Petition for Writ of Certiorari — Lisa Washington, Petitioner v. Diana Deleon, et al.

Supreme Court briefNov 29, 2019

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Case 4:19-cv-02271rJSW Document 21 Filed 09/04/19 Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

SEP 4 2019

MOLLY C. DWYER, CLERK

U.S, COURT OF APPEALS

LISA WASHINGTON,

No.

Plaintiff-Appellant,

DIANA DELEON; et al.,

Defendants-Appellees.

19-16457

D.C. No. 4:19-cv-02271-JSW

Northern District of California,

Oakland

ORDER

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Before: TASHIMA, M. SMITH, and CHRISTEN, Circuit Judges.

A review of the record demonstrates that this court lacks jurisdiction over

this appeal because the order challenged in the appeal is not final or appealable.

See WMXTechs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)

(dismissal of complaint with leave to amend is not appealable); see also Fed. R.

Civ. P. 54(b); Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981) (order is not

appealable unless it disposes of all claims as to all parties or judgment is entered in

compliance with rule). Consequently, this appeal is dismissed for lack of

jurisdiction.

DISMISSED.

DA/Pro Se

/4fopCNlO/J d

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 1 of 13

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Plaintiff,

Defendants.

This matter comes before the Court upon consideration of Plaintiff s First Amended

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Re: Dkt. No. 12

t DIANE DELEON, et al„

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ORDER DISMISSING FIRST

AMENDED COMPLAINT, WITH

LEAVE TO AMEND IN PART

Case No. 19-cv-02271-JSW

LISA WASHINGTON,

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Complaint (“FAC”)- Plaintiff is proceeding in forma pauperis, and the Court must determine

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whether Plaintiff should be given leave to file the FAC. See 28 U.S.C. § 1915. For the reasons set

forth in this Order, the Court DISMISSES the FAC. The Court will grant Plaintiff one final

opportunity to amend, in part and on the conditions set forth below.

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BACKGROUND

Procedural History.

On April 25, 2019, Plaintiff filed the original complaint in this action. The allegations in

that complaint are summarized in a Report and Recommendation (“Report”) issued on May 7,

2019 by Chief Magistrate Judge Spero, in which he recommended that the Court: (1) grant

Plaintiffs application to proceed in forma pauperis; and (2) dismiss her complaint with leave to

amend (the “Report”). Because not all parties consented to the jurisdiction of a magistrate judge,

the matter was reassigned, and the undersigned received the case.

On May 21, 2019, Plaintiff filed a timely objection to the Report and requested that the

Court recuse itself from the matter. On May 28, 2019, the Court denied Plaintiffs motion for

recusal, and it adopted the Report and dismissed the complaint with leave to amend. (Order

Appt/aOw &

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 2 of 13

Denying Plaintiffs Request for Recusal and Adopting Report and Recommendation (“Order on

Report”).) In the Report, Chief Magistrate Judge Spero recommended that Plaintiff limit her

claims to a subset of the Defendants. This Court did not require Plaintiff to limit the claims

against the Defendants, but it did advise her that “as drafted the Complaint does not contain a

sufficient factual basis for joining the parties she has named as Defendants in a single complaint.”

(Order on Report at 2:28-3:4.)

Plaintiff timely filed the FAC on June 27, 2019.

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Allegations in the FAC.

In her FAC, Plaintiff names as defendants Mary Oaklund, Amanda Plowman, M. Brett

Burns, Diana Deleon, Doreen Carr, Everest Leap, LLC, Jehovah’s Witnesses National

Organization, Watchtower Bible and Tract Society of New York, and Union City Congregation of

Jehovah’s Witnesses (the Court refers to the latter three entities as “the Jehovah’s Witness

entities”), each of whom were named Defendants in the original complaint.

Plaintiff amended her complaint to add the following individuals and organizations as

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Defendants: Nona Washington; Gregory D. Pike, Esq.; Jeffrey V. Rocha, Esq.; Michael Barnes;

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Elizabeth Throne; Rebecca Olsen; Allstate Corporation (“Allstate”); Knox Ricksen, LLP (“Knox

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Ricksen”); Dentons US, LLP (“Dentons”); The Regents of the University of California, Janet

Napolitano, in her official capacity as the President of the University of California, Berkeley, and

Carol T. Christ, in her official capacity as Chancellor of the University of California, Berkeley

(collectively the “UC Berkeley defendants”); Transportation Brokerage Specialists, Inc. (“TBS”),

Amazon, Full Steam Staffing, LLC (“Full Steam”), Nora Aung, and Mindy Oong, as well as

twenty-five (25) Doe defendants.

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In the Report, Judge Spero noted that Plaintiffs allegations included allegations relating to

a family court proceeding and alleged corruption in that proceeding, a federal lawsuit Plaintiff

filed against Lowes HIW, Inc., a car accident, an unlawful detainer action, harassment and

discrimination by certain employers, and allegations relating to Ms. Deleon. (Report at 2:19-

4:18.) Plaintiff includes many of these same allegations in the FAC.

More particularly, Plaintiff alleges that she had a family court proceeding in Alameda

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 3 of 13

County Superior Court. Oaklund represented Plaintiffs ex-husband during those proceedings.

Plaintiff alleges that she wrote a letter to the presiding judge of Alameda County Superior Court

accusing Judge Winifred Smith, Commissioner Sue Alexander, Commissioner Boyden Hall,

Oaklund, and Trina Blackshire of engaging in an enterprise to embezzle money from Alameda

County court appointed program. Plaintiff also alleges these Defendants bribed Plaintiff s

employers and court officers. (FAC

about the letter and “the enterprise retaliated against Plaintiff’ and conspired to “deprive Plaintiff

of due process of the law” and “the honest services of the courts.” {Id.

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against Lowes HIW Inc., her former employer, which was assigned to Judge Charles R. Breyer.

{Id. ^118.) Bums represented the defendant in that case. {Id.) Plaintiff alleges that the case

management conference was rescheduled three times and that at a hearing on or about December

5, 2019, Plaintiff was only allowed to state her name, whereas Burns and another individual

allegedly met with Judge Breyer in his chambers for more than thirty minutes. {Id.

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14, 17.)

Plaintiff also alleges that an unspecified Defendant “bribed and influenced” Plaintiffs case

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8-16.) Plaintiff alleges that Oaklund and others found out

19-21.)

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Plaintiff also alleges that Magistrate Judge Elizabeth Laporte “is associated with one of the

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members of the enterprise,” and that Judge Laporte granted a discovery motion and assessed

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sanctions of $200 against Plaintiff. {Id.

a motion for summary judgment filed by Burns, even though Burns did not present oral argument.

Plaintiff alleges that Bums “furthered the fraud by submitting a bill of costs for $5,618.15.” {Id.

Tflj 25-26.) Plaintiff also alleges that she appealed the order to the United States Court of Appeals

for the Ninth Circuit, which “put the defendants back on the case” and added new attorneys. {Id. ^

28.)

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23-24.) Plaintiff also alleges that Judge Breyer granted

Plaintiff once again includes allegations that she was hit by a car on her way to a hearing in

January of 2014. {Id. Tj 29.) Plaintiff alleges that she filed a complaint in the Alameda County

Superior Court about two years later against Allstate, Olsen, and Evangelina Cayetanel Paz. {Id. H

30). Plaintiff alleges that Barnes, Throne, and Denton represented Allstate and Olsen. Plaintiff

alleges there were delays in the case, that the defendants in that case did not respond in a timely

manner, that the defendants filed a demurrer, and that the judge issued a tentative ruling and did

Case 4:19-CV-02271-JSW Document 13 Filed 07/09/19 Page 4 of 13

not hold a hearing. Plaintiff also alleges that Rocha and Throne had ex parte meetings with the

presiding judge in chambers. Plaintiff alleges that she was required to pay Olsen $435.00 and that

Thorne got a judgment against Plaintiff for Allstate for $555.00. Plaintiff alleges that Allstate

obstructed justice and bribed the presiding judge to swing the case in its favor. (See generally id.

111131-39.)

Plaintiff also alleges that several employers, including the UC Berkeley defendants, a

Burmese restaurant, Full Steam, 858 bakery cafe, TBS, and Amazon “intentionally and willfully

participated in the fraudulent schemes” and violated various laws relating to her employment. {Id.

42-43.) Plaintiff alleges that she worked for the UC Berkeley defendants in a dining hall in

August 2018, and during one week worked more than forty (40) hours but did not receive

overtime and missed eleven (11) meal periods. {Id. ^ 44-45.) Plaintiff also alleges that she was

“subjected to harasment [s/c] and sexual harassment, and hostal [.s/c] work environment due to her

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religious beliefs.” {Id. 45.)

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Plaintiff alleges she was subject to age discrimination by the Burmese restaurant and was

harassed by other employees. According to Plaintiff, Aung and Oong “participated in the

enterprise by trying to poison plaintiff with a TB virus.” {Id.

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bakery cafe and Full Steam did not pay Plaintiff her last check, that she had to work through

breaks, and that she was subject to harassment by other employees. {Id. ^ 47.)

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46.) Plaintiff alleges that the 858

Plaintiff alleges that in December 2018, she was employed by TBS and was subject to

harassment, sexual harassment, and that it “along with Amazon made working for them a

nightmare.” Plaintiff further alleges that TBS did not provide her with a final paycheck and owes

her over $2000.00. {Id. ^ 48.) Plaintiff filed a complaint with the Labor commissioner about these

alleged violations. Plaintiff attaches an exhibit for a notice of hearing in August with respect to

wage claims against TBS. {Id.

49, Ex. E.)

Finally, Plaintiff reasserts allegations against Deleon. Plaintiff alleges that in March 2018,

she and Deleon entered into a verbal contract for a room in Deleon’s home. Plaintiff alleges she

cleaned the house, which she alleges was filthy, and served as a house manager for four other

tenants living there. {Id.

52-56.) Plaintiff alleges that Deleon and Carr stayed at the property

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 5 of 13

on weekends, and Carr would sleep in Plaintiffs room. {Id. ffll 57-58.) Carr and Deleon began to

harass Plaintiff about her TV, room divider, and alarm clock. {Id. ^ 59.) Plaintiff alleges that, in

April 2018, Deleon told her that she was going to evict her. Plaintiff sent Deleon a letter stating

that she would leave the house in sixty days and demanded $500 for her services cleaning the

house. {Id. ffl] 61-63.)

Plaintiff further alleges that on April 22, 2018, Deleon returned from a meeting at the

Kingdom Hall of Jehovah’s Witnesses and told Plaintiff that she needed to leave the house

immediately. Plaintiff alleges she advised Deleon that Plaintiff needed a thirty day notice, which

Plaintiff alleges Deleon did for a white male two weeks earlier. {Id.

that Deleon became angry, grabbed Plaintiffs arms and scratched her. Plaintiff also alleges that

Deleon called the San Joaquin Sheriffs Department, and that the deputy who responded told

Deleon that she must give Plaintiff thirty days’ notice to vacate. - Plaintiff alleges the deputy also

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told Deleon and Plaintiff that he “deemed the incident” mutual combat. Id. {Id.

64-66.) Plaintiff alleges

67-71.)

Plaintiff alleges that on April 23, 2018, Deleon filed fraudulent elder abuse charges against

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Plaintiff. Plaintiff also alleges that she was arrested and that a restraining order was entered

against her without a hearing, a police report, or probable cause. Plaintiff also alleges that she was

not given the right to an attorney and that while she was in custody, she was subjected to a strip

search and that male deputy officers were observing the female inmates while the female inmates

were undressed. {Id.

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72-86.)

Based on these and other allegations, which the Court shall address as necessary, Plaintiff

asserts the following claims for relief:

(1) a violation of the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18

U.S.C. section 1962(c), against Plowman, Pike, Rocha, Barnes, Allstate, Throne, Olsen, Denton,

and Knox Ricksen (FAC

122-172);

(2) a conspiracy to violate RICO, 18 U.S.C. section 1962(d), against Pike, Plowman,

Rocha, Barnes, Allstate, Throne, Olsen, Dentons, LLP, Knox Ricksen, Oaklund, Blackshire,

Washington, Burns, DeLeon, and the Jehovah’s Witness entities {id. ^173-179);

(3) a violation of RICO against Oaklund, Washington, Blackshire, the Jehovah’s Witness

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 6 of 13

entities, Bums, Deleon, and Carr {id.

(4) common law fraud against Pike, Plowman, Rocha, Barnes, Allstate, Throne, Olsen,

180-204);

Denton, Knox Ricksen, Oaklund, Blackshire, Washington, Bums, and Deleon {id.

205-213);

(5) civil conspiracy to defraud against Oaklund, Washington, Plowman, Pike, Rocha,

Bums, Barnes, Throne, Olsen, Allstate, Knox Ricksen, Dentons, Everest Leap, the UC Berkeley

defendants, TBS, Amazon, Full Steam Staffing, Deleon, Carr, the Jehovah’s Witness entities,

Aung, and Oong {id. fflj 214-220);

(6) a violation of the provisions of the California Labor code relating to meal breaks

against the UC Berkeley defendants, TBS, Amazon, and Full Steam (the “meal breaks claim”) {id.

221-231); and

(7) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA

claim”) against TBS and the UC Berkeley defendants {id.

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ANALYSIS

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Applicable Standard of Review.

Plaintiff has been granted leave to proceed in forma pauperis. Accordingly, the Court

must screen the FAC and dismiss any claims that are: (1) frivolous or malicious; (2) fail to state a

claim on which relief may be granted; or (3) seek monetary relief from a defendant who is

immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see also Cato v. United States, 70

F.3d 1103, 1106 (9th Cir. 1995). The Court evaluates whether Plaintiff has stated a claim under

the same standard which governs motions to dismiss under Federal Rule of Civil Procedure

12(b)(6). See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). However inartful a pro

se complaint may be, the Court holds it to less stringent standards than formal pleadings drafted by

lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

In order to state a claim 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, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Rule 12(b)(6) “is read

in conjunction with Rule 8(a) which requires not only ‘fair notice of the nature of the claim, but

also grounds on which the claim rests.’” Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir.

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 7 of 13

2013) (quoting Twombly, 550 U.S. at 556 n.3). Rule 8 requires a “short and plain statement of the

claim showing that the pleader is entitled to relief’ and commands that “[e]ach allegation must be

simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). Even under Rule 8, however, “a

plaintiffs obligation to provide the grounds of [her] entitlement to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555 (internal quotations, citations, and brackets omitted).

Plaintiff also asserts a claim for fraud and her RICO Claims also are premised on allegedly

fraudulent conduct. Claims sounding in fraud or mistake are subject to heightened pleading

requirements, which require that a plaintiff claiming fraud “must state with particularity the

circumstances regarding fraud or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b)’s particularity

requirements must be read in harmony with Rule 8, which requires a “short and plain” statement

of the claim. The particularity requirement is satisfied if the complaint “identifies the

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circumstances constituting fraud so that a defendant can prepare an adequate answer from the

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allegations.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989).

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Accordingly, “[a]verments of fraud must be accompanied by ‘the who, what, when, where, and

how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir.

2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

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Subject Matter Jurisdiction.

Plaintiff asserts four federal claims, the three RICO claims and the ADEA claim.

Therefore, the Court has subject matter jurisdiction pursuant 28 U.S.C. section 1331. The Court

could have supplemental jurisdiction over Plaintiffs state law claims, if they are so related to the

federal claims that they can be considered part of the same case or controversy under Article III of

the United States Constitution. 28 U.S.C. § 1367(a). i

The Court will begin its analysis with the federal claims and shall then determine whether

it has supplemental jurisdiction over the state law claims and, if it does, whether it will exercise its

Plaintiff asserts she is a resident of Union City, California. The allegations show that, at

the very least, Carr and Deleon also are residents of California. Thus, the parties are not

completely diverse. As currently drafted, the FAC does not allege facts to show there would be

diversity jurisdiction over the state law claims.

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 8 of 13

discretion to consider those claims. See 28 U.S.C. § 1367(c); Acri v. Varian Associates, Inc., 114

F.3d 999, 1001 (9th Cir. 1997).

The Civil RICO Claims.

It is “unlawful for any person employed by or associated with any enterprise engaged in, or

the activities which affect, interstate or foreign commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or

collection of unlawful debt.” 18 U.S.C. § 1962(c). It also is “unlawful for any person to conspire

to violate any of the provisions of the subsections (a), (b), or (c) of this section.” Id. § 1962(d).

. In order to state a Civil RICO claim, Plaintiff must allege facts showing: “(1) conduct (2)

of an enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5)

causing injury to plaintiffs ‘business or property.’” Living Designs, Inc. v. E.I. Dupont de

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Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005) (quoting Grimmett v. Brown, 75 F.3d 506,

510 (9th Cir. 1996), in turn citing 18 U.S.C. §§ 1964(c), 1962(c)). In order to state a claim for

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RICO conspiracy, Plaintiff must allege that a person conspired to violate section 1962(c), and that

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she suffered RICO injury by reason of overt acts, which constitute predicate acts under the RICO

statute, in furtherance of the conspiracy. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 295

(9th Cir. 1990).

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A RICO “enterprise” is “any individual, partnership, corporation, association, or other

legal entity, and any union or group of individuals associated in fact although not a legal entity[.]”

18 U.S.C. § 1961(4). An associated-in-fact enterprise is “a group of persons associated together

for a common purpose of engaging in a course of conduct.” United States v. Turkette, 452 U.S.

576, 583 (1981). A plaintiff need not allege that an associated-in-fact enterprise has “any

particular organizational structure, separate or otherwise[.]” Odom v. Microsoft, Inc., 486 F.3d

541, 551 (9th Cir. 2007).

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Plaintiff alleges that there are two enterprises. The first appears to encompass the

Defendants connected to the litigation that ensued after Plaintiff was hit by a car, and the second

encompasses the Defendants allegedly involved in the family law case, the federal case, Carr, and

Deleon. Plaintiff attempts to link these two enterprises and all of the alleged RICO violations

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 9 of 13

together by way of her RICO conspiracy claim. To allege an associated-in-fact enterprise, a

plaintiff must allege three basic elements: (1) a common purpose; (2) an ongoing organization,

whether formal or informal; (3) that functions as a continuing unit. Odom, 486 F.3d at 552-53;

accord United States v. Christensen, 828 F.3d 763, 780 (9th Cir. 2015).

Plaintiffs allegations are.largely conclusory. However, to the extent she does include

facts, the Court concludes those facts are not sufficient show that either of the two alleged

enterprises share a common purpose, are an ongoing organization, or that they function as a

continuing unit. By way of example only, Plaintiff includes no facts to show how the alleged

wrongdoing in her family law case is plausibly connected to Bums’ alleged conduct during the

federal litigation or Deleon’s conduct as her landlord. The Court concludes that Plaintiff fails to

state a claim for alleged violations of RICO. Because Plaintiff fails to state a substantive RICO

violation, she also fails to state a viable RICO conspiracy claim.2 Howard v. America Online,

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Inc., 208 F.3d 741, 751 (9th Cir. 2000).

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Plaintiff was granted leave to amend these claims, and she failed to rectify the deficiencies

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identified by Judge Spero. The Court concludes that any further amendments would be futile, and

it DISMISSES the RICO Claims with prejudice.

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The Employment Discrimination Claims.

As in her original complaint, Plaintiff scatters allegations throughout her FAC that various

past employers, none of whom are allegedly connected to one another, engaged in sexual

harassment, created hostile working environments, or otherwise discriminated against her.3

Multiple defendants can be joined in a single action where: “(A) any right to relief is asserted

against them jointly, severally, or in the alternative with respect to or arising out of the same

transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or

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There also are insufficient facts to show the two alleged association-in-fact enterprises or

any of their individual members conspired with one another.

To the extent Plaintiff included these allegations to demonstrate that these Defendants are

part of and participated in the alleged RICO violations, they are not sufficient to show these

Defendants are part of an associated-in-fact enterprise.

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 10 of 13

fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).

With the exception of her claim for alleged violations of the ADEA, Plaintiff still does not

include any facts to support her claims of discrimination, and therefore she fails to state a claim

under the standards set forth in Twombly. Plaintiff also includes no facts to show how the claims

against the various employer defendants arise out of the same nucleus of operative facts, such that

each of her alleged employers could be joined in a single lawsuit. Although Judge Spero

addressed these deficiencies in his Report, Plaintiff failed to rectify them in the FAC. The Court

concludes any further efforts to amend putative claims for employment discrimination and/or

harassment, other than the ADEA claim discussed in the following section, shall be dismissed

without further leave to amend.

In her seventh claim, Plaintiff specifically alleges the UC Berkeley defendants and TBS

violated the ADEA. In the fact section of the FAC, Plaintiff did allege that the Burmese restaurant

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also discriminated against her based on her age, but she includes no facts to support that allegation

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in the body of the FAC or in this claim. With respect to the UC Berkeley defendants, Plaintiff

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alleges that she was 50 years old at the time she applied for employment as a cook, that she was

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qualified for that position, and that a 21 year old with less experience was hired. (FAC

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235.) With respect to TBS, Plaintiff alleges people “would make nasty comments about older

people,” and that she contacted the labor board to make a complaint. (Id.

236.)

Under the ADEA,

No civil action may be commenced by an individual under this

section until 60 days after a charge alleging unlawful discrimination

has been filed with the Equal Employment Opportunity

Commission. Such a charge shall be filed—

(A) within 180 days after the alleged unlawful practice occurred; or

(B) in a case to which section 633(b) of this title applies, within 300

days after the alleged unlawful practice occurred, or within 30 days

after receipt by the individual of notice of termination of

proceedings under State law, whichever is earlier.

29 U.S.C. § 626(d)(1). Therefore, in order to pursue a claim for age discrimination before this

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 11 of 13

Court, Plaintiff must first file a charge of age discrimination with the EEOC.4 See Forrester v.

Chertoff, 500 F.3d 920, 924 (9th Cir. 2007). Plaintiff does not allege facts to show she filed any

charges with the EEOC within the time limits set forth in Section 626(d)(1), that address her

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experiences at the Burmese restaurant, at TBS, or at UC Berkeley. The Court also concludes the

allegations against TBS and against the Burmese restaurant are insufficient to state a claim for age

discrimination.

Because it might be possible for Plaintiff to amend to include facts demonstrating that she

has filed a charge with the EEOC within the time limits set forth in 29 U.S.C. section 626(d), the

Court will dismiss the ADEA claims with leave to amend as to the UC Berkeley defendants only.

However, the Court denies leave to amend as to TBS and the Burmese restaurant. Judge Spero

placed Plaintiff on notice that conclusory allegations of discrimination, unsupported by facts, are

not sufficient to state a claim for discrimination or harassment. She failed to cure those defects in

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The State Law Claims.

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violations of California’s labor code regarding meal breaks. The Court concludes that the

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allegations regarding fraud and conspiracy to commit fraud would be sufficient to show those

claims arise out of a common nucleus of operative facts to the alleged RICO claims. The meal

break claim is a closer question, but it is possible that Plaintiff could show a sufficient connection

to the ADEA claim to the extent she alleges the UC Berkeley defendants violated that provision of

the Labor Code.

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Finally, Plaintiff asserts state law claims for fraud, conspiracy to commit fraud, and alleged

The Court may decline to exercise that jurisdiction where: (1) a novel or complex issue of

state law is raised; (2) the claim substantially predominates over the federal claim; (3) the district

court dismisses the federal claims; or (4) under exceptional circumstances. See 28 U.S.C. §

1367(c). In order to make this determination, courts should consider factors such as “economy,

convenience, fairness, and comity.” Acri, 114 F.3d at 1001. When “federal-law claims are

Plaintiff also fails to allege facts that show she exhausted federal or state administrative

perquisites for any other claims of discrimination or harassment.

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 12 of 13

eliminated before trial, the balance of factors to be considered ... will point toward declining to

exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 n.7 (1988), superseded by statute, 28 U.S.C. § 1447(c); see also United Mine

Workers ofAmerica v. Gibbs, 383 U.S. 715, 726 (1966) (suggesting in dicta that “if federal claims

are dismissed before trial,... the state claims should be dismissed as well”) (footnote omitted),

superseded by statute, 28 U.S.C. § 1367.

Because the Court has dismissed the federal RICO claims, the Court finds the factors set

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the Court dismisses those claims without prejudice. Because it is possible that Plaintiff could still

assert an ADEA claim against the UC Berkeley defendants, the Court will dismiss the meal break

claim with leave to amend only as to the UC Berkeley defendants. Otherwise, the Court finds the

factors set forth above weigh against exercising supplemental jurisdiction over that claim as to any

other defendant.

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CONCLUSION

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forth above weigh against exercising supplemental jurisdiction over the state law fraud claims, and

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For the foregoing reasons, the Court DISMISSES Plaintiff s RICO claims (first, second,

and third claims) with prejudice. The Court DISMISSES the state law fraud claims without

prejudice. The Court dismisses the ADEA claim as to TBS and the Burmese restaurant with

prejudice. The Court dismisses the meal break claim as to all defendants other than the UC

Berkeley defendants without prejudice.

The Court shall give Plaintiff one final opportunity to amend her ADEA claim and meal

break claim solely as to the UC Berkeley defendants, if Plaintiff can in good faith allege that she

filed a charge of age discrimination with the EEOC within the time limits set forth 29 U.S.C.

section 626(d) and can allege facts to show the Court would have supplemental jurisdiction over

the meal break claim.

If Plaintiff chooses to file an amended complaint on the terms set forth in this Order, she

must do so by no later than August 12, 2019. If Plaintiff fails to file a second amended complaint

that comports with this Order by that date, the Court will enter a final order of dismissal and enter

Case 4:19-cv-02271-JSW Document 13 Filed 07/09/19 Page 13 of 13

judgment accordingly.

IT IS SO ORDERED.

Dated: July 9, 2019

/ I

JEFFREY S./WHITUnited-Stat^f District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.