United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
On September 10, 2014, the court held a hearing on defendant's June 16, 2014, motion to dismiss. Plaintiff Brien Edward Smith appeared in pro per. Y. Anna Suh appeared for defendant. On review of the motions, the documents filed in support and opposition, upon hearing the arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Allegations
A detailed outline of plaintiff's factual allegations can be found in the court's April 14, 2014 findings and recommendations. ECF No. 29. In sum, plaintiff brings suit for defamation based on statements made in three contexts:
1. The late-March or early-April 2012 statement by Mr. Vipond to members of defendant's management team;
2. The April 2, 2012, Employee Performance Report; and
3. The April 5, 2012, Personnel Termination Form.
Plaintiff claims that the statements were false, were published to someone other than plaintiff, were motivated by malice or ill will toward plaintiff, and have caused injury to plaintiff.
B. Procedural Background
Plaintiff initiated this action on July 1, 2013, in the Amador County Superior Court. See ECF No. 1-1 at Ex. A. On August 20, 2013, defendant removed the case pursuant to 28 U.S.C. § 1332(a), as it is a citizen of North Carolina, plaintiff is a citizen of California, and plaintiff seeks $1, 000, 000.00 in damages. ECF No. 1-1.
On August 27, 2013, defendant filed a motion to dismiss the original complaint. ECF No. 6. Then, on September 24, 2013, defendant filed a motion to strike. ECF No. 10. Thereafter, plaintiff filed a motion to amend the complaint, which the undersigned granted, thereby denying as moot defendant's motion to dismiss and motion to strike. ECF No. 13.
On January 16, 2014, plaintiff filed his first amended complaint, which included claims for defamation and negligent infliction of emotional distress (NIED). ECF No. 15. Defendant again moved to both dismiss and strike the pleading. ECF Nos. 18-19. On April 14, 2014, the court recommended that defendant's motion to dismiss plaintiff's defamation claim be granted with leave to amend because plaintiff had failed to allege sufficient facts to establish publication and malice. ECF No. 29. The court also recommended that plaintiff's NIED claim be dismissed without leave to amend because the claim was preempted by the Workers' Compensation Act. Id . The court's recommendations were adopted in full by the district judge on May 13, 2014. ECF No. 33.
On June 2, 2014, plaintiff filed a second amended complaint again asserting claims for defamation and NIED. ECF No. 34. On June 16, 2014, defendant filed a motion to dismiss plaintiff's complaint. ECF No. 35. On August 25, 2014, plaintiff filed his response, which ...