The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
Defendant's motion to dismiss was heard on July 24, 2008.*fn1 Adrianne Samms and Matthew Ruggles appeared for defendant. Etan Rosen appeared for plaintiff. Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), contending that the claims are preempted by the Labor Management Relations Act ("LMRA"), which bars the complaint by virtue of its six month statute of limitations. After reviewing the record, the court determined that defendant's motion should have been brought as a motion under Fed. R. Civ. P. 12(b)(1) rather than 12(b)(6), and that further evidence was necessary. As a result, the parties were directed to submit evidence in support of their respective arguments. Having now reviewed that evidence, the court issues the following order.
Plaintiff was formerly employed by defendant pursuant to a collective bargaining agreement ("CBA"). According to the complaint, plaintiff was laid off by defendant around August 11, 2006, after being informed that he could receive a recall notice. (Compl., ¶ 7; Brown Decl. ¶ 2.) On May 18, 2007, plaintiff was informed of his recall but was given unspecified time by Human Resource Manager Ken Howie to deal with a prior commitment. (Compl., ¶ 9; Brown Decl. ¶ 8.) According to plaintiff, the parties had an oral agreement on June 1, 2007, to give plaintiff additional time before returning to work. (Compl., ¶ 10; Brown Decl., ¶ 10.) According to defendant, Howie informed the Union Business Agent on June 13, 2007, that he could not hold the position open for plaintiff. (Howie Decl., ¶ 5.) Plaintiff made arrangements for a required drug screen which occurred on June 14, 2007. (Compl., ¶ ¶ 13, 14; Brown Decl., ¶ 15.) On August 3, 2007, plaintiff sent an email to Howie to confirm he would be returning to work on August 6, 2007. Howie responded that the company could not hold open a position for plaintiff for three months (from the date plaintiff was informed of the recall), and that plaintiff would not be rehired. (Compl., ¶ 15; Brown Decl., ¶¶ 16, 17.) Plaintiff alleges that this response breached the oral agreement.
Plaintiff brought suit in state court on May 6, 2008, for claims of breach of express contract, breach of oral contract, breach of implied covenant of good faith and fair dealing, and false promise. Defendant removed the action to this court on June 4, 2008, based on complete preemption of all claims by the Labor-Management Relations Act ("LMRA"), 28 U.S.C. § 185. Defendant now moves to dismiss all four claims as barred by the LMRA's six month statute of limitations. However, the issue of application of the LMRA statute of limitations is intertwined with the subject matter jurisdiction in that the prerequisite for application of the LMRA statute of limitations is jurisdiction under that statute. If jurisdiction exists, the expiration of the statute prior to filing of the federal action is a foregone conclusion.
LEGAL STANDARD FOR MOTION TO DISMISS
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D.Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699-700, 7 L.Ed. 2d 663 (1962).
Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn2
A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial power of the United States is vested in the Supreme Court, "and in such inferior Courts as the Congress may from time to time ordain and establish." Congress therefore confers jurisdiction upon federal district courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S.Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be raised at any time by either party or by the court. See Attorneys Trust v. Videotape Computer Products,Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer "federal question" and "diversity" jurisdiction, respectively. Statutes which regulate specific subject matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776 (1945). "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
Removal of a state court action is proper only if it originally could have been filed in federal court. 28 U.S.C. § 1441. A federal question must be presented on the face of a properly pleaded complaint. See Gully v. First National Bank, 299 U.S. 109, 112-112, 57 S.Ct. 96, 97-98 (1936). Ordinarily, a federal defense to a complaint containing only state law claims is not justification for removal based on the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430 (1987). An exception to this rule is the "complete preemption" doctrine which applies in certain extraordinary cases. "Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. at 393, 2430. The complete preemption doctrine applies to cases raising claims pursuant to section 301 of the LMRA, 29 U.S.C. § 185(a). Id.
Preemption under the LMRA occurs where there is a state law claim that is either "based directly on rights created by a collective bargaining agreement," or "substantially dependent on an interpretation of a collective bargaining agreement." Beals v. Kiewit Pacific Co., Inc., 114 F.3d 892, 894 (9th Cir. 1997), citing Caterpillar Inc., 482 U.S. at 394, 107 S.Ct. at 2430-31. See also Hyles v. Mensing, 849 F.2d 1213, 1215-16 (9th Cir. 1988); Adkins v. Mireles, 526 F.3d 531, 539 (9th Cir. 2008). If a claim only tangentially involves a provision of the CBA, it is not preempted. Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993). Preemption does not necessarily result where a CBA must be consulted for information, Aguilera v. Pirelli Armstrong Tire Corporation, 223 F.3d 1010, 1014 (9th Cir. 2000), or where the court must merely "look to" the CBA. Romero v. San Pedro Forklift, Inc., 2008 WL 313063 ...