Failure to Plead a Viable Complaint after Four Tries Stops Everything
Barry Zalma
Oct 27, 2023
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Scott Manley moved the USDC to dismiss the two claims plaintiff Mark Esquibel asserted against him in the Third Amended Complaint (TAC) for wrongful termination in violation of public policy (“Tameney claim”) and for promissory fraud.
Because Manley was Esquibel’s manager at Kinder Morgan and not his employer, Manley cannot be liable for the Tameney claim as a matter of law. For the same reason, Manley contends that he cannot be liable for promissory fraud resulting from alleged assurances in or around 2008 that Kinder Morgan would provide Esquibel with insurance coverage during his employment. More problematic is that these alleged assurances occurred in 2008 but Manley did not become plaintiff’s supervisor until 2017.
In Mark Esquibel v. Kinder Morgan, Inc., et al., No. 21-cv-02510-WHO, United States District Court, N.D. California (October 17, 2023) the USDC explained why its patience had been exhausted.
ANALYSIS
Esquibel asked for leave to amend to assert totally new claims against Manley, including eavesdropping in violation of California Penal Code section 632 and invasion of privacy, harassment under California’s Fair Employment and Housing Act (FEHA), and claims for intentional and negligence infliction of emotional distress based on the alleged eavesdropping and harassment.
Esquibel did not address the standard for granting leave to amend or explain why – despite the multiple opportunities to amend he was given – he failed to allege these claims in any of his prior four complaints. The claims that he seeks to add now – based on eavesdropping in violation of California Penal Code section 632 and systemic harassment and intimidation based on use of racial slurs – rely on factual allegations that were made in this case at its inception.
In the trial judge’s June 2023 Order, Esquibel was “given one last chance to amend.” In that Order, the court explained to Esquibel what facts were missing but were necessary in order to state viable claims. He then filed the The Amended Complaint only to find it denied and Kinder Morgan’s third motion to dismiss allowing the Tameney claim and the promissory fraud claim to proceed.
Given the multiple opportunities Esquibel has had to amend, the “one last chance” warning given, and the significant prejudice caused not only Manley but Kinder Morgan (who repeatedly and successfully moved to dismiss, resulting in the court’s narrowing of the claims left at issue) by Esquibel’s dilatory tactics and attempts to plead yet more claims based on facts known since the inception of this litigation, further leave to amend was denied. There is simply no excuse for Esquibel sitting on these claims. There has been undue delay and dilatory conduct, causing significant prejudice to defendants.
Esquibel’s piecemeal approach to his pleadings and seeming inability or unwillingness to fully plead his claims despite the Court’s Orders and defendants pointing out the multiple deficiencies in his claims is unacceptable. Construing his opposition to the motion to dismiss as a properly noticed motion for leave to file a Fourth Amended Complaint with wholly new claims against Manley (and logically against Kinder Morgan), the motion was denied. Defendant Manley’s motion to dismiss was granted and the litigation stopped.
ZALMA OPINION
Some judges have the patience of Job with litigants and allow them multiple opportunities to find a way to plead a viable cause of action. The judge in this case gave the plaintiff three tries and warned Esquibel that the last order was his “last chance.” Ignoring the warning Esquibel tried a new way to allege a case that had nothing to do with his first three tries. His failure ended the court’s patience and the order was dismissed. Why the court did not sanction Esquibel under Rule 11 is difficult to understand. Court’s need to control their calendar and not be so patient.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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ZIFL Volume 30, Number 2
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post number 5260
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ This issue contains the following articles about insurance fraud:
Read the full 19 page issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/01/ZIFL-01-15-2026.pdf.
The Contents of the January 15, 2026 Issue of ZIFL Includes:
Use of the Examination Under Oath to Defeat Fraud
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ERISA Life Policy Requires Active Employment to Order Increase in Benefits
Post 5259
Read the full article at https://lnkd.in/gXJqus8t, see the full video at https://lnkd.in/g7qT3y_y and at https://lnkd.in/gUduPkn4, and at https://zalma.com/blog plus more than 5250 posts.
In Katherine Crow Albert Guidry, Individually And On Behalf Of The Estate Of Jason Paul Guidry v. Metropolitan Life Insurance Company, et al, Civil Action No. 25-18-SDD-RLB, United States District Court, M.D. Louisiana (January 7, 2026) Guidry brought suit to recover life insurance proceeds she alleges were wrongfully withheld following her husband’s death on January 9, 2024.
FACTUAL BACKGROUND
Jason Guidry was employed by Waste Management, which provided life insurance coverage through Metropolitan Life Insurance Company (“MetLife”). Plaintiff contends that after Jason’s death, the defendants (MetLife, Waste Management, and Life Insurance Company of North America (“LINA”)) engaged in conduct intended to confuse and ultimately deny her entitlement to...
Failure to Respond to Motion to Dismiss is Agreement to the Motion
Post 5259
Read the full article at https://lnkd.in/gP52fU5s, see the video at https://lnkd.in/gR8HMUpp and at https://lnkd.in/gh7dNA99, and at https://zalma.com/blog plus more than 5250 posts.
In Mercury Casualty Company v. Haiyan Xu, et al., No. 2:23-CV-2082 JCM (EJY), United States District Court, D. Nevada (January 6, 2026) Plaintiff Mercury Casualty Company (“plaintiff”) moved to dismiss. Defendant Haiyan Xu and Victoria Harbor Investments, LLC (collectively, “defendants”) did not respond.
This case revolves around an insurance coverage dispute when the parties could not be privately resolved, litigation was initiated in the Eighth Judicial District Court of Nevada. Plaintiff subsequently filed for a declaratory judgment in this court.
On or about April 15, 2025, the state court action was dismissed with prejudice pursuant to a stipulation following mediation. Plaintiff states that the state court dismissal renders its ...
Court Must Follow Judicial Precedent
Post 5252
Read the full article at https://www.linkedin.com/pulse/sudden-opposite-gradual-barry-zalma-esq-cfe-h7qmc, see the video at and at and at https://zalma.com/blog plus more than 5250 posts.
Insurance Policy Interpretation Requires Application of the Judicial Construction Doctrine
In Montrose Chemical Corporation Of California v. The Superior Court Of Los Angeles County, Canadian Universal Insurance Company, Inc., et al., B335073, Court of Appeal, 337 Cal.Rptr.3d 222 (9/30/2025) the Court of Appeal refused to allow extrinsic evidence to interpret the word “sudden” in qualified pollution exclusions (QPEs) as including gradual but unexpected pollution. The court held that, under controlling California appellate precedent, the term “sudden” in these standard-form exclusions unambiguously includes a temporal element (abruptness) and cannot reasonably be construed to mean ...
Lack of Jurisdiction Defeats Suit for Defamation
Post 5250
Posted on December 29, 2025 by Barry Zalma
See the video at and at
He Who Represents Himself in a Lawsuit has a Fool for a Client
In Pankaj Merchia v. United Healthcare Services, Inc., Civil Action No. 24-2700 (RC), United States District Court, District of Columbia (December 22, 2025)
FACTUAL BACKGROUND
Parties & Claims:
The plaintiff, Pankaj Merchia, is a physician, scientist, engineer, and entrepreneur, proceeding pro se. Merchia sued United Healthcare Services, Inc., a Minnesota-based medical insurance company, for defamation and related claims. The core allegation is that United Healthcare falsely accused Merchia of healthcare fraud, which led to his indictment and arrest in Massachusetts, causing reputational and business harm in the District of Columbia and nationwide.
Underlying Events:
The alleged defamation occurred when United ...
Zalma’s Insurance Fraud Letter
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ZIFL Volume 29, Issue 24
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/
Zalma’s Insurance Fraud Letter
Merry Christmas & Happy Hannukah
Read the following Articles from the December 15, 2025 issue:
Read the full 19 page issue of ZIFL at ...
