Meeks v. HMS Host et al, No. 4:2011cv01021 - Document 47 (N.D. Cal. 2011)
Court Description: ORDER DENYING PETITIONERS 30 MOTION TO REMAND AND GRANTING RESPONDENTS 11 MOTION TO DISMISS. Signed by Judge Claudia Wilken on 11/8/2011. (ndr, COURT STAFF) (Filed on 11/8/2011)
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Meeks v. HMS Host et al Doc. 47 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 United States District Court For the Northern District of California 10 MICHELLE MEEKS, No. 11-1021 CW 11 Petitioner, ORDER DENYING PETITIONER’S MOTION TO REMAND AND GRANTING RESPONDENTS’ MOTION TO DISMISS 12 v. 13 14 HMS HOST dba GORDON BIERSCH @ SFO; HOTEL EMPLOYEES & RESTAURANT EMPLOYEES LOCAL # 2, 15 Respondents. 16 / 17 18 Petitioner Michelle Meeks moves to remand this case, which is 19 a petition to vacate an arbitration award, to state court and 20 Respondents Bay Area Restaurant Group (BARG), improperly named as 21 HMS Host dba Gordon Biersch @ SFO, and Unite Here! Local 2 (Local 22 2), improperly named as Hotel Employees and Restaurant Employees 23 Local # 2, move to dismiss. 24 remand and Petitioner has opposed the motion to dismiss. 25 matters were taken under submission and decided on the papers. 26 Having considered all the papers filed by the parties, the Court 27 denies the motion to remand and grants the motion to dismiss. Respondents have opposed the motion to The 28 Dockets.Justia.com 1 2 BACKGROUND BARG is responsible for the operations of the Gordon Biersch 3 Restaurant located in the San Francisco Airport (SFO). 4 a labor organization which represents certain BARG employees, 5 including Petitioner. 6 bargaining agreement (CBA) which includes grievance and arbitration 7 provisions. 8 Gordon Biersch Restaurant from 1983 to November 10, 2008, when BARG 9 terminated her employment due to events that occurred on October Local 2 is BARG and Local 2 are parties to a collective CBA at 20-22. Petitioner worked as a bartender at the United States District Court For the Northern District of California 10 28, 2008. 11 observed that she failed to record two sales or to deposit the cash 12 received from one of the sales into her register, that she over- 13 poured alcoholic beverages and that she failed to check 14 identification before serving alcoholic beverages. 15 conditions of Petitioner’s employment were governed by the CBA. 16 Petitioner was discharged when a loss prevention manager The terms and Local 2 timely grieved the termination of Petitioner’s 17 employment and submitted the dispute to arbitration under the terms 18 of the CBA. 19 2 and 18, 2009. 20 2 submitted post-hearing briefs. 21 issued his opinion and award, denying the grievance in its 22 entirety. 23 The arbitration was heard in two sessions, on December Following the arbitration hearings, BARG and Local On May 5, 2010, the arbitrator On February 1, 2011, in state court, Petitioner filed this 24 petition to vacate the arbitration award, in which she also asserts 25 a claim for breach of the duty of fair representation against Local 26 2, under 29 U.S.C. § 185 of the National Labor Relations Act 27 (NLRA), and claims that her constitutional rights were violated 28 2 1 because she received ineffective assistance of counsel and was 2 denied her right to a trial by jury at the arbitration proceedings. 3 She also challenges the constitutionality of the NLRA. 4 5 On March 4, 2011, Respondents jointly removed the petition to federal court. 6 7 8 9 DISCUSSION I. Motion to Remand A defendant may remove a civil action filed in state court to federal district court so long as the district court could have United States District Court For the Northern District of California 10 exercised original jurisdiction over the matter. 11 § 1441(a). 12 before judgment, it appears that the district court lacks subject 13 matter jurisdiction over a case previously removed from state 14 court, the case must be remanded. 15 motion to remand, the scope of the removal statute must be strictly 16 construed. 17 "The 'strong presumption' against removal jurisdiction means that 18 the defendant always has the burden of establishing that removal is 19 proper." 20 determined by examining the face of the plaintiff’s properly 21 pleaded complaint. 22 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 23 (1987). 24 28 U.S.C. Title 28 U.S.C. § 1447 provides that, if at any time 28 U.S.C. § 1447(c). On a Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Id. Ordinarily, federal question jurisdiction is Caterpillar Inc. v. Williams, 482 U.S. 386, 392 A claim that a union breached its duty of fair representation 25 arises under federal statutes and is governed by federal law. 26 v. Sipes, 386 U.S. 171, 177 (1967). 27 assistance of counsel arises under the Sixth Amendment to the 28 3 A claim for ineffective Vaca 1 United States Constitution, see Strickland v. Washington, 466 U.S. 2 668 (1984), and a claim for denial of the right to a jury trial 3 arises under the Seventh Amendment to the Constitution. 4 The claims for breach of the duty of fair representation, 5 ineffective assistance of counsel and violation of the right to a 6 jury trial are apparent from the face of Petitioner’s petition and, 7 thus, it is apparent that she is asserting federal causes of action 8 which give rise to federal question jurisdiction. 9 Respondents’ removal of the petition was proper. United States District Court For the Northern District of California 10 For this reason, Petitioner argues, however, that this Court lacks jurisdiction 11 over her petition. 12 has the right to choose the forum in which she litigates her 13 claims. 14 martial or commercial tribunals carrying out non-judicial functions 15 and that the NLRA is unconstitutional because it was beyond the 16 scope of Congress’ authority under the commerce clause to enact it. 17 These arguments and several others that she raises are without 18 merit. 19 (1937) (holding NLRA is constitutional). 20 remand is denied. 21 II. Motion to Dismiss She contends that, because she filed first, she She also argues that federal courts exist only as regional See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30-31 Petitioner’s motion to 22 A. Legal Standard 23 A complaint must contain a “short and plain statement of the 24 claim showing that the pleader is entitled to relief.” 25 Civ. P. 8(a). 26 12(b)(6) for failure to state a claim, dismissal is appropriate 27 only when the complaint does not give the defendant fair notice of 28 Fed. R. When considering a motion to dismiss under Rule 4 1 a legally cognizable claim and the grounds on which it rests. 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 3 considering whether the complaint is sufficient to state a claim, 4 the court will take all material allegations as true and construe 5 them in the light most favorable to the plaintiff. 6 v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 7 principle is inapplicable to legal conclusions; “threadbare 8 recitals of the elements of a cause of action, supported by mere 9 conclusory statements,” are not taken as true. In NL Indus., Inc. However, this Ashcroft v. Iqbal, United States District Court For the Northern District of California 10 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550 U.S. at 555). 11 When granting a motion to dismiss, the court is generally 12 required to grant the plaintiff leave to amend, even if no request 13 to amend the pleading was made, unless amendment would be futile. 14 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 15 F.2d 242, 246-47 (9th Cir. 1990). 16 17 18 B. Analysis 1. Petition to Vacate Arbitration Award Respondents argue that, under both California and federal law, 19 to have standing to challenge an arbitration award, a person must be 20 a party to the arbitration agreement. Petitioner does not respond 21 to this argument. 22 Section 1285 of the California Code of Civil Procedure provides 23 that “any party to an arbitration in which an award has been made 24 may petition the court to confirm, correct or vacate the award.” 25 Section 1280(e) of the California Code of Civil Procedure defines 26 “party to the arbitration” as a party to the arbitration agreement: 27 (1) who seeks to arbitrate a controversy under the agreement; 28 5 1 (2) against whom such arbitration is sought pursuant to the 2 agreement, or (3) who is made a party to such arbitration by order 3 of the neutral arbitrator upon such party’s application, upon the 4 application of any other party to the arbitration or upon the 5 neutral arbitrator’s own determination. 6 Under California law, 7 when an employee grievance is arbitrated under the terms of a collective bargaining agreement (CBA) between an employer and a union, the individual employee does not have standing to petition to vacate the award unless (1) the CBA contains a provision expressly giving employees themselves the right to submit disputes to arbitration, or (2) the arbitrator has made the employee a party to the arbitration under Code of Civil Procedure section 1280 subdivision (3). 8 9 United States District Court For the Northern District of California 10 11 12 Melander v. Hughes Aircraft Co., 194 Cal. App. 3d 542, 543-44 13 (1987). 14 Under federal law, “a district court ‘may make an order 15 vacating the award upon the application of any party to the 16 arbitration.’” 9 U.S.C. § 10; Jacoba v. United States Postal Serv., 17 1999 WL 111790, *1 (N.D. Cal.). However, “only parties to the 18 arbitration . . . have standing to challenge the award.” Id. 19 (citing Lofton v. United States Postal Serv., 592 F. Supp. 36, 38 20 (S.D.N.Y. 1984). 21 The CBA provides that only BARG or Local 2 may submit a dispute 22 to arbitration. CBA §§ 39(c) and (d). Petitioner does not point to 23 any provision that expressly gives employees the right to submit 24 disputes to arbitration. The arbitration itself is titled, “In the 25 Matter of a Controversy Between Host International, Inc. at the San 26 Francisco Int’l Airport and Unite Here! Local 2,” indicating that 27 the parties to the arbitration were Petitioner’s employer and union, 28 6 1 and not Petitioner. The arbitrator confirmed this in the first page 2 of the his opinion, stating, “This dispute arises under the 3 Collective Bargaining Agreement between the above-named parties.” 4 Petitioner fails to cite anything in the arbitrator’s opinion which 5 indicates that he made her a party to the arbitration. 6 Because Petitioner was not a party to the underlying 7 arbitration in this case, she lacks standing to challenge the award 8 under either California or federal law. 9 dismissed. United States District Court For the Northern District of California 10 futile. Therefore, this claim is Leave to amend is not granted because amendment would be Because Petitioner lacks standing on this claim, the Court 11 does not address Respondents’ arguments that the claim is time12 barred and that Petitioner has failed to plead a valid legal or 13 factual basis for vacating the award. 14 15 2. Breach of Duty of Fair Representation Respondents argue that Petitioner’s claim for breach of the 16 duty of fair representation is time-barred. Petitioner argues that 17 equitable tolling should apply. 18 Under Section 10(b) of the NLRA, 29 U.S.C. § 160(b), a 19 plaintiff has six months to bring a claim against a union for breach 20 of the duty of fair representation. DelCostello v. International 21 Bhd. of Teamsters, 462 U.S. 151, 172 (1983). Generally, the 22 limitations period begins to run when the employee "discovers, or in 23 the exercise of reasonable diligence should have discovered, the 24 acts constituting the alleged [violation]." Galindo v. Stoody Co., 25 793 F.2d 1502, 1509 (9th Cir. 1986) (internal quotations and 26 citations omitted). 27 28 In her petition, Petitioner alleges that, during the 7 1 arbitration proceeding, Local 2 committed acts that were contrary to 2 her best interest and failed to act in her best interest. 3 at 25-29. Petition Thus, Local 2's conduct that gives rise to Petitioner’s 4 claim occurred in December, 2009, when the arbitration hearing took 5 place. Arguably, Petitioner would not have known of Local 2's 6 breach of the duty of fair representation until she learned of the 7 adverse arbitration decision, which issued on May 5, 2010. 8 Petitioner argues that she did not become aware of Local 2's breach 9 until it notified her, after the arbitration award issued, that United States District Court For the Northern District of California 10 "there is nothing more that we can do." Petition at 8. 11 communication was made on May 16, 2010. Petitioner filed the This 12 petition on February 1, 2011, approximately thirteen months after 13 the hearing and eight months after the issuance of the arbitration 14 award. Therefore, if the claim accrued on any of these dates, the 15 petition was filed after the six-month statutory deadline and must 16 be dismissed for this reason. 17 Petitioner also argues that her claim should be equitably 18 tolled until November 24, 2010, when she met with attorney William 19 R. Henshall and she first learned that she could file a claim for 20 breach of the duty of fair representation. 21 Opposition at 13. A litigant seeking equitable tolling bears the burden of 22 establishing: (1) that he or she has been pursuing legal rights 23 diligently, and (2) that some extraordinary circumstance stood in 24 his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). 25 Equitable tolling may be invoked to "excuse a claimant's failure to 26 comply with the time limitations where she had neither actual nor 27 constructive notice of the filing period." 28 8 Leorna v. United States 1 Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997). However, 2 equitable tolling focuses on the plaintiff's excusable ignorance of 3 the limitations period and cannot be used to avoid the consequences 4 of the plaintiff's negligence. 5 1010, 1016 (9th Cir. 1998). Lehman v. United States, 154 F.3d Thus, an employee's ignorance of his 6 statutory rights, in itself, will not toll the statute of 7 limitations. Taylor v. West Oregon Elec. Cooperative, Inc., 2005 WL 8 2709540, *5 (D. Or.); see also Rasberry v. Garcia, 448 F.3d 1150, 9 1154 (9th Cir. 2006) (joining many other circuits in holding that United States District Court For the Northern District of California 10 pro se petitioner's lack of legal sophistication is not, by itself, 11 an extraordinary circumstance warranting equitable tolling). 12 Based on this authority, even if Petitioner was ignorant of her 13 legal rights until she met with an attorney, equitable tolling would 14 not apply. The case she cites, Frandsen v. Brotherhood of Ry., 15 Airline and Steamship Clerks, Freight Handlers, and Station 16 Employees, 782 F.2d 674, 681 (7th Cir. 1986), held that the statute 17 of limitations was tolled during the time a plaintiff pursued intra18 union grievance procedures. Frandsen does not aid Petitioner 19 because her petition is untimely even if the statute began to run 20 after her grievance process ended, when Local 2 told her it could do 21 no more for her. 22 Because Petitioner filed her claim for breach of the duty of 23 fair representation after the six-month statute of limitations had 24 elapsed and, because equitable tolling does not apply, her claim is 25 untimely and must be dismissed. 26 Moreover, even if Petitioner's claim were timely, it would fail 27 on the merits. 28 9 1 In order to bring a successful claim for breach of the duty of 2 fair representation against a union, a plaintiff must demonstrate 3 that the union's "actions are either 'arbitrary, discriminatory, or 4 in bad faith.'" Air Line Pilots v. O'Neill, 499 U.S. 65, 67 (1991) 5 (quoting Vaca, 386 U.S. at 190. "A union's actions are arbitrary 6 only if, in light of the factual and legal landscape at the time of 7 the union's actions, the union's behavior is so far outside a 'wide 8 range of reasonableness,' as to be irrational." Id. For a 9 plaintiff to prove that a union's actions were discriminatory or in United States District Court For the Northern District of California 10 bad faith, "[t]here must be ‘substantial evidence of fraud, 11 deceitful action or dishonest conduct.’" Amalgamated Ass'n of 12 Street, Elec. Ry. and Motor Coach Employees of America v. Lockridge, 13 403 U.S. 274, 299 (1971). 14 Petitioner alleges that Local 2 made multiple mistakes 15 throughout the arbitration proceeding, such as failing to object to 16 the lack of training of an important witness or to impeach him with 17 contradictory testimony, stipulating to certain acts by Petitioner 18 and failing to object to the conduct of the pre-termination 19 investigation. Petition at 11-14. She also alleges that Local 2 20 made a mistake by failing to inform her, after the proceeding, that 21 she could file a motion to vacate the award. Id. at 11. However, 22 Petitioner also admits that Local 2 "did actively participate in 23 Petitioner's defense throughout the proceedings, and even submitted 24 a Closing Brief which if read & acted upon by Arbitrator Silver 25 should have resulted in a dismissal of the charges against 26 Petitioner." 27 28 Id. Petitioner's allegations, taken as true, are insufficient to 10 1 establish that Local 2 acted arbitrarily, discriminatorily or in bad 2 faith. As acknowledged by Petitioner herself, Local 2 presented a 3 vigorous and cogent defense. That it might have failed to make some 4 objections which, in hindsight, might have been beneficial to 5 Petitioner, is not the type of conduct that gives rise to a claim 6 for breach of the duty of fair representation. Moreover, as 7 discussed previously, Petitioner lacked standing to move to vacate 8 the award. Thus, Local 2 would have no reason to inform Petitioner 9 that she could move to vacate the award and its failure to do so United States District Court For the Northern District of California 10 does not constitute a breach of its duty. Therefore, on the merits, 11 Petitioner has failed to state a claim upon which relief may be 12 granted. 13 Respondents' motion to dismiss this claim is granted. 14 Dismissal is without leave to amend because amendment would be 15 futile. 16 17 3. Constitutional Claims Petitioner's claims of ineffective assistance of counsel and 18 failure to receive a jury trial must be dismissed for failure to 19 state a claim upon which relief may be granted. A claim for 20 ineffective assistance of counsel arises under the Sixth Amendment 21 to the United States Constitution which states, "In all criminal 22 prosecutions, the accused shall . . . have the assistance of counsel 23 for his defense." Thus, a right to effective assistance of counsel 24 arises only in criminal proceedings. Petitioner's allegations that 25 the arbitration was akin to a criminal proceeding because she was 26 accused of the crime of theft, does not transform the arbitration of 27 her employment termination from a civil to a criminal proceeding. 28 11 1 Because the arbitration was a civil proceeding, Petitioner did not 2 have the right to effective assistance of counsel under the Sixth 3 Amendment. 4 Although the Seventh Amendment guarantees the right to a jury 5 trial in civil suits, the United States Supreme Court has 6 consistently approved the use of arbitration as a form of 7 alternative dispute resolution, which is a proceeding without a 8 jury. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 664-65 9 (1965) (holding that a union representing a worker may, by contract, United States District Court For the Northern District of California 10 take away from the worker his right to sue and with it the right to 11 a jury trial); 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 1470 12 (2009) (agreement to resolve discrimination claim by way of 13 arbitration instead of litigation does not waive statutory right to 14 be free from discrimination, it waives only right to seek relief 15 from a court in the first instance). Therefore, Petitioner's cause 16 of action based on a violation of her right to a jury trial fails to 17 state a claim and must be dismissed. 18 Petitioner's claim that the NLRA is unconstitutional fails 19 because the Act has long been held to be constitutional by the 20 United States Supreme Court. See Jones & Laughlin Steel Corp., 301 21 U.S. at 30-31. 22 Therefore, Petitioner's allegations of constitutional 23 violations are dismissed for failure to state a claim upon which 24 relief may be granted. These claims are dismissed without leave to 25 amend because amendment would be futile. 26 CONCLUSION 27 Based upon the foregoing, Petitioner's motion to remand is 28 12 1 denied (docket no. 30) and Respondents' motion to dismiss is granted 2 (docket no. 11). 3 separately. Judgment in favor of Respondents shall be entered All parties shall bear their own costs of suit. 4 5 IT IS SO ORDERED. 6 7 Dated: 11/8/2011 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 MEEKS et al, Case Number: CV11-01021 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 HMS HOST et al, 7 Defendant. 8 / 9 United States District Court For the Northern District of California I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, 10 Northern District of California. 11 That on November 8, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said 12 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 Michelle Meeks 1788 Hamlet Street 16 San Mateo, CA 94403 17 Dated: November 8, 2011 18 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 14
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