Joseph Henderlong v. Southern California Regional Rail Authority

Filing 15

ORDER by Judge Dean D. Pregerson: GRANTING 8 Motion to Dismiss Case. The complaint is DISMISSED. However, this order does not bar Plaintiff from either stipulating to amend or filing a motion for leave to amend in case No. 2:14-cv-03610-DDP-PLA, in order to state a claim under FEHA. ( MD JS-6. Case Terminated) (shb)

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

JOSEPH HENDERLONG,

12

Plaintiff,

13
14

v.
SOUTHERN CALIFORNIA REGIONAL
RAIL AUTHORITY,

15
16

Defendant.
___________________________

17

)
)
)
)
)
)
)
)
)
)
)

Case No. CV 15-01147 DDP (PLAx)
ORDER GRANTING MOTION TO DISMISS
[Dkt. No. 8]

Presently before the Court is Southern California Regional

18

Rail Authority’s (“SCRRA”) Motion to Dismiss under Rule 12(b)(1)

19

and 12(b)(6).

20

parties’ submissions, the Court adopts the following order.

21

I.

22

Having heard oral arguments and considered the

BACKGROUND
On May 9, 2014, Plaintiff’s state court complaint alleging

23

discriminatory and/or retaliatory behavior on the part of Defendant

24

was removed to this Court, initiating a case with the same parties

25

as this case, No. 2:14-cv-03610-DDP-PLA, hereinafter the “3610

26

action.”

27

its Fourth Cause of Action, “Retaliation in Violation of Public

28

Policy.”

In that case, Plaintiff’s initial complaint alleged, as

(3610 action, Dkt. No. 1.)

1

On August 7, 2014, Defendant moved for judgment on the

2

pleadings, alleging, inter alia, inadequate pleading and statutory

3

immunity.

4

motion, Plaintiff asked that if the Court ruled that the Fourth

5

Cause of Action was barred by immunity, he be allowed to “file a

6

Retaliation claim in violation of Government Code Section 12940(h),

7

entitled “FEHA Retaliation claim.” CTCA does not immunize SCRRA

8

from retaliation liability arising from violating 12940(h).”

9

action, Dkt. No. 14 at 7.)

(3610 action, Dkt. No. 12.)

In his opposition to the

(3610

The Court, however, ruled only on the

10

inadequate pleading issue, finding the Fourth Cause of Action, and

11

did not address the immunity question.

12

(3610 action, Dkt. No. 23.)

Defendant then moved for reconsideration of the Court’s order,

13

asking the Court to consider the immunity question.

(3610 action,

14

Dkt. No. 24.)

15

First Amended Complaint (“FAC”).

16

prevent needless multiplication of motion practice, the Court read

17

the motion for reconsideration as equally applicable to a

18

substantially identical claim, now styled the Second Cause of

19

Action, in the FAC.

20

The Court found that the claim was a common law “Tameny” claim and

21

used the statutes it mentioned only as points of reference in

22

determining “public policy” for purposes of asserting the common

23

law claim.

24

1102.5 as an example of such a “public policy”-declaring statute,

25

because it “protects employees for opposing the utilization of the

26

‘at-will’ agreement practice . . . when such practice is

27

discriminatory and violative of California Government Code §§

28

12920, 12921 and 12940.”

While that motion was pending, Plaintiff filed a
(3610 action, Dkt. No. 25.)

To

(3610 action, Dkt. No. 33 at 5:3-5 & n.3.)

(Id. at 3-6.)

The claim specifically gave Labor Code §

(3610 action, Dkt. No. 25, ¶ 59(b).)
2

1

Those Government Code sections are part of the Fair Employment and

2

Housing Act, or “FEHA.”

3

in the Complaint’s Fourth Cause of Action or the FAC’s Second Cause

4

of Action.

5

common law claim was barred by immunity and granted Plaintiff leave

6

to amend “solely to state a claim for a statutory violation of Cal.

7

Labor Code § 1102.5, if such a claim is warranted.”

8

Dkt. No. 33 at 6.)

9

Those sections are mentioned nowhere else

The Court therefore, on reconsideration, held that the

(3610 action,

Plaintiff subsequently filed a Second Amended Complaint

10

(“SAC”) stating a claim for a violation of § 1102.5.

11

Dkt. No. 34.)

12

Plaintiff’s remaining claims.

13

(3610 action,

Litigation in the 3610 action proceeds on

Plaintiff has also filed a second state complaint, alleging

14

retaliation in violation of Cal. Gov’t Code § 12940, a section of

15

FEHA; that complaint was removed and forms the basis of this

16

action.

17

II.

LEGAL STANDARD

18

A.

Rule 12(b)(1)

19

(Dkt. No. 1.)

Under Rule 12(b)(1), a party may move to dismiss a complaint

20

or claim for “lack of subject-matter jurisdiction.”

21

P. 12(b)(1).

22

B.

23

Fed. R. Civ.

Rule 12(b)(6)
Under Rule 12(b)(6), a complaint will survive a motion to

24

dismiss when it contains “sufficient factual matter, accepted as

25

true, to state a claim to relief that is plausible on its face.”

26

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

27

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

28

Rule 12(b)(6) motion, a court must “accept as true all allegations
3

When considering a

1

of material fact and must construe those facts in the light most

2

favorable to the plaintiff.”

3

(9th Cir.2000).

4

a court should assume their veracity and then determine whether

5

they plausibly give rise to an entitlement of relief.”

6

U.S. at 679.

7

III. DISCUSSION

8

A.

Resnick v. Hayes, 213 F.3d 443, 447

“When there are well-pleaded factual allegations,

Iqbal, 556

Exhaustion of Remedies and Subject Matter Jurisdiction

9

Defendant argues that Plaintiff has failed to exhaust his

10

administrative remedies as required by FEHA, and therefore the

11

Court lacks subject matter jurisdiction.

12

“[a]lthough California courts describe exhaustion as a

13

jurisdictional prerequisite to suit under FEHA, this label does not

14

implicate the trial court's fundamental subject matter

15

jurisdiction.”

16

(9th Cir. 2001).

17

excuse a failure to exhaust.

18

administrative remedies does not divest this Court of subject

19

matter jurisdiction.

20

B.

21

(Reply at 6.)

However,

Rodriguez v. Airborne Express, 265 F.3d 890, 900
This is because there may be equitable reasons to
Thus, a mere failure to exhaust

Id.

Whether Plaintiff’s New Complaint Circumvents Rule 15
Defendant argues that Plaintiff, in bringing this action,

22

improperly circumvented Rule 15(a)(2), which requires a party to

23

seek leave of the court to amend a pleading.

24

that he is “in compliance with the Court’s order,” which allowed

25

amendment only to state a claim under Labor Code § 1102.5, because

26

“the Second Amended Complaint filed on November 14, 2014 bears no

27

reference to Government Code Section 12940(h) or an FEHA

28

Retaliation theory.”

(Opp’n at 10.)
4

Plaintiff responds

Plaintiff argues that the

1

Court’s order, which did not give him leave to amend as to a FEHA

2

claim, “was tantamount to a declination to assume jurisdiction over

3

the potential FEHA Retaliation.”

4

was “free to file an FEHA Retaliation claim in State court.”

5

at 10.)

(Id. at 9.)

Thus, he argues, he
(Id.

6

Plaintiff’s interpretation of the order is incorrect.

7

party requests leave to amend as to a particular claim, and that

8

leave is not subsequently granted, that does not mean that the

9

court is implicitly declining jurisdiction over the claim and

When a

10

giving the party an opportunity to file the claim in state court

11

instead.

12

nullity as to any claim under state law.

13

give any explicit indication that it was “declining jurisdiction”

14

or leaving Plaintiff free to pursue a separate action in state

15

court, which it most certainly would have, had that been the

16

Court’s intention.

17

Such a rule would render Rule 15(a)(2) very nearly a
Nor did the Court’s order

The Court granted leave to amend “solely” as to Labor Code §

18

1102.5 because that was the only statutory cause of action for

19

which the Court could discern a justification in Plaintiff’s

20

pleading regarding retaliation.

21

Cause of Action refers to the FEHA sections of the Government Code

22

in support of his argument that § 1102.5 prevents retaliation for

23

whistle-blowing as to FEHA-prohibited discrimination.

24

action, Dkt. No. 25, ¶ 59(b).)

25

FEHA’s own anti-retaliation provisions.1

As noted above, the FAC’s Second

(3610

The pleading nowhere discussed

26
1

27
28

The Second Cause of Action did request attorney’s fees under
a provision of FEHA, Cal. Gov’t Code § 12965(b). (3610 action,
Dkt. No. 25, ¶ 65.) However, because Plaintiff’s pleading gave no
(continued...)
5

1

It is true that Plaintiff asked for leave to amend to state a

2

FEHA claim in his opposition to Defendant’s motion for judgment on

3

the pleadings.

4

that Plaintiff mentioned FEHA, in his opposition to the motion for

5

reconsideration, as an example of a statutory cause of action that

6

would not be subject to statutory immunity.

7

26 at 8.)

8

grant him leave to amend to state a FEHA claim, and he was not free

9

to go outside the action already under way and file a new lawsuit

(3610 action, Dkt. No. 14 at 7.)

It is also true

(3610 action, Dkt. No.

But none of that changes the fact that the Court did not

10

to bring a claim he had not been given leave to present in the

11

existing case.

12

or for leave to file another amended complaint.

13

neither.

14

He was, of course, free to move for reconsideration
Plaintiff did

Because filing this action improperly circumvented the Rule 15

15

requirement in the 3610 action, Plaintiff cannot state a plausible

16

claim for relief.

17

C.

18

The complaint must be dismissed.

Other Grounds to Dismiss
Because the Court dismisses on the Rule 15 issue, it does not

19

address Defendant’s other arguments as to timeliness and

20

exhaustion.

21
22

///

23

///

24

///

25
26
27
28

1

(...continued)
other sign that a FEHA anti-reliation claim was available or
viable, and was almost entirely geared toward pleading a common law
claim, this alone was insufficient to put the Court on notice as to
Plaintiff’s intent to advance a FEHA claim.
6

1
2

IV.

CONCLUSION
The complaint is DISMISSED.

However, this order does not bar

3

Plaintiff from either stipulating to amend or filing a motion for

4

leave to amend in case No. 2:14-cv-03610-DDP-PLA, in order to state

5

a claim under FEHA.

6
7

IT IS SO ORDERED.

8
9

Dated: April 14, 2015
DEAN D. PREGERSON
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7