Kaur, et al., v Singh, et al.,

Filing 20

ORDER signed by Judge Kimberly J. Mueller on 4/30/2013 DENYING 9 Motion to Dismiss. (Donati, J)

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IN THE UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KULWINDER KAUR, et al.,
Plaintiffs,

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No. CIV S 13-0089 KJM EFB

v.

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RAKWINDER SINGH, et al.,

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ORDER

Defendants.
______________________________/

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Defendant Rakwinder Singh (“defendant”) has filed a motion to dismiss a

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complaint filed by plaintiffs Kulwinder Kaur, Charnpreet Singh and Jaspreet Singh (collectively

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“plaintiffs”). The court ordered the motion submitted without argument and now DENIES the

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motion to dismiss.

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I. BACKGROUND

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On January 16, 2013, plaintiffs filed a complaint alleging that they are the heirs of

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Makhan Singh (decedent); that Cloud 9 Logistics, a Washington business, hired decedent as a

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commercial truck driver; that on or about July 21, 2011, during the scope and course of his

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employment, decedent was killed when a truck negligently operated by defendant was involved

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in an accident; that plaintiffs sought to file a workers’ compensation claim, but were told Cloud

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9 Logistics did not carry workers’ compensation insurance. ECF No. 1 ¶¶ 1-12.
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Defendant moves to dismiss on the ground that plaintiffs’ claims are barred by

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California’s Workers’ Compensation Act, which provides the exclusive remedy for injuries and

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death arising out of and occurring during the course and scope of a worker’s employment.

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Defendant says that whether the motion is considered a motion to dismiss for failure state a

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claim or for lack of subject matter jurisdiction, it should be granted. The motion is flawed

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procedurally and meritless substantively, as explained below.

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II. JURISDICTION

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Federal courts are courts of limited jurisdiction and, until proven otherwise, cases
lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511

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U.S. 375, 377–78 (1994). Lack of subject matter jurisdiction may be challenged by either party

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or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also

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Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583–84 (1983). A Rule 12(b)(1) jurisdictional

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attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a

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facial attack, the complaint is challenged as failing to establish federal jurisdiction, even

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assuming all the allegations are true and construing the complaint in the light most favorable to

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plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

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By contrast, in a factual attack, the challenger provides evidence that an alleged

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fact is false, or a necessary jurisdictional fact is absent, resulting in a lack of subject matter

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jurisdiction. Id. In these circumstances, the allegations are not presumed to be true and “the

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district court is not restricted to the face of the pleadings, but may review any evidence, such as

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affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”

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McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Once the moving party has

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converted the motion to dismiss into a factual motion by presenting affidavits or other evidence

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properly brought before the court, the party opposing the motion must furnish affidavits or other

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evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v.

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Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).
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III. STANDARDS FOR A MOTION TO DISMISS

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Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to

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dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may

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dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged

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under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990).

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Although a complaint need contain only “a short and plain statement of the claim

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showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), in order to survive a motion

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to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include

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something more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or

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“‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id.

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(quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to

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dismiss for failure to state a claim is a “context-specific task that requires the reviewing court to

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draw on its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses

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on the interplay between the factual allegations of the complaint and the dispositive issues of law

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in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

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In making this context-specific evaluation, this court must construe the complaint

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in the light most favorable to the plaintiff and accept as true the factual allegations of the

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complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to “‘a legal

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conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 286 (1986)

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(quoted in Twombly, 550 U.S. at 555), nor to “allegations that contradict matters properly subject

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to judicial notice” or to material attached to or incorporated by reference into the complaint.

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Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court’s

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consideration of documents attached to a complaint or incorporated by reference or matter of
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judicial notice will not convert a motion to dismiss into a motion for summary judgment.

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United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington,

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51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d

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977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to

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dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).

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IV. ANALYSIS

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This court’s standing order, available on the court’s website, requires counsel to

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engage in a meet and confer before filing any motion and to certify in any notice of motion that

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meet and confer efforts have been exhausted. As defendant’s counsel has not certified that he

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conferred with plaintiffs’ counsel, his motion is subject to being stricken.
Whatever its procedural failings, the motion has no merit. Defendant is correct

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that California Labor Code § 3600 generally “establishes the exclusive jurisdiction of the

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workers’ compensation system by furnishing an employer immunity from civil liability for any

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injury sustained by an employee and his or her dependents arising out of and in the course of his

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or her employment.” LeFiell Mfg. Co. v. Superior Court, 55 Cal. 4th 275, 283 (2012).

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Although defendant does not cite it, California Labor Code § 3601(a) extends this immunity to

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situations where the injury or death was caused by a fellow employee, unless the employee was

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intoxicated or physically attacked the decedent without provocation. When the employer “fails

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to secure the payment of compensation as required by this division,” the employee or his

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dependents “may bring an action at law against such employer for damages, as if this division

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did not apply.” CAL. LAB. CODE § 3706; see also LeParc Cmty. Ass’n v. Workers’ Comp.

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Appeals Bd., 110 Cal. App. 4th 1161, 1173 (2003). A plaintiff in a civil action must plead, and

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ultimately prove, that the employer failed to carry insurance. Coleman v. Silverberg Plumbing

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Co., 263 Cal. App. 2d 74, 79 (1968). Plaintiffs have satisfied the pleading requirement by

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alleging that Cloud 9 Logistics had not secured workers’ compensation insurance. ECF No. 1

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¶ 12.
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In reply, defendant argues for the first time it is not sufficient for plaintiff to plead

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that Cloud 9 Logistics did not carry workers’ compensation insurance, but instead plaintiff must

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provide documentary evidence. ECF No. 17 at 2. Defendant has provided no authority, state or

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federal, for this proposition. This court declines to read the requirement that a plaintiff “plead

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and prove that [the employer] violated section 3700 by not carrying the workmens’

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compensation required” Coleman, 263 Cal. App. 2d at 79, to mean that a plaintiff must support a

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complaint with documentary evidence. To the extent defendant’s reply may be read as a factual

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attack on subject matter jurisdiction, it is insufficient, as he has provided no evidence that the

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necessary jurisdictional fact -- in this case, Cloud 9's failure to carry workers’ compensation

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insurance -- is absent. Safe Air for Everyone, 373 F.3d at 1039 (discussing the requirements for

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a factual challenge to subject matter jurisdiction).

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss, ECF No. 9,

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is denied.

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DATED: April 30, 2013.

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UNITED STATES DISTRICT JUDGE
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