Alani v. Alaska Airlines, Inc.

Filing 43

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS, Motions terminated: 38 MOTION to Dismiss Defendant Alaska Airlines Counterclaim, and Eighteenth Affirmative Defense and supporting Memo of P&A filed by Alaska Airlines, Inc., 34 MOTION for Judgment on the Pleadings filed by Abdul Alani. Signed by Judge Alsup on May 9, 2011. (whalc2, COURT STAFF) (Filed on 5/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ABDUL ALANI,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
ALASKA AIRLINES, INC.,
Defendant.
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No. C 10-02766 WHA

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS AND DENYING
PLAINTIFF’S MOTION FOR
JUDGMENT ON THE PLEADINGS

Defendant moves to dismiss its counterclaims and its eighteenth affirmative defense of

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after-acquired evidence, and plaintiff moves for judgment on the pleadings. Plaintiff argues that

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in counterclaiming without repeating all of its denials and defenses in its answer, defendant has

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admitted the allegations in the complaint and thus judgment should be entered for plaintiff.

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Plaintiff filed his complaint in San Francisco Superior Court on April 13, 2010, alleging

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employment discrimination based on national origin and retaliation. On June 23 defendant filed

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its answer in state court, and on June 24 defendant removed the action to federal court based on

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diversity jurisdiction. On July 14 defendant filed a counterclaim for conversion, fraud and

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intentional misrepresentation, and unjust enrichment. Defendant alleged that plaintiff worked as a

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mechanic for both Alaska Airlines and American Airlines, and that he stole company time by

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claiming to have worked for Alaska Airlines during time when he was actually working for

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American Airlines.

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The parties are now in the midst of discovery, and defendant has decided to drop its
counterclaim (and its eighteenth affirmative defense of after-acquired evidence). Yet, rather than

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stipulating to dismissal, plaintiff has decided to oppose defendant’s motion to dismiss and move

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for judgment on the pleadings. Plaintiff argues that defendant’s counterclaim superceded its

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answer as its operative pleading, and because the counterclaim does not reproduce defendant’s

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denials and affirmative defenses, they are waived and defendant has admitted the allegations in

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the complaint.

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First, as to defendant’s motion to dismiss its counterclaim and eighteenth affirmative

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defense, plaintiff’s “opposition” does not oppose the dismissal defendant seeks. Rather, plaintiff

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takes the opportunity to argue about the effect of the dismissal, which is the subject of his motion

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for judgment on the pleadings. As plaintiff does not present any arguments that weigh against the

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For the Northern District of California

United States District Court

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dismissal, defendant’s motion is GRANTED.
Second, as to plaintiff’s motion for judgment on the pleadings, contrary to plaintiff’s

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contention, our circuit’s law does not command the draconian result that plaintiff seeks. Rather,

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the appropriate approach is to view defendant’s answer as its responsive pleading — and

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dismissal of the counterclaim does nothing to alter this state of the pleadings. None of the

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authority cited by plaintiff counsels otherwise. Although “the court on terms, if justice so

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requires, shall treat the pleading as if there had been a proper designation,” Reiter v. Cooper, 507

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U.S. 258, 263 (1993) (quoting FRCP 8(c)), that does not mean the Court should altogether

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recharacterize the content of the submission at issue. Moreover, plaintiff cites decisions for the

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principle that where later pleadings supercede earlier pleadings, the earlier pleadings are treated

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as non-existent. That merely begs the question of whether the counterclaim here was a

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superceding pleading.

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Our court of appeals has specifically held that “the assertion of claims in a counterclaim . .

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. will not waive a defense that has been asserted previously or contemporaneously in an answer.”

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Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010). Plaintiff argues that in Hillis the

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counterclaim was filed contemporaneously with the answer containing the defense at issue,

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whereas here the answer was filed 21 days prior to the counterclaim. Yet, Hillis did not include

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such a caveat to its holding, and the language just quoted indicates that the timing of a

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counterclaim relative to an answer does not affect the issue of whether the former waives a

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defense in the latter — the holding was simply: it does not.

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Hillis thus compels the otherwise commonsense conclusion that defendant did not waive

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all of its denials and defenses in its answer by not reproducing them in its counterclaim. For the

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foregoing reasons, defendant’s motion to dismiss its counterclaims and its eighteenth affirmative

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defense is GRANTED, and defendant’s counterclaim is dismissed with prejudice and the

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eighteenth affirmative defense is stricken from defendant’s answer. Plaintiff’s motion for

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judgment on the pleadings is DENIED, and none of defendant’s denials or defenses in its answer

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were waived by the now-dismissed counterclaim. The motions hearing noticed for May 19 is
VACATED.

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IT IS SO ORDERED.
For the Northern District of California

United States District Court

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Dated: May 9, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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