Gray v. City and County of San Francisco

Filing 44

ORDER RE OPPOSITION. Signed by Judge Alsup on 2/18/14. (whalc3, COURT STAFF) (Filed on 2/18/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JON GRAY,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 13-03513 WHA

v.
CITY AND COUNTY OF SAN
FRANCISCO,

ORDER RE OPPOSITION

Defendant.

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/

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Pro se plaintiff Jon Gray has filed an opposition to defendant’s motion to dismiss after

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this action was already dismissed for lack of federal subject-matter jurisdiction on February 7,

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2014.

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After reading and seriously considering his arguments, this order concludes that plaintiff

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has still failed to prove that his complaint establishes federal jurisdiction in this action. First,

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plaintiff argues that the NRLA establishes federal jurisdiction, but the Act specifically exempts

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“any State or political subdivision thereof” from the definition of “employer.” 29 U.S.C. 152(2).

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Similarly, the term “employee” excludes a person employed by an entity that is not an

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“employer” under the Act. 29 U.S.C. 152(3). Thus, the NLRA is inapplicable here. Second,

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plaintiff argues that “Defendant is obligated to provide due process to plaintiff by this collective

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bargaining agreement” (Br. at 15). Plaintiff does not state whether he is alleging a federal due

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process violation, state due process violation, or contractual claim, but he has failed to plead
sufficient facts regardless. Thus, his due process claim does not establish federal jurisdiction.

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Third, plaintiff has not established federal jurisdiction by alleging for the first time in his

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opposition an equal protection claim on the basis of sexual orientation discrimination “under the

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law established by NLRB and the Collective Bargaining Agreement between the Defendants and

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the Plaintiffs Union” (ibid). As previously stated, the NLRA does not establish federal

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jurisdiction. Assuming that plaintiff is attempting to allege a Section 1983 claim in his

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opposition, none of the facts he alleges in his opposition regarding such a claim actually appear

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in his complaint. In order to survive a motion to dismiss, plaintiff must explain how his

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complaint establishes federal jurisdiction and alleges sufficient facts to state a claim for relief.

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Fourth, plaintiff alleges a First Amendment claim, alleging that he was fired after asking
questions to an investigator who was probing plaintiff’s arbitration regarding a disciplinary

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For the Northern District of California

United States District Court

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appeal. These statements, however, are not on matters of public concern. Karl v. City of

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Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012). Thus, plaintiff’s allegation of

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retaliation does not establish federal jurisdiction.

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Simply put, plaintiff cannot establish federal subject-matter jurisdiction. This order shall
remain closed, and no more briefing will be entertained. Plaintiff is simply in the wrong court.

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IT IS SO ORDERED.

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Dated: February 18, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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