Stoica v. McDonnell Douglas Helicopter Company ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicholas D. Stoica, No. CV-19-05288-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 McDonnell Douglas Helicopter Company, et al., 13 Defendants. 14 15 16 Pending before the Court are Defendant The Boeing Company’s (“Boeing”) Motion 17 to Dismiss (Doc. 42) and Plaintiff Nicholas Stoica’s “Motion Emergency” (Doc. 46), which 18 is construed as a Motion to Strike. For the following reasons, Defendant’s Motion is 19 granted and Plaintiff’s Motion is denied. 20 Also pending before the Court is Boeing’s Motion for Clarification (Doc. 59). 21 Boeing’s questions are addressed below. 22 BACKGROUND 23 Plaintiff has filed a complaint against Boeing, as successor-in-interest to McDonnell 24 Douglas Helicopters (“McDonnell Douglas”), for wrongful termination.1 Plaintiff claims 25 his employment with McDonnell Douglas was terminated on May 23, 1983 after the 26 company learned he was taking “prescribed percoset and Valium.” (Doc. 13 at 1.) Plaintiff 27 1 While the Amended Complaint does not clearly articulate the asserted claims, the parties 28 seem to agree that Plaintiff intended to assert a single cause of action for wrongful termination. 1 contends that other employees were taking similar drugs but “were allowed to work and 2 were not terminated.” Id. at 2. Plaintiff asserts that the actual reason for his termination 3 was “due to ‘Whistle Blowing.’” Id. Plaintiff explains he “made complaints to 4 McDon[nell] Douglas, the Federal government and other legal entities about unworthy 5 parts and aircraft” and was terminated after his last complaint. Id. Since leaving McDonnell 6 Douglas, Plaintiff alleges that he has been unable to find work due to being “black-balled 7 from the aeronautics industry” and that his physical and mental health has worsened due 8 to losing his income and medical benefits, leading to his “complete disability” since 1992. 9 Id. at 3. Plaintiff requests $37.6 million in damages for loss of income and pain and 10 suffering. 11 DISCUSSION 12 I. Motion to Dismiss 13 A. Legal Standard 14 A party may move to dismiss a complaint for “failure to state claim upon which 15 relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive dismissal for failure to state a 16 claim, a complaint must contain more than a “formulaic recitation of the elements of a 17 cause of action”; it must contain factual allegations sufficient to “raise the right of relief 18 above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 19 Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint for failure to state 20 a claim, “[a]ll allegations of material fact are taken as true and construed in the light most 21 favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). 22 Legal conclusions couched as factual allegations, however, are not given a presumption of 23 truthfulness, and “conclusory allegations of law and unwarranted inferences are not 24 sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 25 1998). 26 B. Statute of Limitations 27 The statute of limitations in Arizona for a wrongful termination claim, including 28 1 wrongful termination in retaliation for whistleblowing, is one year. A.R.S. § 12-541(4)2; 2 see also Kennedy v. Honeywell Aerospace, Inc., No. CV-05-3613-PHX-FJM, 2006 WL 3 1599608, at *1 (D. Ariz. June 5, 2006) (dismissing alleged whistleblower’s wrongful 4 termination claim, filed “well after the one-year period,” as barred by the statute of 5 limitations) (citing A.R.S. §§ 12-541(4), 23-1501(3)(c)(ii)). A wrongful termination claim 6 accrues when the plaintiff is terminated. Dugay v. JPMorgan Chase, No. CIV.06 1663 7 PHX RCB, 2006 WL 3792043, at *5 (D. Ariz. Dec. 20, 2006) (quoting Int’l Union of Elec. 8 Workers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 234–35 (1976)). 9 Accepting Plaintiff’s allegations as true, his wrongful termination claim began to 10 accrue on May 23, 1983; therefore, Plaintiff had until May 23, 1984 to bring this claim. 11 Accordingly, the statute of limitations for Plaintiff’s wrongful termination claim expired 12 over thirty years ago. Equitable tolling principles sometimes apply to extend the statute of 13 limitations period. See Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000) 14 (“Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain 15 vital information bearing on the existence of his claim.”). Plaintiff, however, has not made 16 an equitable tolling argument and the Court sees none from the facts alleged. 17 In his Response, Plaintiff does not dispute these conclusions. He merely asserts that 18 his amended complaint incorrectly stated his termination date as May 23, 1983 when it was 19 in fact May 23, 1986. Plaintiff also confirms that he has previously brought suits 20 concerning the same facts alleged here. This Court dismissed Plaintiff’s first suit on these 21 facts in 1995, see Stoica v. McDonnell Douglas, No. 2:95-cv-1123-PHX-EHC (D. Ariz. 22 dismissed Dec. 22, 1995), and according to Plaintiff, the second action was dismissed 23 without prejudice in 1999. Even assuming Plaintiff could amend his complaint in his 24 2 The applicable statute of limitations is the one in effect when the suit is filed. See A.R.S. § 12-505(B) (“If an action is not barred by pre-existing law, the time fixed in an amendment 25 of such law shall govern the limitation of the action”); see also City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 105 P.3d 1163 (2005) (“The most reasonable 26 reading of each of the provisions of § 12–505 is that each was meant to apply to suits filed after the effective date of a new statute of limitations and to specify what statute of 27 limitations would now apply. As to claims filed before the effective date of the new statute, absent an express legislative statement to the contrary, the law in effect at the time of filing 28 applies.”). 1 Response,3 these amendments do not save Plaintiff’s claim from being time barred. The 2 amended termination date does not place the current complaint anywhere near the one-year 3 statute of limitations, and the previous suits on the same facts confirm this action is not 4 based on newly discovered information potentially eligible for equitable tolling. Boeing’s 5 Motion to Dismiss is granted. 6 II. Motion to Strike 7 In response to Plaintiff’s Amended Complaint, Defendant The Industrial 8 Commission of Arizona (the “ICA”) filed a Motion to Dismiss for Failure to State a Claim. 9 The Motion was stricken for failure to certify an attempt to confer with Plaintiff in 10 accordance with LRCiv 12.1(c). The ICA subsequently filed an Answer to Plaintiff’s 11 Amended Complaint. Plaintiff now moves to strike ICA’s Answer for failure to notify him 12 of its response in accordance with LRCiv 12.1(c). Plaintiff’s argument is misplaced, 13 however, because LRCiv 12.1(c) does not apply to Answers; it applies only to motions to 14 dismiss for failure to state a claim or motions for judgment on the pleadings. See LRCiv 15 12.1(c). Because Plaintiff has not raised a basis to strike ICA’s Answer, Plaintiff’s Motion 16 is denied. 17 III. Motion for Clarification 18 While Boeing’s Motion to Dismiss was pending, Plaintiff filed a “Motion for 19 Extension on Opening Brief”, (Doc. 53), and an “Application for Entry of Default” against 20 McDonnel Douglas, (Doc. 55). The Court granted Plaintiff’s Motion for Extension and the 21 Clerk of Court entered default as to McDonnell Douglas. 22 Boeing asks the Court to clarify how it interpreted “Opening Brief” as used in 23 Plaintiff’s Motion and why default was entered against McDonnel Douglas when Boeing 24 timely appeared as its successor in interest. First, the entry of default was improperly 25 entered due to a clerical error and will be vacated. With respect to Plaintiff’s Motion for 26 3 Plaintiff filed an amended complaint incorporating these amendments concurrently with 27 his Response to Boeing’s Motion to Dismiss. The second amended complaint was improperly filed without leave from the Court or consent from the opposing parties. See 28 Fed. R. Civ. P. 15(a). However, as stated above, even assuming the amended complaint was properly filed, it fails to allege any facts that alter the Court’s conclusion. Extension on Opening Brief, the Court, without checking the docket, erroneously 2|| interpreted Plaintiff's Motion as a request for extension to Respond to this motion. 3 || Nevertheless, that conclusion was wrong as Plaintiff had already responded to this motion 4|| as of the time he had filed his request to extend. As no opening brief, is at present indicated 5 || in the proceedings, and as Defendant is being dismissed, the opening brief is stricken. || Defendant Boeing need take no action with respect to it. Accordingly, 7 IT IS HEREBY ORDERED directing the Clerk of Court to vacate the Entry of 8 || Default (Doc. 57). 9 IT IS FURTHER ORDERED that Defendant Boecing’s Motion to Dismiss (Doc. 42) is GRANTED. Defendant Boeing, successor-in-interest to McDonnell Douglas 11 || Helicopters is dismissed with prejudice. 12 IT IS FURTHER ORDERED that Plaintiff's “Motion Emergency,” construed as 13 || a Motion to Strike (Doc. 46), is DENIED. 14 IT IS FURTHER ORDERED granting Defendant Boeing’s Motion for || Clarification (Doc. 59). 16 IT IS FURTHER ORDERED directing the Clerk of Court to strike □□□□□□□□□□□ □□ Opening Brief (Doc. 60). 18 Dated this 30th day of June, 2020. 19 W, 20 A Whacrsay Fotos 9] Chief United States District Judge 22 23 24 25 26 27 28 _5-