Plaintiff did not allege facts showing that Defendant's conduct was outrageous; in particular, the Court pointed out that the bulk of the alleged conduct related to personnel management and further found that the allegations concerning the safe combination did not constitute more than a "annoyance or a petty oppression." Docket No. 70 at 8. As to the allegations concerning Plaintiff's medical condition, the Court concluded that they were too vague and conclusory to state a claim. Id.

In his Fourth Amended Complaint, Plaintiff again alleges that Defendant engaged in outrageous conduct based on Defendant's "[f]ailure to write declaration on Employment Notice, '" and "failure to respect Plaintiff's medical condition, " Fourth Amended Complaint at 5. He also alleges that Defendant engaged in outrageous conduct by failing to warn him of the "possible presence of granite filtrate used during construction" (which Plaintiff contends amounts to an OSHA violation), denying Plaintiff access to his employment file, failing to pay required wages under Cal. Labor Code § 203 and "plaintiff's general work and working activities." Id. at 5-6. Plaintiff has dropped his allegations regarding the safe combination.

Defendant argues that Plaintiff has failed to state a claim for intentional infliction of emotional distress because: 1) the claim is preempted by the Workers' Compensation Act to the extent that all of the alleged conduct arises from Plaintiff's normal job duties; 2) the alleged conduct consists of personnel management and therefore cannot be extreme and outrageous; 3) the allegation that Defendant failed to respect Plaintiff's medical condition is too vague to state a claim; and 4) the claim is barred on statute of limitations grounds to extent it is based on the alleged failure to warn of granite filtrate because this amounts to a new claim that does not relate back to the original complaint.

2. Discussion

As the Court stated in its ...

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