Bender v. Fred Meyer Stores, Inc.

Full title: Marsha J. BENDER, Plaintiff--Appellant, v. FRED MEYER STORES, INC.…

Court: United States Court of Appeals, Ninth Circuit

Date published: May 29, 2002

36 F. App'x 920 (9th Cir. 2002)

Opinion

36 Fed.Appx. 920 (9th Cir. 2002) Marsha J. BENDER, Plaintiff--Appellant, v. FRED MEYER STORES, INC., Defendant--Appellee. No. 01-35929.

Page 921.

D.C. No. CV-01-00468-HA. United States Court of Appeals, Ninth Circuit. May 29, 2002

Submitted May 13, 2002. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, the parties' requests for oral argument are denied.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding.

Before FERNANDEZ, RYMER, and WARDLAW, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Marsha Bender appeals the district court's order dismissing her state law claims against Fred Meyer Stores, Inc., as preempted by Section 301 of the Labor Management Relations Act ("LMRA") and denying her motion to remand the action to state court. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Audette v. ILWU, 195 F.3d 1107, 1110 (9th Cir.1999) (preemption); ARCO Envtl. Remediation v. Dep't of Health and Envtl. Quality, Mont., 213 F.3d 1108, 1111 (9th Cir.2000) (denial of remand). We affirm.

Bender filed a state action under the Oregon labor code alleging the defendant failed to timely issue her final paycheck and therefore owed her a penalty. See OR. REV. STAT. §§ 652.140 & 652.150. Defendant removed the action to federal court claiming preemption, and Bender moved to remand.

The statute upon which Bender based her state action provides: "This section does not apply to employment for which a collective bargaining agreement otherwise provides for the payment of wages upon termination of employment." OR. REV. STAT. § 652.140. Bender's employment was governed by a collective bargaining agreement that contained a different provision for payment of wages upon termination. Therefore, by its own terms the Oregon statute does not apply to Bender and the district court properly concluded that Bender's action is preempted by the LMRA and should not be remanded to state court. See Caterpillar v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (Section 301 preempts "claims founded directly on rights created by collective bargaining agreements").

AFFIRMED.