Kannan v. Apple Inc.
Filing
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ORDER GRANTING 13 DEFENDANT APPLE INC.'S MOTION TO DISMISS WITH LEAVE TO AMEND. Signed by Judge Edward J. Davila on 4/19/2018. (ejdlc2S, COURT STAFF) (Filed on 4/19/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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RAJA KANNAN,
Case No. 5:17-cv-07305-EJD
Plaintiff,
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ORDER GRANTING DEFENDANT
APPLE INC.’S MOTION TO DISMISS
WITH LEAVE TO AMEND
v.
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APPLE INC.,
Re: Dkt. No. 13
United States District Court
Northern District of California
Defendant.
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Plaintiff Raja Kannan (“Plaintiff”) filed this lawsuit against Defendant Apple Inc.
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(“Defendant”), alleging employment discrimination in violation of the Americans with Disabilities
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Act (“ADA”) and California Fair Employment and Housing Act (“FEHA”). Dkt. No. 1
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(“Compl.”). Defendant now moves to dismiss Plaintiff’s claims under Federal Rule of Civil
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Procedure 12(b)(1) for lack of subject matter jurisdiction and, alternatively, under Federal Rule of
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Civil Procedure 12(b)(6) for failure to state a claim. For the foregoing reasons, Defendant’s
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motion is GRANTED.
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I.
BACKGROUND
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According to the allegations in the Complaint, Plaintiff began his employment with
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Defendant on August 29, 2011 as an SCM Build & Release Engineer, level IC4. Compl. ¶ 10. In
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the fall of 2013, Plaintiff internally interviewed for an IS&T Project Manager position with a team
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managed by Joseph Kotni. Id. ¶ 12. As part of the interview, Plaintiff disclosed that he had an
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autistic son and that he needed flexible working hours to provide care. Id. Plaintiff was offered
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the position at his same IC4 level and began work in this new position on November 3, 2014. Id.
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Case No.: 5:17-cv-07305-EJD
ORDER GRANTING APPLE INC.’S MOTION TO DISMISS WITH LEAVE TO AMEND
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¶ 13. Plaintiff alleges that he had asked whether he could start this position at the IC5 level, but
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Defendant declined this request. Id.
Over the course of the next few years, Plaintiff received some upward adjustments in his
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compensation, but was never promoted to the IC5 level. Id. ¶¶ 14-16. Nevertheless, Plaintiff
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alleges, Mr. Kotni did hire at least three external people between 2015-17 who were given a level
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of IC5 or higher. Id. ¶ 20. Plaintiff also alleges that Mr. Kotni purposefully gave him lower
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ratings in his internal reviews so that he would not receive as many Apple Restricted Stock Units
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(“RSU”) as his peers. Id. ¶ 21. Plaintiff asserts that, cumulatively, these decisions resulted in a
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33% reduction in compensation over what he otherwise would have been entitled to. Id. ¶ 22.
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Plaintiff filed an administrative complaint of discrimination with the California
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United States District Court
Northern District of California
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Department of Fair Employment and Housing (“DFEH”) on April 5, 2016. Id. ¶ 5. The DFEH
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marked his complaint as received and dual-filed it with the Equal Employment Opportunity
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Commission (“EEOC”) on May 10, 2016. Id. ¶¶ 6-7. On December 27, 2016, the DFEH sent
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Plaintiff a right to sue letter. Id. ¶ 8. The letter notified Plaintiff that, should he file suit, “[t]he
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civil action must be field within one year from the date of this letter.” DFEH Right to Sue Letter
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(“DFEH Letter”), Dkt. No. 1 at 10-12.
On December 26, 2017, 364 days later, Plaintiff filed the instant suit. Compl. In his
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Complaint, Plaintiff alleges two causes of action: (1) discrimination in violation of the ADA; and
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(2) discrimination in violation of the California FEHA. Compl. ¶¶ 24-41. Defendant responded
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with the instant motion to dismiss. Mot. to Dismiss (“MTD”), Dkt. No. 13.
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II.
LEGAL STANDARDS
A Rule 12(b)(1) motion challenges a court’s subject matter jurisdiction and may be either
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facial or factual. Fed. R. Civ. P. 12(b)(1); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
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When a defendant makes a facial challenge, as in this case, all material allegations in the
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complaint are assumed true, and the court must determine whether lack of federal jurisdiction
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appears from the face of the complaint itself. Wolfe, 392 F.3d at 362. Standing can be properly
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challenged through a Rule 12(b)(1) motion. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
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Case No.: 5:17-cv-07305-EJD
ORDER GRANTING APPLE INC.’S MOTION TO DISMISS WITH LEAVE TO AMEND
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Since standing is “an indispensable part of the plaintiff’s case, each element must be supported in
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the same way as any other matter on which the plaintiff bears the burden of proof.” Lujan v.
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Defenders of Wildlife, 504 U.S. 555, 561 (1992).
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of claims alleged in the
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complaint. Fed. R. Civ. P. 12(b)(6); Parks School of Business, Inc. v. Symington, 51 F.3d 1480,
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1484 (9th Cir. 1995). Dismissal “is proper only where there is no cognizable legal theory or an
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absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250
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F.3d 729, 732 (9th Cir. 2001). The complaint “must contain sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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United States District Court
Northern District of California
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III.
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DISCUSSION
A.
Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)
Defendant seeks to dismiss Plaintiff’s claims under Rule 12(b)(1) for lack of subject matter
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jurisdiction on the theory that Plaintiff’s ADA claim is time-barred and the Court lacks subject
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matter jurisdiction over the Plaintiff’s remaining state law (FEHA) claim because the parties are
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not diverse. MTD. For the reasons discussed below, the Court agrees.
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i.
Plaintiff’s ADA Claim is Time-Barred
A Title VII1 plaintiff must file a charge with the EEOC within 180 days or with a state or
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local agency within 300 days after the allegedly discriminatory act before seeking federal
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adjudication of his claim. 42 U.S.C. § 2000e-5(b), (f)(1), (e)(1); MacDonald v. Grace Church
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Seattle, 457 F.3d 1079, 1081-82 (9th Cir. 2006); see also E.E.O.C. v. Farmer Bros. Co., 31 F.3d
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891, 899 (9th Cir. 1994). A plaintiff generally has 90 days to file suit in federal court after
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receiving an EEOC or state agency right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); Stiefel v. Bechtel
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Corp., 624 F.3d 1240, 1245 (9th Cir. 2010). This 90-day filing period acts as a statute of
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limitations on an ADA claim. Stiefel, 624 F.3d at 1245 (quoting Valenzuela v. Kraft, 801 F.2d
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The ADA adopts the “powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5,
2000e-6, 2000e-8, and 2000e-9.” 42 U.S.C. § 12117(a).
Case No.: 5:17-cv-07305-EJD
ORDER GRANTING APPLE INC.’S MOTION TO DISMISS WITH LEAVE TO AMEND
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1170, 1174 (9th Cir. 1986)).
Here, Plaintiff filed his Complaint on December 26, 2017, 364 days after the DFEH issued
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its right to sue letter. Compl. Thus, Plaintiff failed to file suit within the 90-day filing period and
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his ADA claim is time-barred. That the DFEH, not the EEOC, issued the right-to-sue letter is of
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no consequence. As the Ninth Circuit has explained, “where . . . a plaintiff is entitled to receive a
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right-to-sue letter from the EEOC, a plaintiff may proceed absent such a letter, provided []he has
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received a right-to-sue letter from the appropriate state agency.” Surrell v. California Water Serv.
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Co., 518 F.3d 1097, 1105 (9th Cir. 2008).2 This is because, under “Worksharing Agreements”
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between the EEOC and the DFEH (the “appropriate state agency” here), the DFEH was the agent
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for the EEOC “for the purpose of receiving . . . charges” and thus, “a charge filed with the DFEH
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United States District Court
Northern District of California
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‘is deemed to have been received by the EEOC on the same day.’” See Stiefel v. Bechtel Corp.,
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624 F.3d 1240, 1244 (9th Cir. 2010). Thus, from the time Plaintiff received the right to sue letter
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from the DFEH on December 26, 2017, he was eligible to proceed with his ADA claim. This was
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sufficient to trigger the 90-day clock.
“[T]he 90-day filing period is a statute of limitations subject to equitable tolling in
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appropriate circumstances.” Stiefel, 624 F.3d at 1245 (quoting Valenzuela, 801 F.2d at 1174).
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“The purpose of the statute, the notice to defendant, and the diligence demonstrated by the
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plaintiff determine the availability of tolling[.]” Valenzuela, 801 F.2d at 1175.
Here, Plaintiff argues that the Court should equitably toll the statute of limitations to
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November 30, 2017, the date the DFEH responded to his second-level appeal. Opp. 4. Plaintiff
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offers no factual or legal basis, however, for tolling the 90-day limit based on this event.
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Nevertheless, the Court notes that other courts in this District have tolled the 90-day period based
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on other broader equitable considerations. See, e.g., Cha v. Kaiser Permanente, No. C-14-4672-
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EMC, 2015 WL 3758287, at *7 (N.D. Cal. May 6, 2015) (tolling 90-day period based on DFEH
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letter to pro-se plaintiff which was “arguably ambiguous or misleading” because it “clearly
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Although Surrell was a Title VII case, “[t]he procedural analysis of Surrell applies to the instant
suit under the ADA.” Stiefel v. Bechtel Corp., 624 F.3d 1240, 1245 (9th Cir. 2010).
Case No.: 5:17-cv-07305-EJD
ORDER GRANTING APPLE INC.’S MOTION TO DISMISS WITH LEAVE TO AMEND
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state[d] that [the plaintiff] ha[d] one year to file an action under California law, but sa[id]
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absolutely nothing about the relevant limitations period under Federal law”). However, Plaintiff
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does not make any factual allegations regarding whether these same principles apply here, such as
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whether and to what extent he diligently pursued his claim, whether and to what extent he could
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have been misinformed or mislead, and whether and to what extent he relied on any alleged
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misinformation. See Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2002)
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(“[E]quities favor a discrimination plaintiff who (1) diligently pursued his claim; (2) was
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misinformed or misled by the administrative agency responsible for processing his charge; (3)
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relied in fact on the misinformation or misrepresentations of that agency . . . ; and (4) was acting
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pro se at the time”), followed by Cha, No. C-14-4672-EMC, 2015 WL 3758287, at *6. Plaintiff
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United States District Court
Northern District of California
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also does not make any factual allegations regarding more general factors which could weigh in
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favor of equitable tolling. See Valenzuela, 801 F.2d at 1175 (“The purpose of the statute, the
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notice to defendant, and the diligence demonstrated by the plaintiff determine the availability of
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tolling[.]”). Accordingly, the Court must deny Plaintiff’s request at this stage.
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Because Plaintiff failed to file suit within the 90-day filing period, his ADA claim is time
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barred and DISMISSED, but WITH LEAVE TO AMEND to include factual allegations which
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would support equitably tolling the 90-day period, as appropriate.
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ii.
The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Remaining
State Law Claim
Plaintiff’s second cause of action, alleging violation of the California FEHA, is a state law
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claim. Thus, there is no federal question jurisdiction under 28 U.S.C. § 1331. In addition,
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according to the allegations in the Complaint, Plaintiff and Defendant are citizens of the same
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state. Compl. ¶¶ 3-4. Thus, there is no diversity jurisdiction under 28 U.S.C. § 1332. As such,
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the Court lacks original jurisdiction over Plaintiff’s FEHA claim.
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Plaintiff nevertheless argues that diversity jurisdiction exists because Plaintiff’s family
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owns a home in New York. Opp. 5. Plaintiff also asserts that he currently lives in India. Id.
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However, none of these facts are alleged in the Complaint. Accordingly, the Complaint fails on its
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Case No.: 5:17-cv-07305-EJD
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face to establish that diversity jurisdiction exists. Wolfe, 392 F.3d at 362 (“In a facial attack, the
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challenger asserts that the allegations contained in a complaint are insufficient on their face to
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invoke federal jurisdiction.”); cf. Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1
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(9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look
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beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a
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defendant’s motion to dismiss.”). If Plaintiff wishes to pursue diversity jurisdiction on a theory
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that he is not a citizen of California, he must include these allegations in his complaint.
Because, as currently plead, the Court lacks original jurisdiction, his FEHA claim is
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DISMISSED, but WITH LEAVE TO AMEND to add allegations regarding diversity of
citizenship, as appropriate.
United States District Court
Northern District of California
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iii.
Plaintiff’s Supplemental Briefing Does Not Alter This Result
Plaintiff has also filed a supplemental brief, to which he attaches a copy of a right-to-sue
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letter which he received from the EEOC on February 28, 2018. Dkt. No. 21. The Court has
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considered Plaintiff’s arguments and finds them unpersuasive. The Complaint makes no
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allegations regarding this new letter and Plaintiff makes no request for judicial notice; thus, it falls
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outside the Court’s consideration for this motion to dismiss. See Wolfe, 392 F.3d at 362.
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Moreover, even if the Court were to consider it, it is of no consequence because, as discussed
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above, the DFEH Letter was sufficient to trigger the 90-day period. Accordingly, Plaintiff’s
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supplemental briefing does not alter the Court’s conclusions.
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B.
Failure to State a Claim Under Rule 12(b)(6)
Because the Court has dismissed Plaintiff’s claims for lack of subject matter jurisdiction
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under Rule 12(b)(1), it need not reach Defendant’s challenges under Rule 12(b)(6).
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IV.
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ORDER
For the reasons set forth above, Plaintiff’s motion to dismiss is GRANTED. All claims in
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the Complaint are DISMISSED WITH LEAVE TO AMEND. Any amended complaint must be
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filed on or before May 10, 2018, and must be consistent with the discussion above.
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Case No.: 5:17-cv-07305-EJD
ORDER GRANTING APPLE INC.’S MOTION TO DISMISS WITH LEAVE TO AMEND
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IT IS SO ORDERED.
Dated: April 19, 2018
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EDWARD J. DAVILA
United States District Judge
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United States District Court
Northern District of California
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Case No.: 5:17-cv-07305-EJD
ORDER GRANTING APPLE INC.’S MOTION TO DISMISS WITH LEAVE TO AMEND
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