Unpublished Disposition, 912 F.2d 468 (9th Cir. 1988)

No. 89-55096, 89-55376.

United States Court of Appeals, Ninth Circuit.

Before POOLE and DAVID R. THOMPSON, Circuit Judges, and PRO, District Judge.^** 

MEMORANDUM^*** 

Plaintiff-Appellant Stuart Campbell appeals pro per the dismissal of his complaint, based on sovereign immunity as to some claims and summary judgment as to others, and the denial of his motion to reconsider same. Appellant also appeals the denial of his motion to remand, motion to reconsider denial of motion to remand, motion to compel discovery, and motion to file amended complaint. We affirm.

Appellant was employed with Australia's Trade Office in California for approximately three years, before he was fired in 1982. Appellant's complaint alleged six causes of action arising out of the termination of his employment, all of which were dismissed by the district court.

A. Immunity Under the Foreign Sovereign Immunities Act

Judgment on the pleadings was entered as to the first cause of action (fraud and deceit), third cause of action (interference with contractual relationship), and fourth cause of action (defamation). Fed. R. Civ. P. 12(b) (1). This Court reviews de novo the district court's dismissal for lack of subject matter jurisdiction. Vestron, Inc. v. Home Box Office, Inc., 839 F.2d 1380, 1381 (9th Cir. 1988).

Under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602-11, which is the exclusive basis for jurisdiction over foreign states in the United States, sovereign immunity is only waived for certain causes of action. Without such a waiver in the FSIA, there is no subject matter jurisdiction over the claim. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493 (1983).

Congress enacted such a waiver of sovereign immunity for suits "based upon a commercial activity carried on in the United States by the foreign state." 28 U.S.C. § 1605(a) (2). However, foreign states are not immune for cases:

(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

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(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state ... except this paragraph shall not apply to--

(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights....

28 U.S.C. § 1605(a) (5) (emphasis added). The district court thus had to decide whether the causes of action for defamation, deceit, and interference with contract based on the termination of a Trade Office employee fall within the commercial activity paragraph, in which case there is no immunity, or the torts paragraph, in which case the exception to waiver of immunity applies. In resolving this issue, the district court noted that the claims for which foreign states are immune under Sec. 1605(a) (5) (B) correspond to many of the claims for which the United States retains immunity under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(a) and (h).

The legislative history of the FSIA¹  indicates that the immunities of foreign states were meant to parallel those of the United States. Because the United States government is immune from any claim arising from "libel, slander, misrepresentation, deceit, or interference with contract rights" under 28 U.S.C. § 2680(h), the district court found Congressional intent that the immunity be similarly extended to foreign states. See Gregorian v. Izvestia, 658 F. Supp. 1224, 1234 (C.D. Cal. 1987) (" [T]he Court holds that Congress, in tracking the language of Sec. 2680(h) of the FTCA in Sec. 1605(a) (5) (B) of the FSIA, intended that foreign governments remain immune from libel and other claims to the same extent that the United States itself is immune under the FTCA.") modified 871 F.2d 1515 (9th Cir.), cert. denied, 110 S. Ct. 237 (1989). We conclude that just as the United States is immune from causes of action specifically enumerated in Sec. 1605(a) (5) (B), so also are foreign states under the FSIA, even if such torts seem to arise out of a commercial activity. The district court therefore correctly held that Defendant/Appellee Commonwealth of Australia is immune from Appellant's causes of action based on fraud and deceit, interference with contractual relationship, and defamation.

The Court must also reject Appellant's challenge to the district court's order of dismissal on the ground that Australia should be accorded immunity in this country only to the same extent immunity is accorded to the United States in Australia. "By reason of its authority over foreign commerce and foreign relations, Congress has the undisputed power to decide, as a matter of federal law, whether and under what circumstances foreign nations should be amenable to suit in the United States." Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493 (1983).

The district court granted summary judgment on the second cause of action (breach of contract), fifth cause of action (wrongful discharge), and sixth cause of action (intentional infliction of emotional distress). This Court reviews de novo the district court's order granting summary judgment. Mundy v. Household Fin. Corp., 885 F.2d 542, 543 (9th Cir. 1989).

Appellant bases the breach of contract claim on an alleged oral contract entered prior to the start of his employment in which he was allegedly told that his employment would be long term. Appellant claims that he understood this to mean that he would only be terminated for cause. On July 2, 1988, his first day of work, Appellant signed a written statement that he had read a document including the terms and conditions of employment ("Terms and Conditions") and agreed to them. Included in the Terms and Conditions was a provision that Appellant could be terminated for cause without notice or severance pay. It further provided that he could be terminated without cause so long as he received four weeks notice or four weeks pay. Appellee relied on the latter provision, i.e., without cause, when it terminated Appellant and accordingly gave him four weeks severance pay.

Appellant insists that, based on the oral contract, he could only be terminated for cause. However, even if there was an oral contract, it was superseded by the subsequent written agreement. Malmstrom v. Kaiser Aluminum & Chem. Corp., 187 Cal. App. 3d 299, 314, 231 Cal. Rptr. 820, 827 (1986); Shapiro v. Wells Fargo Realty Advisors, 152 Cal. App. 3d 467, 482, 199 Cal. Rptr. 613, 622 (1984); Cal.Civ.Code Sec. 1625 (execution of a written agreement supersedes prior negotiations or stipulations concerning same subject). The provisions of the Terms and Conditions clearly created an at-will relationship, and no cause was necessary for Appellant's termination. DeHorney v. Bank of America, 879 F.2d 459, 465 (9th Cir. 1989).

Appellant claims he did not know the Terms and Conditions constituted a contract, that when he acknowledged reading those terms he was told he was merely signing a receipt of papers, and that the term permitting termination at will was not made apparent enough to be binding. None of these objections is adequate to overcome the written terms of the agreement with which Appellee complied. A document providing for at-will employment need not be called a contract to be enforceable. See Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391 (9th Cir. 1985) (employment application); Shapiro, 152 Cal. App. 3d at 482, 199 Cal. Rptr. at 622 (stock option agreement). Further, Appellant's assertion that he did not read the Terms and Conditions, though he signed a paper acknowledging that he did so, is not supported by specific facts adequate to create a genuine issue and preclude summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Appellant further seeks to recover under an implied covenant of good faith and fair dealing. However, although California law implies such a term in every contract, see Foley v. Interactive Data Corp., 47 Cal. 3d 654, 683, 254 Cal. Rptr. 211, 227, 765 P.2d 373, 389 (1988), it will not be implied when it would contradict the express written terms of an agreement. Thus, a breach of the implied covenant of good faith and fair dealing cannot be based on a discharge without good cause in a case where the employment is at will. Id. at 698 n. 39, 254 Cal. Rptr. at 238 n. 39, 765 P.2d at 400 n. 39; see also Mundy v. Household Fin. Corp., 885 F.2d 542, 544 (9th Cir. 1989). Summary judgment was properly entered on the breach of contract claim.

As to the wrongful discharge claim, Appellant similarly failed to meet his burden of establishing a genuine issue of material fact. He has not shown that the discharge violated any fundamental public policy, as required by California law to state a wrongful discharge claim. Foley, 47 Cal. 3d at 669, 254 Cal. Rptr. at 217, 765 P.2d at 376. Further, the implied covenant of good faith cannot be relied on to contradict express terms of the contract, as noted above, and no tort claim may be based on the breach of this covenant. Id. at 693, 254 Cal. Rptr. at 234, 765 P.2d at 396.

3. Intentional Infliction of Emotional Distress

Finally, summary judgment was properly granted as to Appellant's claim for intentional infliction of emotional distress. Such a cause of action requires demonstration of outrageous conduct on the part of the defendant. Davidson v. City of Westminster, 32 Cal. 3d 197, 210, 649 P.2d 894, 901, 185 Cal. Rptr. 252, 259 (1982) ("Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community."). Mere termination of an at-will employee without more does not satisfy this element. Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348, 1352 (9th Cir. 1984); Crain v. Burroughs Corp., 560 F. Supp. 849, 853 (C.D. Cal. 1983); Giorgi v. Verdugo Hills Hosp., 210 Cal. App. 3d 252, 276-77, 258 Cal. Rptr. 426, 439 (1989). Appellant relies on the fact that his termination allegedly resulted from unwarranted criticism from an allegedly incompetent superior. Without more, it was not error for the district court to conclude no outrageous conduct occurred. Appellant admits that the meeting at which he was told to leave was quiet, with no abusive or profane language, and there is no evidence of other extreme conduct designed to embarrass him.

Appellant also challenges the denial of his motion to remand the case to state court, and the denial of his motion to reconsider. The case was filed in state court on March 9, 1988, and the Appellee received a copy of the complaint on March 16, 1988. Appellee filed its petition for removal on April 15, 1988, within the thirty day period allowed by 28 U.S.C. § 1446(b). Appellant alleges that the removal was untimely because during the previous five years, he repeatedly filed complaints in California state courts and sent copies to various Australian officials though no response had ever been filed. He claims that Appellee's receipt of these complaints should act to bar the removal on April 15, 1988, because Appellee petitioned for removal five years after the case was first filed. The district court properly rejected this argument because Appellant offered inadequate evidence to establish prior receipt of the complaints sufficient to provide notice to Appellee.

The district court's denial of the motion to remand is further supported by 28 U.S.C. § 1441(d) which provides:

Any civil action brought in a State court against a foreign state ... may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending.... Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

(Emphasis added). The district court did not err in denying the motion to remand and the motion to reconsider that denial.

Appellant also appears to challenge certain discovery rulings made by the district court and the district court's denial of Appellant's motion to amend his complaint. Although no claim for negligence was alleged, part of Appellant's theory appears to be that Australia was negligent in hiring an incompetent person as Appellant's superior, which resulted in Appellant being wrongfully terminated. Appellant tried to serve interrogatories on seventeen high officials of Australia who were not involved in Appellant's termination but are believed by Appellant to have played a role in hiring his superior. However, interrogatories may only be served on parties, Fed. R. Civ. P. 33, and Appellee raised this appropriate objection. Appellant then tried to join the seventeen Australian officials as defendants by amending his complaint. This motion to amend was rejected by the court. Appellant's only reason for joining the officials was to serve interrogatories, and amendment would have been futile because Appellant had failed to state a claim against the proposed defendants, the claims would have been barred by the statute of limitations, and the joinder requirements of Fed. R. Civ. P. 20 were not met. The district court correctly denied the motion to amend.

Finally, Appellant appears to object to the denial of his motion to compel discovery by Magistrate Tassopulos. The discovery request was properly denied because Appellant had failed to "meet and confer" as required by Local Rule 7.15 for a discovery motion, and the discovery deadline had already passed without Appellant obtaining an order from the district court to extend it.

AFFIRMED.