ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND AND DENYING MOTION TO REMAND OR TRANSFER VENUE Dkt. 4, 20
SAUNDRA BROWN ARMSTRONG, District Judge.
Petitioner Elizabeth Medina ("Medina") filed a Verified Petition of Writ of Mandate in the Alameda County Superior Court seeking to compel Respondent SEIU-United Healthcare Workers West ("the Union") to arbitrate her grievance against Kaiser Permanente ("Kaiser"). The Union removed the action on the grounds that Medina's claim is preempted by § 301 of the Labor Management Relations Act ("LMRA") and/or § 9 of the National Labor Relations Act ("NLRA"). See 28 U.S.C. § 1441(a).
The parties are presently before the Court on: (1) Medina's Motion to Remand or Transfer Venue, Dkt. 20; and (2) the Union's Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), Dkt. 4. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion to remand or transfer and GRANTS the motion to dismiss with leave to amend. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).
A. FACTUAL SUMMARY
On July 16, 2010, Medina's employment was terminated by Kaiser in Fresno, California, while she was on medical leave. Verified Pet. for Writ of Mandate ("Pet.") ¶ 7, Dkt. 1. At the time of her termination, Medina was a member of the Union, which had previously entered into a collective bargaining agreement ("CBA") with Kaiser. Id . ¶¶ 4-5. The CBA's Grievance and Arbitration Procedure specifies a four-step process. Boiegues Decl. Ex. 1 (CBA § 1095), Dkt. 23-1. If the grievance remains unresolved after the completion of Step Three of that process, the grieving party may "seek to appeal the grievance to arbitration." CBA § 1101.D.
The Union submitted a grievance on behalf of Medina to challenge her separation. Pet. ¶ 7. After appealing the grievance through Step Three, the Union notified Medina in writing on November 15, 2010 that it was not going to pursue her appeal at Step Four, i.e., arbitration. Id . ¶ 8; Medina Decl. Ex. 5(i), Dkt. 13-1; Pet. ¶ 8. The letter advised Medina of her right to appeal the Union's decision by submitting a written appeal to the Kaiser Division Steward Council Appeal Board ("Appeal Board"). Pet. ¶ 16; Medina Decl. Ex. 5(i).
Medina appealed the Union's refusal to represent her at arbitration. Pet. ¶ 9. The Appeal Board rendered a decision in her favor on December 10, 2010. Id . ¶ 10. On December 17, 2010, the Appeal Board informed Medina that the Union would calendar the matter for arbitration and notify her of the date, time and location where the arbitration would be heard. Id . ¶ 10. According to Medina, however, for the last two years the Union has "stalled, delayed, made misrepresentations and never calendared the matter for arbitration[.]" Id . ¶ 11. In addition, she claims that instead of scheduling the arbitration as directed by the Appeal Board, the Union has set the matter "for additional appeal' hearings at the Union level[.]" Id . ¶ 17.
B. PROCEDURAL HISTORY
On February 7, 2013, Medina filed the instant Petition against the Union in the Alameda County Superior Court. Dkt. 1. The Petition alleges a single cause of action under California Code of Civil Procedure §§ 1085 (traditional mandamus) and 1094.5 (administrative mandamus). The gist of said claim is that the Union has acted contrary to law, in excess of its authority and abused its discretion in refusing to schedule the arbitration as ordered by the Appeal Board. E.g., Pet. ¶ 17. As relief, Medina seeks an order compelling the Union to proceed with the arbitration and to refrain from scheduling any other "appeal hearings" concerning the matter of whether the Union is required to represent her at the arbitration. Id. at 5.
On February 26, 2013, the Union removed the action to this Court on the grounds that Medina's claim is predicated on rights and duties arising under the CBA and therefore is preempted by the LMRA. In addition, the Union alleges that Medina's claim is preempted by the duty of fair representation, which is implied under § 9 of the National Labor Relations Act ("NRLA").
Two motions are now before the Court. First, Medina moves to remand, or alternatively, to transfer venue to the Eastern District of California under 28 U.S.C. § 1406(a) or § 1404(a). Second, the Union moves to dismiss the Petition for failure to state a claim, pursuant to Rule 12(b)(6). Both motions are fully briefed and are ripe for adjudication.
II. MOTION TO REMAND
A. LEGAL STANDARD
"A motion to remand is the proper procedure for challenging removal." Moore-Thomas v. Alaska Airlines, Inc. , 553 F.3d 1241, 1244 (9th Cir. 2009). Remand may be ordered either for lack of subject matter jurisdiction or for any defect in the removal procedure. See 28 U.S.C. § 1447(c). "[R]emoval statutes are strictly construed against removal." Luther v. Countrywide Home Loans Servicing, LP , 533 F.3d 1031, 1034 (9th Cir. 2008). "The presumption against removal means that the defendant always has the burden of establishing that removal is proper." Moore-Thomas , 553 F.3d at ...