Glick v. Chukchansi Financial Company, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAULA S. GLICK, No. 1:20-cv-01074-DAD-HBK 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 CHUKCHANSI FINANCIAL COMPANY, LLC, et al., (Doc. No. 10) 15 Defendants. 16 17 18 This matter is before the court on the motion to dismiss filed by defendants Chukchansi 19 Finance Company, LLC, Chukchansi Economic Development Authority, Inc., and Peter Garza 20 (collectively “defendants”) on September 15, 2020.1 (Doc. No. 10.) Pursuant to General Order 21 No. 617 addressing the public health emergency posed by the COVID-19 pandemic, defendants’ 22 motion was taken under submission on the papers. (Doc. No. 12.) For the reasons explained 23 below, the court will grant the pending motion to dismiss. 24 ///// 25 ///// 26 1 In her complaint, plaintiff identifies defendant Chukchansi Finance Company, LLC, as 27 “Chukchansi Financial Company, LLC” and defendant Chukchansi Economic Development Authority, Inc. as “Picayune Rancheria C.E.D.A.” Defendants assert that plaintiff has 28 misidentified them in her complaint. (Doc. No. 10-1 at 7.) 1 BACKGROUND 2 On August 3, 2020, plaintiff, who is proceeding pro se, filed her complaint against 3 defendants. (Doc. No. 1.) Therein, plaintiff alleges the following. Plaintiff worked for the 4 Chukchansi Gold Resort and Casino (“the Resort”) for over ten years from July 2008 until August 5 2020. (Id. at 8.) She was employed in a senior position at the Resort’s “Steak and Seafood” 6 restaurant. (Id.) Throughout 2018, there were unsafe working conditions that violated the 7 Occupational Safety and Health Act (“OSHA”). (Id.) Specifically, the walkways were not clear. 8 (Id.) In January 2018, plaintiff slipped and fell on grease, but she was not seriously injured. (Id.) 9 She did, however, attempt to alert the in-house paramedics and to institute a change in the safety 10 and training policies of the Resort. (Id.) She notified her immediate supervisors and the out-of- 11 house risk management consultant Pete Garza of the hazards. (Id.) However, no changes were 12 made. (Id.) Consequently, plaintiff was injured in June 2018 when her toe caught on the edge of 13 laundry bags blocking a walkway. (Id.) Plaintiff strained her medial collateral ligament (MCL) 14 as a result of this incident. (Id.) Again, plaintiff attempted to raise awareness of changes needed 15 in the safety policies of the Resort. (Id.) Again, she contacted Pete Garza, but no changes were 16 made. (Id.) On August 4, 2019, plaintiff caught her left toe on another laundry bag and metal 17 wire rack that was placed in a walkway at the Resort. (Id.) To avoid falling on her head, plaintiff 18 threw her weight onto her right leg, suffering a high-grade meniscus posterior tear. (Id.) After 19 seeking compensation through the “Tribal First Workman” compensation program, plaintiff was 20 denied compensation and appears to have left her job shortly after this last alleged incident. (Id.) 21 On August 3, 2020, plaintiff filed her complaint in this action, alleging a claim of 22 negligence due to defendants’ unsafe working walkways in violation of OSHA. (Id. at 9.) 23 Plaintiff seeks damages for her lost career, her lost wages until retirement, her lost access to a 24 401K retirement fund, her loss of employment, and her loss of health. (Id.) Defendants filed 25 their motion to dismiss plaintiff’s complaint on September 15, 2020. (Doc. No. 10.) On October 26 14, 2020, plaintiff filed a request for an extension of time to respond to defendants’ motion, but 27 labeled her request as an opposition. (Doc. No. 15.) On March 16, 2021, the court issued an 28 order construing plaintiff’s opposition to be a motion for enlargement of time and granted 1 plaintiff’s request Nunc Pro Tunc. (Doc. No. 20.) Plaintiff was directed to file any opposition to 2 defendants’ motion within thirty (30) days from the date of the March 16, 2021 order. (Id.) 3 Thereafter on April 12, 2021, plaintiff filed an addendum regarding defendants’ motion to 4 dismiss. (Doc. No. 21.) The court construes plaintiff’s addendum as an opposition to the pending 5 motion to dismiss. 6 LEGAL STANDARD 7 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 8 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 9 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 10 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 11 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the 12 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) 13 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state 14 a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 15 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “A claim has facial plausibility when the 16 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 17 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 18 In determining whether a complaint states a claim on which relief may be granted, the 19 court accepts as true the allegations in the complaint and construes the allegations in the light 20 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 21 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff 22 “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways 23 that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 24 Carpenters, 459 U.S. 519, 526 (1983). 25 DISCUSSION 26 Defendants move to dismiss plaintiff’s complaint for lack of subject matter jurisdiction 27 pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to 28 Federal Rule of Civil Procedure 12(b)(6). With respect to subject matter jurisdiction, defendants 1 argue that there is no federal question placed at issue by plaintiff’s complaint, that there are no 2 facts supporting diversity jurisdiction over this action2, and that defendants are shielded by 3 sovereign immunity. (Doc. No. 10-1 at 7.) Although the factual allegations of plaintiff’s 4 complaint are reasonably discernable, the purported causes of action plaintiff seeks to bring are 5 not. Accordingly, the court will dismiss plaintiff’s complaint pursuant to Rule 12(b)(6) and will 6 grant plaintiff leave to amend. 7 Plaintiff’s complaint states that her claim is for “negligence and legal notice of unsafe 8 working walkways in violation of the OSHA 1910 (a) clear walkway standards.” (Doc. No. 1 at 9 9.) OSHA, however, does not provide a private right of action for employees to bring claims in 10 federal court based on alleged violations of its provisions or regulations. Glanton v. Harrah’s 11 Entertainment, Inc., 297 Fed. App’x 685, 687 (9th Cir. 2008) (“OSHA does not provide a private 12 cause of action.”).3 Rather, “OSHA creates an intra-agency mechanism by which an alleged 13 violation can be raised by a private actor, . . . suggesting that Congress did not intend for OSHA- 14 based actions to be litigated by private actors in federal court.” Id. (emphasis added). Plaintiff 15 had the ability to file a complaint with OSHA and request an inspection of her workplace if she 16 believed there to be a violation of OSHA standards or other serious hazards. See Altimus v. Saint- 17 Gobain Corp. of N.A., No. 1:17-cv-01271-DAD-EPG, 2017 WL 5625888, at *3 (E.D. Cal. Nov. 18 22, 2017). As defendants point out, plaintiff has failed to plead a cause of action upon which 19 relief can be granted, warranting dismissal of the complaint under Rule 12(b)(6). (Doc. No. 10-1 20 at 14 n.4.) 21 2 Defendants argue that this court lacks subject matter jurisdiction over this action because 22 diversity of citizenship is lacking, as required by 28 U.S.C. § 1332. (Doc. No. 10-1 at 10.) 23 Specifically, defendants argue that plaintiff and defendant Garza are both residents of California, defeating complete diversity of citizenship. (Id.) (citing Owen Equip. & Erection Co. v. Kroger, 24 437 U.S. 365, 373 (1978)). Although plaintiff listed California as her state of residence in her complaint, plaintiff has provided sufficient evidence in her opposition indicating that she had 25 become a resident of Texas at the time that she filed this action. (Doc. No. 21 at 3.) Accordingly, the court concludes, at least at this stage of the proceeding, that there is complete diversity in this 26 action for the purposes of diversity jurisdiction. 27 3 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 The undersigned acknowledges that federal courts must liberally construe the “inartful 2 | pleading” of pro se litigants. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). 3 | Nonetheless, plaintiff has failed to sufficiently state what claim she is attempting to bring other 4 | than the aforementioned OSHA claim. Even construed liberally, plaintiff's complaint does not 5 | provide the court with sufficient information to identify what causes of action she is attempting to 6 || assert against which defendants. Accordingly, the court will grant defendants’ motion to dismiss 7 | for failure to state a claim. 8 However, given plaintiffs pro se status and the lack of any identifiable prejudice to 9 | defendants, plaintiff will be granted leave to file an amended complaint if she is able to do so in 10 | good faith. See Fed. R. Civ. P. 15(a)(2). Plaintiff is advised that the court cannot refer to a prior 11 | pleading in order to make an amended complaint complete. Local Rule 220 requires any 12 | amended complaint to be complete in itself without reference to prior pleadings. An amended 13 || complaint will supersede the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 14 | 1967). Thus, in any amended complaint plaintiff elects to file, she must include concise but 15 | complete factual allegations describing the conduct and events that underlie her claims as 16 | indicated above, she must identify her causes of action and the legal basis for each claim and she 17 | must attempt to cure the deficiencies of the original complaint noted above. 18 CONCLUSION 19 Accordingly, the motion to dismiss (Doc. No. 10) brought on behalf of defendants is 20 | granted pursuant to Rule 12(b)(6). Any amended complaint plaintiff may elect to file shall be 21 | filed within twenty-one (21) days of service of this order. 22 | IT IS SO ORDERED. me □ Dated: □ July 29, 2021 YL A Dou 24 UNITED STATES DISTRICT JUDGE 25 26 27 28