FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS (ECF No. 5)

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Baron Bower ("Plaintiff"), appearing pro se in this action, filed the complaint in this action on January 16, 2015. (ECF No. 1.) Currently before the Court is Defendant Foster Farm's motion to dismiss. (ECF No. 5.) No opposition to the motion has been filed.1

A hearing on the motion to dismiss was held on March 18, 2015. (ECF No. 15.) Counsel Josiah Prendergast appeared for Defendant and Mr. Bower appeared in propria persona. (Id.) Having considered the moving papers, arguments at the March 18, 2015 hearing, as well as the Court's file, the Court issues the following findings and recommendation.

I.

BACKGROUND

Plaintiff began working for Foster Farms in 1982. He was one of six employees who filed a lawsuit against Foster Farms in March of 2002. The employees were represented by counsel in the 2002 action. The parties engaged in mediation that lasted 15 hours. The parties to the action, including Plaintiff entered into a settlement agreement. The settlement agreement provides that the plaintiffs waive, release and forever discharge and agree they will not pursue or prosecute any claims, complaints, charges, etc. for any claims under Title VII of the 1964 Civil Rights Act, the California Fair Housing and Employment Act, Government Code § 12900 et seq., the California Labor Code, the American's with Disabilities Act, the California Family Leave Act, the Age Discrimination in Employment Act, and the Employment Retirement Income Security Act against Foster Farms or any of its current or former owners, officials, directors, officers, shareholders, affiliates, etc. with respect to any event, matter, claim, damage or injury arising out of the plaintiffs' employment relationship with Foster Farms. Plaintiff received a monetary settlement and as part of the settlement agreement he resigned his position with Foster Farms.

Plaintiff was offered a job in 2006 by Beazer Homes which was withdrawn after Foster Farms gave him a poor reference stating he was not working due to violence in the workplace. In 2007, Plaintiff filed a case in this Court, Bower v. Foster Farms Dairy, 1:07-cv-0917-LJO-SMS. As relevant here, after defendant filed a motion to dismiss or alternately for summary judgment, Judge O'Neill dismissed the case finding that Plaintiff was bound by the terms of the settlement agreement and did not seek rescission during the limitations period.

In this action, Plaintiff seeks to set aside the settlement agreement in the 2002 case and restore his rights.

II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint "fail[s] to state a claim upon which relief can be granted." A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bellunlawfully Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-79. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.

In deciding whether a complaint states a claim, the Ninth Circuit has found that two principles apply. First, to be entitled to the presumption of truth the allegations in the complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair to require the defendant to be subjected to the expenses associated with discovery and continued litigation, the factual allegations of the complaint, which are taken as true, must plausibly suggest an entitlement to relief. Starr, 652 F.3d at 1216.

III.

DISCUSSION

Defendant moves to dismiss this action with prejudice on the grounds that no basis for federal jurisdiction is pled in the complaint, Plaintiff has not alleged facts to state a claim, and each claim is settled, time-barred, waived or all of the above.

A. Subject Matter Jurisdiction

Initially, defendant moves to dismiss this action on the ground that subject matter jurisdiction does not exist. Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to 28 U.S. C. § 1331, federal courts have original over "all civil actions arising under the Constitution, laws, or treaties of the United States. "A case `arises under' federal law either where federal law creates the cause of action or where the vindication of a right under state law necessarily turns on some construction of federal law." Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983) (citations omitted)). "[T]he presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Republican Party of Guam, 277 F.3d at 1089 (citations omitted).

For this action to arise under federal law, Plaintiff must establish that "federal law creates the cause of action" or his "asserted right to relief depends on the resolution of a substantial question of federal law." K2 America Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir. 2011). Plaintiff alleges in his complaint that the settlement agreement that he entered into in 2002 clearly violates the Equal Employment Opportunity Commission's ("EEOC") laws as it 1) was not written at the level of education suitable for the plaintiffs; 2) it contained long sentences that seem to run together; 3) it possesses ambiguity in certain areas; and 4) it lacked adequate consideration.2 (Compl. 2-3, ECF No. 1.)

Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (citation omitted).

Plaintiff's complaint does not allege any violations of Title VII and the allegation that the settlement agreement violates the EEOC laws is not sufficient to establish that federal law creates a cause of action or his asserted right to relief depends on the resolution of a substantial question of federal law. Plaintiff has not alleged any facts to raise federal question jurisdiction in this action.

District courts also have original jurisdiction of all civil actions between citizens of different States in which "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). This requires complete diversity of citizenship and the presence "of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action." Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). In order to plead a claim by virtue of diversity of citizenship, Plaintiff is required to plead the essential elements of diversity jurisdiction. Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987).

Plaintiff has not set forth his residency or the residency of Defendant in this action, nor has he set forth the damages sought in the complaint. Plaintiff has failed to allege facts to show that diversity jurisdiction exists in this action. Following the hearing, Defendant filed a request for judicial notice of the California Secretary of State website showing that it is a California corporation. The Court shall take judicial notice of the business entity detail, Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006), and finds that Plaintiff cannot state a claim based on diversity jurisdiction in this action as diversity of citizenship does not exist between the parties.

As Plaintiff has failed to include facts to show that the Court has subject matter jurisdiction over his claims, the Court recommends that Defendant's motion to dismiss for lack of subject matter jurisdiction should be granted.

B. Plaintiff's Claims are Time Barred

Plaintiff appears to raise four causes of action in his complaint: 1) rescission of the settlement agreement; 2) retaliation for participating in protected activity; 3) wrongful termination; and 4) retaliation in the form of a negative job referral.

1. Statute of Limitations

Initially, the Court notes that all the factual allegations in the complaint involve incidents that occurred in 2006 or prior.

a. Rescission of the Settlement Agreement

California provides that the statute of limitations on rescission of written contracts is four years. Cal. Civ. Code § 337(3). Where rescission is based on fraud or mistake, the time begins to run at the time that the party discovers the facts constituting fraud or mistake. Id. Where a party seeks affirmative relief, his claim may be barred when he fails to act within the statute of limitations period. Ferguson v. Yaspan, 233 Cal.App.4th 676, 682 (2014). The statute of limitations begins to run once every element of the cause of action has occurred. Ferguson, 233 Cal.App.4th at 683.

Plaintiff alleges that he was subjected to a severe miscarriage of justice by the unlawful acts and fraud of Defendant; Defendant had overwhelming power, influence and unequal bargaining positions; and violated their business practices by interfering with the insurer's process for the fair settlement of claims. (ECF No. 1 at 2.) Plaintiff states that he clearly remembers Joe Alioto (his attorney) going over the agreement and having him sign in certain places. (Id. at 3.) Although Plaintiff makes conclusory allegations of fraud on the part of Defendants, there are no facts pled in the complaint to state a cognizable claim for fraud.

Rule 9 provides that to plead fraud or mistake, a party "must state with particularity the circumstances constituting fraud. . . ." Fed. R. Civ. P. 9(b). Under California law, "[f]raud is an intentional tort, the elements of which are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage." Conrad v. Bank of Am., 45 Cal.App.4th 133, 156 (1996). Plaintiff has alleged no facts from which the Court could infer that Defendant made a misrepresentation with knowledge of falsity and an intent to defraud. Iqbal, 556 U.S. at 678-79 (to survive a motion to dismiss, plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the court to reasonably infer that each named defendant is liable for the misconduct alleged).

Plaintiff was represented by counsel in the 2002 action. The parties engaged in mediation, and a settlement agreement was entered into in which Plaintiff received a substantial settlement. While Plaintiff argues that Defendant's insurance policy contained per incident coverage and he now believes he should have received more money in settlement of his claims, this is not a basis to find fraud on the part of Defendant. Plaintiff has not alleged any facts that he was not aware of in 2002 when he entered into the settlement agreement. The statute of limitations to rescind the contract would have begun to run when the agreement was consummated.

Further, Plaintiff filed an action seeking rescission in 2007, at which time he was aware of all facts pled in this complaint. See Bower v. Foster Farms Dairy, 1:07-cv-0917-LJO-SMS at ECF No. 1.3 Even were there some reason to toll the statute of limitations, Plaintiff was aware of all facts herein alleged in 2007. This action is filed eight years later. Plaintiff's claim for rescission of contract is barred by the statute of limitations.

Plaintiff's claims in this action that arise during his employment with Foster Farms were released in the settlement agreement entered into in 2002 in exchange for substantial monetary compensation. Plaintiff cannot now seek to reassert these claims that were waived in the settlement.

b. Employment Claims

Plaintiff's employment related claims, even if they were not waived by virtue of the settlement agreement, are also barred by the statute of limitations. The statute of limitations begins to run on Plaintiff's wrongful termination claim on the date of his termination, Romano v. Rockwell Internat., Inc., 14 Cal.4th 479, 492-93 (1996), the other employment related claims would have accrued prior to this date.

Claims under California's Fair Employment and Housing Act ("FEHA") are governed by two statutory deadlines. Acuna v. San Diego Gas & Electric Co., 217 Cal.App.4th 1402, 1411 (2013). Section 12960 of the California Government Code provides that an employee must exhaust administrative remedies by filing an administrative complaint within one year after the alleged conduct occurred. Acuna, 217 Cal.App.4th at 1412. Section 12965 provides that after an employee receives a right to sue letter, the employee must bring a civil suit within one year of the date of the notice. Id. at 1413. Plaintiff's employment related claims would have had to have been brought within one year of receiving the right to sue letter. Plaintiff's claims under the FEHA are barred by the statute of limitations.

Similarly, to the extent that Plaintiff could bring claims under Title VII, federal law provides that a plaintiff must file an EEOC charge within 300 days after the alleged conduct occurred. Lelaind v. City and County of San Francisco, 576 F.Supp.2d 1079, 1091 (N.D. Cal. 2008). After receiving the right to sue letter, a plaintiff generally has 90 days to file suit. Stiefel v. Bechtel Corp., 624 F.3d 1240, 1245 (9th Cir. 2010). The allegations regarding work related acts were complete in 2002 and this suit filed more than thirteen years later is beyond the time allowed to bring suit under either the FEHA or the EEOC.

California courts apply a two year statute of limitations to claims for wrongful termination in violation of public policy. Mathieu v. Norrell Corp., 115 Cal.App.4th 1174, n.14 (2004) (applying 2 year statute of limitations in Code of Civil Procedure section 335.1). Plaintiff's wrongful termination claim accrued in December 2002 when he resigned due to the settlement agreement. (ECF No. 1 at 62.) To comply with the applicable statute of limitations, this claim must have been brought by December 2004. Plaintiff's complaint in this action was not filed until January 16, 2015, more than ten years after the statutory period expired.

Finally, the most current allegation in Plaintiff's complaint is that he was offered a job in 2006 and the offer was rescinded. Plaintiff contends that the offer was withdrawn because Foster Farms gave him a poor reference. At the March 18, 2015 hearing, Plaintiff stated that the day after being offered the job, he was told the offer was being withdrawn because Foster Farms stated the reason he was not working was because of violence in the workplace. Plaintiff contends that Foster Farms made this misrepresentation as retaliation for his participation in the investigation of prior lawsuits against Defendant.

These allegations were included in the 2007 complaint and based on Plaintiff's testimony at the March 18, 2015 hearing, he was aware of all facts regarding this retaliation claim in close proximity to the job offer being rescinded. Plaintiff's claim in this action, brought over seven years after the incident, is untimely and is barred by the statute of limitations.

C. Leave to Amend

Rule 15(a) is very liberal and leave to amend `shall be freely given when justice so requires.'" Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts "need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile." Id.

Plaintiff's claims raised in this action have either been waived by the settlement agreement which was entered into in 2002 or are barred by the statute of limitations or both. For these reasons, the Court finds that amendment of the complaint would be futile. Accordingly, the Court recommends that the complaint be dismissed without leave to amend.

IV.

CONCLUSION AND RECOMMENDATION

Based on the foregoing, IT IS HEREBY RECOMMENDED that:

These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within twenty days (20) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.