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O'SULLIVAN v. LONGVIEW FIBRE CO.

November 18, 1997

BRIAN O'SULLIVAN, Plaintiff,
v.
LONGVIEW FIBRE COMPANY, Defendant.



The opinion of the court was delivered by: CHESNEY

 Plaintiff was fired from his job of 19 years after he signed a statement admitting drug use. He filed a complaint for breach of contract in state court, which was removed to this Court on the ground that the terms of his employment were governed by a collective bargaining agreement ("CBA"). Now before the Court is the motion of defendant to dismiss or, in the alternative, for summary judgment.

 The Court deems this matter appropriate for determination upon the papers filed in support of and in opposition to the motion. Accordingly, the hearing set for November 21, 1997, is hereby VACATED.

 FACTS/PROCEDURAL HISTORY

 On April 30, 1997, plaintiff Brian O'Sullivan ("O'Sullivan") filed a breach of contract complaint against his former employer, defendant Longview Fibre Company ("Longview") in Alameda County Superior Court. O'Sullivan alleges that he worked for Longview for over nineteen years under an implied-in-fact contract that O'Sullivan would not be fired except for good cause. According to O'Sullivan, on June 20, 1995, he was "instructed to attend an interview, which turned out to be an interrogation about drug use." After being intimidated, O'Sullivan signed a statement admitting that he used drugs. He was thereupon fired. Plaintiff contends that by terminating him, Longview breached the implied-in-fact agreement because:

 
(1) There was no evidence of daily use while at work; (2) Plaintiff incurred no accidents; (3) There was no adverse publicity; (4) No prior disciplinary history; (5) The discharge was not consistent with a co-policy; and (6) other employees were not so treated.

 (Complaint p. 3).

 Longview was served with the summons and complaint on September 8, 1997. (Notice of Removal 1:23-26). On October 3, 1997, Longview removed the case to this Court on the ground that O'Sullivan's claim was preempted by § 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185. Filed with the Notice of Removal was a copy of a collective bargaining agreement ("CBA") covering the period June 17, 1995 through June 16, 1999. (Arkell Decl. in Supp. of Notice of Removal, Ex. 1).

 On October 10, 1997, Longview filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment, noticed for hearing on November 21, 1997. O'Sullivan filed a late opposition to the motion on November 5, 1997, and Longview filed a late reply on November 14, 1997.

 DISCUSSION

 Longview contends that O'Sullivan's breach of contract claim must be dismissed because (1) he failed to exhaust his remedies under the CBA; and, even if this failure is excused (2) he failed to file the instant breach of contract claim within the six-month statute of limitations period applicable under the LMRA.

 I. Legal Standard

 A. Motion to Dismiss -- Rule 12(b)(6)

 A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

 Generally, a court may not consider materials beyond the pleadings in ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner And Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, material which is properly submitted as part of the complaint may be considered. Id. In addition, a court may consider documents whose contents are specifically alleged in a complaint, and whose authenticity no party questions, even though the documents are not physically attached to the pleading. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Finally, the Court may take judicial notice of matters of public record outside the pleadings. MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

 In this case, Longview requests that the Court consider (1) the CBA, which Longview filed with its Notice of Removal, and (2) the declaration of R.B. Arkell, Vice President of Industrial Relations and General Counsel of Longview. Since neither piece of evidence was attached or specifically referred to in O'Sullivan's ...


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