The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge
ORDER GRANTING MOTION TO DISMISS THE COMPLAINT [doc. #2] GRANTING IN PART LEAVE TO AMEND COMPLAINT
Plaintiff David Logan filed this action in the Superior Court for the State of California, County of San Diego. Defendant VSI removed the action on the basis of the Court's diversity jurisdiction and has now moved to dismiss the complaint or alternatively to strike certain portions of the complaint. The motion has been fully briefed and is determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).
In his complaint, Logan alleges that he was employed as a Project Manager by defendant since May 14, 2007. On July 9, 2010, VSI terminated plaintiff's employment. Logan asserts the reason for his termination was because of his participation in union-related activities. Since his termination, plaintiff has not been successful in finding new employment which he contends is a result of defendant's interference with his job search. Specifically, plaintiff alleges, on information and belief, that VSI provided malicious and slanderous information related to his work performance and false information related to the reason for his termination.
Logan asserts six causes of action: wrongful termination in violation of public policy; breach of employment contract, intentional interference with prospective economic advantage; slander-libel; intentional infliction of emotional distress; and negligent infliction of emotional distress. Defendant seeks to dismiss each of these claims. Alternatively, defendant seeks to stike paragraph 10 in its entirety, the fifth and sixth causes of action in their entirety, and the request for attorneys' fees.
Legal Standard for Motion to Dismiss
A Rule 12(b)(6) motion tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a "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 .1988). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
After accepting as true all non-conclusory allegations and drawing all reasonable inferences in favor of the plaintiff, the Court must determine whether the complaint alleges a plausible claim to relief. See Ashcroft v. Iqbal 129 S. Ct 1937, 1950 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)(A complaint cannot survive a motion to dismiss unless it provides "sufficient factual matter, . . . to 'state a claim to relief that is plausible on its face.'"). "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." at 1949. In determining facial plausibility, whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
1. Wrongful Termination in Violation of Public Policy
Defendant contends that the first cause of action, wrongful termination in violation of public policy, is premised on violation of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), et seq., which prohibits adverse action, including the discharge of an employee, for participation in union activity. Because of this, defendant argues that plaintiff's claim is preempted. See San Diego Bldg. Trades Council, Millmens Union, Local 2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773 (1959). In Garmon, the Supreme Court held that the NLRB has original, exclusive jurisdiction over claims of unfair labor practices arising under sections 7 and 8 of the NLRA. Section 7 defines protected union activities, 29 U.S.C. § 157, and section 8 protects employees engaged in those activities against employer coercion and discrimination. 29 U.S.C. § 158(a)(1), (3). The Garmon Court held that, "[w]hen an activity is arguably subject to § 7 or § 8 of the Act, the states as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." Garmon, 359 U.S. at 245, 79 S.Ct. at 780.
The Garmon decision noted, however, that in enacting sections 7 and 8 of the NLRA, Congress did not intend to preempt all regulation of labor-related matters by the states: due regard for the presuppositions of our embracing federal system ... has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to Act. at 243-44, 79 S.Ct. at 779 (citation and footnote omitted); see also, Ethridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988).
An example of a case outside the preemptive reach of the NLRA is Hayden v. J.A. Reickerd, where the Court noted that "we have allowed the states to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order." 957 F.2d 1506, 1512 (9th Cir. 1992)(quoting Garmon, at 247, 79 S.Ct. at 781.) "Hayden's allegations of battery and abusive treatment, at least, fall squarely within this exception." Id.
Logan attempts to carve out an exception to the exclusive jurisdiction of the NLRB by contending that his claim is actually that he "was a member of management wrongfully discharged due to accusations made by a union representative about him of which he was ignorant until well after he had been discharged." (Opp. at 4.) But plaintiff alleges in his complaint that: his employment was terminated by Defendant after he participated in union-related activity, which was his right to do. [ ] Defendant's actions in terminating Plaintiff's employment after he participated in union-related activiy constitutes a violation of clear public policy against retaliatory employment acts in the workplace following an employee's participation in union activity, pursuant to the NLRA . . . .
(Comp. at 3, 4.) The allegations in the complaint clearly demonstrate that this is precisely the type of claim that is intended to be governed by the NLRA. Even taking plaintiff's attempt to argue around his claim, the allegation still falls squarely within the ambit of the NLRB's jursidiction.
Accordingly, because the NLRB has exclusive jurisdiction, plaintiff's wrongful termination in violation of public policy claim ...