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Drevaleva v. Alameda Health System

United States District Court, N.D. California, San Francisco Division

June 7, 2017

ALAMEDA HEALTH SYSTEM, et al., Defendants.


          LAUREL BEELER United States Magistrate Judge.



         This is an employment dispute. Plaintiff Tatyana Drevaleva is an electrocardiogram technician who was fired from her position with defendant Alameda Health Systems (AHS) for alleged negligence. She sues AHS mainly for retaliatory discharge; she claims that AHS fired her after she asked about overtime pay, work breaks, and whether she would be transferred to the status of a full-time employee.[1] Her initial complaint also sued the California Department of Industrial Relations - Division of Labor Standards Enforcement ("DIR" or the "Department"), based on that agency's investigation of her termination. The Department found insufficient evidence that AHS had fired Ms. Drevaleva wrongfully.[2]


         In March 2017, this court dismissed the plaintiff's initial complaint under Rules 12(b)(1) and (6).[3] The court held that there was no federal subject-matter jurisdiction and that the plaintiff had failed to state a viable claim against the defendants. It also held that the Department was immune from suit under the Eleventh Amendment to the U.S. Constitution.[4] The court gave the plaintiff leave to amend her complaint. She has since done so.[5]


         The new complaint makes only the following significant changes. First, the plaintiff alleges that she has moved from California to New Mexico. Second, she appears not to name the DIR itself.[6] Third, she has added five employees of DIR as new, individual defendants. (This, presumably in response to the court's observation that the Department could be liable despite Eleventh Amendment immunity "only upon a showing of personal participation by an individual defendant."[7]) These new defendants have not been served.[8] Fourth, and last, the plaintiff "possibly" raises an employment discrimination claim under Title VII of the Civil Rights Act of 1964.[9] Elsewhere, though, she suggests that national-origin discrimination was not her driving grievance against AHS; and she agrees that she cannot state a prima facie Title VII discrimination claim.[10]


         The new complaint is otherwise essentially identical to the initial complaint. With the clarification and, to some degree, the enlargements provided by her opposition brief, the plaintiff seems to bring claims under the following laws and theories:

• Title VII discrimination
• Fair Labor Standards Act
• Occupational Safety & Health Act
• Labor-Management Relations Act
• National Labor Relations Act • Federal due process
• California Labor Code
• California Industrial Welfare Commission Wage Order 2001 -4
• Meyers-Milias-Brown Act (Cal. Gov't Code §§ 3500-11)
• Libel
• Fraud[11]

         She also appears to seek punitive damages.[12]


         Defendant AHS now moves to dismiss the amended complaint under Rules 12(b)(1) and (6).[13]Defendant DIR has not so moved; but, in a case-management statement, it suggests that the new complaint does not name the Department itself as a defendant, and asks that it be "dismissed from this case."[14]


         The court grants AHS's motion. The plaintiff states no viable federal claim against AHS. This court therefore lacks subject-matter jurisdiction over the claims asserted against this defendant.

         Turning to the DIR defendants: The new complaint indeed seems not to name the Department itself as a defendant. Both the complaint's caption and its narrative description of the litigants names the individual "officials" of the DIR, but not the Department itself.[15] Furthermore, the plaintiff has not shown that DIR itself can be liable in the face of Eleventh Amendment immunity. Even if the Department itself is a target of the amended complaint, then, any claims against it remain dismissed under the court's previous order.

         The plaintiff's recent move to New Mexico means that she apparently has diversity jurisdiction over the individual DIR-employee defendants. See infra, Analysis, Part 2. As noted above (supra, note 8), the court has ordered service on the individual defendants, but the U.S. Marshals Service has not yet effected that service. Normally in such cases, the pro se plaintiff provides the marshals with service addresses for the defendants. The plaintiff here seems to have provided the address of the DLSE's Oakland office.[16] The court is not certain that this qualifies as an adequate service address. The court will, in any case, follow up with the Marshals Service on the status of serving the new defendants. The court is not prepared to address whether the plaintiff alleges a viable claim against the new defendants without their responsive input. With respect to the individual DIR-DLSE defendants, the court asks the Department for the clarification described at the end of this order.


         1. Federal-Question Jurisdiction 1.1 General Observations

         The plaintiff has not shown that this court can exercise federal-question jurisdiction (under 28 U.S.C. § 1331) ...

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