This matter comes before the court upon a motion for judgment on the pleadings filed by defendant International Brotherhood of Electrical Workers, Local 1269's ("defendant" or "Local 1269"). (ECF 7.) This matter was decided without a hearing. For the following reasons, defendant's motion is hereby granted in part and this case is remanded.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff was employed by defendant AT&T beginning in May 1990 as a telemarketing and premise representative. (Compl. ¶ 5, Not of Removal, Ex. 1, ECF 1-1.) Local 1269 is the union that represented her. (Id. ¶ 3.) On March 2, 2010, AT&T notified plaintiff it was relocating her position to a new office. (Id. ¶ 6.) She was directed to report to the new office on May 24, 2010 or inform AT&T by April 2, 2010 if she intended not to relocate and instead take a severance package. (Id.)
Plaintiff filed a complaint in Sacramento County Superior Court on May 2, 2011; defendant removed the action to this court on August 4, 2011. (Not. of Rem., ECF 1.) Plaintiff's complaint alleges five causes of action: 1) age discrimination in violation of the California Fair Employment and Housing Act ("FEHA"); 2) violation of the California Warn Act, CAL. LAB. CODE § 1400, et seq.; 3) breach of the collective bargaining agreement and duty of fair representation; 4) unfair labor practice; and 5) intentional infliction of emotional distress ("IIED").*fn1 (Id., Ex. 1.) Defendant filed its answer on August 11, 2011. (ECF 6.)
Defendant filed the present motion for judgment on the pleadings on September 2, 2011. (ECF 7.) Plaintiff filed her opposition on October 12, 2011. (ECF 9.) Defendant filed its reply on October 20, 2011. (ECF 15.)
A. Standard "After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). "Failure to state a claim upon which relief can be granted . . . may be raised . . . by a motion under Rule 12(c)." FED. R. CIV. P. 12(h)(2)(B). "Judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." Merchants Home Delivery Serv. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir. 1995) (citing Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993)). A 12(c) motion is reviewed under the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim. Slade v. Gates, No. 01-8244-RMT(Ex), 2002 U.S. Dist. LEXIS 20401, at *2 n.1 (C.D. Cal. Oct. 11, 2002) (citing GATX Leasing Corp. v. Nat'l Union Fire Ins., Co., 64 F.3d 1112, 1114 (7th Cir. 1995)).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," (FED. R. CIV. P. 8(a)(2)), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001).
Defendant contends that plaintiff's FEHA and IIED claims are really claims for breach of the duty of fair representation, 29 U.S.C. § 159(a). (Mot. at 8 & 10.) In addition, defendant asks the court to construe plaintiff's fourth claim for unfair labor practices as a claim for breach of the duty of fair representation. (Id. at 6.) Defendant contends all plaintiff's claims against it are time-barred by the six-month statute of limitations applicable to claims for breach of the duty of fair representation found in 29 U.S.C. § 160(b).
Plaintiff does not address defendant's contention that her FEHA and IIED claims are essentially claims for breach of the duty of fair representation and instead focuses on arguing that these claims are not preempted by section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. (Opp'n at 5, 9-10.)
However, plaintiff apparently agrees that her claim for unfair labor practices is indeed a claim for breach of the duty of fair representation. Plaintiff would have the court analyze this claim as a contract claim brought under section 301 of the LMRA. (Opp'n at 7.)*fn2
As such, plaintiff contends, there is no specific statute of limitations and this court must borrow a statute of limitations from state law. (Id. at 7-8.) To address this point briefly, as both parties agree that this is a claim for breach of the duty of fair representation, § 301 of the LMRA is irrelevant;*fn3 the applicable statute of limitations for this claim is discussed below. Moreover, without citing to caselaw, plaintiff argues that even if the action is time-barred, the running of the statute of limitations is subject to equitable tolling, apparently contending that she "could not reasonably have discovered the existence of accrual of a hybrid cause of action despite exercise of due diligence." (Id.) Plaintiff provides absolutely no support for her assertion that she could not have reasonably discovered the accrual of this action despite the exercise of due diligence. Indeed, plaintiff filed a charge against defendant with the National Labor Relations Board (NLRB), which shows that plaintiff was aware of the events giving rise to her claim. (Answer, Ex. A, ECF 6-1.) Moreover, insofar as plaintiff argues that the statute of limitations was tolled by plaintiff's ...