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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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 10 11 12 13 DOMINIQUE M. KEIMBAYE; Plaintiff, Case No. C17-963MJP ORDER GRANTING MOTION TO DISMISS v. GROUP HEALTH COOPERATIVES/ KAISER PERMANENTE, ET AL., Defendants. 14 This matter comes before the Court on Defendants’ Motion to Dismiss pursuant to 15 Federal Rules of Civil Procedure 12(b)(1), (5) and (6). Dkt. #14. Plaintiff Dominique Keimbaye 16 17 opposes the Motion. Dkt. #22. 18 The Court has reviewed Defendants’ Motion and the remainder of the record and finds 19 that dismissal without prejudice is warranted. The Court need not discuss the underlying facts 20 of this case to reach this conclusion. Defendants are correct that Plaintiff’s Complaint does not 21 establish subject matter jurisdiction. There are no allegations that could be construed to support 22 23 diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). There is also no claim establishing federal 24 question jurisdiction under 28 U.S.C. § 1331, for example a claim under Title VII of the Civil 25 Rights Act. Plaintiff’s nebulous citation to “federal and State labor laws” in the Complaint is 26 insufficient, see Dkt. #1 at 2, and Defendants are correct that a claim for an unfair labor practice 27 28 under federal labor law would require Plaintiff to show that he brought such a claim to the NLRB ORDER GRANTING MOTION TO DISMISS - 1 1 prior to filing this suit, see Dkt. #14 at 6-7. Although Plaintiff argues in Response that he is 2 bringing a Title VII claim, Dkt. #22 at 2, this claim is not contained in his Complaint as required. 3 Further, Defendants argue on Reply that “[a]llowing Plaintiff to amend his Complaint to plead a 4 cause of action under Title VII will not cure the subject matter defect since it is clear that Plaintiff 5 6 has not first exhausted his administrative remedies [through the EEOC].” Dkt. #23 at 3. The 7 Court agrees with Defendants. This case can be dismissed in its entirety based solely on a lack 8 of subject matter jurisdiction. 9 10 11 Alternatively, the Court dismisses for failure to properly serve. Defendants argue that service was improper because Plaintiff personally served Defendants and because Plaintiff 12 apparently served a person who was not authorized to accept service on behalf of any of the 13 named Defendants. Dkt. #14 at 7-8. Plaintiff appears to tacitly admit these failures of service. 14 Dkt. #22 at 5. 15 otherwise did not rise to the requirements of Rules 4(e) for individuals and 4(h) for corporations. 16 17 The Court agrees that Plaintiff’s method of service violated Rule 4(c)(2) and See Dkt. #14 at 8–9. 18 Accordingly, the Court hereby finds and ORDERS: 19 1) Defendants’ Motion to Dismiss (Dkt. #14) is GRANTED for the reasons stated above. 20 2) All of Plaintiff’s claims are DISMISSED without prejudice. 21 3) This case is CLOSED. 22 23 DATED this _5th_ day of September , 2017. 24 26 A 27 Marsha J. Pechman United States District Judge 25 28 ORDER GRANTING MOTION TO DISMISS - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO DISMISS - 3

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