653 F.3d 1000 (9th Cir. 2011), 09-55203, Johnson v. Lucent Technologies Inc.

Docket Nº:09-55203.
Citation:653 F.3d 1000
Opinion Judge:B. FLETCHER, Circuit Judge:
Party Name:Russell H. JOHNSON, III, Plaintiff-Appellant, v. LUCENT TECHNOLOGIES INC.; Connecticut General Life Insurance Company, Erroneously Sued As Cigna Healthcare, Defendants-Appellees.
Attorney:William J. Kelley, III, and Pamela A. Kelley, Kelley & Kelley, Irvine, CA, for the plaintiff-appellant. Adrienne C. Publicover, Russell H. Birner, and Lawrence J. Rose, Wilson Elser Moskowitz Edelman & Dicker LLP, San Francisco, CA, for the defendants-appellees.
Judge Panel:Before: BETTY B. FLETCHER, STEPHEN REINHARDT, and KIM McLANE WARDLAW, Circuit Judges.
Case Date:August 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1000

653 F.3d 1000 (9th Cir. 2011)

Russell H. JOHNSON, III, Plaintiff-Appellant,

v.

LUCENT TECHNOLOGIES INC.; Connecticut General Life Insurance Company, Erroneously Sued As Cigna Healthcare, Defendants-Appellees.

No. 09-55203.

United States Court of Appeals, Ninth Circuit.

August 4, 2011

Argued and Submitted March 7, 2011.

As Amended Aug. 19, 2011.

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[Copyrighted Material Omitted]

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William J. Kelley, III, and Pamela A. Kelley, Kelley & Kelley, Irvine, CA, for the plaintiff-appellant.

Adrienne C. Publicover, Russell H. Birner, and Lawrence J. Rose, Wilson Elser Moskowitz Edelman & Dicker LLP, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Christina A. Snyder, District Judge, Presiding. D.C. No. 2:08-cv-06002-CAS-CT.

Before: BETTY B. FLETCHER, STEPHEN REINHARDT, and KIM McLANE WARDLAW, Circuit Judges.

OPINION

B. FLETCHER, Circuit Judge:

This case requires us to decide whether 42 U.S.C. § 1981 retaliation claims are

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governed by the four-year statute of limitations applicable to claims " arising under an Act of Congress enacted" after December 1, 1990, 28 U.S.C. § 1658, or by the personal injury statute of limitations of the forum state. Section 1981 retaliation claims were foreclosed by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and then made again possible by the Civil Rights Act of 1991. Because they arise under a post-December 1, 1990 Act of Congress, section 1981 retaliation claims are governed by the four-year statute of limitations under § 1658. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

BACKGROUND

I. Employment Relationship and Prior Litigation

Prior to 1986, Johnson, an African American, was employed by Lucent's predecessor, AT & T Bell Laboratories, in Pennsylvania.1 In 1986, Johnson took disability leave on grounds of mental disability. In 1987, Johnson was terminated.

In 1989, Johnson, pro se, sued Lucent for disability benefits in the District Court for the Eastern District of Pennsylvania. The court found Johnson eligible for long-term disability benefits under Lucent's benefit plan. Johnson was directed to place himself under the care of one of three recommended psychiatrists or under the care of a psychiatrist of his own choosing, if approved by Lucent or its plan administrator, and to provide proof, on a monthly basis, that he was engaged in an ongoing satisfactory treatment program. Lucent and its plan administrator retained the right to petition the court to terminate the benefits upon Johnson's failure to adhere to the terms of the order or upon any other just and sufficient cause.

Lucent did not comply with the order. In 1990, Johnson sued Lucent again. The Pennsylvania district court again found Johnson eligible for long-term disability benefits and ordered Lucent to pay Johnson disability benefits retroactively. Lucent was also ordered to pay the bills of Johnson's then-psychiatrist or such other psychiatrist as selected by Johnson. The court directed that the treating psychiatrist notify Lucent quarterly that Johnson was undergoing psychiatric treatment and that he was participating meaningfully in the treatment. Lucent retained the right to petition to terminate the benefits if such notice was not provided. The court's previous order otherwise remained in full force and effect except as amended by its current order.

In 2005, Johnson, pro se, sued Lucent and several individuals in Los Angeles County Superior Court for, inter alia, assault, battery, intentional infliction of emotional distress, and violations of the California Fair Employment and Housing Act, related to events that allegedly occurred in 1986. Lucent removed the case to the District Court for the Central District of California and moved to dismiss it for failure to state claims upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The district court granted the motion to dismiss, but twice granted Johnson leave to amend. Johnson took the opportunity to add numerous new claims. The district court dismissed all claims as time-barred. This court affirmed.

On June 13, 2006, while Johnson's case was pending before the California district court, Lucent filed a petition in Pennsylvania to terminate Johnson's disability benefits.

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Lucent alleged that since 2003, Johnson had failed to provide, in violation of the 1990 court order, quarterly documentation that he was receiving ongoing treatment. Lucent further alleged that since 2002, Johnson failed to provide medical evidence that he was under a physician's care and that he followed the recommended course of treatment, in violation of Lucent's long-term benefit plan.

In response, Johnson, again pro se, stated that he had been seeing a new doctor, Dr. Shamie, since 2003, but he had been having difficulty paying for treatment because the doctor was not an in-network provider under Lucent's health plan. Johnson provided, among other exhibits, a letter from Dr. Shamie, dated May 8, 2006, stating that Johnson had been under his care since August 2003. Also attached was a form completed by Dr. Shamie on June 21, 2006, describing Johnson's current condition as " still under the influence of thoughts of not trusting others," his diagnosis as " paranoid psychosis (NOS)," and his subjective symptoms as " being paranoid not trusting others. Thinking that there was a conspiracy from AT & T against him." 2 Johnson also provided a June 19, 2006, letter from the then-administrator of Lucent's plan informing him that it could not authorize reimbursement for Dr. Shamie's bills because the plan did not allow reimbursement for outpatient treatment with an out-of-network provider when in-network providers were available.

In September 2006, following a telephone conference with the parties, the Pennsylvania district court ordered Lucent to send Johnson the documents he and his psychiatrist needed to complete in order to comply with the court's 1989 and 1990 orders. It also ordered Johnson to complete and return the paperwork by November 6, 2006. Johnson failed to return the paperwork. On December 19, 2006, the court granted Lucent's petition to terminate Johnson's long-term disability benefits. In January 2007, Lucent stopped paying benefits.

Johnson appealed. In his notice of appeal, he stated that in July 2006, Dr. Shamie sent a form to Lucent's plan " which completed [his] file," and that Dr. Shamie refused to complete the new forms because he had already done so in July 2006. Johnson also stated that after the district court's September 2006 order, he saw two doctors, both of whom refused to complete the required forms.

On July 8, 2008, the Third Circuit denied Johnson's appeal. As relevant here, the Third Circuit noted that although Johnson contended that he provided forms to the plan in July 2006, he did not provide that information during the telephone conference preceding the district court's September 2006 order or at any time before the court entered its order terminating benefits.

Meanwhile, on June 6, 2008, Johnson filed a charge of discrimination against Lucent with the Equal Employment Opportunity Commission (" EEOC" ), which dismissed the case as untimely.

II. The Instant Action

On August 11, 2008, Johnson, pro se, filed the instant action in the Los Angeles County Superior Court against Lucent and the current administrator of his disability insurance benefits, Connecticut General, alleging retaliation in violation of Title VII3 and Section 19814 and intentional

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infliction of emotional distress (" IIED" ). Johnson alleged that, " [i]n retaliation for [his] filing suit against Lucent in 2005, Alcatel-Lucent stopped disability payments December 19, 2006 alleging that plaintiff did not provide a current disability form in 2006." Johnson claimed that a proper form had been in fact on file with the plan administrator.

Lucent and Connecticut General removed the case to the District Court for the Central District of California, then filed separate motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) and on statute of limitations grounds. The district court granted Lucent's motion to dismiss on the grounds that Johnson's Title VII claim was barred by his failure to file a timely charge with the EEOC, and that his § 1981 and IIED claims were time-barred under the relevant California statute of limitations, having been filed more than two years after the day when the petition to terminate benefits was filed. The court rejected Johnson's argument that the four-year statute of limitations in 28 U.S.C. § 1658(a) applies to his § 1981 claim. The court granted Johnson 30 days' leave to amend his complaint to plead fraud and medical malpractice and allege any grounds for equitable tolling or equitable estoppel.

Johnson filed an amended complaint. He added the Los Angeles Police Department (" LAPD" ) as a defendant and added claims for " medical benefits malpractice," " RICO charges," extortion, " psychiatric coercion," " malicious use of process," " discriminatory failure to rehire," and fraudulent concealment.

Defendants again moved to dismiss for failure to state a claim. The district court struck the claims against the LAPD and dismissed all of Johnson's other claims with prejudice. The court...

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