Ungureanu v. A. Teichert & Son, No. CIV S-11-0316 LKK GGH PS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtGregory G. Hollows
Decision Date12 October 2011
PartiesDANIEL UNGUREANU, et al., Plaintiffs, v. A. TEICHERT & SON, et al., Defendants.
Docket NumberNo. CIV S-11-0316 LKK GGH PS

DANIEL UNGUREANU, et al., Plaintiffs,
A. TEICHERT & SON, et al., Defendants.

No. CIV S-11-0316 LKK GGH PS


DATED: October 12, 2011


Presently pending before the court are motions to dismiss filed by defendants Thomas Anthony, Jr.; York Insurance Services Group, Inc.-California ("York"); A. Teichert & Son, Inc. ("Teichert"); Goldman, Magdalin & Kikes LLP; Frazier ("Goldman Defendants"); Smolich & Smolich, and Robert Smolich ("Smolich Defendants"); and Mark Shelub, M.D., as well as motions to strike filed by defendants York; Teichert; Goldman Defendants; and Shelub, previously submitted without oral argument. In conjunction with these motions, plaintiffs have filed a request for judicial notice, as have the Smolich defendants. Having reviewed the papers on support of and in opposition to the motions, the court now issues the following findings and recommendations.


Plaintiffs Daniel and Elizabeth Ungureanu are proceeding pro se and have paid the filing fee. This action is proceeding on the first amended complaint ("FAC"), filed February

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10, 2011. Daniel Ungureanu claims that his employer, Teichert, discriminated against him and subjected him to adverse treatment because of his nationality as a Romanian immigrant, and then terminated him. He also claims he was subject to retaliation for his complaints of workplace violations. He claims he was working as a certified heavy equipment operator in May, 2004, when a co-worker intentionally bumped into him while he was operating a scraper, causing neck and back injuries. Although plaintiff reported the incident to his foreman, the foreman did not file an incident report, and the co-worker was not trained or disciplined. (FAC ¶ 16.) The FAC alleges multiple incidents of similar improper behavior by co-workers which caused plaintiff injury, but for which Teichert allegedly took no action. (Id. at ¶¶ 17, 18, 19, 20.) Eventually, plaintiff was so injured from being rammed on three separate occasions that his last day of work was July 11, 2005. (Id. at ¶ 20.) Plaintiff received many years of medical treatment through the Worker's Compensation system as a result, and alleges that the QME reports of defendant Dr. Shelub either were improperly influenced by Teichert's adjuster, Bragg & Associates,1 and its defense attorney, Goldman and Mr. Frazier, or were changed based on the improper interference of these defendants. As a result, plaintiff's disability rating decreased from 50 percent to 28 percent, which is what plaintiff's workers' compensation attorney, defendant Smolich, indicated it would be.2 (Id. at ¶ 22.)


I. Requests for Judicial Notice

Both plaintiffs and the Smolich defendants have filed requests for judicial notice. (Dkt. nos. 22, 39.) Defendants have opposed plaintiffs' request for judicial notice. (Dkt. no. 47.) The Smolich defendants request judicial notice of their Exhibits A, B, and C, which are a

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Substitution of Attorneys in plaintiff's matter before the WCAB, dated August 10, 2005, a Petition to be Relieved as Attorney of Record for plaintiff in his matter before the WCAB, dated June 20, 2008, and an order relieving these defendants as counsel of record for plaintiff in that matter, dated July 14, 2008. Plaintiffs request judicial notice of 57 documents totaling over 200 pages from their matter before the WCAB.

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). However, not all court records are equal with respect to the ability to take judicial notice. The sine qua non for any judicial notice request is that the information sought to be noticed is of a character that is generally known, or cannot reasonably be disputed. Fed. R. Ev. 210(b). Thus, for example, the facts contained in a declaration opposing a summary judgment found in another case file could not normally be judicially noticed because those facts, with infrequent exception, would not be generally known, nor would they be facts which could not be reasonably disputed. However, the fact that a declarant uttered such facts (whether true or not) in a declaration which was filed could not be reasonably disputed assuming that proper authentication was performed. Judicial notice could be taken of the declaration in this latter example.

Because the Smolich defendants' exhibits (substitution/withdrawal of counsel) are clearly administrative court records whose accuracy cannot be reasonably doubted, i.e., their relevance is that they were filed, and are authenticated by the sworn declaration of Robert Lucas, their request for judicial notice is granted. However, it is not readily apparent that plaintiff's documents are all court records as they are submitted without foundation, and especially that the facts contained therein are not reasonably subject to dispute. It is unclear what relevance plaintiffs seek to attach to the documents. Plaintiffs have not submitted a declaration attesting that the documents are what they purport to be. Furthermore, not all of the documents are court records and it is impossible to determine if they were in fact submitted in connection with the

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Workers' Compensation proceeding. See e.g. Ex. 1 (Report of Dr. Shelub, dated March 18, 2007). In any event, none of the documents for which plaintiffs request judicial notice are necessary to determine the motions. Therefore, plaintiffs' request for judicial notice is denied.

II. Legal Standards

A. Rule 12(b)(6) - Failure to State a Claim

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).

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The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

B. Rule 12(b)(1) - Subject Matter Jurisdiction

On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).

First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the...

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