Quintana v. Quest Diagnostics Inc.

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 6/19/2012. Amended Complaint due within thirty (30) days. (Arellano, S.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CHARLES J. QUINTANA,
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Plaintiff,
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v.
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QUEST DIAGNOSTICS INC.,
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Defendant.
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) 1:12cv00824 LJO DLB
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)
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) ORDER DISMISSING COMPLAINT
) WITH LEAVE TO AMEND
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Plaintiff Charles J. Quintana (“Plaintiff”), appearing pro se and proceeding in forma
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pauperis, filed the instant action on May 18, 2012. He names Quest Diagnostics Inc. as
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Defendant.
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DISCUSSION
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A.

Screening Standard

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Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the
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complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof
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if the court determines that the action is legally “frivolous or malicious,” fails to state a claim
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upon which relief may be granted, or seeks monetary relief from a defendant who is immune
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from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state
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a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be
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cured by amendment.
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In reviewing a complaint under this standard, the Court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740

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(1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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B.

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Plaintiff’s Allegations
On April 13, 2011, Plaintiff filed a complaint with the Labor Commissioner’s office in

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Fresno, California. The complaint “was lost and . . . resurface[d] in Sacramento” in September.

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On May 18, 2011, Defendant Quest Diagnostics, Inc. fired Plaintiff for “no longer

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meeting the company’s expectations.”

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On March 30, 2012, Plaintiff filed a complaint with the Labor Commissioner regarding
unsafe and unlawful working conditions. To date, no action has been taken on his behalf.

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Plaintiff asks the Court to “decide the issue.”
C.

Analysis

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Deficiencies of the Complaint

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1.

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As a threshold issue, Plaintiff’s complaint fails to satisfy Rule 8 of the Federal Rules of

Federal Rule of Civil Procedure 8

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Civil Procedure. Rule 8 requires a plaintiff to “plead a short and plain statement of the elements

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of his or her claim, identifying the transaction or occurrence giving rise to the claim and the

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elements of the prima facie case.” Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir.

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2000).

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A pleading may not simply allege a wrong has been committed and demand relief. The

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underlying requirement is that a pleading give “fair notice” of the claim being asserted and the

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“grounds upon which it rests.” Yamaguchi v. United States Dep’t of Air Force, 109 F.3d 1475,

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1481 (9th Cir. 1997). A plaintiff must allege with at least some degree of particularity overt facts

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which defendant engaged in to support plaintiff’s claim. Jones v. Community Redev. Agency,

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733 F.2d 646, 649 (9th Cir. 1984). A complaint does not suffice “if it tenders ‘naked

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assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 129

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S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007).

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The instant complaint consists of a two-paragraph narrative, but does not provide a plain

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and succinct statement of Plaintiff’s claims or the relief he seeks. In particular, Plaintiff alleges

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that he filed one or more complaints with the Labor Commissioner, one of which related to

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unsafe and unlawful working conditions, and that he was fired by Defendant Quest Diagnostics,

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Inc. for “no longer meeting the company’s expectations.” Doc. 1, p. 1. However, Plaintiff fails

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to state if, or how, these events are related and what cause of action or claim he is pursuing

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against Defendant Quest Diagnostics, Inc. It also is unclear if Plaintiff is attempting to pursue a

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cause of action against the Labor Commissioner for failure to take action. In sum, the complaint

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lacks specific, clearly defined facts or valid, cognizable legal theories. Plaintiff will be given an

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opportunity to amend his complaint to comply with Rule 8.

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2.

Jurisdiction

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Plaintiff fails to allege any basis for this court’s jurisdiction. Fed. R. Civ. P. 8(a)(1)

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(plaintiff must provide “a short and plain statement of the grounds for the court’s jurisdiction”).

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Federal courts are courts of limited jurisdiction. Congress has conferred subject matter

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jurisdiction on this Court for cases involving a federal question (“federal question jurisdiction”)

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and for cases between citizens of different states (“diversity jurisdiction”).

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a.

Federal Question Jurisdiction

The district court has “original jurisdiction of all civil actions arising under the

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Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The presence or absence

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of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides

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that federal jurisdiction exists only when a federal question is presented on the face of the

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plaintiff’s properly pleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107

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S.Ct. 2425, 96 L.Ed.2d 318 (1987). Specifically, district courts have jurisdiction to hear “[o]nly

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those cases in which a well-pleaded complaint establishes either that [1] federal law creates the

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cause of action or that [2] the plaintiff’s right to relief necessarily depends on resolution of a

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substantial question of federal law.” Armstrong v. N. Mariana Islands, 576 F.3d 950, 954-55
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(9th Cir. 2009) (citations omitted). Plaintiff’s complaint does not establish that federal law

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creates a cause action or that his right to relief depends on resolution of a substantial question of

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federal law. Plaintiff does not allege a claim under any law of the United States or under any

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constitutional provision to establish federal question jurisdiction.

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b.

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Diversity Jurisdiction

Diversity jurisdiction requires that the parties be citizens of different states and the

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amount in controversy exceed $75,000. 28 U.S.C. § 1332. A corporation is deemed to be a

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citizen of its state of incorporation and the state where it has its principal place of business. 28

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U.S.C. § 1332(c)(1). “The essential elements of diversity jurisdiction, including the diverse

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residence of all parties, must be affirmatively alleged in the pleadings.” Bautista v. Pan Am.

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World Airlines, Inc., 828 F.2d 546, 552 (9th Cir.1987). Plaintiff does not allege the citizenship

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of any party or affirmatively allege that the amount in controversy exceeds $75,000.

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Accordingly, he has not established diversity jurisdiction.

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3.

Labor Commissioner’s Immunity From Suit for Damages

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To the extent Plaintiff is attempting to sue the Labor Commissioner for damages, he may

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not do so. The Eleventh Amendment provides that the power of the federal judiciary “shall not

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be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

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United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

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Const. Amend. XI. This immunity extends to suits brought against a state by its own citizens.

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Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 906, 79 L.Ed.2d

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67 (1984). For purposes of the Eleventh Amendment, a suit against an official in his or her

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official capacity is a suit against that official's office and “is no different from a suit against the

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State itself.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Eaglesmith v. Ward,

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73 F.3d 857, 860 (9th Cir.1995).

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D.

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Legal Standards
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Retaliation

California Labor Code section 6310 prohibits an employer from terminating an employee
because he “made a bona fide oral or written complaint to . . .[a government agency] . . . of
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unsafe working conditions.” Cal. Lab. Code § 6310(b). Any employee who believes that he was

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discharged by his employer for such a complaint may file a complaint with the Labor

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Commissioner pursuant to Labor Code section 98.7. Cal. Lab. Code § 6312. Labor Code section

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98.7 provides: “Any person who believes that he or she has been discharged or otherwise

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discriminated against in violation of any law under the jurisdiction of the Labor Commissioner

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may file a complaint with the division within six months after the occurrence of the violation.”

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Cal. Lab. Code § 98.7. In order to bring a claim under section 6310 in this Court, a plaintiff must

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exhaust his administrative remedies under Labor Code section 98.7. Ramirez v. County of

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Marin, 2011 WL 5080145, *8 (N.D. Cal. Oct. 25, 2011); Lund v. Leprino Foods Co., 2007 WL

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1775474, *4 (E.D. Cal. 2007).

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Here, Plaintiff has not alleged any facts showing: (1) that he was terminated because of a

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complaint of unsafe working conditions; (2) that he was subjected to unsafe or unlawful working

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conditions; or (3) that he exhausted his administrative remedies.

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2.

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California Whistleblower Protection Act

Plaintiff references whistleblower protection. California Labor Code section 1102.5 is a

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“whistle-blower” protection statute. The subsection that appears relevant to this case states: “An

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employer may not retaliate against an employee for disclosing information to a government or

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law enforcement agency, where the employee has reasonable cause to believe that the

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information discloses a violation of state or federal statute, or a violation or noncompliance with

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a state or federal rule or regulation.” Cal. Lab. Code § 1102.5.

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In order to bring a claim under this subsection, Plaintiff must allege that he exhausted his

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administrative remedy under Labor Code section 98.7 before bringing a whistleblower claim in

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this Court. Toth v. Guardian Industries Corp., 2012 WL 1076213, *3-5 (E.D. Cal. Mar. 29,

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2012) (plaintiff must exhaust administrative remedies prior to bringing a section 1102.5 claim);

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Ferretti v. Pfizer Inc., 2012 WL 694513, *5 (N.D. Cal. Feb. 29, 2012) (plaintiff required to

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exhaust administrative remedy under section § 98.7 before filing section 1102.5 claim in federal

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court).

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Here, it is unclear whether Plaintiff complained of his discharge, as opposed to safety

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conditions, to the Labor Commissioner. Plaintiff also has failed to allege that he exhausted his

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administrative remedies.

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3.

Wrongful Termination in Violation of Public Policy

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Plaintiff may be seeking to allege wrongful termination after reporting unsafe working

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conditions to state authorities. Wrongful termination in violation of public policy is a California

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common law cause of action providing that “when an employer’s discharge of an employee

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violated fundamental principles of public policy, the discharged employee may maintain a tort

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action and recover damages traditionally available in such actions.” Tameny v. Atl. Richfield

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Co., 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980). The “public policy”

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sufficient to support a wrongful termination claim must be “(1) delineated in either constitutional

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or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather

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than serving merely the interests of the individual; (3) well established at the time of discharge;

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and (4) substantial and fundamental.” City of Moorpark v. Superior Court, 18 Cal.4th 1143,

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1159, 77 Cal.Rptr. 2d 445, 959 P.2d 752, 762 (1998) (internal quotation omitted). A claim for

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violation of California Labor Code § 6310 or California Labor Code § 1102.5 can support a

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common law cause of action for wrongful termination in violation of public policy. Ferretti,

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2012 WL 694513 at *6 and *11. A common law wrongful termination in violation of public

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policy is not subject to the exhaustion requirement. Toth, 2012 WL 1076213 at *7 (citing

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Stevenson v. Superior Ct., 16 Cal.4th 880, 905, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (1997)).

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As discussed above, Plaintiff has not alleged an underlying violation of California Labor
Code sections 6310 or 1102.5 to support a common law wrongful termination claim.

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E.

Conclusion

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Based on the above, Plaintiffs’ complaint is DISMISSED WITH LEAVE TO AMEND.

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Plaintiff should only amend those claims that he believes, given the above standards, are

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cognizable. In amending his complaint, Plaintiff is informed that the Court cannot refer to a

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prior pleading in order to make their amended complaint complete. Local Rule 220 requires that

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an amended complaint be complete in itself without reference to any prior pleading. This is
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because, as a general rule, an amended complaint supercedes the original complaint. Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once Plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case.
Plaintiff may file an amended complaint within thirty (30) days of the date of service of

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this order. Plaintiff’s complaint should be clearly titled, “First Amended Complaint,” and should

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refer to the case number assigned to this action. It must contain a short and plain statement of his

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claims and must clearly set forth the causes of action alleged against each Defendant.
If Plaintiff does not file an amended complaint within this time frame and in accordance

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with this order, the Court will recommend that this action be dismissed for failure to state a
claim.
IT IS SO ORDERED.
Dated:
3b142a

June 19, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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