Do v. Tri City Healthcare District
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
Defendants moved to dismiss the First Amended Complaint under Rule 12(b)(6) and for failure to serve under Rule 4. The court granted the motion in part, dismissing five claims with prejudice, and ordered the plaintiff to effect proper service and file an amended pleading within specified timeframes.
| What the court decided | The model |
|---|---|
Dismissal of First Claim for Relief (Hostile Work Environment) against Albright and Dietlin“The Court therefore DISMISSES the following claims with prejudice: 1. Do’s first claim for relief, for hostile work environment, against Albright and Dietlin;” | unsure The order states that the plaintiff opposed only the dismissal of the IIED claim against Albright and that the defendants withdrew the motion as to that specific claim. By implication, the plaintiff did not oppose the dismissal of the other claims, or the court found them meritless. Given the lack of specific factual findings or legal analysis in the order for why these specific claims fail, it is difficult to verify the legal sufficiency without the underlying briefing, but the procedural posture (unopposed or conceded) supports the dismissal. |
Dismissal of Second Claim for Relief (Retaliation) against Albright and Dietlin“2. Do’s second claim for relief, for retaliation, against Albright and Dietlin;” | unsure Similar to the first claim, the order does not provide specific legal reasoning for the dismissal of the retaliation claim, relying instead on the procedural context that the plaintiff only opposed the IIED claim against Albright. The dismissal with prejudice suggests the court found the claim legally insufficient or that the plaintiff conceded the point. |
Dismissal of Third Claim for Relief (Wrongful Termination) against Albright and Dietlin“3. Do’s third claim for relief, for wrongful termination, against Albright and Dietlin;” | unsure The order does not articulate the specific legal basis for dismissing the wrongful termination claim. It appears to be part of the group of claims not opposed by the plaintiff or withdrawn by the defendant, leading to dismissal with prejudice. |
Dismissal of Fourth Claim for Relief (Negligence) against all Defendants“4. Do’s fourth claim for relief, for negligence, against all Defendants;” | unsure The order does not provide specific reasoning for the dismissal of the negligence claim. It is grouped with the other dismissed claims, implying a lack of opposition or a finding of legal insufficiency not detailed in the order. |
Dismissal of Fifth Claim for Relief (Intentional Infliction of Emotional Distress) against Dietlin and Tri City“5. Do’s fifth claim for relief, for intentional infliction of emotional distress, against Dietlin and Tri City.” | agree with court The order explicitly states that the plaintiff opposed the dismissal of the IIED claim *against Albright*, and the defendants withdrew the motion as to that specific claim. The dismissal of the IIED claim against *Dietlin and Tri City* suggests that the plaintiff did not oppose dismissal for those specific defendants, or the court found the claim insufficient as to them. The distinction is procedural and supported by the text. |
Order to Serve Defendants within 14 Days“The Court therefore ORDERS Mr. Do to serve Defendants or obtain a waiver of service in accordance with Rule 4 within fourteen (14) days of this order.” | agree with court The court correctly applies Rule 4(m), which grants discretion to extend time for service. The order cites *In re Sheehan* for the proposition that courts have discretion to extend time even without good cause. The specific deadline of 14 days is within the court's discretion. |
Order to File Amended Pleading within 21 Days“The Court further ORDERS that, no later than twenty-one (21) days after entry of this order, Mr. Do must file an amended pleading omitting the claims dismissed by this order.” | agree with court This is a standard procedural order to clean up the docket after a partial dismissal. It is within the court's inherent management powers and Rule 15. |
The order itself: sound with gaps — The order is procedurally sound. It correctly identifies the motions, notes the withdrawals and oppositions, and applies the relevant rules (Rule 12(b)(6) and Rule 4(m)). The citation to *In re Sheehan* is appropriate for the discretion regarding service. However, the order lacks substantive legal analysis for the Rule 12(b)(6) dismissals, relying entirely on the procedural posture (opposition/withdrawal). While this is common in district court orders where claims are conceded or unopposed, it makes it difficult to assess the legal correctness of the dismissals without the underlying briefing. The result is defensible based on the text provided.
Opinion
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 SOUTHERN DISTRICT OF CALIFORNIA 9 MIKE DO, CASE NO. 19cv2253-LAB (MSB)
10 Plaintiff, ORDER 11 vs. 12 TRI CITY HEALTHCARE DISTRICT, et al. 13 Defendants. 1 14 5 Defendants filed a motion to dismiss the First Amended Complaint in this action 16 under Fed. R. Civ. P. 12(b)(4), (5), and (6), contending that plaintiff Mike Do failed to 17 serve them properly with the summons and original complaint and that certain claims in 18 the First Amended Complaint fail to state a claim on which relief can be granted. Dkt. No. 19 4-1. Defendants’ motion is GRANTED IN PART. 20 I. Dismissal for Failure to State a Claim 21 Defendants’ motion seeks dismissal under Fed. R. Civ. P. 12(b)(6) of Do’s claims 22 for negligence, intentional infliction of emotional distress against all Defendants and for 23 violation of Title VII against Defendants Mark Albright and Steve Dietlin. Of those, Do 24 opposes only the dismissal of the claim for intentional infliction of emotional distress 25 against Albright. Dkt. 9 p. 10. Defendants’ reply withdraws the Rule 12(b)(6) motion as to 26 that claim. Dkt. 10 p. 2. 27 The Court therefore DISMISSES the following claims with prejudice: 28 1. Do’s first claim for relief, for hostile work environment, against Albright and 1 Dietlin; 2 2. Do’s second claim for relief, for retaliation, against Albright and Dietlin; 3 3. Do’s third claim for relief, for wrongful termination, against Albright and Dietlin; 4 4. Do’s fourth claim for relief, for negligence, against all Defendants; and 5 5. Do’s fifth claim for relief, for intentional infliction of emotional distress, against 6 Dietlin and Tri City. 7 ll. Failure to Serve the Summons and Complaint 8 Defendants’ motion also seeks dismissal because Mr. Do did not serve Defendants 9 || with the summons and original complaint in accordance with Fed. R. Civ. P. 4. 10 || Defendants’ reply withdraws that request. Dkt. 10 p. 2. 11 Nevertheless, the parties and Court agree that Mr. Do has yet to properly serve 12 || Defendants. If a defendant is not served within 90 days after the complaint is filed, the 13 || court has discretion to order that service be made within a specified time. Fed. R. Civ. P. 14 || 4(m); see also In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (Rule 4(m) gives courts 15 || discretion to extend time for service even in absence of good cause). 16 The Court therefore ORDERS Mr. Do to serve Defendants or obtain a waiver of 17 || service in accordance with Rule 4 within fourteen (14) days of this order. Absent a waiver, 18 || Mr. Do must serve a Summons correcting the deficiency identified in Defendants’ briefing 19 || and the original complaint. 20 The Court further ORDERS that, no later than twenty-one (21) days after entry of 21 || this order, Mr. Do must file an amended pleading omitting the claims dismissed by this 22 || order. Counsel should confer prior to filing the amended pleading to avoid further 23 || unnecessary briefing to the extent possible. 24 25 || Dated: July 1, 2020 (tm / A (by WY 26 HONORABLE LARRY ALAN BURNS Chief United States District Judge 28