The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND REMANDING REMAINING CLAIMS
Plaintiff initiated this action before the San Diego Superior Court, raising various state law claims against Defendants Ralphs Grocery Company ("Ralphs"), Food 4 Less of Southern California ("Food 4 Less"), and United Food and Commercial Workers Union 135 ("Local 135"). ("Compl.," Doc. No. 1, Exh. A.) Plaintiff, formerly employed by Food 4 Less and a member of Local 135, alleges he was subjected to racial discrimination and other forms of harassment and ultimately his employment was wrongfully terminated. (Compl. at 5-10.) Additionally, he alleges Local 135 failed to properly investigate or pursue the matter on his behalf. (Compl. ¶¶ 26-27, 32-33.)
Now pending before the court are two motions to dismiss, the first by Local 135 (Doc. Nos. 4-5) and the second by Ralphs and Food 4 Less (Doc. No. 9). To date, Plaintiff has filed no opposition nor sought additional time to do so. When an opposing party does not file papers in the manner required by Civ.L.R. 7.1(d)(2), the court may deem the failure to "constitute a consent to the granting of a motion or other request for ruling by the court." Civ.L.R. 7.1(f)(3)(c). Notwithstanding Plaintiff's failure to respond, the court reviews the motions on the merits to ensure dismissal is appropriate. Pursuant to Civ.L.R. 7.1(d), the matter was taken under submission by the court. For the reasons set forth below, both motions to dismiss are GRANTED and the remaining state law claims are REMANDED to state court.
For the purposes of reviewing the motions to dismiss, the court relates the following facts as presented in Plaintiff's Complaint. From November 1, 2003 until January 11, 2008, Plaintiff was employed by Food 4 Less at various San Diego store locations. (Compl. ¶ 19.) In February 2007, Plaintiff was transferred to the Santee store, where he took a full-time meat clerk position. (Compl. ¶ 20.) Thereafter, Plaintiff, the only African-American employee at the store, alleges he was subjected to racial insults and slurs by store managers and other employees. (Compl. ¶ 21-22.) When the Caucasian employee Plaintiff was hired to replace returned to the Santee store, Plaintiff's hours were reduced to part-time night shifts and the hours were not increased even when the former employee took several months' medical leave. (Compl. ¶ 23-24.) Soon after, the same employee falsely reported to the manager that Plaintiff was not completing his work assignments each day. (Compl. ¶ 23.) In addition, in July 2007, Plaintiff was falsely accused of sexually harassing an adolescent female customer, resulting in the issuance of a formal written reprimand. (Compl. ¶ 26.) Finally, in December 2007, the store managers began to complain Plaintiff was not completing his work each night. (Compl. ¶ 28.) Plaintiff felt there was too much work to complete within one shift, but the store managers would not authorize overtime and ultimately threatened termination if Plaintiff did not work more quickly. (Compl. ¶ 28.) To finish his work, then, Plaintiff worked through his lunch break (i.e. "off the clock"). (Compl. ¶ 28.) The Complaint does not state how frequently Plaintiff took this remedial action.
On January 1, 2008, the store director and meat department manager suspended Plaintiff for approximately one week, based on further false allegations that Plaintiff had not been rotating the meat properly. (Compl. ¶ 29.) The store director informed Plaintiff that a recurrence would result in his termination. (Compl. ¶ 29.) Immediately upon his return to the store on January 7, Plaintiff was suspended for another week without any explanation and was asked to return on January 11, 2008. (Compl. ¶ 30.) When Plaintiff arrived at work on January 11, he was called to the manager's office and the assistant store manager informed him he had been terminated for "working off the clock." (Compl. ¶ 31.)
Based on these allegations, Plaintiff advances the following claims against Ralphs and Food 4 Less: 1) racial discrimination; 2) retaliation for opposing racial discrimination and harassment; 3) wrongful termination in violation of California's public policy against racial discrimination, harassment, or retaliation; 4) intentional infliction of emotional distress; 5) negligent infliction of emotional distress; 6) breach of an agreement not to terminate except for good cause; 7) breach of the covenant of good faith and fair dealing; 8) negligently failing to investigate charges of sexual harassment and resulting harassment; and 9) unfair competition in violation of California Business and Professions Code § 17200.*fn1
As a member of Local 135, Plaintiff's employment with Food 4 Less was governed by a collective bargaining agreement between Local 135 and Food 4 Less. (Compl. ¶ 83.) Following the allegations of sexual harassment, Plaintiff reported the incident to his union representative in an attempt to initiate the grievance process. (Compl. ¶ 26-27.) Although a representative came to the Santee store to discuss this one issue with Plaintiff, no grievance was ever filed. (Compl. ¶ 27.) When Plaintiff was suspended on January 7, 2008, he telephoned the union three times requesting a representative accompany him to the store on January 11 because he suspected he might be terminated at that time. (Compl. ¶ 30.) Although a representative agreed, he failed to appear and Plaintiff had to return to work without assistance. (Compl. ¶ 30.) After his termination on January 11, 2008, Plaintiff again reached out to the union, leaving numerous phone messages over the next three days, but received no response. (Compl. ¶ 32.). Finally, Plaintiff and his step-father personally appeared at the union office on January 14, 2008, but the official they spoke with refused to complete a grievance form or otherwise investigate the matter. (Compl. ¶ 33.)
Against Local 135, Plaintiff sets forth claims for: 1) intentional infliction of emotional distress; 2) negligent infliction of emotional distress; 3) breach of the covenant of good faith and fair dealing; 4) breach of an agreement to represent him; and 5) negligently failing to represent him.*fn2
Local 135's motion urges dismissal of the Complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim, or in the alternative, to strike claims for damages for emotional distress and for punitive damages. (Doc. No. 4.) The motion by Ralphs and Food 4 Less seeks dismissal only of the claims for breach of agreement to terminate and breach of the covenant of good faith and fair dealing. In essence, both motions track the same arguments: these state-law claims are preempted by federal labor law and, construed as the appropriate federal claims, are barred by the applicable six-month statute of limitations.
Although Plaintiff's Complaint recited only California state law claims, the defendants removed the matter to federal court. (Doc. No. 1.) Defendants based their claim to federal jurisdiction on the existence of a federal question under 28 U.S.C. § 1331, arguing several of Plaintiffs' state law causes of action were completely ...