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Dorsey v. Tetra Tech EC, Inc.

United States District Court, N.D. California

June 25, 2019

TETRA TECH EC, INC., et al., Defendants.


          Haywood S Gilliam, Jr., United States District Judge.

         Pending before the Court is Defendants' motion to dismiss Plaintiff's first amended complaint. Dkt. No. 30 (“Mot.”). The Court held a hearing on Defendants' motion on May 30, 2019. Dkt. No. 41. After carefully reviewing and considering the parties' arguments, the Court GRANTS Defendants' motion to dismiss.

         I. BACKGROUND

         Plaintiff Prometheus Dorsey filed his first amended complaint against Defendants Tetra Tech EC, Inc. (“TTEC”) and TTEC's parent company, Tetra Tech, Inc. (“TTI”), for claims related to alleged injuries Plaintiff suffered while processing soils at the former Hunter's Point Naval Shipyard (the “Shipyard”). See generally Dkt. No. 23 (“FAC”). For purposes of deciding the motion to dismiss, the following allegations are taken as true.

         Mr. Dorsey was employed as an “unskilled ‘construction laborer'” by TTEC from 2005 through 2014. FAC ¶ 8. His duties included digging and processing soils at the Shipyard and working the conveyor belt. Id. ¶¶ 8-9. During his time at TTEC, Mr. Dorsey alleges that his superiors assured him the soils were safe and he did not need to wear a ventilation mask. Id. ¶ 9. However, Mr. Dorsey contends that contrary to those assurances, the soils were highly toxic and radioactive, and Defendants for years concealed their toxic nature. Id. ¶ 7. It was not until March or April 2018, when “numerous and voluminous reports of government agencies and corporate whistleblowers” surfaced that Mr. Dorsey became aware of the toxic nature of the soils. Id. Specifically, Mr. Dorsey alleges that he likely was exposed to Plutonium-239, Cesium-134 and -137, Potassium-40, and Strontium-90. Id. ¶ 9.

         As a result of Mr. Dorsey's exposure to the carcinogenic soils, Mr. Dorsey asserts that he began suffering shortness of breath consistent with early signs of cancer or other pulmonary illnesses, and a pain around his waist consistent with early signs of bone and soft-tissue cancer. Id. ¶¶ 10-11. The physical injuries started one year prior to the filing of this action and continue to this day. Id. Mr. Dorsey also experienced emotional distress over the fear of a potential cancer diagnosis, social stigma in his former community of Hunter's Point, potential future lost earnings and financial medical expenses, and an “unconscionable violation of his personal dignity and bodily integrity.” Id. ¶ 12.

         Mr. Dorsey's operative complaint alleges the following federal and state causes of action: (1) violation of 18 U.S.C. § 1961, the Civil Racketeering, Influence, and Corrupt Organizations Act (“RICO”); (2) a Bivens claim; (3) fraud under California Business & Professions Code § 17200 et seq.; (4) negligence; (5) strict liability for ultra-hazardous activities; and (6) battery. FAC ¶¶ 13-39. Mr. Dorsey seeks general damages in the amount of $2, 000, 000, punitive damages in the amount of $16, 000, 000, and reasonable attorneys' fees and costs. FAC, Prayer for Relief.


         Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

         If dismissal is appropriate under Rule 12(b)(6), a court “should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotations and citation omitted).


         Defendants move to dismiss all causes of action against TTEC on the basis that each of the claims is barred under the exclusive remedy provision in California's workers' compensation laws. As to TTI, Defendants contend that the FAC fails to state any claims against it, as a parent corporation is not responsible for its subsidiary's working conditions absent an independent and affirmative duty. Defendants also assert that Mr. Dorsey's fraud-related federal and state claims fail to plead facts satisfying the heightened Rule 9(b) standard. The Court first addresses whether Mr. Dorsey has sufficiently alleged a federal cause of action under Rule 12(b)(6) and Rule 9(b), then considers whether California's workers' compensation law bars the state claims.

         A. Plaintiff Has Not Adequately Alleged ...

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