Rose v. Plastikon Inc.

Filing 24

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS by Judge William Alsup [granting 13 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 3/21/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WILLIE ROSE III,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 13-05973 WHA

v.
PLASTIKON INC.,

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

Defendant.
/

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INTRODUCTION

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In this employment action, defendant moves to dismiss for failure to state a claim.

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For the reasons stated below, the motion to dismiss is GRANTED.

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STATEMENT

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A January 22 order related the instant action to an earlier action between the same

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parties. See Rose v. Plastikon Ind., No. 10-04355, 2013 U.S. Dist. Westlaw 6012544 (N.D. Cal.

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2011) (order denying plaintiff’s motion for summary judgment). The following facts are

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common to both actions:

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From December 2000 to February 2009, plaintiff Willie Rose worked for defendant

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Plastikon Industries, Inc. as a loader in its shipping and receiving facility in Hayward.

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In February 2009, Rose, an African-American male, filed an internal discrimination complaint

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against his supervisor, Neel Prasad. Rose alleges that Plastikon employees harassed and

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threatened him using discriminatory language, and that Prasad reported Rose to management

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on false pretenses. Rose also alleges that he was denied the ability to seek medical assistance

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while at work. Plastikon fired Rose for verbally threatening Prasad, and an internal

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discrimination investigation later found that no harassment or discrimination had occurred.

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Rose then filed a charge of discrimination with the Equal Employment Opportunities

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Commission. The EEOC closed the claim in July 2010 because it was unable to determine

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that discrimination had occurred.

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In September 2010, Rose filed a Title VII action here. As trial approached, the Court

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appointed attorney James Brosnahan and his team of young lawyers as pro bono counsel for

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Rose. Despite an outstanding performance by Attorney Brosnahan and his team, a jury
unanimously found that Rose had not demonstrated that retaliation was a “motivating factor”

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For the Northern District of California

United States District Court

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in Plastikon’s decision to fire him, and in March 2012 judgment was entered in Plastikon’s

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favor. Rose appealed. Rose’s Court-appointed counsel withdrew. Rose then proceeded pro se.

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Our court of appeals affirmed.

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In the related, new action, Rose accuses Plastikon of “Intentional Discrimination,

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retaliation, and abuse” (Compl. ¶ 6). The complaint: (1) requests “reconsideration” or alteration

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of the verdict reached in the related 2010 action, or a new trial; (2) asserts that Rose did not

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receive a fair trial in the 2010 action; (3) alleges retaliation for activities protected under

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Title VII of the Civil Rights Act; and (4) alleges unspecified violations of the Americans

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with Disabilities Act that had been “overlooked” in the 2010 action (Compl. ¶ 5, 10, 11).

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Plastikon now moves to dismiss under FRCP 12(b)(6), asserting that Rose’s claims are

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time-barred or precluded by res judicata. At the hearing scheduled for 8:00 A.M. on March 20,

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Rose was not present when the case was called for oral argument. As a courtesy to Rose, the

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undersigned judge put the case at the end of the calendar and proceeded with other matters.

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Rose appeared at 8:55, almost an hour later. Rose revealed in argument that he had filed an

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untimely opposition the morning of the hearing, requesting appointment of counsel and asking

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for “reference [the] case to binding arbitration, special master, or the Judicial Panel multidistrict

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Litigation” (Dkt. No. 23 at 2). The new filing was reviewed during a pause in proceedings.

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Then both sides were heard.
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ANALYSIS
A motion to dismiss under Rule 12(b)(6) is proper only “where there is no cognizable

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legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.”

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Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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1.

REQUESTS RELATED TO THE 2010 ACTION.

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Rose’s requests with respect to the 2010 action should have been raised as post-trial

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motions, but are instead included in his complaint. For the purposes of this order, such requests

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will be treated as if they were motions in the 2010 action.

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FRCP 59.

Rose petitions for either an alteration of the verdict reached in the 2010 action or a new

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For the Northern District of California

United States District Court

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A.

trial, on the grounds that “the material facts clearly prove that retaliation was overlooked” in the

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2010 action (Compl. ¶ 5). Specifically, Rose requests that “the court reconsider to overturn on

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the previous decision. . . . [or] reconsider a bench trial for me” (Compl. ¶ 10) (emphasis added).

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Though Rose does not provide any specific procedural basis for his requests, they will be

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understood as motions under Federal Rule of Civil Procedure 59(a) or FRCP 59(e).

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FRCP 59(a)–(b) (emphasis added):
The court may, on motion, grant a new trial on all or some of the
issues — and to any party — as follows: (1) after a jury trial, for
any reason for which a new trial has heretofore been granted in an
action at law in federal court . . . (b) A motion for a new trial
must be filed no later than 28 days after the entry of judgment.

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FRCP 59(e) (emphasis added):
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A motion to alter or amend a judgment must be filed no later than
28 days after the entry of judgment.

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Neither request can be granted under FRCP 59. Because judgment was entered on March 5,

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2012, the deadline has passed for motions under both FRCP 59(a) and FRCP 59(e). To have

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been timely, Rose would have needed to moved on these grounds by April 2, 2012, almost

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two years before the commencement of this action. Rose’s requests for a new trial or for

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alteration of the verdict in the 2010 action are both time-barred and therefore are DENIED.

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Allegations of Fraud.

In justifying his requests related to the 2010 action, Rose also asserts that he did not

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receive a fair trial because Plastikon “told lies to the court to cover their retaliation against

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me . . . Plastikon was not in good faith with the court . . . I did not ask for a jury trial” (Compl.

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¶ 5, 10).*

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A motion for relief from judgment due to fraud under FRCP 60(b)(3), which must be

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brought within a year of judgment, is time-barred. See FRCP 60(c)(1). Even if construed very

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liberally as a motion for fraud on the court under FRCP 60(d)(3) — which has no time

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restrictions — Rose would need to present clear and convincing evidence of fraud that
undermined the adversary process in order for this court to set aside the verdict. United States v.

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For the Northern District of California

United States District Court

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Estate of Stonehill, 660 F.3d 415, 444–45 (9th Cir. 2011). Rose fails to do so, only saying that

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“the [cross-]examination was so confusing and inaccurate by opposing counsel, it was hard to

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identify whether he was affirming my claims or [Plastikon’s]” (Compl. ¶ 8). Confusing cross-

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examination does not rise to the level of clear and convincing evidence under Stonehill. To the

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extent that Rose might request relief from the 2010 verdict under FRCP 60 on the basis of fraud,

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his requests are DENIED.

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2.

CLAIMS AND REQUESTS IN THE CURRENT ACTION.
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Claims under Title VII of the Civil Rights Act.

Res judicata precludes Rose from relitigating his Title VII retaliation claims.
Res judicata applies:
Whenever there is (1) an identity of claims, (2) a final judgment on
the merits, and (3) privity between parties . . . Newly articulated
claims based on the same transactional nucleus of facts may still be
subject to a res judicata finding if the claims could have been
brought in the earlier action . . . It is immaterial whether the
claims asserted subsequent to the judgment were actually pursued.

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Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency, 322 F.3d 1064, 1077–1078 (9th Cir. 2003)
(quotations omitted). Rose’s Title VII retaliation claims share a
common nucleus of facts with the 2010 action. Both complaints

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* In his handwritten complaint commencing the 2010 action, Rose neatly checked the box requesting a
jury trial. Rose v. Plastikon Ind., No. 10-04355 (N.D. Cal. 2011) (Dkt. No. 1 at 3).

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are based on allegations that Plastikon employees harassed Rose in
retaliation for filing a discrimination complaint against his
supervisor in February 2009 (Compl. ¶ 8). Rose v. Plastikon Ind.,
No. 10-04355 (N.D. Cal. 2011) (Dkt. No. 1 at 2). Rose does not
attempt to distinguish the factual basis for the two actions. In fact,
much of the complaint consists of a photocopied motion
petitioning our court of appeals for rehearing in the 2010 action
(Compl. ¶ 8–12). Because the 2010 action reached final judgment
on the merits following a jury trial, and involved the same parties
as the current action, Rose’s Title VII retaliation claims are barred
by res judicata and must be, under the law, DISMISSED WITH
PREJUDICE.

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B.

Claims under the Americans with Disabilities Act.

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The complaint also alleges that Rose “suffered physical and mental abuse from
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[Plastikon’s] constant retaliation,” and that Plastikon “disregarded [Rose’s] medical and
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that “material points of facts or laws [were] overlooked in the decision” and later includes a
For the Northern District of California

United States District Court

disability conditions and stopped compensation to [him]” (Compl. ¶ 5). Rose also asserts
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summary of the Americans with Disabilities Act under the heading, “THE LAWS THAT
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[WERE] OVERLOOKED” (Compl. ¶ 8, 11). If Rose were to successfully plead a new ADA
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violation, he would first need to show — as he did in the 2010 action — that he filed a claim
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with the EEOC within 180 days of the alleged violation. 42 U.S.C. §§ 12117(a), 2000e-5.
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Rose has not done so here. Because the relevant facts are alleged to have occurred in February
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2009, any new EEOC complaint would be time-barred.
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While Rose’s new ADA claims would be time-barred, those derived from Rose’s earlier
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EEOC complaint would be barred by res judicata. His 2010 discrimination complaint with
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the EEOC alleged that he had suffered “physical and mental abuse.” Rose v. Plastikon Ind.,
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No. 10-04355 (N.D. Cal. 2011) (Dkt. No. 1 at 6). The complaint in the 2010 action alleged that
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Plastikon “denied [Rose] permission to seek medical assistance for a[n] injury and disability.”
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Ibid. Because Rose’s ADA claim in this action is based on the same nucleus of facts as the 2010
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action, and the 2010 action reached final judgment on the merits and involved the same parties,
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such claims are barred by res judicata.
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Rose’s ADA claims are barred by time or res judicata; they must be, under the law,
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DISMISSED WITH PREJUDICE.
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C.

Requests for Appointment of Counsel and Change of Venue.

In his late opposition presented at the March 20 hearing, Rose requested appointment

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of counsel and that his case be referred to arbitration, to the United States Judicial Panel on

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Multidistrict Litigation, or to a special master. This order declines to appoint counsel. It also

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finds that there is no arbitration agreement between the parties, no good cause to send this case

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to a special master, and no jurisdiction to refer it to the Judicial Panel on Multidistrict Litigation.

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These requests are therefore DENIED.

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3.

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Plastikon requests judicial notice of various documents from the 2010 action, including

JUDICIAL NOTICE.

the complaint, verdict, and entry of judgment. Undisputed matters of public record may be

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For the Northern District of California

United States District Court

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noticed under Federal Rules of Evidence 201(b). Lee v. City of Los Angeles, 250 F. 3d 668, 689

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(9th Cir. 2001). The request for judicial notice is GRANTED.

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CONCLUSION

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For the reasons stated above, the motion to dismiss is GRANTED. Mr. Rose and his

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pro bono counsel in the 2010 action put on a good case at trial, as did the defense. It could have

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gone either way. There was a fair trial, well-tried on both sides. Mr. Rose is urged to please

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respect the jury verdict. If he wishes to pursue this further, his next step would be to file an

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appeal within thirty days.

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IT IS SO ORDERED.

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Dated: March 21, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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