Birdwell v. Wal-Mart Stores, Inc. et al

Filing 17

ORDER by Judge Yvonne Gonzalez Rogers granting 6 Motion to Dismiss Fourth Cause of Action. Amended Complaint filed by 10/28/15. The hearing set November 3, 2015 is VACATED. (fs, COURT STAFF) (Filed on 10/20/2015)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6
7
8

ANDREA BIRDWELL,

9
10

United States District Court
Northern District of California

11

Plaintiff,
v.

Case No.: 15-CV-4051 YGR
ORDER GRANTING MOTION OF DEFENDANTS
TO DISMISS FOURTH CAUSE OF ACTION AND
CLAIMS AGAINST INDIVIDUAL DEFENDANTS
WITHOUT LEAVE TO AMEND

WAL-MART STORES, INC., et al.,

12

Defendants.

13
14

Plaintiff Andrea Birdwell (“Birdwell”) brings this action against Defendants Wal-Mart

15

Stores, Inc., Michael Hamilton, Janelle Walton, Colleen O'Baugh, and Nicholas Gonnella (named

16

in the complaint as Nicholas “Gionella”). Plaintiff alleges claims for wrongful termination in

17

violation of the California Fair Employment and Housing Act, Cal. Gov’t Code section 12900, on

18

account of gender discrimination and medical condition/pregnancy, as well as termination in

19

violation of public policy, and intentional infliction of emotional distress.

20

Defendants have filed a motion seeking: (1) to dismiss the First, Second, and Third Causes

21

of Action as against individual defendants who cannot be liable for wrongful termination-based

22

claims; (2) to dismiss the Fourth Cause of Action against all defendants for failure to allege facts

23

sufficient to state a claim and because it is barred by the exclusivity provisions of the California

24

Workers’ Compensation Act, Cal. Labor Code section 3600 et seq.; and (3) to dismiss individual

25

defendants as fraudulently joined “sham” defendants. (Dkt. No. 6.)

26

In her response to the motion, Birdwell concedes that the claims against the individual

27

defendants and the Fourth Cause of Action for intentional infliction of emotional distress should be

28

dismissed.

1
2
3
4
5
6
7

Accordingly, and based upon Plaintiff’s non-opposition, the Motion to Dismiss is
GRANTED.
The Fourth Cause of Action for intentional infliction of emotional distress is hereby
DISMISSED WITH PREJUDICE.
Defendants Michael Hamilton, Janelle Walton, Colleen O'Baugh, and Nicholas Gonnella
(named in the complaint as Nicholas “Gionella”) are DISMISSED WITH PREJUDICE.
Plaintiff shall file an amended complaint reflecting the partial dismissals set forth above no

8

later than October 28, 2015. Defendants shall have 20 days thereafter to file their responsive

9

pleading.
This terminates Docket No. 6.

11

United States District Court
Northern District of California

10

IT IS SO ORDERED.

12
13

Date: October 20, 2015

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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

2