Opinion
No. C 02-1024 MMC
August 14, 2002
ORDER GRANTING DEFENDANT LOCAL 250'S MOTION TO DISMISS; REMANDING STATE LAW CLAIMS; VACATING HEARING (Docket Nos. 23, 27)
Before the Court are two motions to dismiss plaintiff Christopher M. Cross' Second Amended Complaint: (1) defendant Service Employees Union Local 250's ("Local 250") motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and (2) defendants Alameda County Medical Center ("ACMC") and Paula Eddy's ("Eddy") motion to dismiss and to strike pursuant to Rules 12(b)(6) and 12(f). Plaintiff has filed opposition, to which defendants have replied. Having considered the papers submitted in support of and in opposition to the motions, the Court hereby VACATES the hearing set for August 16, 2002, and rules as follows.
In his First Amended Complaint ("FAC"), plaintiff alleged two causes of action against Local 250 titled, respectively, Negligence and Negligent Infliction of Emotional Distress. (See FAC at 18-20). In its order of April 9, 2002, the Court found both claims preempted by § 301 of the National Labor Relations Act, 29 U.S.C. § 185, and, in its order of June 4, 2002, the Court dismissed those claims with leave to amend to allege a claim under § 301. Thereafter, plaintiff filed his Second Amended Complaint ("SAC"), but simply realleged his negligence and negligent infliction of emotional distress claims against Local 250. Plaintiff did not allege a claim under § 301. Local 250 now moves to dismiss the SAC on the ground that plaintiff fails to state a claim against Local 250.
When a complaint alleging state law claims is removable from state to federal court on the ground of complete preemption, the district court, for purposes of exercising removal jurisdiction, is required to "recharacterize" that complaint "into one arising under federal law." See Stewart v. U.S. Bancorp, ___ F.3d ___, 2002 WL 1751037, at *4 (9th Cir. July 30, 2002). Once removal has been accomplished, however, if the defendant raises preemption as a defense to the state law claims, the district court is "not required to rewrite [the] complaint" to state a federal claim. See id. Rather, at that stage of the proceedings, the plaintiff has the burden to amend his complaint to survive the defendant's motion to dismiss. See id.
In the instant action, the Court, for the purposes of removal jurisdiction, recharacterized as a federal claim the two negligence claims alleged against Local 250. The Court then dismissed plaintiff's FAC with leave to allege a federal claim. Although plaintiff filed his SAC, plaintiff did not amend to allege a federal claim against Local 250. Rather, as noted, plaintiff merely realleged his two state law negligence claims. Those claims are based on the allegation that Local 250 failed to represent plaintiff at a disciplinary hearing instituted by his former employer and failed to advise plaintiff of actions necessary to protect his rights (see SAC ¶ 26) and, as such, are preempted by § 301. See Perugini v. Safeway Stores, Inc., 935 F.2d 1083, 1089 (9th Cir. 1991). Consequently, plaintiff, despite his having been given the opportunity to do so, has failed to a state a claim against Local 250. Accordingly, plaintiff's Eleventh Cause of Action (negligence) and Twelfth Cause of Action (negligent infliction of emotional distress) will be dismissed without further leave to amend.
The claims remaining in this action are plaintiff's state law claims as alleged against ACMC and Eddy. The Court's jurisdiction over such claims is supplemental in nature, based initially on plaintiff's "recharacterized" federal claim against Local 250. As plaintiff has failed to amend to state a federal claim against Local 250, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims against the remaining defendants. See 28 U.S.C. § 1367(c)(3) (providing district court may decline to exercise supplemental jurisdiction where the district court has dismissed all claims over which it has original jurisdiction). Accordingly, plaintiff's state law claims against ACMC and Eddy will be remanded.
For this reason, the Court will not address ACMC and Eddy's motion to dismiss.
CONCLUSION
For the reasons expressed above:1. Local 250's motion to dismiss plaintiff's Eleventh Cause of Action (negligence) and Twelfth Cause of Action (negligent infliction of emotional distress) is hereby GRANTED, and such claims are hereby DISMISSED without leave to amend.
2. Plaintiff's claims against Alameda County Medical Center and Paula Eddy are hereby REMANDED to the Superior Court of California, County of Alameda.
The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED
1. Local 250's motion to dismiss plaintiff's Eleventh Cause of Action (negligence) and Twelfth Cause of Action (negligent infliction of emotional distress) is hereby GRANTED, and such claims are hereby DISMISSED without leave to amend.
2. Plaintiff's claims against Alameda County Medical Center and Paula Eddy are hereby REMANDED to the Superior Court of California, County of Alameda.