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Moore v. Pflug Packaging

United States District Court, N.D. California

May 30, 2018

James Moore, Plaintiff,
v.
Pflug Packaging & Fulfillment, Inc., Defendant.

          ORDER DENYING MOTION TO DISMISS COUNTERCLAIMS RE: DKT., 28

          Yvonne Gonzalez Rogers United States District Court Judge

         Pending before the Court is plaintiff James Moore's motion to dismiss defendant Pflug Packaging & Fulfillment, Inc.'s (“Pflug Packaging”) counterclaims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 28 (“Motion”).) For the reasons set forth below, Moore's motion is Denied.

         I. Background

         Moore filed this lawsuit against his former employer Pflug Packaging on October 10, 2017 alleging claims for: (1) disability discrimination in violation of the Americans with Disability Act (“ADA”), 42 U.S.C. § 12101 et seq.; (2) failure to engage in the interactive process in violation of the Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12940(n); (3) failure to provide Moore with an accommodation in violation of FEHA, Cal. Gov't Code § 129; (4) disability discrimination in violation of FEHA, Cal. Gov't Code § 12940(a); (5) failure to prevent discrimination in the workplace in violation of FEHA, Cal. Gov't Code § 12940(k); and (6) wrongful discharge in violation of public policy. (See generally Complaint for Damages, Dkt. No. 1.) Pflug Packaging answered and counterclaimed on December 12, 2017, alleging claims for culpable neglect of duties and willful misconduct. (Dkt. No. 8.)

         On January 5, 2018, Moore filed a motion to dismiss Pflug Packaging's counterclaims. (Dkt. No. 12.) Pflug Packaging filed its first amended counterclaims on January 22, 2018 (Dkt. No. 15), and the Court consequently denied Moore's motion to dismiss Pflug Packaging's counterclaims as moot in light of the amended counterclaims. (Dkt. No. 18.) Moore filed a motion to dismiss Pflug Packaging's first amended counterclaims on February 5, 2018 (Dkt. No. 20), and after the motion was fully briefed, Moore filed the operative amended complaint on March 15, 2018, which alleges additional claims for: (7) retaliation in violation of the ADA, 42 U.S.C. § 12203; and (8) retaliation in violation of FEHA, Cal. Gov't Code § 12940(H).[1] (First Amended Complaint for Damages (“FAC”) at pp. 11-12, Dkt. No. 25.) Because Pflug Packaging's first amended counterclaims and Moore's corresponding motion to dismiss such counterclaims were based on a complaint which was no longer operative, the Court denied Moore's motion to dismiss Pflug Packaging's first amended counterclaims as moot. (Dkt. No. 26.)

         Pflug Packaging filed its answer to the FAC and operative counterclaims on March 29, 2018, again alleging claims for culpable neglect of duties and willful misconduct. (Answer of Pflug Packing & Fulfillment, Inc. to First Amended Complaint for Damages; Counter-Claims of Pflug Packaging & Fulfillment, Inc. (“Answer & Counterclaims”), Dkt. No. 27.) Moore filed the instant motion to dismiss the counterclaims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on March 30, 2018.

         Relevant here, the FAC contains various allegations regarding Moore's performance, namely:

. “On August 17, 2016, Plaintiff received a memorandum of Pflug's Chief Executive Officer (CEO) Paul Flug, informing him that he was being placed on a performance improvement plan and his salary was being reduced by $35, 000.” (FAC ¶ 10.)
. “From August 24, 2016 through September 8, 2016, Plaintiffs physician placed him on a medical leave from work . . . . When Plaintiff returned to work from his medical leave on September 9, 2016, Paul Pflug presented Plaintiff with another memorandum advising him of changes in the performance improvement plan.” (Id. ¶¶ 11, 12.)
. “Plaintiff is a qualified individual with a disability who, with or without reasonable accommodation, could perform the essential functions of the position he held.” (Id. ¶ 25.)
. “At all times relevant herein mentioned, Plaintiff was qualified for the position he held with Defendant.” (Id. . ¶ 42.)
In its counterclaims, Pflug Packaging has similarly raised issues regarding Moore's job performance. Specifically, Pflug Packaging alleges:
Mr. Moore breached his duties [as Pflug Packaging's CFO] by, among other things: failing to pay Pflug Packaging's corporate taxes for 2013; failing to identify and control willful and extensive over reporting of time by contract labor; failing to provide the company's accountants with documents necessary to file the 2014 tax returns in a timely manner; failing to provide the company's accountants with documents necessary to file the 2015 tax returns in a timely manner, despite having been counseled the prior year for making the same error; failure to implement appropriate procedures and financial controls; repeatedly providing inaccurate Profit and Loss statements; repeatedly failing to assure that costs were accurately reflected in the Levels and Margins sheets; failing to have employees complete Non-Disclosure Agreements, which were distributed in July 2016 with the instruction to Mr. Moore that he was to assure that all employees signed and returned them; failing to assure that Pflug Packaging's address on payroll checks was correct, although the company moved some 8 years before Mr. Moore's employment was terminated; failing to assure that Paid Time Off was reflected on payroll checks, although the requirement to do so began on January 1, 2015; failure to submit Sales Taxes in a timely manner; failure to renew Pflug Packaging's alcohol license in a timely manner; failure to pay property lease deposits and rent in a timely manner; failure to assure that certain of Pflug Packaging's insurance premiums were paid; failure to respond in a timely manner to Notices of Cancellation from insurance carriers; and, failure to assure that Pflug Packaging had the necessary insurance to cover reasonably foreseeable business risks.

(Answer & Counterclaims at 17 ¶ 4.) Pflug Packaging also alleges that Moore failed to follow Pflug Packaging's directives regarding his performance failures. (Id. at 19 ΒΆ 11.) These allegations are consistent with Pflug Packaging's fourth, fifth, ...


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