Dourandish v. Fitzgerald et al

Filing 35

ORDER by Judge Vince Chhabria granting 21 Motion to Dismiss for Lack of Jurisdiction; granting 28 Motion to Dismiss. Plaintiff has 21 days to amend certain claims in the complaint or the case will be dismissed with prejudice. (knm, COURT STAFF) (Filed on 6/20/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT DOURANDISH,

Case No. 13-cv-05984-VC

Plaintiff,
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v.

ORDER GRANTING MOTION TO
DISMISS

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PATRICK FITZGERALD, et al.,

Re: Dkt. Nos. 21, 28

Defendants.

United States District Court
Northern District of California

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Plaintiff Robert Dourandish has sued Patrick Fitzgerald, Director of the Defense Contract

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Audit Agency (DCAA), and Chuck Hagel, Secretary of the Department of Defense, alleging

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various tort and civil rights claims. Dourandish’s claims stem from a contract dispute between his

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company, Quimba, and the United States Air Force. Dourandish alleges that, in his interactions

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with the government, the DCAA auditor was negligent, the auditor committed civil rights
violations against him, the auditor’s supervisor was negligent, and the DCAA branch manager was

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negligent. The government has filed a motion to dismiss, which is GRANTED, and the hearing
scheduled for June 26, 2014 is VACATED.

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Dourandish’s tort claims arise directly from a contract dispute for which an existing action

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is currently pending in the Court of Federal Claims. Quimba Software, Inc. v. the United States of

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America, Case No. 1:12-cv-00142-MCW. Because Dourandish’s allegations do not exist

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independently of this contract dispute, and because they arise directly from the contract, the

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allegations are appropriately classified as contract, not tort, claims. See, e.g., Woodbury v. United
States, 313 F.2d 291, 295096 (9th Cir. 1963); Performance Contracting, Inc. v. United States, 2012

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WL 3234210 (E.D. Cal. Aug. 6, 2012). Dourandish’s claims are thus subject to the Contract

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Disputes Act, 41 U.S.C. § 7101 et seq., which confers exclusive jurisdiction in the Court of

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Federal Claims. Therefore, this court does not have jurisdiction to adjudicate the tort claims, and

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they are therefore dismissed with prejudice, which means that Dourandish may not refile his tort

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claims in this case.

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The complaint also includes a "civil rights" claim, in which Dourandish alleges that the
DCAA auditor took an aggressive stance toward Dourandish’s company because of his ethnicity.

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This claim is dismissed with leave to amend. First, Dourandish has not pled sufficient facts to
support a plausible allegation of ethnicity discrimination. See Bell Atl. Corp. v. Twombly, 550 U.S.

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United States District Court
Northern District of California

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544, 557 (2007). Second, Dourandish has brought his civil rights claim under the Federal Torts

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Claim Act, which he cannot do since the Act bars damages claims against the government for

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alleged constitutional violations. See FDIC v. Meyer, 510 U.S. 471, 478 (1994). Finally, on its
face, the civil rights claim appears time barred by a two-year statute of limitations. See, e.g.,

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Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Western Center for Journalism v.
Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000).

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Although it is unclear whether Dourandish can amend his complaint to cure these defects,

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because Dourandish is proceeding without a lawyer the court grants him leave to amend his civil

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rights claim only. If Dourandish believes in good faith that he can file an amended complaint that

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cures these defects, he may do so within 21 days. Otherwise, dismissal of the entire complaint

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will be with prejudice.
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For Dourandish's benefit, the court directs his attention to the Handbook for Pro Se

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Litigants, which is available along with further information on the court's website at

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http://cand.uscourts.gov/proselitigants. Dourandish may also contact the Legal Help Center,

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Golden Gate Avenue, 15th Floor, Room 2796, Telephone No. 415-782-898 for free legal advice

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regarding his claims.
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IT IS SO ORDERED.
Dated: June 20, 2014
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VINCE CHHABRIA
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT DOURANDISH,

Case No. 13-cv-05984-VC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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PATRICK FITZGERALD, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 6/20/2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Robert Dourandish
POB 1476
San Mateo, CA 94401

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Dated: 6/20/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
Kristen Melen, Deputy Clerk to the
Honorable VINCE CHHABRIA

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