Simms v. DNC Parks & Resorts at Tenaya, Inc. et al

Filing 53

ORDER DENYING Plaintiff's 47 Motion for Leave to File First Amended Complaint, signed by Magistrate Judge Sandra M. Snyder on 4/29/2015. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY SIMMS,

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Plaintiff,

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CASE NO. 1:13-CV-2075 SMS

v.

ORDER DENYING PLAINTIFF‟S
MOTION FOR LEAVE TO FILE A
FIRST AMENDED COMPLAINT

DNC PARKS & RESORTS AT TENAYA,
INC., a Delaware corporation; DELAWARE
NORTH COMPANIES PARKS &
RESORTS, INC., a Delaware Corporation;
DELAWARE NORTH COMPANIES,
INCORPORATED, a Delaware Corporation;
and DOES 1 - 50 inclusive,

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Defendants.

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Plaintiff filed his complaint in this Court on December 20, 2013. Doc. 1. He brought nine

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causes of action arising under California law against Defendants related to their termination of his

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employment several months after his disability leave. Plaintiff filed a motion for leave to file a

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first amended complaint on April 1, 2015, seeking to add two causes of action arising under

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federal law. Doc. 47.

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I.

SUBJECT MATTER JURISDICTION
The Court had doubts as to the existence of subject matter jurisdiction and required the

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parties to submit supplemental briefing to address this concern. Doc. 37. The complaint alleged

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diversity of citizenship, but it appeared that at least one defendant, DNC Parks & Resorts at

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Tenaya, Inc. (“DNC at Tenaya”) was a citizen of California, as was Plaintiff. Defendants

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submitted a declaration, asserting that DNC at Tenaya has three directors, two of whom are

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located in Buffalo, New York, with the third located in Boston, Massachusetts. Doc. 49.

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Defendants further asserted that critical aspects of DNC at Tenaya‟s operations, including

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executive, payroll, accounting, human resources, and capital spending are made at the corporate

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headquarters in Buffalo.

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For diversity jurisdiction purposes, a corporation‟s principal place of business, or the

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“nerve center,” as it has been called in Courts of Appeals, refers to “the place where a

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corporation‟s officers direct, control, and coordinate the corporation‟s activities.” Hertz Corp. v.

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Friend, 130 S. Ct. 1181, 1192 (2010). The court may properly require a party asserting federal

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subject matter jurisdiction to establish its jurisdictional allegations by competent proof. See Id. at

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130 S. Ct. at 1194-95. Based on the evidence provided by Defendants, the Court may reasonably

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conclude that DNC at Tenaya‟s nerve center is in New York, and subject matter jurisdiction based

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on diversity has been sufficiently established by competent proof.

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II.

BACKGROUND

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Plaintiff alleges in his proposed first amended complaint that he was employed by

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Defendants in July 2010 as an assistant food and beverage manager at DNC at Tenaya.1 In June

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2011, he suffered an injury at work and was limited by a doctor to modified work duties, which he

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performed competently for approximately two and a half months, with one week medical leave in

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July. From August 2, 2011 to September 29, 2011, Plaintiff was placed on temporary disability,

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which Defendants designated as FMLA leave. Upon returning to work in September 2011 until

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January 2012, Plaintiff performed his modified duties competently. On January 4, 2012, Plaintiff

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was told that his position was terminated and he was escorted from the building. At least twice in

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the following year and a half, Plaintiff was approached with a job offer from Defendants, but he

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did not end up receiving either job.

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Plaintiff filed his original complaint in this Court alleging wrongful termination, disability

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discrimination, failure to provide reasonable accommodations, failure to engage in the interactive

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process, unlawful retaliation, failure to prevent discrimination and/or retaliation, retaliation in

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violation of CFRA, intentional infliction of emotional distress, and unfair business practices. After

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discovery was closed, Defendants filed a motion for summary judgment, the first motion on the

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Defendants dispute that all Defendants employed Plaintiff. For the purposes of this motion, Plaintiff‟s allegations are
accepted as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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merits of this case. The parties‟ briefing raised a concern over federal subject matter jurisdiction,

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as mentioned above. Plaintiff filed an ex parte application for leave to file a first amended

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complaint in order to add federal claims and maintain federal jurisdiction, which was denied for

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failing to demonstrate irreparable prejudice.

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In the instant motion, and in his reply, Plaintiff implies that he is only requesting leave to

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file an amended complaint to add federal claims to remain in federal court. See Doc. 47, Motion at

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6:24-26, 8:27-28; Doc. 51, Reply at 2:9-12. Plaintiff‟s proposed amended complaint adds

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references to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12101 et seq., and the

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Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. Plaintiff argues that he is “not

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seeking to add any new causes of action or new facts,” but is “clarifying his claims by referencing

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the applicable federal statutes in addition to the previously referenced state statues.” Doc. 47 at

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5:15-17. However, Plaintiff also argues that the Court should consider whether or not Plaintiff can

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prevail on violations of the federal statutes in the order on the motion for summary judgment.

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Plaintiff argues that the amendment does not substantially prejudice Defendants, is not made in

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bad faith, will not cause undue delay, and is not futile. Plaintiff‟s reasoning to support each of

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these arguments is the same - that the federal claims are substantially similar to the state claims

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and are based on the same facts.

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Defendants argue that Plaintiff unduly delayed seeking leave to file an amended complaint

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because he knew the facts and theories raised by the amendment at the time of the original

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pleading. Defendants further argue that they would suffer prejudice if the amendment were

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permitted because they would be required to file a separate or supplemental motion for summary

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judgment to address the federal causes of action, and would possibly need to seek to reopen and

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conduct additional discovery.

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The Court has reviewed the proposed amendment and, without determining if it is brought

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with undue delay or would prejudice Defendants, finds that the proposed amendment would be

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futile because it would be subject to dismissal for failure to state a cognizable claim.

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III.

LEGAL STANDARD
Leave to amend “shall be given freely when justice so requires.” FRCP 15(a). “But a
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district court need not grant leave to amend where the amendment: (1) prejudices the opposing

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party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.”

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AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).

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A proposed amendment is futile if it fails to state a cognizable claim and would be subject

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to dismissal under Rule 12(b)(6). See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,

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1041 (9th Cir. 2011) (“Although leave to amend should be given freely, a district court may

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dismiss without leave where a plaintiff's proposed amendments would fail to cure the pleading

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deficiencies and amendment would be futile.”); SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp.

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2d 1081, 1086 (S.D. Cal. 2002) (“an amendment is „futile‟ only if it would clearly be subject to

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dismissal”). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). “A claim has facial plausibility when the pleaded factual content allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 663 (2009). “The plausibility standard is not akin to a „probability

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requirement,‟ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

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Id. (quoting Twombly, 550 U.S. at 556). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.
Although accepted as true, “[f]actual allegations must be [sufficient] to raise a right to

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relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must

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set forth “the grounds of his entitlement to relief,” which “requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action.” Id. at 555-56

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(internal quotation marks and citations omitted).

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IV.

DISCUSSION
Plaintiff desires that the Court issue an order on Defendants‟ liability under the federal

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statutes, and is, in fact, adding new claims in spite of his contrary assertion. Causes of action

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arising under federal law and state law may be similar and based on the same conduct, but each

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require proof of different elements and maintain different statutory penalties. Merely to identify

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federal statutes throughout a complaint, stating that such statutes could have been violated, does
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not give rise to federal question jurisdiction, which requires that a case arise under federal law, not

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merely be related or similar to a violation of federal law. See 28 U.S.C. § 1331. Considering

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Plaintiff‟s motion as a whole, the Court will assume that Plaintiff intended to add two federal

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causes of action.

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A. ADA Violation

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A plaintiff bringing an ADA violation claim must exhaust administrative remedies, which

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begins with filing a complaint with the EEOC. See § 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-

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5(b); 42 U.S.C. § 2000e-5(e)(1). A district court properly dismisses ADA claims for failure to

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exhaust administrative remedies. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir.

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2000) (Under Title VII and the ADA, “failure to file an EEOC charge within the prescribed 300-

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day period […] is treated as a violation of a statute of limitations[.]”).

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Here, Plaintiff‟s proposed amendment contains no facts indicating that he has exhausted

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his administrative remedies in relation to the alleged ADA violations. Hence, the proposed

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amendment would be futile, because it would be subject to dismissal for failure to state a claim

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under which relief may be granted.

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B. FMLA Violation

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Plaintiff alleges that Defendants retaliated against him for lawfully exercising his right to

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take FMLA leave. See Doc. 47, Exh. 1, Proposed Amended Complaint at 22:8-19. He alleges that

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his FMLA leave was a motivating factor in Defendants‟ decision to terminate his employment. Id.

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at 22:18-19.

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Although Plaintiff‟s FMLA allegations are framed as retaliation, Plaintiff‟s grievance is

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more appropriately brought under the FMLA prohibition on interference. “By their plain meaning,

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the anti-retaliation or anti-discrimination provisions do not cover visiting negative consequences

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on an employee simply because he has used FMLA leave. Such action is, instead, covered under §

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2615(a)(1), the provision governing „Interference [with the] Exercise of rights.‟” Bachelder v. Am.

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W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001); followed by Sanders v. City of Newport,

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657 F.3d 772, 778 (9th Cir. 2011).

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It is unlawful for an employer to “interfere with, restrain, or deny the exercise of or the
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attempt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1). Under the FMLA

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prohibition against interference, “employers cannot use the taking of FMLA leave as a negative

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factor in employment actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. §

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825.220(c). To properly bring an FMLA interference claim, Plaintiff needs to sufficiently allege,

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with direct or circumstantial evidence or both, that his taking of FMLA-protected leave constituted

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a negative factor in the decision to terminate him. See Bachelder, 259 F.3d at 1125.
Here, Plaintiff has not alleged any facts indicating that Defendants considered Plaintiff‟s

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FMLA leave as a negative factor in their decision to terminate him. Plaintiff‟s seventh cause of

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action merely states that Plaintiff requested and took FMLA leave, which were motivating factors

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in Defendants‟ decision to terminate Plaintiff‟s employment. Plaintiff alleges Defendants

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discussed the possibility of similar work at least twice after Plaintiff‟s termination. The only

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allegation Plaintiff provides that implies that Defendants had some reason to terminate him other

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than eliminating his position, is that two of his coworkers with similar positions complained that

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they were not able to perform office work and had to work harder because of accommodations

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being made for Plaintiff. Doc. 47, Exh. 1 at 9:11-19. However, this alleged fact is related to

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Plaintiff‟s disability accommodations, and not the fact that he requested or took FMLA leave. To

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maintain an FMLA interference claim, Plaintiff must sufficiently allege facts that support his

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allegation that his FMLA-protected leave was a negative factor in Defendants‟ termination

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decision. Plaintiff has not done so in his proposed amended complaint.
Plaintiff must set forth “the grounds of his entitlement to relief,” which “requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”

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Twombly, 550 U.S. at 555-56. In his proposed amended complaint, Plaintiff merely recites the

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elements of the cause of action without any facts to support it. Legal conclusions are not accepted

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as true. Plaintiff‟s proposed amendment does not state a cognizable FMLA claim; hence, to allow

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the amendment would be futile.

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V.

ORDER
For the foregoing reasons, Plaintiff‟s motion for leave to file a first amended complaint is

DENIED.

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IT IS SO ORDERED.
Dated:

April 29, 2015

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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