Stiefel v. Bechtel Corp., 06-CV-01414-H (WMC).

• Decision Date: 10 April 2007
• Docket Number: No. 06-CV-01414-H (WMC).,06-CV-01414-H (WMC).
• Citation: 497 F.Supp.2d 1138
• Parties: James Richard STIEFEL, Plaintiff, v. BECHTEL CORPORATION and Does 1-100, inclusive, Defendants.
• Court: U.S. District Court — Southern District of California

497 F.Supp.2d 1138

James Richard STIEFEL, Plaintiff, v. BECHTEL CORPORATION and Does 1-100, inclusive, Defendants.

No. 06-CV-01414-H (WMC).

United States District Court, S.D. California.

April 10, 2007.

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Marcus Jackson, Danz and Garber, San Diego, CA, for Plaintiff.

Thomas M. McInerney, Thelen Reid and Priest, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

HUFF, District Judge.

On July 13, 2006, defendant Bechtel Corporation ("Defendant") removed San Diego County Superior Court case Stiefel v. Bechtel, case number GIN053461, to this Court. (Doc. No. 1.) On December 27, 2006, plaintiff James Richard Stiefel ("Plaintiff') filed a first amended complaint ("FAC"). (Doc. No. 21.) On January 11, 2007, Defendant filed a motion to dismiss Plaintiff's FAC. (Doc. No. 22.) On February 12, 2007, Plaintiff filed an opposition. (Doc. No. 25.) On February 16, 2007, Defendant filed a reply. (Doc. No. 26.)

The Court held a hearing on Defendant's motion to dismiss on February 26, 2007. Attorney Marcus Jackson represented Plaintiff and attorney Thomas McInerney represented Defendant at the hearing. On February 27, 2007, the Court filed a scheduling order regarding supplemental briefing. (Doc. No. 28.) On March 9, 2007, Defendant filed a supplemental brief in support of its motion to dismiss. (Doc. No. 32.) Or March 19, 2007, Plaintiff filed a supplemental opposition to Defendant's motion to dismiss. (Doc. No. 34.) On March 21, 2007, Defendant filed a motion requesting the Court take judicial notice of certain facts. (Doc. No. 35.) On March 28, 2007, Plaintiff filed an opposition brief. (Doc. No. 37.)

For the following reasons, the, Court DISMISSES WITHOUT PREJUDICE Plaintiff's disability discrimination and retaliation claims to the extent that they are based on the ADA (claims two and three). The Court GRANTS WITH PREJUDICE Defendant's motion to dismiss Plaintiff's claims for wrongful termination in violation of public policy (claim one), disability discrimination and retaliation to the extent that they are based on the California Fair Employment Housing Act (claims two and three), violations of sections 98.6, 1102.5, 132a, 6402, 6403, and 6404 of California's Labor Code (claim four), negligent supervision (claim five), and intentional infliction of emotional distress (claim six). The Court GRANTS WITHOUT PREJUDICE Defendant's motion to dismiss Plaintiff's disability discrimination claim under the Rehabilitation Act (claim two), and Plaintiff's claims for violations of sections 6310 and 6311 of California's Labor Code.

Background

Plaintiff began working for Defendant at the San Onofre Nuclear Generating Station ("SONGS") as an ironworker in May 2004.¹ (FAC ¶ 7.) Defendant performs services at SONGS pursuant to a contract it has with Southern California Edison ("SCE"). (Id. ¶ 4.) In November 2005, Plaintiff reported to personnel employed by Defendant the names of people involved with an emergency boom lift malfunction. (Id. ¶¶ 9-14.) In December 2005, Plaintiff brought to the attention of his supervisor a cracked weld in a system designed to remove radioactive material from the containment building which housed the nuclear reactor. (Id. ¶ 15.) Plaintiff injured his left thumb while working for Defendant on January 31, 2006. (Id. ¶¶ 16, 17.) Plaintiff was laid off by Defendant in March 2006. (Id. ¶ 28.)

Subsequently, Plaintiff filed a charge of discrimination with the California Department of Fair Employment and Housing. (Id. ¶ 31.) In June 2006, Plaintiff filed a complaint in San Diego County Superior Court for wrongful termination in violation of public policy, failure to accommodate a disability, retaliation, violations of California's Labor Code, negligent supervision, and intentional infliction of emotional distress. (Compl. ¶¶ 1-74.) Defendant removed the suit to federal court. (Notice Removal, at 1-4.)

On December 13, 2006, the Court granted Plaintiff leave to amend his complaint. (Doc. No. 19.) On December 27, 2006, Plaintiff filed a FAC alleging wrongful termination in violation of public policy (claim one), disability discrimination under the California Fair Employment Housing Act, section 12940 et seq. of the California Gov. Code ("FEHA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Rehabilitation Act, 29 U.S.C. § 701 et seq. (claim two), retaliation under FEHA and the ADA (claim three), violations of California's Labor Code (claim four), negligent supervision (claim five), and intentional infliction of emotional distress (claim six). On January 11, 2007, Defendant filed a motion to dismiss Plaintiff's entire suit. (Def. Bechtel Corporation's Notice Mot. and Mot. Dismiss, at 1.)

On February 26, 2007, the Court held a hearing, on Defendant's motion to dismiss. At the hearing, Plaintiff's attorney Marcus Jackson stated that he did not have a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") regarding his ADA claims.

Discussion

A. Judicial Notice

Defendant requests the Court take judicial notice of the fact that SONGS is located on a federal enclave. Plaintiff states that he does not oppose Defendant's request because the evidence Defendant submitted demonstrates that the Court may properly take judicial notice that SONGS is a federal enclave.

A matter that is properly the subject of judicial notice may be considered along with the complaint when deciding a motion to dismiss for failure to state a claim. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986). Judicial notice may be taken of facts not subject to reasonable dispute in that they are "generally known" in the community or "capable of accurate and ready determination by reference to sources whose accuracy cannot be reasonably questioned." See Fed. R. Evid. 201(b).

In 1939, California consented to allow the United States to acquire by purchase or condemnation any track of land within the state for the purpose of erecting forts or other needful buildings. See Cal. Stats. 1939, ch. 710, § 1, p. 2231 (Decl. Thomas M. McInerney Supp. Def.'s Mot. Req. Judicial Notice, Ex. D). In 1942, the United States acquired Camp Pendleton through condemnation. See Law Enforcement at San Onofre Nuclear Generation Plant, 1 Op. Off. Legal Counsel 204, 204-05 (1977); see also Letter from James Forrestal, Under Secretary of the Navy, to Earl Warren, California Governor (Sept. 8, 1943) (on file in Official Recorder's Office of San Diego County, California) (Decl. Thomas M. McInerney Supp. Def.'s Mot. Req. Judicial Notice, Ex. E) ("The United States of America became vested with valid title to certain lands in San Diego County, California on December 31, 1942.... [F]or the establishment of Camp Joseph H. Pendleton. ...").

In 1963, Congress authorized the Secretary of the Navy to grant an easement allowing Southern California Edison Company and San Diego Gas and Electric Company to construct, operate, and maintain a nuclear electric generating station in Camp Pendleton Naval Reservation. See Act of July 30, 1963, Pub.L. No. 88-82, 77 Stat. 115. The U.S. Department of Justice has confirmed that SONGS is the nuclear generating plant authorized by Congress. See Law Enforcement at San Onofre Nuclear Generation Plant, supra, 1 Op. Off. Legal Counsel at 204-05 ("Camp Pendleton was acquired by the United States in 1942 through condemnation. Jurisdiction over the land was ceded by the State of California and accepted by the Secretary of the Navy on behalf of the United States. Thus, Camp Pendleton is within the exclusive territorial jurisdiction of the United States.... The San Onofre power plant is located within the reservation on a 60-year easement granted by the Navy Department in 1964 pursuant to Pub.L. 88-82, 77 Stat. 115.") (internal citations omitted); see also Cooper v. Southern California Edison Co., 170 Fed.Appx. 496, 497 (9th Cir.2006)² ("SONGS is located within a federal enclave, acquired by the United States in 1941 when it established Camp Pendleton.") (citing United States v. Fallbrook Pub. Util. Dist., 110 F.Supp. 767, 771 (S.D.Cal.1953)); Snow v. Bechtel Const. Inc., 647 F.Supp. 1514, 1515-16 (C.D.Cal. 1986) (taking judicial notice of the fact that SONGS is located within a federal enclave).

Furthermore, it is generally known in the community that Camp Pendleton is a United States Marine Corp Base under the jurisdiction of the federal government. Accordingly, the Court takes judicial notice of the fact that SONGS is located within the federal enclave of Camp Pendleton, which was acquired by the United States no later than December 31, 1942.

B. Legal Standards For A Motion To Dismiss

Defendant has moved to dismiss Plaintiff's entire suit against it under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. A motion to dismiss for failure to state a claim pursuant to section 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Rule 12(b)(6) permits dismissal of a claim either where that claim lacks a cognizable legal theory, or where insufficient facts are alleged to support plaintiff's theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering the sufficiency of a complaint under Rule 12(b)(6), courts cannot grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In resolving a Rule 12(b)(6) motion, the court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all wellpleaded factual allegations as true; and (3) determine whether plaintiff can prove...