1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY WINCKOWSKI, Case No. 22-cv-01734-JD

8 Plaintiff,

ORDER RE DISMISSAL AND

9 v. SUMMONS

10 HUMAN INTEREST, INC., Defendant. 11

12 I. MOTION TO DISMISS 13 Defendant Human Interest Inc.’s motion to dismiss under Federal Rule of Civil Procedure 14 12(b)(6) is granted. Dkt. No. 14. 15 Plaintiff Winckowski has alleged fraudulent conduct on the part of Human Interest. See 16 Dkt. No. 1 ¶ 7 (“plaintiff discovered that HUI was engaging in what plaintiff observed and 17 reasonably believed to be questionable and illegal pricing of its products and services and 18 deceiving and defrauding HUI’s customers”); ¶ 8 (“plaintiff further discovered HUI had 19 misrepresented the nature of his duties and responsibilities for the job position he had accepted”). 20 These allegations sound in fraud, and are subject to the heightened pleading requirements of 21 Federal Rule of Civil Procedure 9(b). See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102-05 22 (9th Cir. 2003). Winckowski has provided no details whatsoever for these allegations of 23 fraudulent conduct, and so has not satisfied Rule 9(b)’s “demand[] that the circumstances 24 constituting the alleged fraud be specific enough to give defendants notice of the particular 25 misconduct so that they can defend against the charge and not just deny that they have done 26 anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (cleaned up). 27 Because these “particular averments of fraud are insufficiently pled under Rule 9(b),” the 1 allegations that remain to determine whether they state a claim.” Vess, 317 F.3d at 1105. Without 2 || those averments, which are why Winckowski says he was “wrongfully . . . terminated,” Dkt. No. 1 3 |} 411, Winckowski does not have a plausible claim of retaliation under California Labor Code 4 § 1102.5. See Ross v. County of Riverside, 36 Cal. App. 5th 580, 591-92 (2019) (first element of a 5 || claim for violation of Labor Code § 1102.5 is “‘a prima facie case of retaliation,” which requires 6 || plaintiff to show that they (1) “engaged in [a] protected activity, (2) the defendant subjected the 7 || plaintiff to an adverse employment action, and (3) there is a causal link between the two.”). 8 Without a plausible Labor Code § 1102.5 claim, the second and third claims -- which Winckowski 9 || acknowledges are “derivative claims,” Dkt. No. 17 at 3 -- cannot go forward. 10 Consequently, the complaint is dismissed. Leave to amend is appropriate at this early 11 stage of the case. Plaintiff may file an amended complaint by October 21, 2022. No new claims 12 || or defendants may be added without express authorization from the Court. 13 |) I. ©=SUMMONS 14 The ECF docket indicates that Winckowski did not file a proposed summons, and so the 3 15 Clerk’s Office did not issue a summons to Human Interest. See Dkt. No. 7. On March 22, 2022, a 16 || the Clerk’s Office entered a note on the public docket that “proposed summons has not been e- 3 17 filed” and “no summons has been issued by the Clerk’s Office.” Even so, Winckowski filed a 18 || “proof of service of summons” which attaches a summons with the electronic signature of the 19 || “Clerk or Deputy Clerk,” dated March 18, 2022. Dkt. No. 7 at ECF p. 2. 20 This is an odd discrepancy. Winckowski’s attorney, Stephen R. Jaffe, is directed to file by 21 October 6, 2022, a declaration explaining the situation, and how he obtained the summons with 22 || the Clerk’s Office’s signature. 23 IT IS SO ORDERED. 24 || Dated: September 29, 2022 25 26

JAMES MONATO

27 United Ptates District Judge 28