XXX
XXX
Glendora, CA 91740
Plaintiff In Pro Per
Attorneys for Defendant
XXX PHARMACY SERVICES
MIDWEST, L.L.C. (erroneously sued as
8 “WALGREENS PHARMACY”)
| UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA |
|
| OMAR ANAS, an individual,
Plaintiff, Vs. Defendant |
Case No.:
MOTION AND MOTION IN OPPOSITION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT |
NOTICE TO THE DEFENDANT AND SPECIAL NOTICE TO THIS HONORABLE COURT,
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
This Motion is based on this Notice, the attached Memorandum of Points and Authorities, the pleadings herein, and on such further oral and documentary evidence as may be presented or judicially noticed at the hearing of this Motion.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
INTRODUCTION
Plaintiff, XXX pro se, hereby submits his opposition to Defendants’ Motion to Dismiss the Complaint. The Plaintiff’s Complaint not only meets but exceeds the standards governing the form of a complaint contemplated by Federal Rule of Civil Procedure 8(a), this Court has subject matter jurisdiction in this matter, and the Complaint makes sufficient allegations against the Defendant. Accordingly, the Defendants’ Motion should be denied.
STANDARD FOR A MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(6)
In ruling on Rule 12(b)(6) motion to dismiss, the Court must accept the factual allegations set forth in the Complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 1949, 173 L.Ed.2d 868 (2009). In addition, all reasonable inferences should be drawn in favor of the Plaintiff. Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.2003) (per curiam). Nonetheless, the Plaintiff must still meet some minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir.2004) (citations omitted). While “specific facts are not necessary,” the Complaint should’ “give the defendant fair notice of what the … claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the Plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).
Federal Rule of Civil Procedure 12(b)(l)
The district courts have subject matter jurisdiction in All civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Further, the district court should only rely on Rule 12(b)(1) ‘[i]f the facts necessary to sustain jurisdiction do not implicate the merits of the plaintiff’s cause of action.’ Morrison v. Amway Corp., 323 F.3d 920, 925 (11 Cir. 2003). “If a jurisdictional challenge does implicate the merits of the underlying claim then: The proper course of action for the district court … is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff’s case”. Id.
Leave to Amend
Leave to amend must be liberally granted, and when justice so requires. Fed. R. Civ. P. 15(a)(2). Also, DCD Programs L.t.d. v. Leighton, 833 F. 2d 183, 186 (9th Circuit 1987). Notably, “a liberal, pro-amendment ethos dominates the intent and judicial construction of Rule
15(a)”. Moore’s Federal Practice – Civil §15.14. “Absent prejudice…, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Besides, courts should be guided by policy favoring decisions on merit rather than on the pleadings or technicalities. United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).
The Standard Required of Pro Se Litigants
Courts “provide a pro se litigant with notice of the deficiencies in his or her complaint” to ensure that the litigant uses the opportunity to amend effectively. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). While a statement of deficiencies need not provide great detail or require district courts to act as legal advisors to pro se plaintiffs, district courts must draft a few sentences explaining the deficiencies. Noll, 809 F.2d at 1448-49.
The Supreme Court has instructed the federal courts to liberally construe the “inartful pleading” of pro se litigants. Boag v. MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 701, 70 L. Ed. 2d 551 (1982) (per curiam). “It is settled law that the allegations of [a pro se litigant’s complaint] ‘however inartfully pleaded’ are held ‘to less stringent standards than formal pleadings drafted by lawyers….’ ” Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 175, 66 L. Ed. 2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972)); see also Noll, 809 F.2d at 1448 (“Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.”); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (“we hold [plaintiff’s] pro se pleadings to a less stringent standard than formal pleadings prepared by lawyers.”). This rule is particularly important in civil rights cases. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Moreover, before dismissing an action, a court should always be certain that other, less drastic alternatives are not available. See Nevijel, 651 F.2d at 674. Eldridge’s status as a prisoner pro se plaintiff distinguishes his case from Jacksen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).
LEGAL ARGUMENT
- Discrimination
Plaintiff avers that his complaint sufficiently states his claim. Discrimination in the workplace can be alleged when: “the employer simply treats some people less favorably than others….” Mixon v. Fair Employment and Housing Com. 192 Cal.App.3d 1306, 1317 (1987). In this case, the Defendant’s Store Manager seemed to have a personal vendetta against the Plaintiff. A response like “Yeah, what do you think I have been doing” is inappropriate and unfavorable. Also, action of the Store Manager to yell to the Plaintiff and send him home (without a formal investigation) shows unfavorable the officer was and how she resented the Plaintiff.
It is trite law that a plaintiff in a discrimination case need only give a reasonable inference of discrimination. The court stated in that regard that, “While the elements of a plaintiff’s prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination. Once this much has been established, the burden of proof shifts to the employer to provide a legitimate non-discriminatory reason for” (emphasis mine). Sandell v. Taylor-Listug, Inc. 188 Cal. App. 4th 297, 310 (2010). The facts that the Plaintiff has provided in the Complaint suffice an allegation of discrimination, because the Plaintiff mentions instances where the Store Manager conducts acts of discrimination against him.
The Defendant alleges that the Plaintiff’s Complaint fails to sufficiently satisfy a discrimination claim. The Plaintiff maintains that a document filed pro se is ‘to be liberally construed,’ Erickson v. Pardus (2007) 551 U.S. 89, 94 and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Besides, Federal Rule of Civil Procedure 8(a) states that a complaint should contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and that “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). The Supreme Court has explained that a complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). “Specific facts are not necessary in a Complaint; instead, the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Epos Tech., 636 F. Supp.2d 57, 63 (D.D.C. 2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). Accordingly, Defendants’ Motion would be considered properly filed only “where a plaintiff’s complaint is ‘unintelligible (sic),’ not where a complaint suffers for ‘lack of detail.’” Epos Tech., 636 F. Supp. 2d at 63 (citations omitted).
Defendant also avers that the Plaintiff’s Complaint be dismissed for failure to exhaust administrative remedy. Plaintiff maintains that FEHA claims should not be dismissed for failure to exhaust. Exhaustion of administrative remedies before filing a Title VII action in federal Court is not a jurisdictional requirement. Rather, it is a precondition of a suit that may be subjected to equitable defenses. Fowlkes v. Ironworkers Local 40, No. 12-336-CV, (2d Cir. June 19, 2015). Therefore, equitable considerations may explain Plaintiff’s failure to exhaust the requirement of the FEHA. Such considerations warrant the Court to hear this claim on its merits and not dismissing it at this juncture. Besides, these principals must apply to avoid a technical forfeiture of meritorious claims. On the other hand, if the Court finds that the Plaintiff failed to exhaust administrative remedies with FEHA, the Court can offer alternative instructions on how the Plaintiff can best enforce his rights. Pelayo v. Los Angeles County Dept. of Children and Family Services, et al., 2012 WL 590780 (February 22, 2012).
For these reasons, Plaintiff’s Complaint on discrimination under the FEHA should not be dismissed.
- Wrongful Termination
A wrongful termination claim arises out of “the employer’s improper discharge of an employee” in an “employer-employee relationship”. Weinbaum v. Goldfarb (1996) 46 Cal.App.4th 1310, 1315. Further, “When an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170. Here, the Defendant improperly discharged the Plaintiff, without good reason. At least, the Defendant would have given the Plaintiff a notice of termination per Cal. Gov’t Code § 1400(1) (a), et seq. Here, the Store Manager yelled to the Plaintiff and sent him home immediately (without even a formal investigation).
The Plaintiff avers that the Defendant dismissed the Plaintiff in disregard of the obligation to have a good-faith interactive process with the Plaintiff. “Courts look for signs of failure to participate in good faith. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility…” Beck v. University of Wisconsin Bd. of Regents (7th Cir., 1996) 75 F.3d 1130, 1135-1136. In this case, it was incumbent upon the Defendants to follow the required protocol in dismissing the Plaintiff from the employment. The Defendant’s failure to do so demonstrates their liability for unfair/wrongful termination.
The Defendant argues that the Plaintiff’s Complaint fails because this claim is not founded on a fundamental public policy embodied in statutory or constitutional provisions. Plaintiff, in response, realleges the averments in A above. Accordingly, Plaintiff states that a complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” XXX. “Specific facts are not necessary in a Complaint; instead, the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Epos Tech., 636 F. Supp.2d 57, 63 (D.D.C. 2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
It is for the judge to determine whether the purported reason for firing the Plaintiff would amount to a violation of public policy. Gantt v. Sentry Insurance (1992)1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]. Further, “[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal. Rptr. 839, 610 P.2d 1330].
Notably, “The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” Yau v. Allen (2014) 229 Cal.App.4th 144, 154 [176 Cal.Rptr.3d 824]. The Plaintiff has duly met all of the said elements.
For these reasons, Plaintiff’s Complaint about unfair termination under the FEHA should not be dismissed.
CONCLUSION
In short, the Plaintiff’s Complaint Federal satisfies the requirements in Rule of Civil Procedure 8(a). Rule 8(a) provides in part that a pleading contain “ (1) a short and plain statement of the grounds for the court’s jurisdiction unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.” The Complaint contains all these requirements, and for that reason, the Defendant’s Motion should be denied.
DATED:
Respectfully submitted,
Signature
____________________
XXXX
In Pro Per
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing Complaint has been sent to all the Defendants in the following addresses:
[ENTER ADDRESSES FOR DEFENDANTS].
Signature
____________________
XXX
In Pro Per
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.
