Opinion
3:21-cv-01570-JR
01-21-2022
OREGON NURSES ASSOCIATION, a labor union, Plaintiff, v. PROVIDENCE HEALTH AND SERVICES-OREGON, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiff Oregon Nurses Association initiated this lawsuit to compel defendant Providence Health and Services-Oregon to arbitrate two employment grievances. Defendant now moves to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) . For the reasons stated below, defendant's motion should be granted in part.
BACKGROUND
Defendant is a network of medical facilities that operates Providence Newberg Medical Center (“Providence Newberg”) and Providence St. Vincent Medical Center (“St. Vincent”). First Am. Compl. (“FAC”) 2 (doc. 9). Plaintiff is a labor organization representing nurses at St. Vincent and Providence Newberg pursuant to two separate collective bargaining agreements (“CBAs”). Id.
The FAC's paragraphs are not numbered sequentially, with some incidences of duplication. To avoid confusion, the Court cites to the page number on which the relevant allegations appear.
In October 2020, Providence Newberg and St. Vincent terminated the employment of union members Mari Ady Caballero and Stephanie Carrier, respectively. Id. at 3. The parties' CBAs provide a grievance and binding arbitration process to resolve employment and labor disputes. Id. at 3-4. Plaintiff thus grieved the terminations of both Ms. Caballero and Ms. Carrier. Id. at 3. After both grievances were denied, plaintiff sought to advance the process to arbitration. Id. Defendant refused to arbitrate the grievances and plaintiff subsequently filed a complaint in this Court. Id. Specifically, plaintiff seeks an order compelling arbitration under two separate theories:
[P]rocedural arbitrability objections are to be resolved by the arbitrator. Procedural arbitrability issues include whether grievance procedures or some part of them apply to a particular dispute. Accordingly, the application of the collective bargaining agreement to these particular disputes must be resolved by an arbitrator.
In the alternative, the Court should find that these disputes are substantively arbitrable. When the dispute involves a collective bargaining, the arbitrability inquiry begins with a presumption of arbitrability. This means that disputes involving the agreement's substantive provisions must be arbitrated unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. The Defendants cannot meet that heavy burden.Id. at 4 (internal citations and quotations omitted).
On December 21, 2021, defendant filed the present motion to dismiss. Briefing was completed in regard to that motion on January 18, 2022.
STANDARD
Where the plaintiff “fails to state a claim upon which relief can be granted, ” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes for the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
The parties do not dispute the existence of valid arbitration agreements. The parties also agree that there are two types of arbitrability - substantive and procedural - “each of which has a different presumption as to whether a court or an arbitrator should decide.” Martin v. Yasuda, 829 F.3d 1118, 1122 (9th Cir. 2016).
“[S]ubstantive arbitrability, i.e., whether a collective bargaining agreement creates a duty for the parties to arbitrate the particular grievance, is a question for judicial determination unless the parties clearly and unmistakably provide otherwise.” Local Joint Exec. Bd. v. Mirage Casino-Hotel, Inc., 911 F.3d 588, 596-97 (9th Cir. 2018) (citation and internal quotations omitted). The court's role in regard to substantive arbitrability is limited to determining the validity and scope of the agreement. Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). “If the response is affirmative on both counts, then the [Federal Arbitration Act] requires the court to enforce the arbitration agreement in accordance with its terms” and compel arbitration. Id.
“Questions of procedural arbitrability, by contrast, are presumptively for the arbitrator.” Local Joint Exec. Bd., 911 F.3d at 597. Procedural issues concern “whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85 (2002).
Defendant contends dismissal is warranted because plaintiff “seeks an order compelling [arbitration of] the gateway issue of . . . procedural arbitrability” yet “the only dispute here is whether the underlying disputes are substantively within the scope of arbitration.” Def.'s Mot. Dismiss 1-2 (doc. 10). As such, defendant's motion hinges on whether the complaint can be reasonably read as invoking a procedural or substantive issue, or both.
Although defendant characterizes the “sole claim for relief [as a request for] an order compelling arbitration on the grounds that procedural arbitrability objections are to be resolved by the arbitrator, ” the Court finds that the FAC cannot be read so narrowly. Id. at 7. In particular, the FAC advances two theories is support of its request for an order compelling arbitration. Either this case involves a question of (1) procedural arbitrability for the arbitrator to decide, or (2) substantive arbitrability and the Court then finds that the CBAs cover the dispute. FAC 4 (doc. 9). These claims are explicitly phrased in the alternate. Id.; see also Pl.'s Resp. to Mot. Dismiss (doc. 13) (“[p]laintiff does not have a primary claim”).
It is well-established that a plaintiff need not choose, at this stage in the proceedings, which theory of liability to pursue, even if inconsistently plead. See, e.g., Fed.R.Civ.P. 8(d)(3); Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 463 (9th Cir. 1977). To survive dismissal, it is sufficient that at least one theory entitles the plaintiff to the requested relief. Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762-63 (9th Cir. 2015). Therefore, because defendant recognizes that the Court “retain[s] jurisdiction over the question of substantive arbitrability, ” dismissal of the complaint in its entirety is not proper. Def.'s Mot. Dismiss 8 (doc. 10).
Plaintiff nonetheless does not oppose or otherwise address defendant's contention that the FAC is devoid of factual assertions to support a claim for procedural arbitrability. See generally Pl.'s Resp. to Mot. Dismiss (doc. 13); see also Justice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted). An independent review of the complaint confirms the lack of allegations concerning procedural issues attendant to plaintiff's grievances, such as timeliness, waiver, or notice. See FAC 3 (doc. 9) (alleging only that defendant “did not view the dispute regarding [Ms. Cabellero's or Ms. Carrier's] employment as a ‘grievance' subject to arbitration”). Accordingly, defendant's motion is well-taken to the extent it attacks the sufficiency of plaintiff's factual pleadings relating to procedural arbitrability.
RECOMMENDATION
For the foregoing reasons, defendant's Motion to Dismiss (doc. 10) should be granted as to plaintiff's procedural arbitrability claim and denied in all other respects. Any motion to amend the complaint must be filed within 30 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.