Opinion
Case No. A99-577 CV (JWS)
December 29, 1999
I. MOTIONS PRESENTED
At docket 8, defendants Municipality of Anchorage, et al. ("Anchorage"), move to dismiss the complaint for failure to state a claim upon which relief may be granted. Plaintiffs Kenneth Duffus, et al. ("Duffus"), oppose the motion. Duffus files a motion at docket 15 to strike a portion of Anchorage's reply. Anchorage opposes Duffus' motion. Oral argument has not been requested and would not assist the court.
II. BACKGROUND A. Jurisdiction
This is an employment dispute alleging civil rights violations under 42 U.S.C. § 1983 and supplemental state law claims. Jurisdiction is based on the existence of federal questions and this court's supplemental jurisdiction.
28 U.S.C. § 1331, 1367.
B. Parties
Plaintiff Duffus is a former employee of Anchorage. Plaintiff KND Engineering is a sole proprietorship owned by Duffus. Defendant Anchorage is a municipal corporation and political subdivision of the State of Alaska. Defendant James P. Fero is or has previously been employed as the Director of the Department of Public Works for Anchorage. Defendant Ted J. Forsi is or has previously been employed as a municipal engineer for Anchorage. Defendant Randy Parker is or has previously been employed as a management services specialist.C. Dispute
Duffus is a civil engineer. Anchorage hired Duffus in 1981. From his initial hiring through 1991, Duffus apparently worked without any disciplinary problems. Duffus was suspended for sixty days in 1991. Duffus grieved the suspension through his union. An arbitrator's decision upheld the suspension in 1993.
Anchorage terminated Duffus on July 30, 1993, for failing to follow Anchorage's leave policy. Duffus grieved this termination through his union. A hearing was held in March 1994. On May 28, 1994, the arbitrator concluded that Anchorage did not have just cause to terminate Duffus. The arbitrator ruled that a five-month suspension was an appropriate disciplinary penalty instead of termination. The arbitrator ordered that Duffus be reinstated with back-pay from January 1, 1994, to the date he returned to work, less gross receipts from other income sources. Duffus returned to work on June 27, 1994. Notwithstanding the arbitrator's decision, Anchorage never paid Duffus the back-pay it owed him. Duffus' union filed suit on his behalf against Anchorage in the Superior Court for the State of Alaska, Third Judicial District at Anchorage in 1997. That suit is captioned Anchorage Municipal Employees Association v. Municipality of Anchorage, 3AN-97-7928 CIV. The case is still pending.
Anchorage again terminated Duffus in 1994. Duffus grieved this termination through his union. Another arbitration was conducted. On February 13, 1996, the arbitrator concluded that a ninety-day suspension was warranted instead of termination. The arbitrator ordered Anchorage to reinstated Duffus with back-pay. Reinstatement was to be effective March 4, 1996.
Duffus was never reinstated. He received no income from Anchorage between November 8, 1994 and March 4, 1996. Somewhere around this latter date, Duffus apparently began pursuing private employment opportunities as a developer and contractor in the Anchorage area between 1996 and 1998. It is apparently undisputed that Duffus was involved in one development project which ultimately led to litigation against Anchorage after Duffus was denied a permit to construct a water main in the public right-of-way. On July 15, 1998, Duffus filed suit against Anchorage in the Superior Court for the State of Alaska, Third Judicial District at Anchorage. That case is captioned Kenneth M. Duffus d/b/a KND Investments v. Municipality of Anchorage, 3AN-98-7600 CIV. This case is still pending. Duffus apparently also began pursuing other forms of private employment, including formation of KND Engineering. However, the record is not precisely clear. It seems that one or more of Duffus' enterprises or business ventures involved work with or through Anchorage.
Notwithstanding the fact that he was never reinstated and received no income from Anchorage, Duffus was apparently still classified as an Anchorage employee. He was therefore still subject to ethics provisions governing Anchorage's employees. On March 1, 1996, Randy Parker of Anchorage's Department of Employee Relations contacted Duffus. Parker requested that Duffus file conflict disclosures mandated by the Anchorage Municipal Code. Parker asked Duffus to describe any business in which he was engaged with Anchorage. Parker also asked Duffus to provide a list of the outside employment in which he was engaged. Parker advised Duffus that failure to adequately respond would subject him to disciplinary action, including termination. A period of time then followed in which Duffus and Parker exchanged additional communications relevant to Parker's initial request. Duffus' responses were deemed insufficient, and ultimately, Duffus was terminated on April 11, 1996.
Duffus grieved his 1996 termination through his union. Another round of arbitration proceedings began. Hearings were conducted between 1997 and 1999. On August 26, 1999, the arbitrator concluded that Anchorage did not have just cause to terminate Duffus. The arbitrator ordered Anchorage to reinstate Duffus. Following the arbitrator's decision, Anchorage again requested that Duffus file conflict disclosures mandated by the Anchorage Municipal Code. Anchorage requested that Duffus file this information no later than October 1, 1999. However, before that date arrived, Anchorage again terminated Duffus on September 27, 1999. Anchorage advised Duffus he was terminated for rejecting its offer of reinstatement. Duffus alleges he never rejected a reinstatement offer.
D. Procedural History
Following his last termination, Duffus filed suit in the Superior Court for the State of Alaska, Third Judicial District at Anchorage, Alaska, on October 1, 1999. Anchorage filed a timely notice of removal on October 14, 1999. Anchorage filed the present motion on October 20, 1999. Duffus filed a First Amended Complaint on October 22, 1999. No Answer has been filed. Duffus' First Amended Complaint alleges twelve claims: (1) deprivation of property interest without due process of law in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (2) deprivation of a liberty interest in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (3) deprivation of a property interest protected by the Alaska Constitution; (4) deprivation of a liberty interest protected by the Alaska Constitution; (5) violation of the implied covenant of good faith and fair dealing inhering in Duffus' employment contract; (6) violation of equal protection in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (7) violation of equal protection in violation of the Alaska Constitution; (8) violation of the right to privacy protected by the Alaska Constitution by requiring Duffus to provide information regarding his business relationships; (9) tortious interference with business relationships; (10) intentional infliction of emotional distress; (11) unlawful reprisals for exercising rights in violation of 42 U.S.C. § 1983; (12) wrongful withholding of back-pay awards.
Docket 1.
Docket 8.
Docket 9.
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim should only be dismissed if "it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief." A dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." In reviewing a Fed.R.Civ.P. 12(b)(6) motion to dismiss, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party." The court is not required to accept every conclusion asserted in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." If the parties submit matters outside the pleadings which are not excluded by the court, the motion is converted to a motion for summary judgment under Fed.R.Civ.P. 56.
Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Vignolo, 120 F.3d at 1077.
Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (quoting Brian Clewer, Inc. v. Pan American World Airways, Inc., 674 F. Supp. 782, 785 (C.D.Cal. 1986)).
IV. DISCUSSION
Anchorage contends that Duffus' claims are barred by collateral estoppel, res judicata, failure to exhaust administrative remedies, the statute of limitations, abstention doctrines, and a number of other procedural or substantive defenses. Anchorage has submitted material outside the pleadings in support of its arguments. However, the material has not been authenticated pursuant to Fed.R.Civ.P. 56(e) or Fed.R.Evid. 901-902. Therefore, the court has not considered the material submitted with Anchorage's motion except for limited review of the state court pleadings as discussed below.
Duffus' first four claims allege deprivation of liberty and property interests through loss of employment. Duffus' claims do not specify a particular date. For example, with respect to Duffus' first claim, he does not allege that Anchorage deprived him of a property interest without due process of law in violation of the Fourteenth Amendment and 42 U.S.C. § 1983 by terminating him in 1994 or 1996 or 1999. Instead, Duffus generally alleges a deprivation of a property interest without specifying any particular date. The same is true with his second, third, and fourth claims. Such general allegations are adequate for purposes of notice pleading. Naturally, if it develops upon further discovery that Duffus is seeking to recover for his termination in 1994, any such claim probably would be time-barred. The court is not entering a ruling to that effect, but simply offering a general observation. However, for purposes of a motion under Fed.R.Civ.P. 12(b)(6), a claim should only be dismissed if "it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Anchorage has not met its burden to establish that Duffus can prove no set of facts in support of his first four claims that would entitle him to relief.
Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
The same analysis applies with equal force to Duffus' remaining claims. Duffus' fifth claim alleges breach of the implied covenant of good faith and fair dealing related to his employment contract. No dates or other allegations are provided, but at this stage none need be set forth. Duffus' sixth and seventh claims allege violation of equal protection guaranteed by the state and federal constitutions. Duffus' eighth claim alleges violation of the right to privacy protected by the Alaska Constitution by requiring Duffus to provide information regarding his business relationships. However, no specific details are provided. Duffus' ninth and tenth claims allege torts. Duffus' eleventh claim alleges that Anchorage has violated his rights in reprisal for his exercising rights protected by federal law. All of these claims are generally alleged and survive attack under a 12(b)(6) motion to dismiss for reasons previously discussed.
Because no specific dates are alleged, Anchorage's contention that Duffus' claims are barred by the statute of limitations must fail. Anchorage's argument that Duffus' claims are barred by exhaustion of administrative remedies must await development of additional evidence and a full record. On the existing record, it is not clear that Duffus is currently an employee who is subject to grievance procedures afforded by a collective bargaining agreement or other internal review process. Anchorage has not filed an answer to Duffus' complaint yet. Under a 12(b) 6) standard, Anchorage would not be entitled to relief because even if one assumed that Duffus were subject to an existing grievance procedure, he has alleged continuing violations of his rights to support his theory that it would be futile to exhaust any administrative remedies which might be available. Whether Duffus will be able to come forward with any admissible evidence to support this theory presents a separate question which the court need not address at this stage.
Concerning Anchorage's collateral estoppel and res judicata arguments, the present record does not establish that Duffus is attempting to relitigate any of the prior arbitration awards. Anchorage's reliance on abstention doctrines is unavailing. Anchorage contends that Duffus' current case alleges claims which are identical to those alleged in Duffus v. Anchorage, 3AN-98-7600 Civil. However, the two cases do not allege identical claims. The pending state court case addresses denial of a permit to build a water main on a public right-of-way.
Duffus' twelfth claim alleges that Anchorage owes him back pay as awarded by the arbitration decisions previously rendered. It is apparently undisputed that at least some portion of Duffus' twelfth claim for back pay is currently pending in state court in Anchorage Municipal Employees Association v. Municipality of Anchorage, 3AN-97-7928 CIV. It may be appropriate to abstain from hearing this one particular claim. However, at present, the court declines to abstain from hearing this one claim for several reasons. First, abstention would be based on application of the Colorado River doctrine, an argument that Anchorage did not raise until its reply. Second, declining to abstain does not waste court resources at this stage. The parties have not briefed or argued any issues pertaining to the substantive merits of Duffus' claim for back pay. If it develops that these issues are decided in state court, Anchorage will no doubt bring that fact to this court's attention. Third and finally, the precise claims being contested in state court have not been established on the present record. It may be that some portion of back pay claims have not been litigated.
Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-18 (1976).
Finally, even if this court considered the material submitted outside the pleadings and converted Anchorage's motion to a Rule 56 motion for summary judgment, the same result would follow, principally because Duffus' claims are alleged without specific dates and are not pegged to any specific incident or conduct. The lack of a specific date renders it impossible to grant Anchorage summary judgment on a limitations defense. The lack of specific allegations underlying each claim makes it impossible to ascertain whether any of Duffus' claims are subject to dismissal on grounds of res judicata, collateral estoppel, or exhaustion of administrative remedies. Anchorage has not established that there is no genuine issue of material fact in dispute and that it is entitled to summary judgment as a matter of law. Therefore, Anchorage is not entitled to summary judgment on its miscellaneous defenses at this stage.
The court wishes to emphasize that no part of this order should be construed as a factual finding or legal ruling on any substantive issue. Anchorage may well be entitled to summary judgment upon development of a factual record. At present, however, the legal standards governing Fed.R.Civ.P. 12(b)(6) preclude the relief Anchorage seeks, and to the extent that Anchorage is seeking relief under Fed.R.Civ.P. 56 there are genuine issues of material fact precluding relief at this stage for those reasons previously discussed.
V. CONCLUSION
For the foregoing reasons, Anchorage's motion at docket 8 is DENIED. Duffus' motion at docket 15 is DENIED as moot.