Drevaleva v. Alameda Health System ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TATYANA EVGENIEVNA DREVALEVA, Case No. 22-cv-01585-EMC 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. AFFIDAVIT OF BIAS AND PREJUDICE; GRANTING 10 ALAMEDA HEALTH SYSTEM, et al., DEFENDANTS’ MOTIONS TO DISMISS; DENYING PLAINTIFF’S 11 Defendants. REQUEST FOR ENTRY OF DEFAULT; AND DENYING OTHER 12 MISCELLANEOUS MOTIONS 13 Docket Nos. 22, 23, 24, 33, 35, 47, 54, 57 14 15 I. INTRODUCTION 16 Plaintiff Tatyana Drevaleva sued her former employer Alameda Health System (AHS) for 17 unlawful termination under the Constitution, various federal statutes, and state law. She also 18 alleged similar claims against the California Department of Industrial Relations (DIR) because one 19 of its divisions, the Division of Labor Standards Enforcement (DLSE), adjudicated her labor 20 claims against AHS. This Order addresses the following pending motions and requests: 21 1. Drevaleva’s Affidavit of Bias and Prejudice under 28 U.S.C. § 144 (Docket No. 23) 22 2. DLSE’s Motion to Dismiss (Docket No. 22) 23 3. Drevaleva’s Request for Entry of Default against DIR (Docket No. 33) 24 4. AHS’s Motion to Dismiss (Docket No. 24) 25 5. Drevaleva’s Administrative Motion to Extend Deadline to File Amended 26 Complaint (Docket No. 35) 27 6. Drevaleva’s Administrative Motion to Extend Deadline to Serve AHS with 1 7. Drevaleva’s Administrative Motion to Relate Cases (Docket No. 54) 2 8. Drevaleva’s Administrative Motion For An Order To Serve California Secretary of 3 State (Docket No. 57). 4 II. FACTUAL BACKGROUND 5 AHS hired plaintiff as a monitor technician in 2013. (Docket No. 1 at ¶ 6.) A few months 6 later, Drevaleva sent a letter to her manager questioning her employee status, unpaid shift 7 differentials, unpaid overtime, AHS’s failure to give work breaks, and the denial of her request for 8 union affiliation. (Id. at ¶ 31.) AHS subsequently terminated her. (Id. at ¶ 32.) Shortly 9 afterwards, Drevaleva filed unlawful retaliation and wage claims against AHS with DLSE. (Id. at 10 ¶ 44.) DLSE determined that AHS terminated Drevaleva for a non-discriminatory reason and that 11 she failed to show pretext. (Id. at ¶¶ 46, 47, 94.) 12 Since then, Drevaleva has brought dozens of cases against AHS and DIR/DLSE in state 13 and federal courts relating to, or deriving from, AHS’s termination and DLSE’s adjudication. She 14 also has sued a number of state and federal judges that found against her as well as counsel 15 representing AHS and DLSE. She is deemed a vexatious litigant by the California First District of 16 Appeal. See Drevaleva v. Alameda Health Sys., No. A158862, 2020 Cal. App. Unpub. LEXIS 17 6321 (Cal. Ct. App. Sept. 28, 2020). 18 III. DREVALEVA’S DEMAND TO DISQUALIFY (DOCKET NO. 23) 19 Drevaleva has requested to disqualify the undersigned judge from this and other related 20 cases under 28 U.S.C. § 144. 21 A. Legal Standard 22 Section 144 provides in relevant part: 23 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the 24 matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further 25 therein, but another judge shall be assigned to hear such proceeding. 26 28 U.S.C. § 144. 27 Relief under Section 144 requires the filing of a timely and legally sufficient affidavit. See 1 standard to determine legal sufficiency is “[w]hether a reasonable person with knowledge of all 2 the facts would conclude that the judge’s impartiality might reasonably be questioned.” Id. 3 (brackets and internal quotation marks omitted). The presiding judge has the authority to “pass 4 upon [the affidavit’s] legal sufficiency.” United States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 5 1978). After the judge determines that “the legal sufficiency of the affidavit has been 6 established,” the motion is “referred to another judge for a determination of its merits.” United 7 States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (citations omitted); accord Civ. L.R. 3-14. 8 B. Drevaleva’s Affidavit Is Legally Insufficient 9 Drevaleva’s affidavit alleges bias and prejudice on three grounds: (1) the undersigned 10 judge has consistently ruled against Drevaleva in previous cases; (2) Drevaleva believes that the 11 undersigned judge had ex parte communications with an “unknown person” who filed DLSE’s 12 motion to dismiss; (3) Drevaleva “suspects” that AHS’s counsel or the “unknown person” bribed 13 the undersigned judge to rule against her. 14 Drevaleva’s first ground is legally insufficient. “The alleged prejudice must result from an 15 extrajudicial source; a judge’s prior adverse ruling is not sufficient cause for recusal.” United 16 States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). This Court has already explained such to 17 Drevaleva in a previous proceeding. See Drevaleva v. Justices of the Cal. Court of Appeal, No. 18 20-cv-07017-EMC, 2021 U.S. Dist. LEXIS 250742, at *3 (N.D. Cal. May 3, 2021) (holding 19 court’s previous adverse rulings legally insufficient for recusal as they “were predicated on what it 20 learned from its participation in the case, and not an extrajudicial source”). 21 Drevaleva’s second ground rests on conjecture. She insists that the “unknown person” 22 who filed DLSE’s motion to dismiss has violated a number of rules, including “listing invalid 23 legal arguments.” (Docket No. 23 at 3.) For the person to do so “without any fear to be 24 prosecuted by Judge Chen,” she speculates, must mean that person had ex parte communications 25 with the undersigned judge. (Id.) That argument is legally insufficient as recusal is not warranted 26 under § 144 based on speculation. See Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 27 1993); Clemens v. United States Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175, 1180 (9th Cir. 1 Drevaleva’s final reason is speculative by her own admission. Instead of alleging specific 2 facts, she “suspects” that the undersigned judge “could have been possibly bribed.” (Docket No. 3 23 at 1.) But in her own affidavit, Drevaleva freely admits, and even “emphasiz[es]” that “the 4 allegation of a bribe is only [her] allegation that is not supported by any piece of evidence.” (Id. at 5 4.) Such conjecture is legally insufficient as explained above. 6 For the foregoing reasons, Drevaleva’s request to disqualify is DENIED. 7 IV. DLSE’S MOTION TO DISMISS (DOCKET NO. 22) 8 DLSE moves to dismiss the complaint without leave to amend because (1) Drevaleva fails 9 to allege colorable claims against it under the Constitution and federal law, (2) the Eleventh 10 Amendment bars this action, (3) claim preclusion bars this action, and (4) statutory immunities 11 and privileges bar state law claims. Because the Eleventh Amendment clearly bars this action 12 against DLSE, this Court does not address the other grounds. 13 A. DLSE’s Motion to Dismiss Is Granted Because the Eleventh Amendment Bars This Action 14 DLSE is immune from this suit under the Eleventh Amendment to the U.S. Constitution. 15 That Amendment bars from federal courts suit against a state by its own citizens, citizens of 16 another state, or citizens or subjects of any foreign state. See Atascadero State Hosp. V. Scanlon, 17 473 U.S. 234, 237–38 (1985). Eleventh Amendment immunity extends to suits against a state 18 agency. See Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 725 (9th Cir. 2009) (California 19 Department of Corrections and California Board of Prison Terms entitled to Eleventh Amendment 20 immunity). Here, California has not waived sovereign immunity and DLSE is a state agency 21 within the DIR. See Labor Code §§ 21, 79. DLSE is thus immune from the suit. Drevaleva does 22 not meaningfully respond to this argument.1 23 Drevaleva argues that the Court should strike DLSE’s motion to dismiss based on four 24 1 Drevaleva baselessly asks this Court to compel DIR’s director to appear in this case to answer 25 her whether California would waive sovereign immunity. (Docket No. 27 at 24.) If the State refuses to waive immunity, she claims that she would show, in a separate filing, that this case must 26 nonetheless proceed under Allen v. Cooper, 140 S. Ct. 994 (2020). (Id. at 25.) But that case only concerns abrogation of the Eleventh Amendment in copyright suits. Drevaleva also cites Title VI 27 of the Civil Rights Act, 42 U.S.C. Section 2000d-7(a)(1) (id. at 25–26), but she did not plead that 1 procedural grounds—all meritless. First, she demands that this Court verify the electronic 2 signature of DLSE’s counsel, Nicolas P. Seitz, accompanying DLSE’s motion to dismiss, citing 3 Local Rule 5-1(h)(1). (Docket No. 34 at 8.) But that rule does not require the court to so verify. 4 Second, Drevaleva contends that DLSE is not a named defendant and thus cannot appear 5 on behalf of the DIR. (Id.) But DLSE is a division of the DIR and the complaint concerns 6 DLSE’s deputy labor commissioners’ handling of her labor claims. Nowhere does Drevaleva 7 allege wrongdoing by any other division of the DIR. Regardless, DIR would have been immune 8 from this suit under the Eleventh Amendment as DLSE is. 9 Third, Drevaleva requests striking the motion because counsel has not filed a notice of 10 appearance under Local Rule 5-2, but cites no authority for her requested relief. Finally, 11 Drevaleva argues that DLSE failed to attach affidavits or declarations to its motion, allegedly in 12 violation of Civil Local Rule 7-2(d). Not so. DLSE’s motion does not include factual allegations 13 except those supported by the documents subject to judicial notice.2 See Harms v. Bank of N.Y. 14 Mellon, No. C 16-01585 CW, 2017 U.S. Dist. LEXIS 236423, at *15 (N.D. Cal. Apr. 5, 2017) 15 (rejecting argument that motion to dismiss must be accompanied by affidavit or declaration to 16 comply with Local Rule 7-2(d)). 17 B. The Complaint Is Dismissed Without Leave to Amend 18 If a court dismisses a complaint, it should give leave to amend unless the “the pleading 19 could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. 20 Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 21 Five years ago, this Court dismissed Drevaleva’s claims against the DIR on precisely the 22 same ground of the Eleventh Amendment. See Drevaleva v. Alameda Health Sys., No. 16-cv- 23 07414-LB, 2017 U.S. Dist. LEXIS 40778, at *5–*6 (N.D. Cal. Mar. 21, 2017) (holding DIR 24 immune from suit under Eleventh Amendment and dismissing complaint). The Court gave her 25 leave and ultimately dismissed her amended complaint as well. See Drevaleva v. Alameda Health 26 27 2 DLSE requests this Court take judicial notice of several documents from previous court 1 Sys., No. 16-cv-07414-LB, 2017 U.S. Dist. LEXIS 105398 (N.D. Cal. Jul. 7, 2017). Now, she 2 again brought claims arising from the same operative facts against DIR. The three iterations of 3 pleadings show that Drevaleva’s complaint could not possibly be cured by the allegation of other 4 facts. The Court therefore GRANTS DLSE’s Motion to Dismiss without leave to amend. 5 V. DREVALEVA’S REQUEST FOR ENTRY OF DEFAULT 6 AGAINST DIR (DOCKET NO. 33) 7 Drevaleva requests the Clerk of this Court enter default against DIR because it has failed to 8 plead or otherwise defend this lawsuit. (Docket No. 33 at 8.) For the purpose of this case, DIR 9 should be deemed to have appeared through DLSE. As explained above, DLSE is a division of 10 the DIR and the complaint concerns the handling of Drevaleva’s labor claims by DLSE’s deputy 11 labor commissioners. Nowhere does Drevaleva allege wrongdoing by any other division of the 12 DIR. 13 Regardless, DIR would have been immune from this suit under the Eleventh Amendment 14 for the same reason that DLSE does. The Court thus DENIES this request. 15 VI. AHS’S MOTION TO DISMISS (DOCKET NO. 24) 16 AHS moves to dismiss the complaint for lack of subject matter jurisdiction under Fed. R. 17 Civ. P. 12(b)(1) and for being barred by the statute of limitations and claim preclusion under Rule 18 12(b)(6). It also moves for a more definite statement under 12(e) in the alternative. 19 A. Legal Standard 20 Original jurisdiction may be based on diversity or a federal question. Federal-question 21 jurisdiction exists if the case “aris[es] under the Constitution, laws, or treaties of the United 22 States.” 28 U.S.C. § 1331. Under Federal Rule of Civil Procedure 12(b)(1), a court may dismiss a 23 case for lack of federal subject-matter jurisdiction. The plaintiff has the burden of establishing 24 jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers 25 Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). If a court 26 dismisses a complaint, it should give leave to amend unless “the pleading could not possibly be 27 cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc., 911 F.2d at 247. 1 B. Analysis 2 Drevaleva invoked this Court’s original jurisdiction based on a federal question allegedly 3 because “multiple [f]ederal statutes are involved” (Docket No. 1 at ¶ 2), but she has not shown that 4 this court can exercise federal-question jurisdiction over the federal claims against AHS. Without 5 subject matter jurisdiction, this Court does not have supplemental jurisdiction to hear her state 6 claims either. 7 1. Most of Drevaleva’s Federal Claims are Inapplicable on Their Face 8 As this Court has repeatedly warned Drevaleva in previous proceedings, “Even allowing 9 for the latitude that is granted pro se litigants, a plaintiff cannot simply list a welter of federal 10 statutes . . . and then flatly claim that these ‘are applicable’ to establish federal-question 11 jurisdiction.” Drevaleva v. Alameda Health Sys., No. 16-cv-07414-LB, 2017 U.S. Dist. LEXIS 12 87601, at *5–*6 (N.D. Cal. Jun. 7, 2017); see also Drevaleva v. Alameda Health Sys., No. 21-cv- 13 03061-EMC, slip. op. at 1 (N.D. Cal. Apr. 30, 2021) (“Although Ms. Drevaleva refers to a litany 14 of federal statutes in her petition, she does not explain how any of these are applicable to her claim 15 against AHS.”). But she has disregarded those warnings here. 16 Specifically, Drevaleva cites the Fair Labor Standards Act (FLSA) 29 U.S.C. § 215(a)(3) 17 without explaining how her allegations trigger this statute. The FLSA establishes minimum wage, 18 overtime pay, recordkeeping, and youth employment standards. Section 215(a)(3) generally 19 prohibits discharging any employee “because such employee has filed complaint or instituted or 20 caused to be instituted any proceeding under or related to [the FLSA].” Even generously 21 construed, the complaint does not allege such facts. Similarly, Drevaleva broadly asserts 22 retaliation and unlawful termination under the Occupational Health and Safety Act, the National 23 Labor Relations Act, and the Labor Management Relations Act without even specifying which 24 sections under the Acts are violated. 25 Her claims under the Fourteenth Amendment, Title VII, and 42 U.S.C. sections 1981, 1983 26 for discrimination against her Caucasian race and Russian origin fail at least because AHS was not 27 a state actor by her own admission. See Docket No. 39 at 14 (“However, I can demonstrate by the 1 2[0]13 my former employer who named itself the Alameda Health System (the AHS) as opposed 2 to the Alameda County Medical Center (the ACMC) was a private employer, and the AHS was 3 not a Public Agency pursuant to the Cal. Gov. C. §§ 900.4, 53050, and 53051.”) (emphasis 4 added). This Court has previously dismissed her claim under 42 U.S.C. § 1983 against AHS for 5 failing to allege that AHS was a state actor. See Drevaleva v. Alameda Health Sys., No. 21-cv- 6 03061-EMC, slip. op. at 1–2 (N.D. Cal. Apr. 30, 2021). And as previously, her claim that “AHS 7 conspired with state actors . . . is entirely speculative and not based on specific factual 8 allegations.” (Id. at 2.) 9 2. The Rest of Drevaleva’s Claims are Frivolous 10 Drevaleva’s RICO claim is facially invalid and frivolous. She alleges that “AHS initially 11 compelled [her] to sign a [union affiliation] document” but “later rescinded [her] affiliation to the 12 [u]nion” by destroying that document without her knowledge. (Docket No. 1 at ¶ 17.) But AHS’s 13 alleged denial of Drevaleva’s affiliation to the union is not a “racketeering activity” within the 14 definition of 18 U.S.C. Section 1961. 15 Drevaleva baselessly alleges violation of the Thirteenth Amendment. That Amendment 16 “was adopted with reference to conditions existing since the foundation of our Government, and 17 the term involuntary servitude was intended to cover those forms of compulsory labor akin to 18 African slavery which in practical operation would tend to produce like undesirable results.” 19 Butler v. Perry, 240 U.S. 328, 332 (1916). She claims to be “coerced” into working as a caregiver 20 to elderly and disabled people after getting fired by AHS. (Docket No. 1 at ¶ 113.) There is no 21 allegation that AHS in any way compelled her to work as a caregiver or that her work is remotely 22 akin to slavery. 23 Drevaleva also frivolous alleges AHS’s termination of her to be a cruel and unusual 24 punishment under the Eighth Amendment. “The Cruel and Unusual Punishments Clause was 25 designed to protect those convicted of crimes.” Whitley v. Albers, 475 U.S. 312, 318 (1986) 26 (internal quotation marks and citation omitted). The complaint does not allege that she is 27 convicted of any crime for which she is being punished by AHS. 1 3. The Court Denies Leave to Amend as Drevaleva Has Had Three Chances to Plead 2 Her Claims and Res Judicata Would Render Any Amendment Futile 3 Although courts generally allow leave to amend, the Court denies leave here because any 4 amendment would have been futile. First, Drevaleva has already had at least three chances to 5 plead against AHS in this Court alone based on the same operative facts, but she is still unable to 6 state a federal claim. See Drevaleva v. Alameda Health Sys., No. 16-cv-07414-LB (N.D. Cal.) 7 (after granting leave to amend, dismissing amended complaint against AHS for alleged wrongful 8 termination of Drevaleva in 2013). Second, even if she was able to make out a claim, they would 9 be barred by res judicata based on her state court action Drevaleva v. Alameda Health Sys., No. 10 RG20066898 (Cal. Super. Ct.) as explained below. 11 “Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any 12 claims that were raised or could have been raised in the prior action.” Owens v. Kaiser Found. 13 Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (barring Title VII claims that could have been 14 included in state court complaint). It applies when there is (1) privity between parties, (2) an 15 identity of claims, and (3) a final judgment on the merits. Id. Here, res judicata precludes 16 Drevaleva’s claims. 17 First, there is privity of the parties. Drevaleva and AHS are the same named parties as in 18 the state court action. Second, Drevaleva’s claims alleged here relate to AHS’s alleged wrongful 19 termination of her. This is the same grievance previously decided in the aforementioned state 20 court action. There, Drevaleva sued AHS for retaliation and unlawful termination, among other 21 claims. See Drevaleva v. Alameda Health Sys., No. RG20066898, 2021 Cal. Super. LEXIS 22 112567, at *1 (Cal. Super. Ct. Apr. 19, 2021). As here, those claims arose from AHS’s 23 termination of her employment on September 7, 2013. Id. Although she brought some new 24 claims in this suit, they could have been raised in the prior actions. Thus, there is an identity of 25 claims. See Owens, 244 F.3d at 713 (barring Title VII claims that could have been included in 26 state court complaint). Third, there was a final judgment on the merits. The California superior 27 court dismissed the entire action with prejudice on April 15, 2021. Drevaleva v. Alameda Health 1 application to appeal that she had to file as a vexatious litigant. Drevaleva v. Alameda Health 2 Sys., No. A162908 (Cal. Ct. App. Jul. 8, 2021). The California Supreme Court denied petition for 3 review on October 13, 2021. Drevaleva v. Alameda Health Sys., No. S269930 (Oct. 13, 2021). 4 The Court takes judicial notice of these ruling sua sponte. See United States v. 14.02 Acres of 5 Land More or Less in Fresno Cty., 547 F.3d 943, 955 (9th Cir. 2008) (“[A] district court . . . may 6 take judicial notice of matters of public record and consider them without converting a Rule 12 7 motion into one for summary judgment.”) (internal quotation marks omitted). 8 Drevaleva opposes AHS’s motion to dismiss, making numerous frivolous arguments. She, 9 for example, contends that this Court has no jurisdiction to rule on AHS’s motion to dismiss 10 because she herself failed to properly serve AHS. Regardless, AHS has not objected to defective 11 service. See Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (defects in service 12 waived by not raising such defense). As another example, she argues that AHS’s counsel does not 13 in fact represent AHS, but counsel has submitted a declaration stating otherwise (Docket No. 51-1 14 at ¶ 1), and Drevaleva presents no evidence to doubt such a declaration. 15 The Court GRANTS AHS’s motion to dismiss without leave to amend. 16 VII. OTHER MOTIONS 17 Because the Court grants AHS and DLSE’s motions to dismiss without leave to amend, the 18 following pending motions are denied as moot: 19 1. Drevaleva’s Administrative Motion to Extend Deadline to File Amended 20 Complaint (Docket No. 35); 21 2. Drevaleva’s Administrative Motion to Extend Deadline to Serve AHS with 22 Summons (Docket No. 47); 23 3. Drevaleva’s Administrative Motion to Relate Cases (Docket No. 54); 24 4. Drevaleva’s Administrative Motion For An Order To Serve California Secretary of 25 State (Docket No. 57). 26 /// 27 /// 1 VIII. CONCLUSION 2 For the foregoing reasons, Plaintiff’s Affidavit of Bias and Prejudice is denied. Plaintiff’s 3 Request for Entry of Default against DIR is denied. The complaint against both Defendants is 4 dismissed without leave to amend. Other pending administrative motions are denied as moot. 5 This order disposes of Docket Nos. 22, 23, 24, 33, 35, 47, 53, 54, and 57. The Clerk of 6 Court is instructed to enter Judgment and close the case. 7 8 IT IS SO ORDERED. 9 10 Dated: July 7, 2022 11 12 ______________________________________ EDWARD M. CHEN 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27