Opinion
No. C-99-4565 MMC.
June 14, 2005
Before the Court is the motion for summary judgment filed April 13, 2005 by defendant Rogers Trucks Equipment, Inc. ("Rogers"), sued as "Rogers Trucking." Kinnard has filed opposition to the motion, to which Rogers has replied. Having considered the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for decision without a hearing,see Civ. L.R. 7-1(b), and hereby VACATES the June 24, 2005 hearing on the motion. For the reasons set forth below, Rogers' motion is GRANTED.
BACKGROUND
The instant action is one in a series of actions filed by Kinnard in both state and federal court, and before various administrative agencies, against contractors associated with San Francisco's Minority Business Enterprise ("MBE") program.
On June 18, 2004, the Court granted in part and denied in part Kinnard's motion for leave to file a Fourth Amended Complaint. (See Order Granting in Part and Denying in Part Plaintiff's Motion for Leave to File Fourth Amended Complaint, filed June 18, 2004.) As a result of the Court's June 18, 2004 order, the only causes of action Kinnard asserts against Rogers are the Tenth Cause of Action, for violation of California Business and Professions Code § 17200, and the Eleventh Cause of Action, for race discrimination in violation of 42 U.S.C. § 1981. See id. at 20:8-18.
In the Court's November 10, 2004 order granting in part and denying in part Rogers' motion to dismiss the claims asserted against it in the Fourth Amended Complaint, the Court held that Kinnard's § 1981 claim against Rogers was time-barred as to all claims based on alleged discrimination occurring prior to October 13, 1998. (See Order Granting in Part and Denying in Part Rogers' Motion To Dismiss Fourth Amended Complaint or, Alternatively, to Strike Portions of the Complaint, filed Nov. 10, 2004 ("Nov. 10 Dismissal Order"), at 13-14, 16.) As a result, Kinnard's § 1981 claim against Rogers is limited to allegations of discrimination occurring in connection with the BART Extension Project, the only discriminatory act by Rogers that is alleged to have occurred after October 13, 1998. See id. at 16; see also Fourth Amended Complaint ("4AC") ¶¶ 150-154 (alleging discrimination, beginning in November 1998, in connection with BART Extension Project). The Court also held, in its November 10, 2004 order granting in part and denying in part Rogers' motion to dismiss, that Kinnard's claim for violation of § 17200 is derivative of his other causes of action. (See Nov. 10 Dismissal Order at 14.) As Kinnard's § 1981 claim is the only other remaining claim asserted against Rogers, the § 17200 claim is derivative of, and based solely on, the § 1981 claim. See id.
With respect to Kinnard's § 1981 claim, Kinnard alleges that Rogers and former defendant Tutor-Saliba conspired to prevent Kinnard and other African-Americans from contracting on the BART Extension Project, by establishing SS Trucking and Krystal Trucking as fictitious disadvantaged business enterprise ("DBE") trucking firms in order to gain control of the dispatch and trucking work on the BART Extension Project. (See Fourth Amended Complaint ("FAC") ¶ 202.) Kinnard further alleges that once Rogers obtained control over the project, it refused to hire any African-American contractors and, in particular, refused to hire Kinnard. (See id.)
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment as to "all or any part" of a claim "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(b), (c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. The Court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).
The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325.
Where the moving party "bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial."See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (citations omitted); see also Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) (holding when plaintiff moves for summary judgment on an issue upon which he bears the burden of proof, "he must establish beyond peradventure all of the essential elements of the claim . . . to warrant judgment in his favor.") (emphasis in original).
A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e); see also Liberty Lobby, 477 U.S. at 250. The opposing party need not show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is submission of sufficient evidence to create a material factual dispute, thereby requiring a jury or judge to resolve the parties' differing versions of the truth at trial. See id.
The district court is not required to search the record sua sponte for some genuine issue of material fact. See Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) ("It is not our task, or that of the district court to scour the record in search of a genuine issue of triable fact. We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment."); see also Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1031 (9th Cir. 2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.")
DISCUSSION
A. Timeliness
Rogers argues, in its reply, that the Court should not consider Kinnard's opposition because it was not timely served on Rogers. On May 13, 2005, the Court granted Kinnard's request for an extension of time to respond to the summary judgment motion and ordered Kinnard to file his opposition no later than June 1, 2005. (See Order Granting Plaintiff's Ex Parte Application to Enlarge Time to Respond to Defendant's Motion for Summary Judgment, filed May 13, 2005 ("May 13 Continuance Order"), at 2.) Kinnard filed his opposition on June 1, 2005. The proof of service attached to Kinnard's opposition states that it was served on Rogers' counsel by mail on June 1, 2005.
Rogers correctly points out that the Civil Local Rules of this district provide that, in cases that are not subject to electronic filing, "[i]f the serving party elects to send the pleading or paper by mail, it must be mailed 3 days before the due date[.]" See Civil L.R. 5-5(a)(2). Kinnard's opposition was not served in conformity with Civil L.R. 5-5. As Rogers does not claim to have been prejudiced by the error, however, the Court will exercise its discretion to consider Kinnard's opposition.
B. § 1981 Claim
Section 1981 provides, in relevant part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Section 1981 prohibits "purposeful discrimination" in contracting, on the basis of race, by both private and governmental actors. See General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 387-89 (1982). A § 1981 plaintiff may prove intentional racial discrimination by means of the familiarMcDonnell-Douglas burden-shifting test applicable to employment discrimination claims under Title VII. See Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 538 (9th Cir. 1982). Under that test, Kinnard first must establish a prima facie case of disparate treatment by showing "(i) that he belongs to a racial minority; (2) that he applied and was qualified for a [contract] for which the [defendant] was seeking applicants; (3) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, . . . the [defendant] continued to seek applicants from persons of [Kinnard's] qualifications." See id. at 538 n. 5. The burden then shifts to Rogers to articulate some legitimate, nondiscriminatory reason for its failure to hire Kinnard to work on the BART extension project. See DeHorney v. Bank of America National Trust and Savings Ass'n, 879 F.2d 459, 467 (9th Cir. 1989). If Rogers carries this burden, Kinnard then must present evidence that the reasons offered by Rogers "were not the true reasons, but were a pretext for discrimination." See id.
The McDonnell-Douglas test is "not the only mode of establishing a prima facie case of discrimination"; a plaintiff also may make "an alternative presentation of evidence supporting an inference of discrimination." See id.
Assuming, arguendo, Kinnard has set forth a prima facie case of discrimination, Rogers has submitted evidence of a legitimate, nondiscriminatory reason for its failure to hire Kinnard to work on the BART Extension Project. Philip Rogers, President of Rogers Trucks Equipment, Inc., attests that Tutor-Saliba was the general contractor on the BART Extension Project, and that Tutor-Saliba selected SS Trucking as the trucking contractor for the project. (See Rogers Decl. ¶¶ 2-4.) He further attests that "SS Trucking dispatched Rogers Trucks for trucks and/or trailers on an as needed basis." (See id. ¶ 7.) According to Rogers, when it "did not have a sufficient number of trucks and/or trailers to complete the job, [it] dispatched other trucking businesses (i.e., sub-haulers)" from a list Rogers maintained of businesses it knew were qualified for the work because they owned their own tractors and/or trailers, had provided Rogers with updated documentation showing adequate and proper ownership, insurance and licensing, and had informed Rogers that they were interested in work. (See id. ¶¶ 7-8.) Philip Rogers attests that Kinnard's company, PK Trucking, was not on the list, that Rogers did not compile the list based on the race or ethnicity of a business owner, and that Rogers did not choose whom to dispatch based on race or ethnicity. (See id. ¶¶ 8, 10-11.) Indeed, "[a]pproximately 70% of the businesses on the list from which [it] dispatched work on the [BART Extension] Project were minority owned, and approximately 35-40% of those businesses were owned by African-Americans." (See id. ¶ 16.) Philip Rogers further attests that if the list had included the name of Kinnard's firm, PK Trucking, Rogers would have considered dispatching PK Trucking for work on the BART Extension Project. (See id. ¶ 12.) He further attests that Rogers had previously worked with PK Trucking on at least five other projects from 1980 through 1995. (See id. ¶¶ 13-14.)
The Court notes, however, that Kinnard has submitted no evidence of his qualifications to perform work on the BART Extension Project, and that Philip Rogers attests that Kinnard's firm, PK Trucking, did not appear on Rogers' list of qualified truckers. (See Rogers Decl. ¶¶ 8, 11.)
Kinnard has submitted three declarations in support of his opposition to Rogers' motion for summary judgment. In ruling on the instant motion, the Court has considered only the sworn statements contained in those declarations and has not considered additional statements that appear only in Kinnard's opposition memorandum.
When the Court granted Kinnard's motion for an extension of time to respond to the motion for summary judgment, the Court expressly cautioned Kinnard that he "must support his factual statements with a declaration" and that "[s]tatements contained only in his memorandum are argument, not evidence." (See May 13 Continuance Order at 2.) In that order, the Court further stated: "Kinnard is hereby ADVISED that in the future, any unsworn statement of fact offered in support of or in opposition to a motion or other request for relief will be stricken." See id.
First, Kinnard submits his own declaration. In that declaration, he attests only to the authenticity of three documents, all of which predate the BART Extension Project, and none of which appear to have any connection to the awarding of contracts in connection with the BART Extension Project. (See Kinnard Decl. ¶ 1-3.) Kinnard's declaration contains no statement as to any circumstances under which he applied for, and was denied, work on the BART Extension Project.
Although Kinnard makes numerous unsworn statements in his opposition, Kinnard's only declaration is an attachment titled "Document List."
The documents are: (1) San Francisco Airport Commission Resolution No. 97-0335, dated December 16, 1997, entitled "`San Francisco Truckers First' Policy," by which the Airport Commission sought to encourage use of San Francisco trucking firms in airport construction contracts; (2) a letter from the San Francisco Human Rights Commission, dated September 12, 1994, discussing the relationship between Rogers and Krystal Trucking; and (3) a 1980 "Agreement Regarding Operation of Sand Pit in the Town of Colma," signed by Philip and Ralph Rogers on behalf of Select Sand Supply, Inc. ("Select"), which Kinnard attests was "the dump used on the BART project." (See Kinnard Decl. ¶¶ 1-3 and attachments.)
Kinnard also submits the declaration of Pat Natali ("Natali"). Natali attests that she has been the dispatcher for PK Trucking, Kinnard's trucking firm, for more than 20 years. (See Natali Decl. at 1.) Natali further attests that "during the 1998 and 1999 year [she] attempted to obtain dispatches on the BART job by calling the Rogers office who controlled the BART job but was repeatedly denied work even though the job was an HRC project and called for local workers first." (See id. at 1-2.) Natali's declaration is evidence that Kinnard applied for work on the BART Extension Project and was denied such work, but permits no inference that Rogers' stated reasons for not hiring Kinnard's firm were pretextual.
Finally, Kinnard has submitted the declaration of Al Cain ("Cain"). Cain attests that he owns Al Cain Trucking and has been in the trucking business for more than 30 years. (See Cain Decl. at 1.) Cain, who is African-American, attests that he attended a meeting about the BART Extension Project at the BART office in November 1998 with "about 20 other minority local S.F. truckers" to protest "the lack of opportunity in having an opportunity to work on the BART job." (See id. at 1-2.) Cain acknowledges, however: "[O]nce the job began we were being dispatched by Rogers." (See id. at 2.) Although Cain complains about the method by which he was paid by Rogers, he does not attest that non-African-American truckers were treated differently. (See id. at 2.) Finally, Cain attests that Rogers "would only call local truckers in [an] emergency" and, otherwise, would use only Rogers' own trucks. (See id.) No inference can be drawn from Cains' declaration that Kinnard was denied work on the BART project because of his race. Indeed, as Cain acknowledges, Rogers hired African-American contractors to perform work on the project. Moreover, Cains' description of Rogers' practice of offering work to subcontractors only when Rogers could not perform the work itself is consistent with Rogers' own explanation of how it awarded work on the BART Extension Project. (See Rogers Decl. ¶ 7 (attesting that Rogers dispatched work to other truckers when it "did not have a sufficient number of trucks and/or trailer to complete the job")).
Rogers attests that Cain is African-American. (See Rogers Further Decl. ¶ 2.)
In short, Kinnard has failed to submit evidence that Rogers' reasons for not hiring Kinnard "were not the true reasons, but were a pretext for discrimination." See DeHorney v. Bank of America National Trust and Savings Ass'n, 879 F.2d at 467. Consequently, Kinnard has not met his burden of showing that a triable issue of material fact exists as to whether Rogers intentionally discriminated against him because of his race.
Kinnard similarly fails to submit any evidence in support of his theory that Rogers violated § 1981 by conspiring with Tutor-Saliba to deprive Kinnard of work on the BART Extension Project by establishing SS Trucking and Krystal Trucking as fictitious DBE trucking companies. (See FAC ¶ 202.) Kinnard has submitted no evidence of any agreement between Tutor-Saliba and Rogers, and no evidence that Tutor-Saliba was involved in the creation of SS Trucking or Krystal Trucking, or in the decision not to award work to Kinnard. Although it is undisputed that SS Trucking worked on the BART Extension Project, Kinnard has submitted no evidence that SS Trucking was not qualified as a DBE trucker, or that Kinnard was more qualified than SS Trucking to perform the work that was awarded to SS Trucking. Finally, Kinnard has submitted no evidence that Krystal was awarded any work on the BART Extension Project. In short, there is simply no evidence of a conspiracy among Rogers, Tutor-Saliba, SS Trucking and Krystal Trucking to deprive Kinnard of work on the BART Extension Project because of his race.
Accordingly, the Court will GRANT Rogers' motion for summary judgment on Kinnard's § 1981 claim, as asserted against Rogers.
C. § 17200 Claim
As the Court previously has held that Kinnard's § 17200 claim is entirely derivative of his § 1981 claim, and because the Court finds Rogers is entitled to summary judgment on Kinnard's § 1981 claim, the Court will grant summary judgment in favor of Rogers on the § 17200 claim as well.
D. Rule 56(f)
Kinnard argues that Rogers "refuses to turn over any discovery" and is "in total violation of Rule 56(f)." Rule 56(f) provides: "Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Fed.R.Civ.P. 56(f). A party seeking a continuance "must show how additional discovery would preclude summary judgment and why a party cannot immediately provide `specific facts' demonstrating a genuine issue of material fact." See Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 524 (9th Cir. 1989). The party seeking a continuance must specifically identify relevant existing information that he needs, and make clear how that information would preclude summary judgment. See id.; see also Wellman v. Writers Guild of Am., West, Inc., 146 F.3d 666, 674 (9th Cir. 1998) (holding district court did not err by denying Rule 56(f) motion where it determined that desired evidence was unnecessary to plaintiff's case and plaintiff did not explain how information he sought would preclude summary judgment).
The Court previously has notified Kinnard that if he "wishes to pursue his concerns about the adequacy of defendants' responses to his discovery requests, he must file a timely motion to compel before Magistrate Judge Maria Elena James, the magistrate judge to whom all discovery disputes previously have been referred." (See May 13 Continuance Order at 1 n. 1.)
Kinnard has not identified the specific information Rogers has failed to produce, and has set forth no argument as to how that information would preclude summary judgment. Accordingly, to the extent Kinnard is seeking a Rule 56(f) continuance of the hearing on Rogers' motion for summary judgment, the motion is DENIED.
E. Rule 11
Kinnard, in his opposition, contends that Rogers has violated Rule 11 of the Federal Rules of Civil Procedure by basing its motion on false statements, and argues that Rogers "should be penalized severely." (See Opp. at 3.) The Court declines to consider Kinnard's request for Rule 11 sanctions because he has failed to comply with the requirement therein that a motion for Rule 11 sanctions be served on the opposing party at least 21 days before filing the motion with the Court. See Fed.R.Civ.P. 11(c)(1)(A). In addition, the request for sanctions fails to comply with the requirement, set forth in the Civil Local Rules of this District, that a request for sanctions be filed as a separate motion. See Civil L.R. 7-8. Moreover, Kinnard has failed to submit admissible evidence of Rogers' alleged false statements.
F. Remainder of Action
The only remaining causes of action are brought under state law, in particular, the first cause of action, for breach of contract, against Peak Engineering ("Peak"); the second cause of action, for fraud, against Steve Navarro ("Navarro"); and the tenth cause of action, for unfair competition in violation of California Business and Professions Code § 17200, against Peak and Navarro. (See Order Granting in Part and Denying in Part Plaintiff's Motion for Leave to File Fourth Amended Complaint, filed June 18, 2004, at 20:8-16.) There is no allegation of diversity jurisdiction.
The other causes of action remaining as of June 18, 2004 have been resolved. In particular, the three causes of action against Herrick Steel were resolved by settlement, (see Docket Nos. 319 and 320), the § 17200 claim against Krystal Trucking was dismissed, (see Docket No. 298), and default judgment was entered against Jerrold Taylor and Bayview Sand Gravel, (see Docket No. 327).
Where, as here, the district's court jurisdiction is based solely on a federal question, the district court may decline to exercise supplemental jurisdiction over state law claims once it has dismissed all claims over which it has original jurisdiction.See 28 U.S.C. § 1367(c)(3). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988).
Accordingly, the Court will decline to assume supplemental jurisdiction over the remaining state law claims, and will dismiss the remaining causes of action against Peak and Navarro, without prejudice to Kinnard's refiling those causes of action in state court.
CONCLUSION
For the reasons stated above,
1. Rogers' motion for summary judgment is hereby GRANTED.
2. The Court hereby DECLINES to assume supplemental jurisdiction over the remaining state law claims against Peak and Navarro, specifically, the first cause of action, for breach of contract, against Peak; the second cause of action, for fraud, against Navarro; and the tenth cause of action, for violation of California Business Professions Code § 17200, against Peak and Navarro. Said causes of action are hereby DISMISSED, without prejudice to Kinnard's refiling those causes of action in state court.
The Clerk shall close the file.
IT IS SO ORDERED.