Adams v. Vivo, Inc. et al

Filing 66

Order by Magistrate Judge Donna M. Ryu denying 62 Motion for Leave to File Motion for Reconsideration.(dmrlc1, COURT STAFF) (Filed on 11/29/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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MARK LETELL ADAMS,

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Plaintiff,
v.

No. C 12-01854 DMR
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION

VIVO INC. AND GENOMIC HEALTH,
INC.

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Defendants.
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___________________________________/
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Before the court is pro se Plaintiff Mark Letell Adams’ motion for leave to file a motion for

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reconsideration of the court’s November 8, 2012 order granting in part Defendants Vivo, Inc. and

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Genomic Health, Inc.’s (“GHI”) motion to dismiss Plaintiff’s first amended complaint with leave to

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amend. [Docket No. 62.] Pursuant to Civil Local Rule 7-9, a party may seek leave to file a motion

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for reconsideration of an interlocutory order at any time before judgment. N.D. Civ. L.R. 7-9(a). A

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motion for reconsideration may be made on one of three grounds: (1) a material difference in fact or

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law exists from that which was presented to the court, which, in the exercise of reasonable diligence,

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the party applying for reconsideration did not know at the time of the order for which

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reconsideration is sought; (2) the emergence of new material facts or a change of law; or (3) a

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manifest failure by the court to consider material facts or dispositive legal arguments presented

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before such order. N.D. Civ. L.R. 7-9(b)(1)-(3). The moving party may not reargue any written or

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oral argument previously asserted to the court. N.D. Civ. L.R. 7-9(c).

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Plaintiff argues that there was a manifest failure by the court to consider “material facts

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and/or dispositive legal arguments” in his first amended complaint regarding his disparate impact

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discrimination claim, which the court dismissed with prejudice. (Pl.’s Mot. 2.) Plaintiff argues that

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in his first amended complaint, he provided “seven disparate impact statements” and identified the

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“specific employment discrimination practices used by GHI against [him] when they terminated

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[his] contract.” (Pl.’s Mot. 5.) Plaintiff asserts that the court’s order fails to clarify how he failed to

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establish a prima facie discrimination case, but cites to the court’s discussion of the elements of a

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For the Northern District of California

United States District Court

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prima facie discrimination case based upon a disparate treatment theory. (Pl.’s Mot. 5-6.)
It appears that Plaintiff has conflated incidents that specifically impacted him with a

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disparate impact theory of discrimination. As the court noted in its November 8, 2012 order, “[a]

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claim of disparate impact challenges employment practices that are facially neutral in their treatment

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of different groups but that in fact fall more harshly on one group than another and cannot be

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justified by business necessity.” (Order of Dismissal 8, Nov. 8, 2012) (quoting Stout v. Potter, 276

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F.3d 1118, 1121 (9th Cir. 2002) (citation omitted).) For claims of discrimination based upon a

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theory of disparate impact, “[i]llicit motive or intent is irrelevant because impact analysis is designed

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to implement Congressional concern with the consequences of employment practices, not simply the

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motivation. [Citations omitted.] Rather, the focus in a disparate impact case is usually on statistical

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disparities, rather than specific incidents, and on competing explanations for those disparities.”

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Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990) (emphasis added) (citations and

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quotation marks omitted). In other words, a disparate impact theory of discrimination focuses on a

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facially neutral policy that has the unintentional effect of discriminating against a group or groups of

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people, whereas a disparate treatment theory focuses on an intentional decision to treat a person

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differently based upon his or her race or another protected characteristic. Plaintiff was granted leave

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once to amend his disparate impact claim, but his amended complaint failed to “sufficiently allege a

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disparity to show that the consequences of the challenged policy ‘in fact fall more harshly on one

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group than another’ in support of his disparate impact claim.” Consequently, the court dismissed the

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disparate impact claim with prejudice. (Order of Dismissal 9 (quoting Stout, 276 F.3d at 1121)

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(citation and quotation marks omitted).) As Plaintiff has failed to demonstrate a material difference

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in fact or law from that which was presented to the court, the emergence of new material facts or a

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change of law, or a manifest failure by the court to consider material facts or dispositive legal

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arguments, his motion for leave to file a motion for reconsideration is DENIED.

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Dated: November 29, 2012

DONNA M. RYU
M. Ryu
United States Magistrate Judge
Donna

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Judge

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For the Northern District of California

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RT

United States District Court

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DERED

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IT IS SO ORDERED.

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