Free Motion to Dismiss - District Court of California - California

Case 4:07-cv-03334-CW

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1 PATRICIA K. GILLETTE (No. 74461) GREG J. RICHARDSON (No. 203788) 2 BROOKE D. ANDRICH (No. 238836) 3 HELLER EHRMAN LLP 333 Bush Street 4 San Francisco, CA 94104-2878 5 Telephone: +1.415.772.6000 Facsimile: +1.415.772.6268 6 Email: [email protected] Email: [email protected] 7 Email: [email protected] 8 9 Attorneys for Defendants GREATER BAY BANK, GREATER BAY BANCORP, 10 CHERYL E. HOWELL, KRYSTYNA MARCINIAK, 11 CATHLEEN COLGAN, and ERIC LEE 12 13 14 15 16 GERARD CHANG, 17 18 19 v. Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Case No.: C 07-3334 CW DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) Judge: Location: Date: Time: Hon. Claudia Wilken Courtroom 2, 4th Floor September 6, 2007 2:00 p.m.

20 GREATER BAY BANK, GREATER BAY BANCORP, CHERYL E. HOWELL, 21 KRYSTYNA MARCINIAK, CATHLEEN 22 COLGAN, ERIC LEE, and DOES 1 TO 50, 23 24 25 26 27 28 Defendants.

DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 TO: PLAINTIFF GERARD CHANG, IN PRO PER: 2 PLEASE TAKE NOTICE that on September 6, 2007 at 2:00 p.m., or as soon

3 thereafter as the matter may be heard in the above-entitled Court located at 1301 Clay 4 Street, Oakland, California, Defendants Greater Bay Bank ("GBB" or the "Bank"), Greater 5 Bay Bancorp, Cheryl E. Howell, Krystyna Marciniak, Cathleen Colgan, and Eric Lee 6 (collectively, "Defendants") will and hereby do move this Court to dismiss Plaintiff Gerard 7 Chang's ("Plaintiff") Complaint, without leave to amend, pursuant to Federal Rule of Civil 8 Procedure 12(b)(6) on the grounds that Plaintiff has failed to state a claim upon which relief 9 can be granted. 10 This motion will be based on this Notice of Motion and Motion, the Memorandum of

11 Points and Authorities, and the Request for Judicial Notice, each filed concurrently 12 herewith; the pleadings and other documents on file in this action; and such other evidence 13 and arguments as may be presented at the hearing on this matter. 14 15 16 17 18 19 20 21 22 23 24 25 26 Gerard Chang is a former employee of Defendant Greater Bay Bank who resigned abruptly on January 26, 2005, over two-and-a-half years ago. He brings 30 causes of action against Defendants Greater Bay Bank, N.A.; Greater Bay Bancorp; and Cheryl E. Howell, Krystyna Marciniak, Cathleen Colgan, and Eric Lee, who worked with him in various capacities. On their face, Plaintiff's 30 claims are incurably defective and should be dismissed without leave to amend.1 This is the third complaint Plaintiff Gerard Chang has filed against Defendants in this Court. Plaintiff filed the first complaint--Case No. C-05-5166--on December 13, 2005. (Request for Judicial Notice, Ex. A.) It alleged 16 causes of action in connection
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND PROCEDURAL BACKGROUND

Although pro se pleadings are construed liberally, a complaint must be dismissed if "plaintiff can prove no set of facts in support of the claim that would entitle [him] to relief." 27 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citing Ortez v. Washington County 28 Oregon, 88 F.3d 804, 807 (9th Cir. 1996)). 1
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 with Plaintiff's employment and resignation: 8 causes of action for "breach of fiduciary 2 duty," 2 causes of action for violation of the U.S. PATRIOT Act, 3 causes of action for 3 violations of the Fair Labor Standards Act, and 3 causes of action for violations of "civil 4 rights." On May 12, 2006, the Court entered an order dismissing Plaintiff's breach of 5 fiduciary duty and PATRIOT Act claims with prejudice and without leave to amend. 6 (Request for Judicial Notice, Ex. B.) The remaining claims were disposed of via summary 7 judgment, and an order was entered against Plaintiff on March 19, 2007.2 (Request for 8 Judicial Notice, Ex. C.) 9 Plaintiff filed the second complaint in this matter--Case No. C-07-2437--on May 7,

10 2007, adding GBB as a defendant. (Request for Judicial Notice, Ex. E.) Plaintiff purported 11 to allege 18 causes of action under the following theories: violation of the Americans with 12 Disabilities Act, age discrimination, violations of the Fair Labor Standards Act, violations 13 of unspecified "civil rights," fraud, extortion, negligence, intentional infliction of emotional 14 distress, negligent infliction of emotional distress, and tortious and negligent interference 15 with Plaintiff's life and finances. (Id.) This second attempt by Plaintiff was dismissed in its 16 entirety on June 7, 2007--even before Defendants were served--in connection with the 17 Court's denial of Plaintiff's motion to proceed in forma pauperis. (Request for Judicial 18 Notice, Ex. F.) In the June 7, 2007 Order, the Court explained that the second complaint 19 was barred by res judicata because "the 2005 complaint and the instant complaint contain 20 the same allegations against the same Defendants." (Id., at 7.) 21 On June 25, 2007, Plaintiff filed the instant lawsuit against the same Defendants. In

22 the Complaint, Plaintiff alleges 30 causes of action, which repeat and repackage the 23 allegations and causes of action in his prior two complaints. 24 II. 25 26 27 28 Plaintiff timely appealed the Court's grant of summary judgment to the Ninth Circuit. (Request for Judicial Notice, Ex. D.) This appeal is currently pending. 2
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW
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ARGUMENT Plaintiff's Complaint is an impermissible attempt to circumvent this Court's prior

two dismissals and order on Defendants' motion for summary judgment. Plaintiff alleges

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1 30 counts, each of which arises from his employment with the Bank and resignation 2 therefrom. Because the current lawsuit concerns the same transactional nucleus of facts as 3 Plaintiff's two prior lawsuits against Defendants, it is barred by res judicata. This is true 4 despite Plaintiff's attempt to repackage the same allegations into new legal theories. 5 Reading Plaintiff's Complaint liberally, Defendants discern two theories of recovery that 6 arguably were not raised in Plaintiff's prior lawsuits: benefits under the Family and 7 Medical Leave Act and the workers' compensation system. These "new" counts are barred 8 by res judicata for the same reasons that Plaintiff's other counts are barred. Further, even if 9 res judicata does not apply to the FMLA- and workers' compensation-related counts, they 10 are plagued by substantive defects which warrant dismissal under Federal Rule of Civil 11 Procedure 12(b)(6). 12 13 14 A. The Vast Majority of Plaintiff's Claims Have Been Specifically Raised and Dismissed in Prior Lawsuits.

Defendant will not waste the Court's time by reviewing each of Plaintiff's 30 counts

15 in detail. Suffice it to say that the following counts are effectively identical to counts 16 alleged in Plaintiff's two prior complaints and do not warrant extended discussion: Count 1 17 for violation of the Americans with Disabilities Act; Count 2 for age discrimination; Counts 18 4 through 6 for violations of the Fair Labor Standards Act; Counts 7 through 11 for 19 violations of "civil rights"; Counts 14 through 16 for "constitutional tort" in connection 20 with Plaintiff's alleged constructive termination, denial of disability benefits, and denial of 21 health benefits; Counts 19, 20, and 23 for "breach of duty"; Counts 24 through 26 for fraud, 22 coercion, duress, and negligence; Counts 27 and 28 for intentional and negligent infliction 23 of emotional distress; and Counts 29 and 30 for tortious and negligent interference with 24 Plaintiff's life and finances. (Complaint, ¶¶ 111-236.) Plaintiff is clearly barred from re25 raising these counts, which have all been previously dismissed. 26 27 28 B. Plaintiff's Claims Must Be Dismissed Because They Are Barred By Res Judicata.

Res judicata bars all grounds for recovery that could have been asserted in a prior 3
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 suit between the same parties which resulted in a judgment on the merits. See A.V. 2 Constantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982). It is irrelevant 3 whether the claims sought to be asserted in a subsequent suit actually were pursued in the 4 prior suit. Rather, the inquiry is whether they could have been brought in the prior suit. See 5 U.S. v. Northrup Corp., 147 F.3d 905, 909 (9th Cir. 1998). By forcing litigants to assert all 6 possible legal theories in a single action in a timely manner, res judicata seeks to conserve 7 judicial resources and ensure repose for parties who have already responded adequately to 8 plaintiff's claims. See Feminist Women's Health Center v. Codispoti, 63 F.3d 863, 867-69 9 (9th Cir. 1995) (dismissing second lawsuit on res judicata grounds where party exercising 10 reasonable diligence could have brought all legal theories in initial lawsuit). 11 Res judicata applies whenever two actions share (1) an identity of claims and (2) an

12 identity (or privity) of parties, and where (3) a final judgment on the merits was rendered in 13 the prior action. See Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 14 2001) (holding res judicata barred former employees from asserting claims arising out of 15 their terminations against employer in a second action where initial action was dismissed 16 with prejudice). Previously, Plaintiff sued Defendants in an action that was resolved against 17 Plaintiff in a final judgment on the merits. (Request for Judicial Notice, Ex. C.) Therefore, 18 two of the three criteria for the application of res judicata have been met. The remaining 19 criterion involves establishing the identity of Plaintiff's present counts with the counts he 20 asserted in the prior actions. As set forth below, this requirement is also easily met. 21 22 23 1. Plaintiff's Present and Prior Actions Assert Claims Which Are Identical For Res Judicata Purposes.

The central question in determining whether claims presented in successive actions

24 are identical for res judicata purposes is whether the two actions arose out of the same 25 "transactional nucleus of facts." See Constantini, 681 F.2d 1199, 1202 (9th Cir. 1982) (test 26 for same transactional nucleus of facts is the "most important" to establish identity of claims 27 for application of res judicata); Owens, 244 F.3d at 714 ("central criterion" in determining 28 identity of claims is whether claims arose out of same transactional nucleus of facts). Here, 4
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 the claims asserted by Plaintiff in all three actions against Defendants arise out of Plaintiff's 2 employment with and resignation from the Bank. Specifically, all three of Plaintiff's 3 lawsuits have centered on his allegations that (1) he was required to perform job duties for 4 which he lacked the relevant experience and for which the Bank did not provide the proper 5 support, and (2) his resignation from the Bank on January 26, 2005 amounted to "wrongful 6 termination" and set in motion a series of financial and personal consequences for Plaintiff 7 for which Defendants bear responsibility. Try as he might to elaborate upon and repackage 8 his allegations, Plaintiff cannot dispute that all three of his lawsuits arise from a single 9 transactional nucleus of facts: his employment with the Bank and resignation therefrom. 10 Indeed, Plaintiff admits this, stating in his Complaint, "the claims [set forth in the present 11 Complaint] arise out of the same events and involve the same parties [as the complaint 12 pending appeal]." (Complaint, ¶ 85.) 13 The Ninth Circuit examined a similar situation in Owens v. Kaiser Foundation

14 Health Plan, Inc., 244 F.3d 708 (9th Cir. 2001). In Owens, an employer relocated one of its 15 facilities and terminated several African-American employees. The Ninth Circuit affirmed 16 the dismissal of a second action by the former employees on res judicata grounds. Id. at 17 714. In so doing, the Court recognized that there was some difference in the nature of the 18 claims presented in the two actions--the employees' first action alleged wrongful 19 termination and state law claims premised on breach of contract, while the second action 20 alleged harassment, discrimination, and retaliation. Id. at 713. Nevertheless, the Ninth 21 Circuit determined that both actions were ultimately predicated on harms suffered because 22 of discrimination based on the employees' race, and both arose from the circumstances of 23 their terminations. Id. at 714. Therefore, despite the fact that the second action contained 24 new legal theories, the Ninth Circuit dismissed it on the basis of res judicata because it 25 alleged "grounds for recovery which could have been asserted" in the prior action. Id. 26 Here, Plaintiff's claims in all three actions arise out of factual circumstances similar

27 to those in Owens: the experience of his employment and the loss of that employment. The 28 only difference between the present action and Plaintiff's two prior lawsuits is that, just like 5
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 the plaintiffs in Owens, Plaintiff has repackaged the same allegations into new legal 2 theories. In his first complaint, Plaintiff alleged that the Bank assigned him work that he 3 was not qualified to perform. On this basis, he claimed violations of the U.S. PATRIOT 4 Act and breach of fiduciary duty. (Request for Judicial Notice, Ex. A.) In the second 5 complaint, these same allegations were offered to support causes of action for disability 6 discrimination, age discrimination, violations of the Fair Labor Standards Act, and 7 numerous others--all of which are repeated in the instant Complaint. (Request for Judicial 8 Notice, Ex. E.) Similarly, in his first complaint, Plaintiff alleged that he was forced to 9 resign and that the Bank unlawfully denied him various benefits and the opportunity to 10 return to his job, thereby violating the Fair Labor Standards Act and Plaintiff's civil rights 11 under 42 U.S.C. Section 1981. (Request for Judicial Notice, Ex. A.) In this action, Plaintiff 12 repeats those counts and adds counts for denial of workers' compensation benefits and 13 benefits under the Family and Medical Leave Act. Just as in Owens, Plaintiff's claims are 14 identical for res judicata purposes. See also Brzostowski v. Laidlaw Waste Systems, Inc., 49 15 F.3d 337 (7th Cir. 1995) (res judicata barred action for age discrimination arising out of 16 employee's termination where court had adjudicated prior action alleging breach of 17 employment contract); Woods v. Dunlop Tire Corp., 972 F.2d 36 (2nd Cir. 1992) (res 18 judicata barred Title VII action where prior suit alleged employee's discharge violated 19 collective bargaining agreement).3 Thus, Plaintiff's Complaint in its entirety is barred by 20 21 22 23 24 25 26 27 28 Accord, Miller v. U.S. Postal Serv., 825 F.2d 62 (5th Cir. 1987) (res judicata barred later action for wrongful termination based on handicap discrimination where earlier action had alleged sex discrimination based on employee's removal from employment); Booth v. Quantum Chemical Corp., 942 F. Supp. 580 (S.D. Ga. 1996) (employee precluded from asserting Title VII claims in later action where prior suit asserted contract and other state law claims); Biermann v. U.S., 67 F. Supp. 2d 1057 (E.D. Mo. 1999) (plaintiff's earlier action asserting state law tort claims barred subsequent attempt to bring Federal Tort Claims Act action); Myers v. Colgate Palmolive Co., 102 F. Supp. 2d 1208 (D. Kan. 2000) (rule against claim-splitting barred former employee from bringing ERISA claim in separate lawsuit where other action alleged violations of ADEA and Title VII); Lundy v. Secretary of the Navy, 1996 U.S. Dist. LEXIS 9549 (N.D. Cal. June 24, 1996) (employee's subsequent action for harassment, retaliation and discrimination was same `cause of action' for res judicata purposes as first action for discriminatory termination and failure to promote). 6
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW
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1 res judicata and must be dismissed. 2 3 4 2. Both Actions Involve Substantially The Same Evidence And Alleged Infringement Of The Same Right.

The criterion addressed above--whether the actions arise from the same

5 transactional nucleus of facts--is sufficient to establish the application of res judicata to 6 Plaintiff's Complaint. See U.S. v. Northrop Corp., 147 F.3d 905, 910 (9th Cir. 1998) 7 (dismissing action on res judicata grounds based only on transactional nucleus of facts test); 8 Int'l Union of Operating Eng'rs v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993) (Constanini 9 factors are "tools" rather than "requirements" and need not be invoked where two actions 10 involve the same transactional nucleus of facts). However, Defendants will discuss the 11 other Constantini factors and demonstrate that they mandate the same conclusion. 12 First, to support the present action, Plaintiff will rely upon substantially the same

13 evidence presented and relied upon in the prior actions. Constantini, 681 F.3d at 1202-03. 14 This includes evidence relating to Plaintiff's job duties and skills, Plaintiff's medical 15 condition and Defendants' knowledge thereof, Plaintiff's resignation, and Defendants' 16 actions following Plaintiff's resignation. For example, deposition testimony taken in 17 Plaintiff's prior action will be at issue in the present action, just as it was in the first lawsuit. 18 Second, all three of Plaintiff's lawsuits implicate the same rights: Plaintiff's right not to be 19 required to perform unlawful or unreasonable job duties, his right to receive various 20 employment benefits from the Bank, and his right to resume employment following his 21 resignation. Thus, the Constantini factors provide further support for the conclusion that 22 Plaintiff's Complaint is barred by res judicata. 23 24 25 C. Any "New" Counts Alleged In Plaintiff's Complaint Are Also Barred By Res Judicata.

Plaintiff's Complaint alleges that "[t]he claims set forth...are different from the

26 claims set forth in the complaint currently under appeal [C-05-5166-CW]" because "[t]his 27 complaint...sets forth claims for injuries and damages to Plaintiff caused by Defendants in 28 connection with his disability and mental breakdown." (Complaint, ¶ 85.) While it is true 7
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 that a liberal reading of Plaintiff's Complaint reveals two arguably new theories not 2 previously raised by Plaintiff (Counts 3, 13, and 22 for benefits under the Family and 3 Medical Leave Act and Counts 12 and 21 for workers' compensation benefits), Plaintiff 4 "does not avoid the bar of res judicata merely because he now alleges conduct by 5 [Defendants] not alleged in his prior suit, nor because he has pleaded a new legal theory." 6 Constantini, 681 F.2d at 1201. As discussed above, the critical inquiry in the res judicata 7 analysis is whether the claims arise from the same transactional nucleus of facts. Plaintiff's 8 Complaint alleges for the first time that Defendants wrongfully terminated him by accepting 9 his resignation instead of offering him a leave of absence under the FMLA. Similarly, 10 Plaintiff now alleges that Defendants wrongfully denied him workers' compensation 11 benefits in connection with his separation from employment. But these allegations arise 12 solely from Plaintiff's employment and resignation--the same transactional nucleus of facts 13 from which his two prior lawsuits arose. Thus, they too are barred by res judicata for the 14 reasons explained above. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Even If Plaintiff's "New" Counts Are Not Barred By Res Judicata, They Must Be Dismissed. 1. Plaintiff's FMLA-Related Claims Must Be Dismissed For Failure To State A Claim.

Even if the doctrine of res judicata does not apply to Plaintiff's FMLA-related claims, they must be dismissed because of substantive deficiencies. Specifically, Plaintiff has failed to state a claim under the FMLA. The FMLA prohibits employers from interfering with rights under the Act. In order to state a claim for "interference," Plaintiff must allege that he had a qualifying health condition, requested FMLA leave, and would have taken such leave but for the alleged interference. See, e.g., Bailey v. Southwest Gas Co., 275 F.3d 1181, 1186 (9th Cir. 2002) (plaintiff's FMLA interference claim failed where she admitted she "never sought to invoke her FMLA rights"). Plaintiff has made none of these required allegations, thus dooming his FMLA claims. "There can be no interference with [plaintiff's] FMLA rights when [he] has none." Stewart v. Sears, Roebuck & Co., 8
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 2005 U.S. Dist. LEXIS 42371, *35 (D. Or. Mar. 7, 2005) (citing Hoffman v. Professional 2 Med Team, 394 F.3d 414, 418 (6th Cir. 2005) ("[t]o prevail in a claim of interference under 3 the FMLA, the employee must prove, among other elements, that she was entitled to leave 4 under the FMLA.")). Plaintiff has failed to state even the most basic allegations supporting 5 a claim under the FMLA--rather, he merely states in a conclusory fashion that 6 "Defendants' actions in withholding and denying FMLA benefits to Plaintiff constitute a 7 violation of the Act." (Complaint, ¶ 117. See also Complaint, ¶¶ 156, 192.) This is plainly 8 insufficient to state a claim for interference under the FMLA. 9 10 11 2. Plaintiff's Workers' Compensation-Related Claims Must Be Dismissed For Failure To State A Claim.

Similarly, Plaintiff's workers' compensation-related counts must be dismissed

12 whether or not they are barred by res judicata because this Court lacks jurisdiction over 13 such counts. California law vests in the Workers' Compensation Appeals Board exclusive 14 jurisdiction over any proceeding "[f]or the recovery of compensation, or concerning any 15 right or liability arising out of or incidental thereto." Cal. Lab. Code § 5300. See, e.g., 16 Gomes v. Michaels Stores, Inc., 2006 U.S. Dist. LEXIS 86307 (E.D. Cal. Nov. 16, 2006) 17 ("in adjudicating whether a claim falls within the workers' compensation system, all doubt 18 should be resolved in favor of finding jurisdiction within the workers' compensation 19 system" (quoting Mitchell v. Scott Wetzel Servs., Inc., 227 Cal. App. 3d 1474, 1480 (1991)). 20 Thus, Plaintiff's demand for workers' compensation benefits is subject to the exclusive 21 jurisdiction of the Workers' Compensation Appeals Board and may not be heard by this
4 22 Court.

23

Even if Plaintiff raised a claim for workers' compensation benefits with the 24 Workers' Compensation Appeals Board, it would fail. First, Plaintiff failed to notify GBB of any injury within the time limits prescribed by California Labor Code Section 5400. 25 Second, claimants are required to commence workers' compensation proceedings within 26 one year following the date of the injury. Cal. Lab. Code § 5405. Plaintiff has not done so and, thus, his claim would fail in any event. 27 28 9
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 2 3

E.

The Court Should Issue An Order Prohibiting Plaintiff From Filing Additional Lawsuits Against Defendants.

Defendants respectfully request that the Court issue an order pursuant to Federal

4 Rule of Civil Procedure 11 prohibiting Plaintiff from filing additional lawsuits against 5 Defendants regarding his employment and resignation from employment. It is improper for 6 Plaintiff to continue to file near-identical complaints in the hopes that the Court will change 7 its mind. Doing so imposes undue costs and burdens on Defendants and this Court, and 8 robs Defendants of the repose enjoyed by parties who have adequately responded to legal 9 action. Plaintiff has appealed to the Ninth Circuit this Court's grant of summary judgment 10 to Defendants on Plaintiff's first complaint. The appellate process provides ample 11 opportunity for Plaintiff to seek appropriate redress, and he must be prohibited from 12 continuing to vex and harass Defendants by bringing duplicative lawsuits. 13 III. 14 CONCLUSION All of the 30 causes of action alleged by Plaintiff in the instant Complaint are barred

15 by res judicata, as they arise from the same transactional nucleus of facts from which 16 Plaintiff's two prior complaints arose. To the extent Plaintiff's Complaint repackages his 17 factual allegations into new legal theories, these new causes of action are also barred on the 18 basis of res judicata and, alternatively, are substantively defective. For these reasons, 19 Plaintiff has failed to state a claim upon which relief can be granted, and Defendants' 20 Motion to Dismiss Plaintiff's Complaint in its entirety should be granted. 21 /./ 22 /./ 23 /./ 24 /./ 25 /./ 26 /./ 27 /./ 28 10
DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 DATED: August 1, 2007 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, HELLER EHRMAN LLP

By /S/ Brooke D. Andrich PATRICIA K. GILLETTE GREG J. RICHARDSON BROOKE D. ANDRICH Attorneys for Defendants GREATER BAY BANK, GREATER BAY BANCORP, CHERYL E. HOWELL, KRYSTYNA MARCINIAK, CATHLEEN COLGAN, and ERIC LEE

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DEFENDANTS' NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW