Keimbaye v. Group Health Cooperatives/Kaiser Permanente et al

Filing 26

ORDER granting Defendants' #14 Motion to Dismiss ; All Plaintiff's claims are DISMISSED without prejudice, signed by Judge Marsha J. Pechman.(SWT) (cc: Plaintiff via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DOMINIQUE M. KEIMBAYE;
Plaintiff,

Case No. C17-963MJP
ORDER GRANTING MOTION TO
DISMISS

v.
GROUP HEALTH COOPERATIVES/
KAISER PERMANENTE, ET AL.,
Defendants.

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This matter comes before the Court on Defendants’ Motion to Dismiss pursuant to

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Federal Rules of Civil Procedure 12(b)(1), (5) and (6). Dkt. #14. Plaintiff Dominique Keimbaye

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opposes the Motion. Dkt. #22.

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The Court has reviewed Defendants’ Motion and the remainder of the record and finds

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that dismissal without prejudice is warranted. The Court need not discuss the underlying facts

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of this case to reach this conclusion. Defendants are correct that Plaintiff’s Complaint does not

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establish subject matter jurisdiction. There are no allegations that could be construed to support

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diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). There is also no claim establishing federal

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question jurisdiction under 28 U.S.C. § 1331, for example a claim under Title VII of the Civil

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Rights Act. Plaintiff’s nebulous citation to “federal and State labor laws” in the Complaint is

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insufficient, see Dkt. #1 at 2, and Defendants are correct that a claim for an unfair labor practice

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under federal labor law would require Plaintiff to show that he brought such a claim to the NLRB

ORDER GRANTING MOTION TO DISMISS - 1

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prior to filing this suit, see Dkt. #14 at 6-7. Although Plaintiff argues in Response that he is

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bringing a Title VII claim, Dkt. #22 at 2, this claim is not contained in his Complaint as required.

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Further, Defendants argue on Reply that “[a]llowing Plaintiff to amend his Complaint to plead a

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cause of action under Title VII will not cure the subject matter defect since it is clear that Plaintiff

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has not first exhausted his administrative remedies [through the EEOC].” Dkt. #23 at 3. The

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Court agrees with Defendants. This case can be dismissed in its entirety based solely on a lack

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of subject matter jurisdiction.

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Alternatively, the Court dismisses for failure to properly serve. Defendants argue that
service was improper because Plaintiff personally served Defendants and because Plaintiff

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apparently served a person who was not authorized to accept service on behalf of any of the

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named Defendants. Dkt. #14 at 7-8. Plaintiff appears to tacitly admit these failures of service.

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Dkt. #22 at 5.

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otherwise did not rise to the requirements of Rules 4(e) for individuals and 4(h) for corporations.

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The Court agrees that Plaintiff’s method of service violated Rule 4(c)(2) and

See Dkt. #14 at 8–9.

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Accordingly, the Court hereby finds and ORDERS:

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1) Defendants’ Motion to Dismiss (Dkt. #14) is GRANTED for the reasons stated above.

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2) All of Plaintiff’s claims are DISMISSED without prejudice.

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3) This case is CLOSED.

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DATED this _5th_ day of September , 2017.

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A

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Marsha J. Pechman
United States District Judge

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ORDER GRANTING MOTION TO DISMISS - 2

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ORDER GRANTING MOTION TO DISMISS - 3