(PS)Nicks v. CompUSA et al Doc.

Case 2:06-cv-01724-GEB-DAD Document 5 Filed 08/16/2006 Page 1 of 2

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 TERRY NICKS, No. CIV.S-06-1724 GEB DAD PS

12 Plaintiff,

13 v. ORDER TO SHOW CAUSE

14 COMPUSA and AMERICAN HOME

ASSURANCE,
15

16 Defendants.
____________________________/
17

18 Plaintiff, proceeding in this action pro se, initiated the

19 above-entitled action by paying the appropriate filing fee and filing

20 a complaint on August 4, 2006. Plaintiff filed an amended complaint

21 on August 14, 2006. This proceeding was referred to this court by

22 Local Rule 72-302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).

23 Plaintiff’s amended complaint reflects that she is seeking

24 recovery from her former employer and its workers’ compensation

25 insurance carrier due to physical injuries sustained while working.

26 Although difficult to decipher, the amended complaint mentions

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 Case 2:06-cv-01724-GEB-DAD Document 5 Filed 08/16/2006 Page 2 of 2

1 workers’ compensation proceedings and prays for workers’ compensation

2 disability benefits. No basis for federal jurisdiciton is alleged.

3 Indeed, to the extent that plaintiff seeks to litigate her workers’

4 compensation case, her exclusive remedy would appear to be through

5 California’s workers' compensation system. See Jensen v. Amgen,

6 Inc., 105 Cal. App. 4th 1322, 1325 (2003)(“An employee injured during

7 the course of employment is generally limited to remedies available

8 under the Workers' Compensation Act.”). The state’s Workers'

9 Compensation Act provides an exclusive remedy for an employee injured

10 in the course of employment. Cal. Lab. Code § 3602(a).

11 Accordingly, IT IS HEREBY ORDERED that:

12 1. Plaintiff shall show cause in writing within twenty

13 days of the date that this order is filed why the court should not

14 dismiss this action with prejudice on the grounds that plaintiff’s

15 claims of personal injury incurred in the scope of employment are

16 preempted by the California Workers' Compensation Act. See Fed. R.

17 Civ. P. 12(h)(3)(“Whenever it appears by suggestion of the parties or

18 otherwise that the court lacks jurisdiction of the subject matter,

19 the court shall dismiss the action.”); and

20 2. Plaintiff is forewarned that the failure to timely

21 comply with the terms of this order will result in a recommendation

22 that this action be dismissed.

23 DATED: August 15, 2006.

24

25
DAD:th
26 Ddadl\orders.prose\nicks1724.osc