Verbil v. U.S. Coast Guard District Eleven et al

Filing 33

ORDER GRANTING DEFENDANTS' PARTIAL MOTION TO DISMISS by Judge Paul S. Grewal granting 10 Motion to Dismiss for Lack of Jurisdiction (psglc3S, COURT STAFF) (Filed on 6/16/2014)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 CHRISTOPHER J. VERBIL, 12 13 14 15 16 17 Plaintiff, v. COMMANDER, ELEVENTH COAST GUARD DISTRICT, et al, Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 5:14-cv-00661-PSG ORDER GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS (Re: Docket No. 10) Defendants Commander, Eleventh Coast Guard District and CDR Curtis L. Sumrok, 18 U.S.C.G., move to dismiss Plaintiff Christopher Verbil’s complaint based on lack of subject matter 19 jurisdiction. The complaint alleges three federal causes of action against the Coast Guard: a 20 harassment and retaliation claim under Title VII, negligence under the Federal Tort Claims Act and 21 22 a claim under the Administrative Procedure Act. Defendants seek to dismiss Verbil’s Title VII and FTCA claims for failure to exhaust his administrative remedies; they also seek the dismissal of the 23 24 federal defendants in this case, arguing that they were improperly named in the suit. 25 26 27 28 1 Case No. 5:14-cv-00661-PSG ORDER GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS Verbil has submitted neither evidence nor argument as to why his FTCA claim should not 1 2 be dismissed for failure to exhaust his administrative remedies; 1 accordingly, that claim must be 3 dismissed for lack of subject matter jurisdiction. As for his Title VII claim, Verbil has now 4 submitted to the court a letter dated April 16, 2014, which denies the formal complaint he filed on 5 February 14, 2014, and grants him the right to either appeal to the Equal Employment Opportunity 6 Commission or file a lawsuit in federal court. 2 However, this case was filed on February 12, 2014, 7 8 9 two days before Verbil filed his administrative complaint, and more than two months before it was denied. It has long been established that a plaintiff must exhaust his administrative remedies “prior United States District Court For the Northern District of California 10 to” initiating a lawsuit under Title VII. 3 Because Verbil began his lawsuit in this court before even 11 initiating his administrative process, let alone exhausting it, Verbil’s Title VII claim also is 12 dismissed for lack of subject matter jurisdiction. Given the fundamentally fatal nature of the errors 13 14 leading to these dismissals, the court is persuaded that any leave to amend would be futile and therefore is denied. With both of the relevant claims dismissed based on procedural and 15 16 jurisdictional defects, the court does not reach the question of whether the federal defendants were 17 properly named in this suit. 18 IT IS SO ORDERED. 19 Dated: June 16, 2014 20 _________________________________ PAUL S. GREWAL United States Magistrate Judge 21 22 23 24 25 1 See Docket No. 13 at 3. 2 See Docket No. 13-1. 3 Myers-Desco v. Lowe's HIW, Inc., 484 F. App’x 169, 171 (9th Cir. 2012). 26 27 28 2 Case No. 5:14-cv-00661-PSG ORDER GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS

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