Michael Soliman v. Cvs Rx Services, Inc.
570 F. App'x 710
9th Cir.2014Background
- Plaintiff Michael Soliman sued CVS alleging breach of contract, intentional infliction of emotional distress (IIED), and fraud arising from CVS’s reports to police and his arrest on November 14, 2007.
- Soliman attached a two‑page employment contract to his initial complaint; the contract expressly stated employment was "at will."
- Soliman omitted the first page of that contract in his first amended complaint; the district court nonetheless considered the originally attached two‑page document.
- CVS removed the case to federal court after learning the amount in controversy exceeded $75,000; Soliman moved to remand and sought oral argument under the local rule.
- The district court dismissed all claims as time‑barred or deficient and denied remand; Soliman appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract — enforceability of employment terms | Contract omission in FAC prevents court from considering the original contract page | Court may consider a writing referenced in the complaint that was previously attached; contract states at‑will employment | Dismissal affirmed — contract is at‑will, no restriction on termination |
| IIED — timeliness | IIED claim timely or equitable tolling applies | IIED claim barred by 2‑year statute; cause accrued at arrest (Nov. 14, 2007) | Dismissal affirmed — IIED claim time‑barred; equitable tolling argument waived |
| Fraud — timeliness | Fraud claim timely | Fraud claim barred by 3‑year statute; accrual at discovery/notice (arrest date) | Dismissal affirmed — fraud claim time‑barred |
| Removal and remand procedure | Removal was untimely; court should have held oral argument under Local Rule 7‑14 | Removal timely after CVS learned amount in controversy; no entitlement to oral argument | Removal and refusal to hold argument affirmed; removal not waived and no rule requires argument |
Key Cases Cited
- Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264 (9th Cir.) (California at‑will employment presumption and contract restriction rule)
- Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir.) (courts may consider writings referenced in complaint even if not incorporated)
- Greger v. Barnhart, 464 F.3d 968 (9th Cir.) (argument not raised below is waived)
- Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir.) (statute of limitations may support Rule 12(b)(6) dismissal when apparent on complaint)
- Harris v. Bankers Life & Cas. Co., 425 F.3d 689 (9th Cir.) (30‑day removal rule measured from when defendant first learns case is removable)
- Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230 (9th Cir.) (appearance before removability does not waive removal right)
- Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir.) (appellate court may affirm on any basis fairly supported by the record)