United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS RE:
DKT. NO. 30
Haywood S Gilliam, Jr., United States District Judge.
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.
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.
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.
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.
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
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).
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).
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).
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.
Plaintiff Has Not Adequately Alleged ...