The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge
ORDER GRANTING ARAMARK AND PACHECO'S MOTION TO DISMISS AND DENYING THE UNION DEFENDANTS' MOTION TO DISMISS AS MOOT [Re: Docket No. 36, 38]
Plaintiff Dan Sullivan ("Sullivan") sues defendants Aramark Uniform & Career Apparel, Inc., Aramark general manager Bill Pacheco (collectively, "the Aramark defendants"), as well as the International Brotherhood of Teamsters, Local 853 ("Teamster Local 853"), Rose Aloise, and Michael Amaral (collectively "the Union defendants") for their alleged unfair and illegal treatment 22 of him in violation of California law and the collective bargaining agreement ("Master Agreement") 23 that governed Sullivan's employment with Aramark as a Route Sales Representative ("RSR").
Sullivan claims that Aramark, and specifically its General Manager Bill Pacheco, violated the Master Agreement numerous times by retaliating against Sullivan for protected activities such as 26 whistle-blowing, removing accounts from Sullivan's route, and suspending Sullivan without notice 27 or explanation. See Docket No. 35 ¶¶ 14-22 ("First Amended Complaint" or "FAC"). Sullivan filed 28 a grievance under the Master Agreement, but alleges that he was also denied the appropriate due process as required by the Agreement, and that both Aramark and the Union failed to abide by the 2 terms of the Master Agreement's Grievance and Arbitration clause. Id. at ¶¶ 25-31. On June 26, 3 A ¶ 34 ("Complaint"). 5
County Superior Court. See Complaint. The Aramark defendants removed the action to this Court 7 on the basis of diversity on. Docket No. 1 ("Notice of Removal"). The Union defendants joined the 8 removal, and answered the complaint. Docket Nos. 5, 8. The Aramark defendants then moved to 9 dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. Docket 10
Sullivan filed a First Amended Complaint ("FAC"). Docket No. 35. The Aramark 13 defendants and the Union defendants each moved to dismiss, making many of the same arguments 14 as the Aramark defendants made against the original complaint. Docket Nos. 36, 38. Sullivan 15 voluntarily dismissed the Union defendants on November 7. Docket No. 43. Hearing on the motions 16 to dismiss occurred on November 8. Upon consideration of the moving papers and counsel's 17 argument at hearing, Aramark and Pacheco's motion to dismiss is GRANTED. In light of Sullivan's 18 dismissal of the Union defendants, their motion to dismiss is DENIED as MOOT. 19
On motion, a court may dismiss a complaint for failure to state a claim. FED. R. CIV. P. 12(b)(6). The federal rules require that a complaint include a "short and plain statement" showing 22 the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The statement must "raise a right to relief 23 above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007). However, only 24 plausible claims for relief with survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. ___, 129 25 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). A claim is plausible if its factual content "allows the 26 court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 27 1949. A plaintiff does not have to provide detailed facts, but the pleading must include "more than 28 an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1950.
2010, Pacheco sent Sullivan a letter stating that Sullivan was "deemed severed." Docket No. 1, Exh. 4 Roughly nine months later, on March 9, 2011, Sullivan filed the instant action in Santa ClaraNo. 9. The court granted that motion and directed Sullivan to file an amended complaint within
Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). The factual 3 allegations pled in the complaint must be taken as true and reasonable inferences drawn from them 4 must be construed in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)). However, the court cannot assume that "the California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). "Nor is the 9 court required to accept as true allegations that are merely conclusory, unwarranted deductions of 10 fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)),amended on other grounds by 275 F.3d 1187 (9th Cir. 2001). 13 15(a)(2). "'Four factors are commonly used to determine the propriety of a motion for leave to 15 amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of 16 amendment.'" Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007) (internal citations omitted). 17
Calderon, 59 F.3d 815, 845 (9th Cir. 1995). An amendment would be "futile" if there is no set of 19 facts can be proved which would constitute a valid claim or defense. See Miller v. Rykoff-Sexton, 20 Inc., 845 F.2d 209, 214 (9th Cir. 1988).
I. Sullivan's First and Fourth Claims for Breach of Contract and Breach of Duty of Fair Representation
"It has long been established that an individual employee may bring suit against his employer for breach of a collective bargaining agreement." DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 163 (1983) (citation omitted). "Ordinarily, however, an employee is 28 required to attempt to exhaust any grievance or arbitration remedies provided in the collective
In deciding a motion to dismiss, the court is ordinarily limited to the face of the complaint.
337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (citing Usher v. City of plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of
"A court should freely give leave [to amend] when justice so requires." FED. R. CIV. P. "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v.
bargaining agreement." Id. at 163-64 (citations omitted). But, when the union representing the 2 employee acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its 3 duty of fair representation, "an employee may bring suit against both the employer and the union, 4 notwithstanding the outcome or finality of the grievance or arbitration proceeding." Id. (citations 5 omitted). 6
"hybrid" action under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 8
"Such a suit, as a formal matter, comprises two causes of action" and is characterized as a
185(a).*fn1 Id. at 164-65. The claim against the employer, which is based on § 301(a) of the LMRA, 9 authorizes suits between employers and labor organizations for breach of a collective bargaining 10 agreement. Stevens v. Moore Bus. Forms, Inc., 18 F.3d 1443, 1447 (9th Cir. 1994). "A suit for breach of a collective bargaining agreement is governed exclusively by federal law under section 301. . . [and] displace[s] entirely any state claim based ...