1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BETHANY OXLEY, No. 2:23-cv-02270-DJC-AC 12 Plaintiff, 13 v. ORDER

14 KAISER PERMANENTE, , 15 et al., 16 Defendants. 17 18 Before the Court are Plaintiff’s Motion to Remand (ECF No. 12) and Defendants’ 19 Motion to Dismiss (ECF No. 8). Plaintiff originally filed this matter in the Superior 20 Court of California, County of Sacramento. (Not. of Removal (“NOR”) (ECF No. 1) at 2.) 21 Defendant Kaiser Foundation Hospitals removed the action to federal court on the 22 basis that section 301 of the Federal Labor Management Relations Act (“LMRA”) 23 preempts Plaintiff’s otherwise state law-based causes of actions, thereby creating 24 federal jurisdiction, because Plaintiff’s employment was subject to a collective 25 bargaining agreement. ( at 2 –3.) Plaintiff brings the present Motion to Remand 26 arguing that this action should be remanded to the Superior Court because 27 Defendants’ removal was untimely, and because the rights asserted do not arise under 28 or rely on interpretation of the collective bargaining agreement and are therefore not 1 preempted by the LMRA. (Mot. to Remand at 1–2.) Alternatively, Plaintiff requests that 2 any preempted claims be dismissed, and the remaining claims be remanded. ( ) 3 Relatedly, Defendants bring the present Motion to Dismiss arguing that Plaintiff’s 4 claims that are preempted under the LMRA must be dismissed because they are time- 5 barred. (Mot. to Dismiss (“MTD”) at 15.) For the reasons below, the Court GRANTS IN 6 PART Defendants’ Motion to Dismiss, and GRANTS Plaintiff’s Motion to Remand. 7 I. Background 8 Plaintiff was employed by Kaiser Foundation Hospitals as a Home-Care Nurse 9 from at least 2014 until her termination on October 4, 2018. (Second Am. Compl. 10 (“SAC”) (ECF No. 1-3) ¶ 11.xxxiv.) Plaintiff’s employment was subject to a collective 11 bargaining agreement. ( ¶ 19; Collective Bargaining Agreement (“CBA”) (ECF 12 No. 1-6).) Plaintiff alleges that beginning in 2014, her supervisor Defendant Vance 13 Purcell made sexual advances on Plaintiff both directly and through Defendant Erick 14 Washburn, which Plaintiff rejected. (SAC ¶¶ 11.i –11.ii.) Plaintiff alleges that 15 Defendant Purcell then retaliated against her by creating a hostile work environment 16 and by subjecting Plaintiff to disparate discipline. ( ¶¶ 11.vi, 11.x, 11.xxvi, 11.l.) 17 In April 2018, Plaintiff began caring for a patient at his home whom she refers to 18 as “Mr. K.” ( ¶ 11.xi.) Two distinct incidents occurred related to Mr. K. which 19 precipitated an investigation and discipline against Plaintiff. First, Plaintiff contracted 20 with Mr. K. to purchase three of his vehicles, and put Mr. K. in contact with a “Mr. V.” 21 for the sale of additional vehicles. ( ¶¶ 11.xii–11.xv.) Second, Plaintiff dropped off a 22 sample of Mr. K.’s blood to the hospital clinic that was apparently not processed in 23 accordance with the hospital’s procedures and was ultimately destroyed ( ¶¶ 11.xx– 24 11.xxii). On August 2, 2018, the day after the blood sample was dropped off, Plaintiff 25 was removed from Mr. K’s care team and was placed on administrative leave while the 26 hospital conducted an investigation into her conduct following two complaints from a 27 person named “Sara” who complained about Plaintiff’s care for Mr. K. ( ¶¶ 11.xxiii– 28 11.xxviii.) Following Plaintiff’s placement on administrative leave, on August 14, 2018 1 Plaintiff was suspended and placed on a performance improvement plan during a 2 meeting to discuss the outcome of the investigation. ( ¶ 11.xxix.) Following this 3 meeting, Defendant Purcell allegedly verbally abused and threatened Plaintiff, and 4 accused her of having a relationship with Mr. V. who bought the additional vehicles 5 from Mr. K. ( ¶ 11.xxx.) 6 Five days later, on August 19, 2018, Plaintiff was again notified of an 7 investigation into her conduct, this time for giving her nurse’s bag to a patient’s niece 8 in June 2018. ( ¶¶ 11.xxxi–11.xxxii.) She was questioned about the incident on 9 September 6, 2018 by Defendant Purcell, who also accused Plaintiff of committing a 10 HIPPA violation and taking advantage of Mr. K. when he was her patient. ( ) 11 Following this meeting, Plaintiff was again placed on administrative leave. ( ) Her 12 employment was terminated on October 2, 2018. ( ¶ 11.xxxiii.) Directly before this 13 meeting occurred, Plaintiff was informed that Defendant Purcell had allegedly spoken 14 about Plaintiff’s impending termination and the reasons for her termination to non- 15 management employees including a “Nurse Erik.” ( ) 16 Plaintiff appealed the termination by engaging in the grievance process 17 outlined in the collective bargaining agreement beginning March 6, 2019. ( 18 ¶¶ 11.xxxv, 11.xxxix.) Plaintiff alleges that during the grievance process, Defendants 19 “did all in their power to destroy Plaintiff, including falsifying documents to spreading 20 false rumors and statements about her professional conduct.” ( ¶¶ 11.xliv, 11.xlvii.) 21 The arbitrator decided in Defendants’ favor on January 17, 2020 and the union 22 terminated its representation of Plaintiff. ( ¶¶ 11.xlviii–11.xlix.) Plaintiff believes that 23 the reasons for her termination are pretextual, and that she was disciplined and 24 terminated in retaliation for rejecting Defendant Purcell’s sexual advances, and 25 because Defendant Purcell discriminates against women. ( ¶ 11.l–11.lviii.) 26 Plaintiff further alleges that during 2019 and 2020, Defendants Washburn and 27 Purcell, acting on behalf of all Defendants, hacked both Plaintiff’s cell phone and 28 computer, and altered her emails and other evidence for her grievance proceedings. 1 ( ¶¶ 11.lxi–11.lxii.) She also alleges that Defendants Washburn and Purcell have 2 continued hacking Plaintiff’s devices to spy on her and intimidate her. ( ¶¶ 14–16.) 3 Plaintiff filed the present action alleging Twelve Causes of Action: 1) Breach of 4 Contract; 2) Breach of the Implied Covenant of Good Faith; 3) Wrongful Termination; 5 4) Harassment based on sex/gender under the California Fair Employment and 6 Housing Act (“FEHA”); 5) Quid Pro Quo Harassment under FEHA; 6) Discrimination 7 based on sex/gender under FEHA; 7) Retaliation under FEHA; 8) Defamation; 9) 8 Intentional Infliction of Emotional Distress (“IIED”); 10) Intentional Interference with 9 Contractual Relationship; 11) Trespass to Chattel; and 12) Violation of the California 10 Comprehensive Computer Data and Access Fraud Act. ( SAC.) 11 Plaintiff filed her original complaint in the Superior Court of the State of 12 California, County of Sacramento, on March 29, 2021. (Compl. (ECF No. 1-2, Ex. A) at 13 1.) She thereafter amended her complaint twice to add additional claims and 14 Defendants, ( First. Am. Compl. (ECF No. 1-2, Ex. G) at 1; SAC at 1) and added 15 Defendant Kaiser Foundations Hospitals in the operative SAC filed on August 29, 16 2023. (SAC.) Plaintiff served Kaiser Foundation Hospitals on September 6, 2023, and 17 Defendant Kaiser Foundation Hospitals removed this case on October 6, 2023. (NOR 18 ¶ 27.) 19 Defendants filed a Motion to Dismiss on October 13, 2023 which Plaintiff has 20 opposed. (MTD; Pl’s Opp’n to MTD (ECF No. 10).) In their Motion to Dismiss and 21 Opposition to Plaintiff’s Motion to Remand, Defendants assert that Plaintiff’s First, 22 Second, Eighth, Ninth, and Tenth Causes of Action are preempted. (MTD at 1; Defs’ 23 Opp’n to Mot. to Remand (“Defs’ Opp’n.”) (ECF No 15) at 10 –16.)1 They further assert 24 that these preempted claims must be dismissed as time barred. Plaintiff filed a Motion 25 to Remand this case to California Superior Court on November 6, 2023, which 26 Defendants have opposed. (Mot. to Remand; Defs’ Opp’n.) Because the two motions 27 1 In their Notice of Removal, Defendant only asserted that Plaintiff’s First, Second, and Tenth Causes of 28 Action are preempted by the LMRA. (NOR at 16.) 1 raise interrelated issues, the Court will decide the motions together. 2 The Court held oral argument on both motions on December 14, 2023 with 3 Richard A. Lewis appearing on behalf of Plaintiff, and Sean T. Strauss appearing on 4 behalf of Defendants Kaiser Foundation Hospitals, Purcell, and Washburn. 5 II. Legal Standards 6 A defendant may remove a state court civil action to federal court so long as 7 that case could have originally been filed in federal court, based on either diversity 8 jurisdiction or federal question jurisdiction. 28 U.S.C. § 1441(a); 9 , 522 U.S. 156, 163 (1997). Federal question jurisdiction is met 10 where the action “aris[es] under the Constitution, laws, or treaties of the United 11 States.” 28 U.S.C. § 1331. “[T]he presence or absence of federal-question 12 jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that 13 federal jurisdiction exists only when a federal question is presented on the face of the 14 plaintiff's properly pleaded complaint.” , 522 U.S. 470, 475 15 (1998). 16 Removal jurisdiction is to be rejected in favor of remand to the state court if 17 there are doubts as to the right of removal. 18 , 599 F.3d 1102, 1107 (9th Cir. 2010). The defendant seeking removal of an 19 action from state court bears the burden of establishing grounds for federal 20 jurisdiction by a preponderance of the evidence, at 1106–07; 21 , 582 F.3d 1039, 1042 (9th Cir. 2009); , 980 F.2d 564, 22 566–67 (9th Cir. 1992), but the district court must remand the case “[i]f at any time 23 before final judgment it appears that the district court lacks subject matter 24 jurisdiction.” 28 U.S.C. § 1447(c); , 761 F.3d 1042, 1044 25 (9th Cir. 2014); , 122 F.3d 1251, 1257 (9th Cir. 26 1997) (holding that remand for lack of subject matter jurisdiction “is mandatory, not 27 discretionary”). 28 1 Additionally, under Federal Rule of Civil Procedure 12(b)(6), a complaint or 2 parts of a complaint may be dismissed for failure to state a claim upon which relief can 3 be granted if the complaint lacks a “cognizable legal theory” or if its factual allegations 4 do not support a cognizable legal theory. , 937 F.3d 5 1201, 1208 (9th Cir. 2019) (quoting , 901 F.2d 696, 6 699 (9th Cir. 1988)). When considering a motion to dismiss, the Court assumes all 7 factual allegations are true and construes “them in the light most favorable to the 8 nonmoving party.” , 919 F.3d 1154, 1160 9 (9th Cir. 2019) (quoting , 51 F.3d 1480, 1484 (9th 10 Cir. 1995)). 11 III. Discussion 12 A. Timeliness of Removal 13 Under 28 U.S.C. § 1446(b)(1) a “notice of removal of a civil action or proceeding 14 shall be filed within 30 days after the receipt by the defendant, through service or 15 otherwise, of a copy of the initial pleading setting forth the claim for relief upon which 16 such action or proceeding is based . . . .” A later-served defendant may remove the 17 case with the consent of other defendant(s), despite those parties not having 18 previously removed the action. 28 U.S.C. § 1446(b)(2)(c). The 30-day time limit “is 19 mandatory and a timely objection to a late petition will defeat removal . . . .” 20 , 615 F.2d 1209, 1212 (9th Cir. 1980). 21 Plaintiff asserts that removal was untimely because, although Plaintiff did not 22 serve Defendant Kaiser Foundation Hospitals until September 6, 2023, Kaiser 23 Foundation Hospitals was constructively on notice of the action, which referred to 24 “Kaiser Permanente” numerous times, when Plaintiff served Defendants Purcell and 25 Washburn, 2 or when Plaintiff attempted to serve the incorrect corporate entities. 26 2 Plaintiff also argues that Defendant Kaiser Foundation Hospitals “admitted” that it had been served 27 with Defendants Purcell and Washburn. The Court does not read this as an admission because Defendants included Kaiser Permanente Hospitals in that sentence only to designate references to 28 “Defendants.” ( NOR ¶ 18 (“On February 23, 2023, Plaintiff served individual defendants Vance 1 (Mot. to Remand at 8; NOR ¶ 16.) However, Plaintiff does not cite any caselaw 2 supporting such a theory, and indeed the caselaw is in opposition to it. 3 Formal service is required to commence the removal period, “not [] mere 4 receipt of the complaint unattended by any formal notice.” 5 , 526 U.S. 344, 348, 356 (1999). A party “is not obliged to engage 6 in litigation unless notified of the action, and brought under a court's authority, by 7 formal process.” at 348. “Actual or constructive notice of the action is not sufficient 8 to start the running of § 1446(b)'s thirty-day period. Therefore, the removal period 9 does not begin to run until the defendant is properly served or waives service.” 10 , No. CIV.A. 14-3264, 2014 WL 3353237, at *2 (E.D. Pa. July 11 9, 2014) (citing , at 355–56); , 977 F. Supp. 748, 752 12 (E.D. Va. 1997) (rejecting the plaintiff’s argument that the 30-day removal period 13 commenced when the defendant had notice of the proceedings). In 14 , the Eastern District of Pennsylvania found that the clock for removal did not 15 commence where the plaintiff failed to properly serve the defendant under the state’s 16 service requirements, despite the defendant having actually received a copy of the 17 complaint and summons. at *2–*3. 18 In California, service of process requires, at a minimum, that the correct 19 corporate entity must be named for service to be effective on that entity. Cal. Code 20 Civ. Proc. § 412.30. “[T]he fact that two related entities might share the same ‘primary 21 contact’ for the purpose of responding to litigation has no legal consequence.” 22 , No. CV-17-01229-SJO-JC, 2017 WL 1293007, at *3 (C.D. 23 Cal. Apr. 5, 2017). Here, Plaintiff did not name Kaiser Foundation Hospitals as a 24 Defendant and effect service until September 6, 2023. The fact that Plaintiff 25 incorrectly served the same contact when attempting service on the wrong legal entity 26

27 Purcell (‘Purcell’) and Erik Washburn (‘Washburn,’ collectively with Purcell, ‘Individual Defendants,’ collectively with KFH, ‘Defendants’) by hand with a copy of the Summons, Alternative Dispute 28 Resolution Information Package, Statement of Damages, and the FAC.”).) 1 was not sufficient to effect service. Similarly, though Kaiser Foundation Hospitals may 2 have been aware of the suit once Defendants Purcell and Washburn were served, it 3 was not yet a party to the lawsuit, and could not have removed the action, much less 4 had an obligation to do so. Therefore, the Court finds that the removal period did not 5 commence for Kaiser Foundation Hospitals until it was served on September 6, 2023, 6 making its October 6, 2023 Notice of Removal timely. 7 B. LMRA Preemption 8 Section 301 of the LMRA is a “mandate . . . to fashion a body of federal common 9 law to be used to address disputes arising out of labor contracts” requiring federal 10 courts to exercise jurisdiction over federal labor law claims. , 11 471 U.S. 202, 209 (1985). Where a collective bargaining agreement governs the claim 12 against an employer, section 301 of the LMRA preempts the claim and converts it to a 13 federal question over which the federal court has jurisdiction. 14 , 491 F.3d 1053, 1059 (9th Cir. 2007). In effect, section 301 “displace[s] entirely 15 any state cause of action for violation of contracts between an employer and a labor 16 organization,” , 463 U.S. 1, 23 17 (1983), such that “any claim purportedly based on [a] . . . state law is considered, from 18 its inception, a federal claim, and therefore arises under federal law.” 19 , 482 U.S. 386, 393 (1987). 20 Even where a plaintiff has not alleged a breach of the labor contract by an 21 employer, a claim will be preempted where the right asserted “exists solely as a result 22 of the [collective bargaining agreement],” or, if arising independently of the labor 23 agreement, is “substantially dependent on analysis of a collective-bargaining 24 agreement.”3 , 491 F.3d at 1059. However, “[section] 301 does not preempt 25 ‘every dispute concerning employment, or tangentially involving a provision of a 26 3 In determining whether the claims are preempted, the Court may look beyond the pleadings, and in 27 this instance, will refer to the documents included in the Defendant’s notice of removal, including the relevant collective bargaining agreement. , 340 F.3d 28 1033, 1041 (9th Cir. 2003), as amended (Sept. 22, 2003). 1 [collective bargaining agreement].’” , No. 2:22-CV- 2 00210-TLN-DB, 2022 WL 18012518, at *2 (E.D. Cal. Dec. 30, 2022) (quoting 3 , 471 U.S. 202, 211 (1985)). 4 i. Breach of Contract Claims (Counts One and Two) 5 Plaintiff’s First and Second Causes of Action are for breach of employment 6 contract and breach of the implied covenant of good faith and fair dealing, 7 respectively. In California, the covenant of good faith and fair dealing is implied in all 8 contracts to effectuate the contract’s purposes and promises, and to protect the 9 parties’ legitimate expectations by requiring that the contracting parties refrain from 10 doing anything to injure the rights of the other to receive the benefits of the contract. 11 , 47 Cal. 3d 654, 683–84 (1988). Plaintiff alleges that 12 both of these causes of action are for breach of the “employment contract governed 13 by a collective bargaining agreement.” (SAC ¶¶ 19, 29.) Because these claims 14 directly allege a violation of the collective bargaining agreement, they are preempted 15 by the LMRA. , 463 U.S. at 23 (any “claim for relief under the 16 state law of contracts” which alleges a violation of the contract between an employer 17 and a labor organization is preempted by the LMRA); 18 , 827 F.2d 589, 592 (9th Cir. 1987) (citing 19 , 471 U.S. at 217) (actions for breach of the covenant of good faith and fear 20 dealing are necessarily contract claims preempted by the LMRA). 21 Accordingly, the Court finds that Counts One and Two are preempted by the 22 LMRA. 23 ii. Intentional Interference with Contractual Relationship (Count 24 Ten) 25 The Tenth Cause of Action alleges that Defendants Purcell and Washburn 26 intentionally interfered with Plaintiff’s contractual relationship with her employer. This 27 claim differs from the above in that it does not allege a violation of the of the contract 28 itself, and is not a claim against any contracting party, but rather alleges a violation of 1 California tort law by third-party individuals. The elements of an intentional 2 interference with contractual relationship claim are “(1) a valid contract between 3 plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s 4 intentional acts designed to induce a breach or disruption of the contractual 5 relationship; (4) actual breach or disruption of the contractual relationship; and (5) 6 resulting damage.” , 50 Cal. 3d 1118, 1126 7 (1990). 8 Defendant broadly asserts that Plaintiff’s tenth cause of action seeks to vindicate 9 a right or duty arising out of the bargaining agreement, and that “[c]ourts within the 10 Ninth Circuit routinely conclude that state law claims for . . . intentional interference 11 with contractual relationship are preempted by Section 301 under the first 12 prong.” (MTD at 11.) However, the two cases cited by Defendant do not establish 13 such a bright line rule. First, in 14 the Ninth Circuit merely deferred to the arbitrator’s previous ruling that the plaintiff’s 15 claims arose from the contract. 832 F.3d 1024, 1047 (9th Cir. 2016). The Ninth Circuit 16 determined that it did not have the power to disturb this ruling, stating “[e]ven if we 17 were convinced that the arbitrator misread the contract or erred in interpreting it, such 18 a conviction would not be a permissible ground for vacating the award.” (quoting 19 , Inc., 823 F.3d 524, 530 (9th Cir. 20 2016)). Before upholding this ruling, the Ninth Circuit indicated it would have ruled 21 differently, noting that the “claim does not appear to fit comfortably into either prong 22 of the test” and that the “right to be free from harmful interference by a third 23 party in an employment relationship [is] ‘conferred upon an employee by virtue of 24 state law, not by a [collective bargaining agreement].’” In 25 , also cited by Defendant, the court concluded without any analysis that the 26 contractual interference claim was preempted because “the contractual rights at issue 27 necessarily arise out of the [collective bargaining agreement].” No. CV-061775-WBS- 28 EFB, 2006 WL 3716769, at *4 (E.D. Cal. Dec. 15, 2006). The court’s failure to 1 explain how the right arose solely out of the agreement is unpersuasive. 2 , No. 23-CV-4664-MWF-AGR, 2023 WL 5764296, at 3 *7 (C.D. Cal. Sept. 6, 2023) (finding that the right to timely wages arose solely out of 4 the bargaining agreement because the agreement provided for different pay 5 arrangements than the statute, and therefore displaced the statutory right). 6 Here, Defendant also does not explain how Plaintiff’s asserted right “exists 7 solely as a result of the [collective bargaining agreement]” as required by the first 8 prong. 491 F.3d at 1059. Like the Ninth Circuit in , this Court fails to 9 see how the right to be free from contractual interference by a third party arises out of 10 the collective bargaining agreement. The bargaining agreement says nothing about 11 rights the Plaintiff has with respect to third-parties, and any rights Plaintiff does have 12 under the agreement are rights as to the contracting parties. The right to be free from 13 contractual interference arises under California common law and “transcend[s] 14 [Plaintiff’s] employment relationship” with Kaiser Foundation Hospital. 15 , 830 F.2d 993, 1001 (9th Cir. 1987). 16 However, the Ninth Circuit has found some intentional interference with 17 contractual relations claims to be preempted under the second prong based 18 on the need to interpret the bargaining agreement. In order to prove intentional 19 interference with a contract, a plaintiff must show that the contract was in fact 20 breached or disrupted, and this showing often necessitates that the court interpret the 21 contract, or collective bargaining agreement, at issue. 22 , 284 F. App’x 473, 476 (9th Cir. 2008), 23 (Aug. 11, 2008); , 960 F.2d 1401, 1412 24 (9th Cir. 1991), (May 4, 1992). When a court must 25 interpret the bargaining agreement to rule on the claim, the claim is preempted under 26 the LMRA. 27 However, there is a difference between “looking to” the agreement and 28 “interpreting” the agreement. “When the meaning of contract terms is not the subject 1 of dispute, the bare fact that a collective-bargaining agreement will be consulted in 2 the course of state-law litigation plainly does not require the claim to be [preempt]ed.” 3 , 512 U.S. 107, 124 (1994). “[I]nterpretation implies discordance 4 over the meaning of a term that requires authoritative explication.” 5 , No. 16-CV-00085-RS, 2016 WL 1238603, at *5 (N.D. Cal. Mar. 22, 6 2016). Moreover, the resolution of the claim must be “substantially dependent” on 7 the interpretation of the bargaining agreement for the claim to be preempted. 8 , 491 F.3d at 1059. 9 Defendant has failed to point to the portions of the bargaining agreement it 10 believes require judicial interpretation for this claim, but by the same token Plaintiff 11 has not alleged which rights or obligations with which Defendants Purcell and 12 Washburn allegedly interfered.4 Plaintiff generally claims that Purcell and Washburn 13 “prevented Plaintiff’s performance or made her performance more expensive or more 14 difficult,” without explaining in what aspects or in what manner Defendants interfered 15 in her performance.5 (SAC ¶ 132.) Ostensibly, Plaintiff is alleging that Purcell’s sexual 16 harassment and Washburn’s assistance with that harassment interfered with Plaintiff’s 17 work performance, ( ¶¶ 11.i–11.x), and that Purcell’s interference with Plaintiff’s 18 discipline and grievance process, including allegedly falsifying documents, spreading 19 rumors, and hacking her computer and altering evidence, interfered with Plaintiff’s 20

21 4 Arguably, this failure suggests that the Plaintiff has not met the minimal pleading requirements under Rule 8 of the Federal Rules of Civil Procedure. , 556 U.S. 662, 679 (2009). Given 22 that the Court is remanding this case to the Superior Court, however, the Court concludes it would be inappropriate to dismiss claims based on federal pleading requirements. Defendants argued that the 23 Court may retain jurisdiction of the case and order the Plaintiff to file an amended complaint clarifying this and other causes of action because those causes of action give rise to federal jurisdiction if 24 properly pleaded. However, Plaintiff has represented that she does not intend to amend her pleadings in a such a way as to give to rise to federal jurisdiction, and would rather forego a cause of action than 25 litigate in federal court. Accordingly, the Court has no reason to believe that amendment will give the Court federal jurisdiction. If Defendants believe that a future amended complaint filed in state court 26 gives rise to federal jurisdiction, they would be within their rights to attempt to remove the case again. 5 It is important to note that Plaintiff is not claiming that Purcell and Washburn interfered with 27 performance of the contract. As such Kaiser Foundation Hospital’s performance and the portions of the CBA potentially relevant to Kaiser Foundation Hospital’s conduct are not at 28 issue in this cause of action. 1 ability to continue performing under the contract ( ¶¶ 11.xxvi–11.xxxiv, 11.xliv.). 2 While a court will certainly have to look to the collective bargaining agreement in 3 order to determine whether Plaintiff’s performance was disrupted, without knowing 4 which portions of the bargaining agreement were allegedly interfered with, the Court 5 cannot determine that such substantial contractual interpretation is required that the 6 claim is preempted. , 522 U.S. at 475 (federal jurisdiction must be apparent 7 on the face of the complaint); , 305 F.3d 1004, 1010 (9th Cir. 8 2002) (“[T]he fact that a need to interpret the CBA is only hypothetical seriously 9 undercuts a defendant's argument that the state law claim ‘substantially depends’ on 10 the terms of the CBA.”). As the burden is on the Defendant to establish federal 11 jurisdiction, , 582 F.3d at 1042, and jurisdiction is governed by the well- 12 pleaded complaint rule, , 522 U.S. at 475, the Court does not find that Count Ten 13 is preempted. 14 iii. Defamation Claim (Eight Cause of Action) 15 Plaintiff asserts that Defendants defamed her by making false statements 16 inferring that Plaintiff had “committed a crime, lacked integrity, was dishonest, was 17 incompetent at her job, or possessed reprehensible personal characteristics or 18 behavior.” (SAC ¶ 108.) Based on the allegations of the SAC, it appears that Plaintiff 19 alleges Purcell specifically made defamatory comments when he accused Plaintiff of 20 having a relationship with “Mr. V.,” lying about her knowledge of Mr. V’s neighbors, 21 using her position to “take advantage of the patient [Mr. K.],” and giving a kaiser 22 nurse’s bag to a patient’s niece, and also defamed her when he “expos[ed] her 23 termination and the reasons for her termination to Nurse Erik and others” including 24 non-management employees. (SAC ¶¶ 11.xxx–xxxii.) She also alleges that Purcell and 25 the other Defendants “attacked Plaintiffs professionalism by lying about her blood 26 drop” at a Kaiser clinic not being done according to procedure. ( ¶ 11.xliv.) 27 Similar to the above intentional interference claim, Plaintiff’s defamation claim 28 involves a right based in California tort law which is independent of the Plaintiff’s 1 employment relationship and asserted against a third-party. 2 , 817 F.2d 536, 538 (9th Cir. 1987) (“California's defamation law establishes 3 nonnegotiable rights and obligations independent of any labor contract.”). “[A] 4 defamation [claim] will only be preempted in a narrow set of circumstances where the 5 statement(s) giving rise to the defamation claim were made pursuant to a requirement 6 of the disciplinary procedures in the CBA or were ‘inextricably intertwined with the 7 CBA's grievance machinery thereby requiring an interpretation of the agreement.’” 8 , No. 1:13-CV-01397 AWI, 2015 WL 9 3657748, at *4 (E.D. Cal. June 11, 2015) (quoting , 817 F.2d at 538–39). Thus, 10 where a plaintiff’s claim is based on a notice that was required under the bargaining 11 agreement, such a notice stating the reasons for a plaintiff’s discipline or termination, 12 the claim will be preempted. at *5. Similarly, statements made in the course of 13 an employer’s investigation and pre-arbitration meetings pursuant to a bargaining 14 agreement’s disciplinary and grievance procedure are “inextricably intertwined with 15 the grievance machinery of the collective bargaining agreement” and also 16 preempted. , 827 F.2d at 594. In contrast, a claim based on a defamatory 17 statement made by an individual outside the context of those procedures, like an 18 employee circulating a letter accusing the plaintiff of buying cocaine on the job, is not 19 preempted. , 817 F.2d at 538. 20 Here, Plaintiff’s allegations do not concern a written notice or other notice 21 required under the bargaining agreement, but they do all concern statements made 22 in the context of the investigations into Plaintiff’s conduct and the disciplinary and 23 grievance process, save for Defendant Purcell’s alleged statements made to “Nurse 24 Erik” and other non-management personnel. The statements made in the context of 25 the investigation and during the grievance process are “inextricably intertwined” with 26 the procedures under the bargaining agreement such that they are preempted. 27 However, the alleged statements Purcell made to non-management personnel more 28 closely resemble those statements in as they were not made for the purpose of 1 complying with or participating in the procedures under the bargaining agreement. 2 Thus, the portion of Plaintiff’s defamation claim against Purcell concerning those 3 statements involves a right separate and apart from the bargaining agreement and is 4 not preempted. 5 Accordingly, Count Eight is preempted in so far as it is based on statements 6 related to the investigation and discipline of Plaintiff, or made during the grievance 7 process. However, in so far as Count Eight is based on Purcell’s statements made 8 outside of that context, it is not preempted. 9 iv. IIED Claim (Ninth Cause Action) 10 In , the Ninth Circuit summarized two key principles for 11 determining whether an IIED claim is preempted by the LMRA. 305 F.3d 1004, 1012– 12 13 (9th Cir. 2002). “First, if the [collective bargaining agreement] covers 13 the conduct at issue, the claim will generally be preempted.” If the IIED claim 14 "attempts to enforce rights or duties established by the [collective bargaining 15 agreement] while sidestepping the [collective bargaining agreement] 's dispute 16 resolution processes, it is preempted." However, under the second principle, 17 even claims covered by the bargaining agreement will not be preempted if the IIED 18 claim is “tacked on to the violation of a separate specific non-negotiable state statute, 19 the violation of which always rises to the level of outrageousness.” at 1013-14; 20 , 854 F.2d 1142, 1148 (9th Cir. 1988) (noting that the 21 court has construed the exception very narrowly).6 Barring this exception, when a 22 claim is based on an ”employee's discharge or conduct of employer in investigatory 23 proceedings preceding discharge,” and such proceedings are covered by the 24 collective bargaining agreement, the emotional distress claim will be considered so 25 6 For example, a claim for the failure to provide employment accommodations, if covered by the 26 bargaining agreement, would be preempted; on the other hand, a claim based on the use of two-way mirrors in a restroom, though related to working conditions under a bargaining agreement, is based on 27 a violation of a state statute and is inherently outrageous conduct, and would not be preempted. , 305 F.3d at 1013–14 (citing , 255 F.3d 683, 696 (9th Cir. 28 2001), (Aug. 27, 2001)). 1 “inextricably intertwined with interpretation of [the collective bargaining agreement]” 2 that it is preempted. , 854 F.2d at 1148–49 (quoting , 827 F.2d, 594 3 and , 830 F.2d 993, 1002 (9th Cir.1987)) 4 (collecting cases). 5 The exact conduct underlying Plaintiff’s IIED claim is unclear, but based on the 6 facts presented throughout the SAC, it appears that Plaintiff is alleging that Defendant 7 Purcell specifically caused Plaintiff severe emotional distress by sexually harassing her, 8 by verbally threatening and intimidating her, and by hacking her computer and phone 9 to alter evidence and harass her. The collective bargaining agreement does not 10 address any rights related to sexual or verbal harassment in the workplace,7 nor does 11 it address any rights related to computer or data privacy. Thus, the claims against 12 Purcell in so far as they allege harassment or hacking are not covered by the 13 bargaining agreement and not preempted. , 817 F.2d at 539 (finding that 14 an IIED claim was not preempted where the bargaining agreement was “silent on 15 work conditions, and vague on disciplinary formalities.”). 16 Otherwise, Plaintiff’s IIED claim against all Defendants appears to be based on 17 Defendants’ conduct during the disciplinary and grievance processes, including 18 Purcell’s conduct during the processes, and Plaintiff’s ultimate termination. This 19 conduct is clearly governed by the termination and grievance provisions of the 20 bargaining agreement which provides that an employee with more than twelve 21 months of employment may only be discharged for “just cause” and outlines a 22 detailed grievance procedure. (CBA at 120–25.) This case is similar to 23 , wherein the Ninth Circuit found that an emotional distress claim based 24 on the employer’s conduct surrounding the plaintiff’s discharge was preempted. 911 25 F.2d 233, 239 (9th Cir. 1990). Although the discharge section was not detailed, the 26 fact that the agreement allowed only discharge for “just cause” required a court to 27 7 The bargaining agreement does specifically address workplace discrimination based on sex, but this 28 section does not appear to cover Plaintiff’s sexual harassment claims. ( CBA (ECF No. 1-6) at 5.) 1 interpret that term in the bargaining agreement. Further, a court would have to 2 interpret the grievance procedure to determine whether the employer’s conduct was 3 reasonable. In the present case, the Court would need to interpret the bargaining 4 agreement to determine whether the Defendants’ conduct comported with the 5 grievance procedures, and whether Plaintiff was terminated for “just cause” in order to 6 determine whether that conduct was extreme and outrageous. 7 Accordingly, to the extent Plaintiff’s IIED claim is based on conduct related to 8 her discipline and termination, and/or the grievance procedure, it is preempted by 9 the LMRA. To the extent the IIED claim is based on Purcell’s alleged sexual or verbal 10 harassment and hacking of Plaintiff’s devices, the claim is not preempted. 11 C. Statute of Limitations 12 Claims which are preempted by the LMRA — and are therefore construed as 13 claims under the collective bargaining agreement — are subject to the federal six- 14 month statute of limitations. , 911 F.2d at 237 (citing 15 , 462 U.S. 151, 155, 103 (1983)); , 16 No. CV-S-06-2693-FCD-GGH, 2007 WL 776093, at *5 (E.D. Cal. Mar. 12, 2007). 17 However, claims are tolled while a plaintiff is pursuing grievance procedures. 18 , 793 F.2d 1502, 1509, 1510 (9th Cir. 1986) (claims were tolled until the 19 plaintiff learned of the arbitrator’s decision). 20 In the Motion to Dismiss, Defendants argue that any claims which are 21 preempted by the LMRA must be dismissed as untimely because Plaintiff failed to file 22 suit within the limitation period, even accounting for any tolling. Plaintiff was 23 terminated on October 4, 2018, and any claims based on this termination would have 24 begun to run on this day. (SAC ¶ 11.xxxiv.) Plaintiff then engaged in the grievance 25 process on March 6, 2019, approximately five months and two days later. ( 26 ¶ 11.xxxv.) Her engagement in the grievance process tolled her claims which were 27 the subject of the grievance process until the arbitrator issued a decision on January 28 17, 2020. ( 11.xlviii.) The remaining approximately one month (less two days) left 1 for Plaintiff to pursue her claim would have then expired on February 15, 2020. 2 Plaintiff’s filing on March 29, 2021 far exceeds this date and is untimely. 3 Plaintiff confusingly alleges that the arbitration process did not end until 4 January 2021 despite having stated that a decision was issued in January 2020, and 5 providing no facts to explain how or why the arbitration process continued for an 6 additional year thereafter. Although Plaintiff claims that the Court “must take the 7 complaint facts as they are pled,” (Pl’s Opp’n to MTD at 5), a Court is not required to 8 accept implausible factual allegations. “[S]ufficient factual matter” must make the 9 claim at least plausible. , 556 U.S. 662, 678 (2009). However, even if 10 the Court were to accept this as true and find that the statute of limitations was tolled 11 until January 31, 2021, the March 29, 2021 filing would still be untimely. 12 Plaintiff also claims that Defendants engaged in defamation from May 6, 2019 13 through January 15, 2020, and that she experienced continuing harassment, 14 discrimination, and retaliation culminating on April 24, 2020. As the conduct 15 underlying these claims would have therefore taken place during the arbitration 16 process and were not the subject of the arbitration process, the claims would not have 17 been tolled. Taking the latest date for the defamation claim, January 15, 2020, the 18 portion of the defamation claim which is preempted by the LMRA is also untimely 19 because the statute of limitations would have run on June 15, 2020. Similarly, any of 20 Plaintiff’s preempted claims based on the continuing harassment, discrimination, or 21 retaliation would have run well before the March 29, 2021 filing date. 22 Therefore, all of Plaintiff’s claims which are preempted under the LMRA must be 23 dismissed as time-barred. Accordingly, the Motion to Dismiss Counts One and Two is 24 GRANTED. The Motion to Dismiss Count Eight is GRANTED IN PART except to the 25 extent it alleges that Defendant Purcell made defamatory statement to non- 26 management personnel outside of the disciplinary and grievance process. The 27 Motion to Dismiss Count Nine is also GRANTED IN PART to the extent it is based on 28 1 conduct related to Plaintiff’s discipline and termination, and to the grievance 2 procedure. 3 In addition, the California statute of limitations for IIED claims is two years. To 4 the extent that Plaintiff’s IIED claim is not preempted, the portion of the claim based 5 on conduct which occurred prior to March 29, 2019 is time-barred. Cal. Civ. Code 6 § 335.1; , No. 2:08-cv-01134-MCE-CMK, 2008 WL 11267817, 7 at *7 (E.D. Cal. Oct. 10, 2008). The only actionable conduct is the alleged hacking by 8 Defendants Purcell and Washburn which occurred after March 29, 2019. Accordingly, 9 the Motion to Dismiss Count Nine is GRANTED IN PART to the extent it alleges 10 harassment or hacking prior to March 29, 2019. 11 D. Supplemental Jurisdiction 12 Under 28 U.S.C. §1367, where a federal court has jurisdiction over any claim, it 13 may exercise supplemental jurisdiction over all other claims which are related to the 14 claims over which it has original jurisdiction. 28 U.S.C. § 1367(a); 15 , 383 U.S. 715, 725 (1966). Because the only claims over 16 which the Court would have jurisdiction must be dismissed, the Court should not 17 retain jurisdiction over Plaintiff’s remaining state claims. , 383 U.S. at 726 18 (“[I]f the federal claims are dismissed before trial, . . . the state claims should be 19 dismissed as well.”); see also 28 U.S.C. § 1367(c)(3). The Court will therefore remand 20 the case back to state court.8 , No. 2:22- 21 CV-04466-JLS-E, 2022 WL 17834201, at *11 (C.D. Cal. Dec. 21, 2022) (remanding the 22 case back to state court after dismissing the only claim preempted by section 301). 23 IV. Conclusion 24 For the above reasons, IT IS HEREBY ORDERED that Defendants’ Motion to 25 Dismiss, ECF No. 8 is GRANTED IN PART and DENIED IN PART as follows: 26 1. Counts One and Two are dismissed; 27 8 As noted in footnote 4, the Court declines to rule on the Defendant’s Motion to Dismiss to the extent 28 the motion challenges the sufficiency of Plaintiff’s state law claims under the federal pleading standard. 1 2. Count Eight is dismissed against all Defendants except Defendant Purcell, 2 and Count Eight is Dismissed against Purcell in so far as it is based on 3 statements made during the investigation, disciplinary, and grievance 4 processes; and 5 3. Count Nine is dismissed against all Defendants in so far as it is based on 6 conduct during the investigation, disciplinary, and grievance processes, and 7 dismissed against Defendants Purcell and Washburn to the extent it alleges 8 conduct that occurred before March 29, 2019. 9 Additionally, Plaintiff's Motion to Remand, ECF No. 12, is GRANTED as to the 10 | remaining claims. 11 The Clerk of Court is direct to close this case and remand the action back to the 12 | Superior Court of California, County of Sacramento. 13 14 IT IS SO ORDERED. 15 | Dated: _January 5, 2024 “Dane A Ch brett Hon. Daniel alabretta 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 | DJC2 — Oxley23cv02270.mtremandandmtd 21 22 23 24 25 26 27 28 20