Heidler v. Flight Attendants, Association Of, CWA et al
ORDER Granting In Part And Denying In Part Defendants' Motions To Dismiss or, In The Alternative, For Transfer of Venue re 38 , 39 , 41 . Signed by JUDGE J. MICHAEL SEABRIGHT on 1/10/12. (gls, )CERTIFICATE OF SERVICE< /center>Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ASSOCIATION OF FLIGHT
AIRLINES, INC.; UNITED
CONTINENTAL HOLDINGS, INC.; )
CIV. NO. 11-00427 JMS/RLP
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS OR, IN THE
ALTERNATIVE, FOR TRANSFER
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS OR, IN THE ALTERNATIVE, FOR TRANSFER
Defendant Association of Flight Attendants-CWA (“AFA”), and
Defendants United Airlines, Inc. and United Continental Holdings, Inc. (referred to
together as “United”) (collectively “Defendants”) move to dismiss pro se Plaintiff
Greg Heidler’s (“Plaintiff” or “Heidler”)1 Amended Complaint, or in the
alternative, to transfer venue to the United States District Court for the Northern
Although Plaintiff is proceeding pro se, he is an active member of the Hawaii State
District of Illinois. United also substantively joins in AFA’s Motion. The Motions
primarily argue that the Amended Complaint is barred by a six-month statute of
limitations. As explained below, the Motions are GRANTED IN PART and
DENIED IN PART.
Claims remain if based upon Plaintiff’s allegation that the AFA
breached a duty of fair representation by withdrawing Plaintiff’s grievance on
April 15, 2008. Other claims are dismissed as time-barred, or as preempted by the
Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. The court declines to transfer
venue to the Northern District of Illinois.
The court assumes the factual allegations of the Amended Complaint
are true for purposes of these Motions, see, e.g., Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1039 n.1 (9th Cir. 2003), and recites only the allegations
necessary to explain its rulings.
United employed Heidler as a flight attendant from June 9, 1997 until
June 1, 2005, when it discharged him for failure to complete training. Doc. No. 34,
Am. Compl. ¶¶ 6, 12. He had been on furlough starting on August. 31, 2003, but
had been recalled effective June 1, 2005. Id. ¶¶ 10, 11. After his separation,
Heidler requested a grievance hearing under the applicable collective bargaining
agreement (“CBA”). Id. ¶ 15. On April 28, 2006, United found the separation to
have been proper. Thereafter, on May 26, 2006, the AFA (as the collective
bargaining representative for United flight attendants) appealed the grievance to
the System Board of Adjustment. Id. ¶ 16. In this suit, among other claims,
Plaintiff contends that United improperly separated him in violation of the CBA.
Id. ¶¶ 17-19.
“On May 18, 2007 and September 18, 2007 AFA notified Plaintiff in
writing that they no longer represented Plaintiff in the grievance and that if he
chose to proceed to System Board of Adjustment for Arbitration of his grievance
he would be doing so at his own expense and they would notify [United] that they
were no longer representing plaintiff.” Id. ¶ 21.
Although not clear, even though the AFA “no longer represented
Plaintiff,” it apparently remained involved with his grievance.2 According to the
Amended Complaint, the “AFA on February 1, 2008 informed Plaintiff that he
would be required to arbitrate his case on April 24-25[, 2008] and Plaintiff stated
that was not enough time to prepare for his Arbitration.” Id. ¶ 22. Plaintiff
Plaintiff argues in his Opposition -- unsupported by any allegations in the Amended
Complaint -- that an AFA attorney assured him that the “AFA would only withdraw his
grievance if he did not wish to pursue the grievance” and the “AFA’s only remaining role was to
assist in the scheduling of his arbitration.” Doc. No. 48-1, Pl.’s Opp’n at 15.
developed “adhesive capsulitis (frozen shoulder)” in February 2008, which
prevented him from passing a physical, attending training or returning to work,” id.
¶ 23, and he notified the AFA of his condition by phone and email. Id. ¶ 24. “On
March 20, 2008 Plaintiff received [a] ‘take it or leave it’ letter from AFA in
violation of CBA requiring him to arbitrate his grievance in Chicago on July
16-17[,] 200.” Id. ¶ 25. Plaintiff responded to the AFA’s March 20, 2008 letter
On April 2, 2008 plaintiff mailed [a] letter to AFA
informing them of his unreturned attempts at
communication, inability to Arbitrate on the date they
mandated, desire to Arbitrate his case when his shoulder
was healed and reminded AFA that he was proceeding to
arbitration on his own, at his own expense and that AFA
had chosen to cease representing him in said grievance.
Plaintiff also informed AFA that there was no authority
in [the] CBA for them to force arbitration on dates they
selected or withdraw grievance without plaintiff’s
consent when they no longer represented him.
Id. ¶ 26.
Despite Plaintiff’s April 2, 2008 letter, the AFA appears to have
withdrawn the grievance in some manner. “In January 2011, plaintiff’s shoulder
injury had sufficiently resolved and was notified for the first time on January 20,
2011 by AFA that his grievance was improperly withdrawn on April 15, 2008.”
Id. ¶ 27. Similarly, on January 29, 2011, United informed Plaintiff that it was
unaware that the AFA did not represent Plaintiff and that Plaintiff’s grievance “had
been withdrawn April 15, 2008 under [the] assumption he assented” to the
withdrawal, and that United “had no intention of returning Plaintiff’s calls or
reinstating him now[.]” Id. ¶ 28. In this suit, in addition to the claim against
United, Plaintiff contends that the AFA breached a duty of fair representation by,
among other reasons, failing to represent him in the grievance and by withdrawing
his grievance (without telling him) on April 15, 2008. Id. ¶ 29.
Plaintiff filed suit on July 5, 2011. Doc. No. 1. In lieu of answers,
Defendants filed Motions to Dismiss or, in the alternative, for Transfer of Venue.
Plaintiff responded on October 18, 2011 with an Amended Complaint indicating
his suit was being brought under the RLA (and not under the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185 et seq., as alleged in the original
Complaint). Doc. No. 34. Defendants filed revised Motions to Dismiss or, in the
alternative, for Transfer of Venue, Doc. Nos. 38-39, and United substantively
joined in the AFA’s Motion. Doc. No. 41. Plaintiff filed an Opposition on
December 12, 2011, Doc. No. 48, and Defendants filed Replies on December 19,
2011. Doc. Nos. 51-52. The court heard the Motions on January 9, 2012.
III. STANDARDS OF REVIEW
Motion to Dismiss Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim for “failure to state a claim upon which relief can be granted[.]”
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This
tenet -- that the court must accept as true all of the allegations contained in the
complaint -- “is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a]
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at 556). Factual
allegations that only permit the court to infer “the mere possibility of misconduct”
do not show that the pleader is entitled to relief as required by Rule 8. Id.
A claim may be dismissed under Rule 12 as “barred by the applicable
statute of limitations only when ‘the running of the statute is apparent on the face
of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592
F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d
992, 997 (9th Cir. 2006)). Such motion should be granted “only if the assertions of
the complaint, read with the required liberality, would not permit the plaintiff to
prove that the statute was tolled.” Morales v. City of Los Angeles, 214 F.3d 1151,
1153 (9th Cir. 2000) (citation omitted).
Transfer of Venue Under 28 U.S.C. § 1404(a)
Under 28 U.S.C. § 1404(a), “the district court has discretion ‘to
adjudicate motions for transfer according to an individualized, case-by-case
consideration of convenience and fairness.’” Jones v. GNC Franchising, Inc.,
211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 U.S.
22, 29 (1988)). A motion to transfer venue should be granted where the defendant
“make[s] a strong showing of inconvenience to warrant upsetting the plaintiff’s
choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834,
843 (9th Cir. 1986). The moving party has the burden to prove that an alternative
forum is more appropriate for the action. Jones, 211 F.3d at 498.
Statute of Limitations
The parties do not dispute that Plaintiff’s Amended Complaint is a
hybrid action under the RLA, and thus the claims are subject to a six-month
limitation period. See, e.g., Kelly v. Burlington N. R.R. Co., 896 F.2d 1194, 1195
(9th Cir. 1990). To prevail on such a hybrid claim against the employer and the
union, a plaintiff must show that the termination violated the CBA and that the
union breached its duty of fair representation. DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 165 (1983). “The statute of limitations begins to run
when a plaintiff ‘knew, or should have known, of the defendant’s wrongdoing.’”
Stone v. Writer’s Guild of Am. W., Inc., 101 F.3d 1312, 1314 (9th Cir. 1996)
(quoting Allen v. United Food & Commercial Workers Int’l, 43 F.3d 424, 427 (9th
Applying Stone, any events accruing before January 5, 2011 -- six
months prior to the filing of this action -- are time-barred. It cannot be disputed
that Plaintiff’s claims are barred to the extent based on the AFA (1) “failing to
represent Plaintiff in Arbitration of his meritorious grievance,” Doc. No. 34, Am.
Compl. ¶ 29; (2) “forcing Arbitration dates upon Plaintiff after it was no longer
representing him,” id.; and (3) “ignoring Plaintiff’s communications regarding the
scheduling of his Arbitration.” Id. By his own allegations, Plaintiff admits he
knew of these events in 2007 (when AFA wrote letters to Plaintiff “that they no
longer represented Plaintiff in the grievance,” id. ¶ 21) or in 2008 (when AFA
notified Plaintiff of April 24-25, and July 16-17, 2008 arbitration dates, in apparent
disregard of his communications, id. ¶¶ 25, 29).
It is premature, however, to dismiss Plaintiff’s claims that are based
on the AFA’s allegedly improper withdrawal of Plaintiff’s grievance on April 15,
2008 (e.g., failing to notify Plaintiff that it had withdrawn his grievance, failing to
acquire Plaintiff’s consent prior to withdrawal, or “misrepresenting [the AFA’s]
authority to [United] regarding the settlement of Plaintiff’s grievance,” id. ¶ 29).
The court must assume as true Plaintiff’s allegations that the AFA told him in 2007
that it did not represent him in the grievance, that Plaintiff told the AFA in 2008
that it had no authority to withdraw his grievance, and that he did not know until
January 2011 that the AFA had withdrawn his grievance. Assuming those
allegations are true, Plaintiff did not have actual knowledge of these claims until
Applying Stone, however, Defendants argue that Plaintiff should have
known that his grievance had been withdrawn on April 15, 2008, or at least had
some duty to inquire about the grievance during the over two and one-half years
prior to January 2011. They point, for example, to the paraphrases of Plaintiff’s
April 2, 2008 letter3 to the AFA, where Plaintiff apparently told the AFA it had no
authority to “withdraw his grievance without his consent” -- inferring that the AFA
must have therefore previously told Plaintiff it was planning to withdraw his
grievance or that Plaintiff was “worried that AFA might withdraw his grievance.”
Doc. No. 39-1, AFA Mot. at 8. While Defendants’ arguments may well have merit
on an evidentiary record, the court declines to bar these claims at this early
pleading stage. Doing so now requires the court to make assumptions and
inferences -- in favor of Defendants -- regarding the substance of letters (the March
20, 2008 letter from the AFA to Plaintiff, and the April 2, 2008 letter from Plaintiff
to the AFA). The court, however, is required to “draw all reasonable inferences in
favor of the non-moving party,” i.e., Plaintiff not Defendants. Morales, 214 F.3d
In short, it is not clear “from the face” of the Amended Complaint that
claims based on the April 15, 2008 withdrawal are time-barred. Von Saher, 592
F.3d at 969. The Amended Complaint -- construed as true -- states plausible, nontime barred claims based on an allegedly improper withdrawal of Plaintiff’s
The letter itself is not attached to the Amended Complaint, and is not part of the record.
The court must consider the present Motions based solely on the allegations in the Amended
State Law Claims Against the AFA Are Preempted
Plaintiff also appears to be making state law claims for
misrepresentation and/or breach of contract against the AFA for its wrongfully
withdrawing his grievance in 2008. He alleges that the “AFA misrepresented its
authority to settle Plaintiff’s grievance with [United] . . . resulting in the
unauthorized [withdrawal] of plaintiff’s grievance on or about April 15, 2008 and
misrepresented to plaintiff that it would notify [United] that AFA was no longer
representing plaintiff[.]” Doc. No. 34, Am. Compl. ¶ 39. Similarly, he alleges that
the “AFA breached whatever remaining duty it had with plaintiff when it withdrew
his grievance on or about April 15, 2008 without obtaining his consent to do so[.]”
Id. ¶ 52.
To the extent Plaintiff states misrepresentation and/or breach of
contract claims, they are identical to his breach of duty of fair representation
claims, and are therefore preempted by the RLA. See, e.g., May v. Shuttle, Inc.,
129 F.3d 165, 179 (D.C. Cir. 1997) (“[T]he federal duty of fair representation
preempts identical state law claims.”) (citing Nellis v. Air Line Pilots Ass’n, 15
F.3d 50, 51 (4th Cir. 1994)); Lindsay v. Ass’n of Prof’l Flight Attendants, 581 F.3d
47, 59 n.6 (2d Cir. 2009)); cf. Adkins v. Mireles, 526 F.3d 531, 538-42 (9th Cir.
2008) (holding that state law breach of contract, bad faith, negligent
misrepresentation, fraud and deceit claims were preempted because they implicate
the federal statutory duty of fair representation under the LMRA). The state law
claims are dismissed.4
Transfer of Venue to the Northern District of Illinois
Defendants argue, in the alternative, that the entire action should be
transferred to the U.S. District Court for the Northern District of Illinois, in
Chicago, under 28 U.S.C. § 1404. In an exercise of discretion, the court DENIES
this alternative request.
Section 1404(a) provides “[f]or the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil action to
any other district or division where it might have been brought.” In determining
whether the convenience of parties and the interest of justice requires transfer of
venue, the Ninth Circuit has articulated several factors that the district court may
(1) the location where the relevant agreements were
negotiated and executed, (2) the state that is most familiar
with the governing law, (3) the plaintiff’s choice of
forum, (4) the respective parties’ contacts with the forum,
Plaintiff indicated at the hearing that he did not object to dismissal of the state law
claims as preempted, provided that at least a portion of his hybrid claim would go forward.
(5) the contacts relating to the plaintiff’s cause of action
in the chosen forum, (6) the differences in the costs of
litigation in the two forums, (7) the availability of
compulsory process to compel attendance of unwilling
non-party witnesses, and (8) the ease of access to sources
Jones, 211 F.3d at 498-99. Further, “the relevant public policy of the forum state,
if any, is at least as significant a factor in the § 1404(a) balancing.” Id. at 499.
Ultimately, however, “[w]eighing of the factors for and against transfer involves
subtle considerations and is best left to the discretion of the trial judge.”
Commodity Futures Trading Comm. v. Savage, 611 F.2d 270, 279 (9th Cir. 1979).
Considering these factors, Defendants have not met their burden to
demonstrate a “strong showing of inconvenience to warrant upsetting the
plaintiff’s choice of forum.” Decker Coal Co., 805 F.2d at 843. Even if Plaintiff
was domiciled or based in San Francisco for purposes of his employment with
United, he has apparently lived in Hawaii since at least 1985. He lived in Hawaii
when United terminated him, and when the AFA allegedly breached its duty of fair
representation. Although the CBA was negotiated in Chicago, the issue in this
case is not with negotiations creating the CBA, but rather with its application or the
meaning of its terms. The location of the relevant documents themselves is a
neutral factor. Most of the remaining dispute concerns whether the AFA had
authority to withdraw Plaintiff’s grievance in 2008, and whether it had ceased to
represent him. As for the availability of compulsory process regarding non-party
witnesses, Plaintiff indicates his three potential non-party medical providers are
located in Hawaii, while Defendants’ witnesses are apparently party witnesses.
Even if some of the witnesses are located in Chicago, the balance of factors is
neutral. The court, therefore, respects Plaintiff’s choice of forum and DENIES the
alternative request to transfer the case.
The Motions are GRANTED IN PART and DENIED IN PART. The
Motions to Dismiss are DENIED as to hybrid claims based upon the AFA’s
allegedly improper withdrawal of Plaintiff’s grievance on April 15, 2008. In other
respects, however, the Motions to Dismiss are GRANTED. The court DENIES the
alternative request to transfer venue to the Northern District of Illinois.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 10, 2012.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Heidler v. Ass’n of Flight Attendants-CWA et al., Civ. No. 11-00427 JMS/RLP, Order Granting
in Part and Denying in Part Defendants’ Motions to Dismiss or, in the Alternative, for Transfer
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