Ian McCray v. Unite Here! Local 19

Filing 30

ORDER GRANTING 13 MOTION TO DISMISS WITH LEAVE TO AMEND. Signed by Judge Beth Labson Freeman on 8/18/2016. (blflc2S, COURT STAFF) (Filed on 8/18/2016)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 IAN MCCRAY, Case No. 16-cv-01233-BLF Plaintiff, 10 v. ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND United States District Court Northern District of California 11 12 UNITE HERE! LOCAL 19, [ECF 13] Defendant. 13 14 15 Plaintiff Ian McCray, on behalf of himself and all persons similarly situated, brings this 16 action against Unite Here! Local 19 (the “Union”), alleging that the Union violated its duty of fair 17 representation by negotiating a collective bargaining agreement that waived coverage of the San 18 Jose Minimum Wage Ordinance for employees at the San Jose Marriott Hotel. Compl. ¶¶ 2, 48– 19 56, ECF 1. Plaintiff also brings claims for violations of the Labor Management Reporting 20 Disclosure Act (“LMRDA”) and Labor Management Relations Act (“LMRA”), breach of 21 fiduciary duty, and conspiracy. Compl., ECF 1. Defendant Union has moved to dismiss the entire 22 complaint for failure to plead facts to support federal jurisdiction, and because the claims are time- 23 barred, legally frivolous, and/or preempted. The Court heard oral argument on Defendant’s 24 motion on August 18, 2016. For the reasons stated on the record and below, the Court GRANTS 25 Defendant’s motion to dismiss with leave to amend. 26 Fed. R. Civ. P. 12(b)(1) allows litigants to seek the dismissal of an action from federal 27 court for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged under 28 Rule 12(b)(1), the plaintiff bears the burden of demonstrating that subject matter jurisdiction 1 exists. Tosca Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), 2 overruled on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010). “‘A plaintiff suing in a 3 federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is 4 essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to 5 its attention or on discovering the same, must dismiss the case, unless the defect [can] be corrected 6 by amendment.’” Id. (citing Smith v. McCullough, 270 U.S. 456, 459 (1926)). 7 Plaintiff filed his action in this Court based upon the existence of a federal question under 8 section 412 of the LMRDA and section 301 of the LMRA. Compl. ¶ 3, ECF 1. In its motion to 9 dismiss, the Union argued that the Plaintiff failed to plead facts supporting jurisdiction under either the LMRDA or the LMRA. Mot. 8, ECF 13. Mr. McCray, in his opposition, concedes that 11 United States District Court Northern District of California 10 fact, stating that he intended to cite to the National Labor Relations Act (“NLRA”), which is not 12 referenced in his complaint. Opp. 6, ECF 16. Because Mr. McCray admits that his pleading does 13 not demonstrate “the existence of whatever is essential to federal jurisdiction” and believes that he 14 can amend the complaint to do so, the Court GRANTS Defendant’s motion to dismiss for lack of 15 subject matter jurisdiction with leave to amend to cure this deficiency. 16 Though Plaintiff’s failure described above is dispositive of this motion, the Court reminds 17 Plaintiff to consider each deficiency that Defendant identified in its motion. For example, the 18 Court agrees with Defendant that Plaintiff’s complaint has not plausibly alleged facts 19 demonstrating that the Union’s actions were arbitrary, discriminatory, or in bad faith and that 20 Plaintiff has not sufficiently pled facts demonstrating that the federal claims were timely filed or, 21 alternatively, facts supporting an equitable estoppel theory. Further, although not ruling on the 22 issue here, the Court has concern that McCray’s state law claims may be preempted by federal 23 law. The Court additionally notes that conspiracy is not a standalone cause of action. Finally, 24 Plaintiff has not provided a basis upon which relief can be granted for any of his causes of action, 25 and reminds Plaintiff that he will need to do so in any amended pleadings. See, e.g., Compl. 15, 26 ECF 1 (failing to provide a basis under which the Court could grant declaratory relief). 27 28 As discussed at the hearing, Mr. McCray shall file his amended pleading on or before September 19, 2016. The Court STAYS discover until after the Court decides whether the case 2 1 2 3 4 5 should be allowed to go forward based on Mr. McCray’s amended complaint. IT IS SO ORDERED. Dated: August 18, 2016 ______________________________________ BETH LABSON FREEMAN United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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