Opinion
Case No. 13-cv-05984-VC
06-20-2014
ROBERT DOURANDISH, Plaintiff, v. PATRICK FITZGERALD, et al., Defendants.
ORDER GRANTING MOTION TO
DISMISS
Re: Dkt. Nos. 21, 28
Plaintiff Robert Dourandish has sued Patrick Fitzgerald, Director of the Defense Contract Audit Agency (DCAA), and Chuck Hagel, Secretary of the Department of Defense, alleging various tort and civil rights claims. Dourandish's claims stem from a contract dispute between his company, Quimba, and the United States Air Force. Dourandish alleges that, in his interactions with the government, the DCAA auditor was negligent, the auditor committed civil rights violations against him, the auditor's supervisor was negligent, and the DCAA branch manager was negligent. The government has filed a motion to dismiss, which is GRANTED, and the hearing scheduled for June 26, 2014 is VACATED.
Dourandish's tort claims arise directly from a contract dispute for which an existing action is currently pending in the Court of Federal Claims. Quimba Software, Inc. v. the United States of America, Case No. 1:12-cv-00142-MCW. Because Dourandish's allegations do not exist independently of this contract dispute, and because they arise directly from the contract, the allegations are appropriately classified as contract, not tort, claims. See, e.g., Woodbury v. United States, 313 F.2d 291, 295096 (9 Cir. 1963); Performance Contracting, Inc. v. United States, 2012 WL 3234210 (E.D. Cal. Aug. 6, 2012). Dourandish's claims are thus subject to the Contract Disputes Act, 41 U.S.C. § 7101 et seq., which confers exclusive jurisdiction in the Court of Federal Claims. Therefore, this court does not have jurisdiction to adjudicate the tort claims, and they are therefore dismissed with prejudice, which means that Dourandish may not refile his tort claims in this case.
The complaint also includes a "civil rights" claim, in which Dourandish alleges that the DCAA auditor took an aggressive stance toward Dourandish's company because of his ethnicity. This claim is dismissed with leave to amend. First, Dourandish has not pled sufficient facts to support a plausible allegation of ethnicity discrimination. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Second, Dourandish has brought his civil rights claim under the Federal Torts Claim Act, which he cannot do since the Act bars damages claims against the government for alleged constitutional violations. See FDIC v. Meyer, 510 U.S. 471, 478 (1994). Finally, on its face, the civil rights claim appears time barred by a two-year statute of limitations. See, e.g., Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000).
Although it is unclear whether Dourandish can amend his complaint to cure these defects, because Dourandish is proceeding without a lawyer the court grants him leave to amend his civil rights claim only. If Dourandish believes in good faith that he can file an amended complaint that cures these defects, he may do so within 21 days. Otherwise, dismissal of the entire complaint will be with prejudice.
For Dourandish's benefit, the court directs his attention to the Handbook for Pro Se Litigants, which is available along with further information on the court's website at http://cand.uscourts.gov/proselitigants. Dourandish may also contact the Legal Help Center, Golden Gate Avenue, 15 Floor, Room 2796, Telephone No. 415-782-898 for free legal advice regarding his claims.
IT IS SO ORDERED.
__________
VINCE CHHABRIA
United States District Judge
ROBERT DOURANDISH, Plaintiff,
v. PATRICK FITZGERALD, et al., Defendants.
Case No. 13-cv-05984-VC
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on 6/20/2014, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Robert Dourandish
POB 1476
San Mateo, CA 94401
Richard W. Wieking
Clerk, United States District Court
By: __________
Kristen Melen, Deputy Clerk to the
Honorable VINCE CHHABRIA