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