THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 Mark H. Plager (Bar No., mark@plagerschack.com PLAGER SHACK, LLP Beach Boulevard, Suite 0 Huntington Beach, CA ( Telephone ( -00 Facsimile Attorney for Defendant CHEROKEE MEDICAL SERVICES, LLC THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO ROBERTO NEPOMUCENO, vs. Plaintiff, CHEROKEE MEDICAL SERVICES, LLC, an entity /// /// /// /// Defendant. Case No.: -CV-00-BTM-BGS MOTION TO DISMISS COMPLAINT AND BRIEF IN SUPPORT Fed. Rules of Civil Procedure (b(( and ( DATE: JUNE, 0 TIME: 0:00 A.M. CTRM: B JUDGE: Hon. Barry T. Moskowitz Complaint Filed: 0// Trial Date: None Set MOTION TO DISMISS COMPLAINT

2 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 Defendant, Cherokee Medical Services, LLC ( CMS files this Motion to Dismiss Plaintiff s suit for lack of jurisdiction and failure to state a claim upon which relief can be granted and Brief in Support ( Motion, as authorized by Federal Rules of Civil Procedure (b(, ( and (. Dated: 0//0 Respectfully submitted, /s/mark Plager Mark Plager, Esq. PLAGER SCHACK, LLP Beach Blvd. Ste. 0 Huntington Beach, CA ( -00 telephone mark@plagerschack.com Attorney for Defendant Cherokee Medical Services 0 MOTION TO DISMISS COMPLAINT

3 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 TABLE OF CONTENTS I. INTRODUCTION... II. BRIEF IN SUPPORT... A. Standard of Review... B. Plaintiff s Claim under U.S.C. 000E, et seq.... i. CMS is Entitled to Sovereign Immunity.... ii. CMS is not an Employer as Defined by Title.... iii. Plaintiff did not Timely File his Claim.... C. Plaintiff s Claims under California State Law.... i. CMS is Entitled to Sovereign Immunity.... ii. CMS is not an Employer as Defined by California Statutes.... iii. California Statutes are Pre-Empted by Title VII.... CONCLUSION... 0 i TABLE OF CONTENTS AND AUTHORITIES

4 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 TABLE OF AUTHORITIES Cases Ali v. L.A. Focus Publication, (00 Cal.App.th,, Cal.Rptr.d.... Bell Atlantic v. Twombly, 0 U.S., 0... Broussard v. L.H. Bossier, Inc., F.d,... C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla., U.S., (00... California Federal S. & L. Assn. v. Guerra, ( U.S., 0 S.Ct..... Choe Rively v. Vietnam Veterans of America, (D.Del.00 F.Supp.d, 0; Graves v. Lowery (rd Cir. F.d,.;... Community for Creative Non Violence v. Reid, ( 0 U.S. 0,, 0 S.Ct., 0 L.Ed.d... Cook v. AVI Casino Enterprises, Inc., F.d, (th Cir Crosby v. National Foreign Trade Council, 0 U.S.,, 0 S.Ct., L.Ed.d ( E.E.O.C. v. Karuk Tribe Hous. Auth., 0 F.d 0, 0 (th Cir Espinoza v. Missouri Pacific R.R. Co., F.d, -0 (th Cir.... Fidelity Federal Savings & Loan Assn. v. De la Cuesta, U.S.,, 0 S.Ct. 0, 0, L.Ed.d (... 0 ii TABLE OF CONTENTS AND AUTHORITIES

5 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 Goudeau v. Dental Health Services, Inc., 0 F.Supp.,... Harvey v. City of New Bern Police Dep't., F.d, - (th Cir.... Hatcher v. Augustus, F.Supp., 0... Hines v. Davidowitz, U.S.,, S.Ct., 0, L.Ed. (... 0 Jeffries v. Deloitte Touche Tohmatsu Intern., F.Supp.,... Johnson v. Choctaw Management/Services Enterprise, Fed. Appx. 00, 0-0 (0 th Cir Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. ( U.S.,, S.Ct Law v. Hercules, Inc., F.d, - (th Cir.... Lee v. Mobile County Com'n, (S.D.Ala.( F.Supp. 0,, affd. 0 F.d...., Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., U.S.,, 0 S.Ct.,, L.Ed.d (... 0 Pink v. Modoc Indian Health Project, F.d (pth Cir.... PLIVA, Inc. v. Mensing, S. Ct.,, 0 L. Ed. d 0 ( Ridge at Red Rock, L.L.C. v. Schneider, F.d, (0th Cir S.G. Borello & Sons, Inc. v. Department of Industrial Relations, iii TABLE OF CONTENTS AND AUTHORITIES

6 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 ( Cal.d,, Cal.Rptr., P.d... Santa Clara Pueblo v. Martinez, ( U.S.,, S.Ct Scholar v. Pac. Bell, F.d, (th Cir.... Smith v. Salish Kootenai College, F.d ( th Cir Spirides v. Reinhardt, (D.C.Cir. F.d,... United States v. Logan, F. d 0 (0 th Cir.... United States v. Motamedi, F.d 0, 0 (th Cir.... Vernon v. State, Cal. App. th, -, 0 Cal. Rptr. d, -0 (00..., Statutes U.S.C. (a,... U.S.C ,,,0,,, California Government Code 0..., iv TABLE OF CONTENTS AND AUTHORITIES

7 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 I. INTRODUCTION. On or about September, 00, CMS entered into a Contract with Naval Medical Logistics Command. Contract, attached hereto as Exhibit A.. On September, 0, Naval Logistics Command issued an Order to CMS for services of a pharmacy technician. Order, attached hereto as Exhibit B.. Roberto Nepomuceno, ( Plaintiff was contracted out to Naval Logistics Command as a pharmacy technician stationed in San Diego. Complaint, Dkt... CMS is wholly owned by the Cherokee Nation. Articles of Incorporation, attached hereto as Exhibit C.. On or about September, 0, Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ( EEOC and the California Department of Fair Employment and Housing against CMS. Charge, attached hereto as Exhibit D.. On or about September, 0, the EEOC advised Plaintiff that he failed to state a claim against CMS and notified him of his right to sue within ninety (0 days. Dismissal, attached hereto as Exhibit E.. On or about March, 0, Plaintiff filed a Complaint against CMS alleging violations of U.S.C. 000e et seq., and Cal. Gov t. Code 0.. Plaintiff filed proofs of service of his Complaint showing hand-delivery to Int. Corporate Solutions, Inc. Dkt. -.. C T Corporation System, not Int. Corporate Solutions, Inc., is the registered agent for CMS in California. Secretary of State Records, attached hereto as Exhibit F. 0. CMS became aware of the Complaint on or about May 0, 0.. Plaintiff cannot maintain a claim against CMS because CMS is entitled to sovereign immunity.. Further, CMS is not an employer as defined by Title of the United States Code.

8 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0. Plaintiff failed to timely file his Complaint as identified in Title of the United States Code.. CMS is not Plaintiff s employer as identified by California statutes. II. BRIEF IN SUPPORT A. Standard of Review A complaint will not survive a motion to dismiss where the facts do not entitle the plaintiff to relief on their face. Bell Atlantic v. Twombly, 0 U.S., 0. It is the plaintiff s burden to establish the facts contained in the complaint support her claim for relief. Twombly, 0 U.S. at. The mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims. Ridge at Red Rock, L.L.C. v. Schneider, F.d, (0th Cir. 00. Because Plaintiff cannot meet the burden imposed, the claims as identified in this Motion should be dismissed. In addition, the Court lacks subject matter jurisdiction over CMS. As an arm of the Cherokee Nation, CMS is entitled to assert sovereign immunity in this instance. Because neither CMS nor Congress has waived CMS s sovereign immunity, the Court lacks subject matter jurisdiction over CMS. Santa Clara Pueblo v. Martinez ( U.S.,, S.Ct. 0 (an Indian tribe is a sovereign authority and has tribal sovereign immunity, not only from liability, but also from suit; Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. ( U.S.,, S.Ct. 00 (Absent Congressional authorization or tribal consent, the courts do not have subject matter jurisdiction over suits against a tribe.. Accordingly, Plaintiff s claims against CMS must be dismissed due to lack of subject matter jurisdiction. ///

9 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 B. Plaintiff s Claim under U.S.C. 000E, et seq. Plaintiff cannot maintain a claim under U.S.C. 000E, et seq for a myriad of reasons. Primarily, CMS has not waived its sovereign immunity as an arm of the Cherokee Nation. Further, the Cherokee Nation, and by extension CMS, is not an employer as defined under Title. In addition, Plaintiff did not file his claim timely. For any, or all, of the above reasons, Plaintiff s claims under Title of the United States Code should be dismissed. i. CMS is Entitled to Sovereign Immunity. It is established law that [t]ribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe. Cook v. AVI Casino Enterprises, Inc., F.d, (th Cir. 00 citing Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., U.S.,, S.Ct. 00, 0 L.Ed.d (. This immunity applies to the tribe's commercial as well as governmental activities. Id. Here, CMS, as an arm of the Cherokee Nation, is entitled to the same immunity from suit that the Cherokee Nation is afforded. The Ninth Circuit recognizes that tribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself. Id. The determination of immunity depends on whether the entity acts as an arm of the tribe so that its activities are properly deemed to be those of the tribe. Id. Where the tribe authorizes the entity through a tribal ordinance, and any economic advantages created by the entity inure[d] to the benefit of the Tribe, immunity of the tribe will extend to the tribal entity. Id. Here, as in Cook, CMS was created pursuant to a Cherokee Nation tribal ordinance, and CMS is technically wholly owned and managed by the Cherokee Nation. Further, the Cherokee Nation, the sole shareholder through Cherokee Nation Businesses, LLC, enjoys all of the benefits of an increase in the [entity s] value. CMS is a corporation wholly owned by Cherokee Nation Businesses LLC, which in turn is wholly owned by the Cherokee Nation. See Articles of Incorporation, attached hereto as Exhibit C.

10 Case :-cv-00-btm-bgs Document Filed 0// Page 0 of 0 0 Cook, F.d at. See also Allen v. Gold Country Casino, F.d 0, 0 (th Cir. 00( [w]ith the Tribe owning and operating the Casino, there is no question that these economic and other advantages inure to the benefit of the Tribe.. Based on the reasoning expressed in Cook and Allen, it is clear that CMS is an arm of the Cherokee Nation. As such, CMS is entitled to the same sovereign immunity granted to the Cherokee Nation. As stated above, an Indian tribe is entitled to sovereign immunity from suit, even for off-reservation commercial activity. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., U.S., (. In other words, an Indian tribe is immune from suit unless Congress has authorized the suit or the tribe has waived its immunity. C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla., U.S., (00. Plaintiff does not allege that the Cherokee Nation has waived its sovereign immunity, nor does Plaintiff allege that Congress has authorized suit against the Cherokee Nation in this instance. Because the Cherokee Nation would be entitled to sovereign immunity in this instance, CMS, through its existence as an arm of the Cherokee Nation, is also entitled to immunity. Therefore, Plaintiff s claims against CMS must be dismissed pursuant to the immunity passed down to CMS through the Cherokee Nation. ii. CMS is not an Employer as Defined by Title. Assuming, arguendo, that CMS is not entitled to immunity from suit, Plaintiff s claims under Title of the United States Code must still be dismissed. Plaintiff asserts his federal claim against CMS under Title VII, U.S.C. 000E et seq. In fact, Congress has explicitly exempted Indian tribes from suit under Title. See Section B(ii, infra.

11 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 Complaint, Dkt. at p.. However, Title VII specifically exempts Indian tribes from its coverage. Congress is presumed to act deliberately when drafting statutes. United States v. Motamedi, F.d 0, 0 (th Cir.. Thus, Congress explicit exemption of Indian tribes from Title VII's coverage is binding. E.E.O.C. v. Karuk Tribe Hous. Auth., 0 F.d 0, 0 (th Cir. 00. CMS is an arm of the Cherokee Nation. See Section B(i, supra. As an arm of the Cherokee Nation, CMS is excluded from the enforcement of Title VII. Established law supports the assertion that Title VII s statutory exclusion of Indian tribes also applies to corporations of Indian tribes. Smith v. Salish Kootenai College, F.d ( th Cir. 00; Johnson v. Choctaw Management/Services Enterprise, Fed. Appx. 00, 0-0 (0 th Cir. 00; Pink v. Modoc Indian Health Project, F.d (pth Cir. ; United States v. Logan, F. d 0 (0 th Cir.. CMS is wholly owned by the Cherokee Nation and is therefore excluded from the provisions of Title VII pertaining to an employer. Because Plaintiff s federal claim against CMS is based solely on Title VII, Plaintiff s claim against CMS must fail. The term employer means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include ( an Indian tribe U.S.C.A. 000e(b(. See E.E.O.C. v. Karuk Tribe Hous. Auth., 0 F.d 0, 0 (th Cir. 00(The Housing Authority of the Karuk Tribe, formed through a tribal ordinance, is a governmental arm of the Tribe not subject to the provisions of the ADEA even though the statutory language does not specifically exempt tribes.

12 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 iii. Plaintiff did not Timely File his Claim. Even if the Court were to find that CMS is not entitled to sovereign immunity and that Title VII applies to the activities of CMS, Plaintiff s claim must still be dismissed because it was not timely filed. On September, 0, the Equal Employment Opportunity Commission ( EEOC sent Plaintiff a Dismissal and Notice of Rights. Dismissal, attached hereto as Exhibit E. The dismissal clearly stated that if Plaintiff desired to file a lawsuit against CMS, then it must be filed within ninety (0 days of his receipt of the dismissal. Sometime between September, 0 and October, 0, Plaintiff hired representation. On October, 0, counsel for Plaintiff sent correspondence to CMS advising of potential litigation and offering settlement. October, 0 Correspondence, attached hereto as Exhibit G. Though it is not clear on what date, exactly, Plaintiff received the Dismissal from the EEOC, it is clear that Plaintiff received the EEOC dismissal and opted to pursue his right to sue. The Ninth Circuit has held that the 0-day period for filing a claim under U.S.C. 000e-(f( begins running from the giving of such notice rather than from the date the Plaintiff actually receives the notice. Scholar v. Pac. Bell, F.d, (th Cir. citing Harvey v. City of New Bern Police Dep't., F.d, - (th Cir. (court held 0-day period began when EEOC's rightto-sue letter was received by claimant's wife even though claimant did not learn of letter until six days later; Espinoza v. Missouri Pacific R.R. Co., F.d, -0 (th Cir. (court held 0-day period began when EEOC's right-to-sue letter was received by claimant's wife even though claimant did not learn about the letter until he returned from out of town eight days later; and Law v. Hercules, Inc., F.d, - (th Cir. (court held 0-day period began when claimant's -year-old son signed return receipt for EEOC's right-to-sue letter in spite of claimant's contention he did not see the letter until one or two days later.

13 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 Here, Plaintiff opted to pursue his right to sue when he hired counsel to represent him. Giving Plaintiff the benefit of the doubt and presuming he received his notice from the EEOC on the same day that his counsel sent the correspondence to CMS, Plaintiff still failed to timely file suit. Ninety (0 days from October, 0 is January, 0. Plaintiff filed his Complaint against CMS on March, 0, sixty-eight ( days after the absolute latest date Plaintiff could have timely filed his Complaint. Plaintiff s failure to timely file his Complaint in accordance with statutory language renders his claim void. Accordingly, the claim against CMS under Title of the United States Code should be dismissed. C. Plaintiff s Claims under California State Law. In addition to his claims under U.S.C. 000e et seq., Plaintiff also brings claims under California Government Code 0 et seq. These claims are also due to be dismissed. Pursuant to U.S.C. (a, the Court has supplemental jurisdiction over Plaintiff s state law claims because such claims arise from the same facts as his claim for federal relief. Grosz v. Lassen Cmty. Coll. Dist., CIV S-0- FCD CMK, 00 WL 00 (E.D. Cal. July, 00. i. CMS is Entitled to Sovereign Immunity. CMS incorporates by reference all arguments and authorities alleged in the preceding paragraphs as though fully set forth herein. Based on CMS status as an arm of the Cherokee Nation, and the sovereign immunity it is afforded, Plaintiff s state law claims should be dismissed as neither CMS nor Congress has waived such immunity. Section B(i, supra. ii. CMS is not an Employer as Defined by California Statutes. On September, 00, CMS contracted with Naval Medical Logistics Command ( Government to provide healthcare workers for the Naval Medical Center in San Diego. Contract attached hereto and marked as Exhibit A. As identified in his Complaint, CMS contracted Plaintiff out to the Naval Medical Center for work

14 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 as a pharmacy technician. Complaint, Dkt. at. The Contract provided that the Government had the right to reassign the healthcare workers, as well as the right to change the hours of operation. Contract at B.(a, Exhibit A. The Government also sets the minimum hourly pay for the contracted healthcare workers. Contract at B., Exhibit A. Furthermore, the Government dictated how/if leave would accrue, the extent of breaks during the workday, the general provisions the contracted healthcare workers must follow as well as general qualifications of the healthcare workers. Contract at C., C., C., Exhibit A. On September, 0, the Government sent an order to CMS requesting the services of a pharmacy technician. Task Order, attached hereto as Exhibit B. Specifically, the Government wanted forty (0 pharmacy technicians to be supervised by the Government s Department Head, for eighty (0 hours every two ( weeks. Task Order at p., Exhibit B. The Government dictated the work hours of the pharmacy technicians, the amount of leave accrual and the duties the technician would perform. Task Order at p., Exhibit B; Contract at C.0., Exhibit A. Based on the Contract and Task Order entered into by the Government and CMS, it is clear that CMS was not Plaintiff s employer for the purposes of application of California statutes. In assessing the status of an employer for purposes of application of California law, courts look to the totality of circumstances regarding the nature of the work relationship. Vernon v. State, Cal. App. th, -, 0 Cal. Rptr. d, -0 (00. While no single factor is decisive, the extent of the defendant's right to control the means and manner of the workers' performance is the most important. Id citing Choe Rively v. Vietnam Veterans of America (D.Del.00 F.Supp.d, 0; Graves v. Lowery (rd Cir. F.d,.; Lee v. Mobile County Com'n (S.D.Ala.( F.Supp. 0,, affd. 0 F.d. Here, the Government, and not CMS determined the means and manner of Plaintiff s performance. In fact, the Government specifically identified several duties

15 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 that Plaintiff may be required to perform. Contract at C.0., Exhibit A. Furthermore, although CMS paid his salary, Plaintiff s salary was actually set by the Government, as was the location where Plaintiff performed his work, Plaintiff s work schedule, Plaintiff s supervisor and the skill set Plaintiff was required to possess. Contract Exhibit A; Task Order Exhibit B. All these factors combine to establish that the Government, and not CMS, is Plaintiff s employer for the purposes of California s statutes. See Community for Creative Non Violence v. Reid ( 0 U.S. 0,, 0 S.Ct., 0 L.Ed.d ; Broussard v. L.H. Bossier, Inc., supra, F.d, ; Spirides v. Reinhardt (D.C.Cir. F.d, ; Hatcher v. Augustus, supra, F.Supp., 0; Goudeau v. Dental Health Services, Inc., supra, 0 F.Supp., ; Jeffries v. Deloitte Touche Tohmatsu Intern., supra, F.Supp., ; Ali v. L.A. Focus Publication (00 Cal.App.th,, Cal.Rptr.d.; S.G. Borello & Sons, Inc. v. Department of Industrial Relations ( Cal.d,, Cal.Rptr., P.d, fn. omitted. Regardless of the individual factors, which do weigh heavily on the side of CMS, California courts recognize that [i]n all cases, an employer must be an individual or entity who extends a certain degree of control over the plaintiff. Vernon, Cal. App. th at citing Lee v. Mobile County Com'n (S.D.Ala.( F.Supp. 0,, affd. 0 F.d. CMS exercises no control over Plaintiff once he is contracted out to the Government. At that time, the Government dictates the work, work schedule, rate of pay and qualifications necessary to perform in the position. CMS s lack of control over Plaintiff establishes that CMS is not his employer for purposes of applying California law. Therefore, Plaintiff s claim against CMS must be dismissed. iii. California Statutes are Pre-Empted by Title VII. Plaintiff s claims must also be dismissed under the doctrine of pre-emption. Federal pre-emption occurs: ( where the federal law expressly so states, ( where the federal law is so comprehensive that it leaves no room for supplementary state

16 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 regulation, or ( where the federal and state laws actually conflict. California Federal S. & L. Assn. v. Guerra ( U.S., 0 S.Ct.. In a pre-emption determination, the sole factor is the intent of Congress. Id. In analyzing Title VII, Courts recognize that Congress has explicitly disclaimed any intent categorically to pre-empt state law or to occupy the field of employment discrimination law. Id. citing U.S.C. 000e- and 000h-. Thus, the sole basis for a pre-emption analysis is whether U.S.C. 000e et seq., conflicts with California Government Code 0 et seq. A conflict will be held to occur where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id citing Hines v. Davidowitz, U.S.,, S.Ct., 0, L.Ed. (. See Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., U.S.,, 0 S.Ct.,, L.Ed.d (; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, U.S.,, 0 S.Ct. 0, 0, L.Ed.d (. Here, the federal law specifically exempts Indian tribes, including tribal entities from its coverage. However, the California Government Code does not. Because Congress deliberately and explicitly exempted Indian tribes, and their entities, from federal liability, California s state law based on such federal statute must give way to the mandate of Congress. PLIVA, Inc. v. Mensing, S. Ct.,, 0 L. Ed. d 0 (0 reh'g denied, S. Ct., 0 L. Ed. d (U.S. 0( [w]here state and federal law directly conflict, state law must give way. (internal citations omitted; Crosby v. National Foreign Trade Council, 0 U.S.,, 0 S.Ct., L.Ed.d (000 ( [S]tate law is naturally preempted to the extent of any conflict with a federal statute. Because California seeks to impose liability on Indian tribes for actions which Congress has already held Indian tribes are not liable, California s statutory scheme See Section B(ii, supra. 0

17 Case :-cv-00-btm-bgs Document Filed 0// Page of 0 0 must be held to be pre-empted to the extent it conflicts with the federal law. Therefore, Plaintiff s claims should be dismissed with prejudice. III. CONCLUSION Plaintiff s claims against CMS should be dismissed. Foremost, CMS is entitled to sovereign immunity, which requires both state and federal claims to be dismissed. In addition, Plaintiff s federal claim cannot stand because CMS is not an employer as identified in Title, and Plaintiff failed to timely file his claim in accordance with statutory law. In addition, Plaintiff s state law claims, which the Court has authority to adjudicate, must also be dismissed. Also, Plaintiff cannot establish that CMS is actually his employer under the factual scenario of this matter. The factors identified above tend to indicate that the Government, and not CMS, is Plaintiff s actual employer for the purposes of interpretation of California law. Finally, CMS asserts that California s statutory scheme should be pre-empted to the extent it seeks to impose liability where the federal government has already found none exists. For the reasons above-stated, CMS respectfully requests Plaintiff s claims be dismissed with prejudice. Dated: 0//0 Respectfully submitted, /s/mark Plager Mark Plager, Cal. Bar No. PLAGER SCHACK, LLP Beach Blvd. Ste. 0 Huntington Beach, CA ( -00 telephone mark@plagerschack.com Attorney for Defendant Cherokee Medical Services