Shek v. Childrens Hospital Research Center of Oakland et al

Filing 117

ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND DENYING MOTIONS FOR MISCELLANEOUS RELIEF by Judge William Alsup [denying 103 Motion for New Trial; denying 104 Motion to Stay; granting 105 Motion for Leave to Appeal in forma pauperis; denying 113 Motion]. (whasec, COURT STAFF) (Filed on 5/2/2013)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
JOHN SHEK,

11
For the Northern District of California

United States District Court

10

12
13

No. C 12-04517 WHA
Plaintiff,

v.

14

CHILDREN’S HOSPITAL RESEARCH
CENTER OF OAKLAND,

15

ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS AND
DENYING MOTIONS FOR
MISCELLANEOUS RELIEF

Defendant.
/

16
17

INTRODUCTION

18

Upon filing a contemporaneous notice of appeal, plaintiff files four motions on his

19

recently closed wrongful termination case. For the reasons stated below, plaintiff’s motion to

20

proceed in forma pauperis is GRANTED. All other motions are DENIED.

21
22

STATEMENT
In August 2012, pro se plaintiff John Shek commenced this action against defendant

23

Children’s Hospital Research Center of Oakland because he was allegedly discriminated against

24

for his race, national origin and age, and was wrongfully discharged. After the most recent

25

effort, the undersigned judge denied plaintiff’s motion for leave to file a second amended

26

complaint because his discrimination charges were untimely and, as to other potential claims, his

27

proposed amended complaint was inadequate due to insufficient facts (Dkt. No. 99). On April 2,

28

2013, the undersigned judge closed the case and entered judgment against plaintiff. The state

1

action filed by plaintiff continues (Shek vs. Children’s Hospital & Research Center at Oakland

2

et al., Alameda County Superior Court, No. RG12660358).

3

A week later, plaintiff filed a notice of appeal. Three of the instant motions were filed by

4

plaintiff on the same day he filed the notice of appeal, and the fourth was filed after the notice of

5

appeal. On April 15, our court of appeals referred the action to the undersigned judge “for the

6

limited purpose of determining whether in forma pauperis status should continue for this appeal

7

or whether the appeal is frivolous or taken in bad faith” (Dkt. No. 110). The next day, our court

8

of appeals issued an order stating that proceedings would be held in abeyance pending the

9

resolution of plaintiff’s present motions by the undersigned judge (Dkt. No. 114).

11
For the Northern District of California

United States District Court

10

ANALYSIS
In the present motions, plaintiff seems to be moving against more than one defendant

12

by his use of et. al in the caption. Who that additional defendant might be is a mystery.

13

In plaintiff’s proposed second amended complaint, however, only Children’s Hospital Research

14

Center of Oakland was named as a defendant. This order, thus, will address the motions as it

15

relates only to Children’s Hospital as the sole defendant.

16

Since judgment was entered against plaintiff, he has filed four different motions:

17

(1) a motion for leave to appeal in forma pauperis (Dkt. No. 105), (2) a motion for new trial

18

(Dkt. No. 103), (3) a motion to stay pending appeal (Dkt. No. 104), and (4) a motion to reinstate

19

in forma pauperis status after an order imposed sanction against plaintiff and request for

20

sanctions against defendant (Dkt. No. 113). Each motion will be addressed in turn.
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

21

1.

22

When plaintiff filed a notice of appeal, he also filed a motion for leave to appeal in forma

23

pauperis. Our court of appeals subsequently referred this action to the undersigned judge to

24

determine whether in forma pauperis status should continue.

25

Plaintiff submitted an application to proceed in forma pauperis indicating that he is not

26

presently employed, has not received any money, does not have a bank account, his home was

27

foreclosed, and First United Services Credit Union is suing him (though plaintiff does not

28

provide any information on this other suit). Under these circumstances, plaintiff’s motion for
2

1

leave to appeal in forma pauperis is GRANTED. Moreover, although the appeal is meritless, the

2

Court cannot say it is so frivolous or insincere as to deny in forma pauperis status.
MOTION FOR NEW TRIAL

3

2.

4

Plaintiff argues that his ADEA and Title VII claims were not time barred because the

5

EEOC “had initiated Different charge numbers when it should be added in one charge numbers”

6

(sic) (Dkt. No. 103 at 1). He contends that the subsequent discrimination violations he reported

7

should have been added to the previous charges (id. at 2). Plaintiff then goes on to re-assert his

8

discrimination claims.

9

There has been no trial for this case. This case was dismissed in its pleading stage when
plaintiff failed to adequately propose a second amended complaint and its motion for leave to file

11
For the Northern District of California

United States District Court

10

a second amended complaint was denied. Therefore, the motion for a new trial is DENIED.

12

3.

MOTION TO STAY PENDING APPEAL

13

Plaintiff argues that stay is necessary to prevent “the irreparable harm that is certain To

14

occur” (sic) (Dkt. No. 104 at 1). Plaintiff then proceeds to argue why his motion for leave to file

15

a second amended complaint should be granted, that the Court’s order imposing sanctions on

16

plaintiff for serving the wrong person was erroneous, that the undersigned judge erroneously

17

denied permission to commence discovery and provide transcripts to plaintiff, and that his

18

discrimination claims were not time barred.

19

Federal Rule of Appellate Procedure 8(a)(1)(A) states that “[a] party must ordinarily

20

move first in the district court for . . . a stay of the judgment or order of a district court pending

21

appeal.” However, a motion to stay is made when there is a likelihood that substantial litigation

22

will take place during the pendency of an appeal. See Perron v. Hewlett-Packard Co., 2011

23

WL 1344221, at *2 (N.D. Cal. Apr. 8, 2011) (Judge Lucy Koh).

24

Here, there is no litigation that will take place during the appeal because there is no

25

current operative complaint. Plaintiff’s motion for leave to file a second amended complaint was

26

denied. There is no litigation to pursue and, thus, there is nothing to stay. Plaintiff’s motion to

27

stay, therefore, is DENIED.

28
3

1

4.

REQUEST FOR SANCTIONS AGAINST DEFENDANT.

2

Plaintiff refers to a hearing that took place on December 6, 2012, in which a Mr. Joseph

3

Robinson who appeared before the undersigned judge with a summons from plaintiff was not the

4

correct Mr. Joseph Robinson who plaintiff intended to serve (Dkt. No. 58), although it was who

5

he did serve. On that date, an order was issued quashing the summons on Mr. Robinson after he

6

testified under oath that he was not the defendant named in the original complaint (Dkt. No. 57).

7

Plaintiff further refers to an order in which the undersigned judge later requested

8

evidence on whether either party knows if Mr. Joseph Robinson, Sr., and Mr. Joseph Robinson,

9

Jr., were father and son and were living at the same address at the time of improper service (Dkt.
No. 87). In response, plaintiff merely filed a motion to serve Mr. Robinson with a written

11
For the Northern District of California

United States District Court

10

interrogatory (Dkt. No. 93). Defendant filed a sworn declaration by its employee and labor

12

relations manager, Ms. Brenda Husband, who stated that the address on file for its employee Mr.

13

Robinson was not the address where plaintiff served the wrong Mr. Robinson (Dkt. No. 94). An

14

order was subsequently issued stating that discovery as to this issue was not necessary because

15

the action was being dismissed due to other issues — timeliness of the discrimination charges

16

(Dkt. No. 99). After judgment was entered against plaintiff, he then filed a sworn declaration

17

attesting that the person he served was the correct Mr. Robinson. This was too little too late.

18

In the instant motion, plaintiff asserts that Mr. Robinson’s sworn testimony was false

19

and that Ms. Husband’s declaration was also false. Again, this is too little too late and amounts

20

merely to allegations. At all events, an inquiry into whether the correct Mr. Robinson was

21

served remains unnecessary because the case was dismissed for timeliness issues. This motion,

22

therefore, is DENIED.

23
24
25
26
27
28
4

1

CONCLUSION

2

Plaintiff’s motion to proceed in forma pauperis is GRANTED. For the reasons stated

3

above, plaintiff’s other motions are DENIED.

4
5

IT IS SO ORDERED.

6
7

Dated: May 2, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5