Kane v. Matson Navigation Company, Inc.

• Court: District Court, N.D. California
• Decided: December 12, 2022
• Docket: 3:22-cv-04583
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MARK KANE, Case No. 22-cv-04583-WHO

7 Plaintiff, ORDER GRANTING MOTION TO 8 v. DISMISS

9 MATSON NAVIGATION COMPANY, Re: Dkt. No. 20 INC., et al., 10 Defendants.

11 12 Defendants Matson Navigation Company, Inc. (“Matson”) and Theodore Bernhard move 13 to dismiss a First Amended Complaint (“FAC”) arising from plaintiff Mark Kane’s termination 14 from his job aboard a ship that Matson owned and Bernhard captained, because Kane’s claims are 15 preempted by section 301 of the Labor Management Relations Act (“LMRA”). Kane’s breach of 16 contract, breach of the implied covenant of good faith and fair dealing, and intentional interference 17 with economic relations claims appear to be preempted as pleaded, but it is not entirely clear 18 whether Kane bases these claims on the collective bargaining agreement (“CBA”) between 19 Matson and his union, the shipping articles outlining the dates of his employment, or something 20 else. As pleaded, the claims either arise directly from an alleged violation of the CBA or require 21 interpretation of it. But I will give Kane the opportunity to amend in case additional allegations 22 about the contract at issue can avoid preemption. His defamation and intentional infliction of 23 emotional distress (“IIED”) claims do not require interpretation of the CBA and are not 24 preempted, at least as pleaded. Kane’s claim for retaliation asserted under California’s Fair 25 Employment Housing Act (“FEHA”) is DISMISSED with prejudice against Bernhard: non- 26 employer individuals cannot be held liable for such claims. 27 BACKGROUND 1 work aboard the vessel M/V Kaimana Hila in September 2021. FAC [Dkt. No. 18] ¶ 8. Matson 2 owned and operated the vessel, of which Bernhard was the master. Id. ¶¶ 6-7. Kane’s shipping 3 articles provided work for 90 days, plus 15 days to return to Long Beach, California, for a total of 4 105 days from September 13, 2021, to December 26, 2021. Id. ¶ 10. He signed onto the ship in 5 Los Angeles County on September 13. Id. ¶ 8. 6 According to Kane, he completed all of his work “as a prudent and competent merchant 7 seaman.” Id. ¶ 11. But, he alleges, on December 6, 2021, Bernhard submitted a letter warning 8 Kane that he had violated workplace policy. Id. Kane contends that this letter came in retaliation 9 for his reporting that another sailor harassed and bullied him. See id. According to Kane, 10 Bernhard read the letter to him in front of four shipmates, an experience that he described as 11 “being dressed down” and “demoralizing and discriminatory.” Id. ¶ 13. Bernhard then confined 12 Kane to his quarters, told him not to try to work, and said he would handcuff Kane if he left. Id. ¶ 13 15. 14 The next day, “[w]ithout the opportunity to correct any alleged deficiencies,” Bernhard 15 issued another letter terminating Kane. Id. ¶ 16.1 Bernhard then “forcefully discharged” Kane 16 from the ship in Guam. Id. ¶ 19. Matson also placed Kane on its “do not hire list” for two years. 17 Id. ¶ 22. 18 The same day, December 7, Kane consulted with SUP and “they informed [him] that they 19

20 1 A court generally may not consider “any material beyond the pleadings” when deciding a Rule 12(b)(6) motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), 21 overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Otherwise, the motion is converted into one for summary judgment. See Fed. R. Civ. P. 12(d). 22 Courts may, however, consider “documents incorporated into the complaint by reference” without so converting the motion. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 23 (2007). “Although mere mention of the existence of a document is insufficient to incorporate the contents of a document, the document is incorporated when its contents are described and the 24 document is integral to the complaint.” Tunac v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018) (citation and quotation marks omitted). 25

Kane attaches various exhibits to the FAC, as do the defendants to their motion to dismiss. See 26 FAC, Exs. A-E; Mot. to Dismiss (“MTD”) [Dkt. No. 20-1], Defanti Decl., Exs. A-B. I will consider three of those documents in deciding this motion, as they are incorporated into the 27 complaint by reference: the December 6, 2021,warning letter; the December 7, 2021, termination 1 would pursue and exhaust [his] remedies.” Id. ¶ 21. But on December 30, 2021, the president and 2 secretary-treasurer of SUP sent Kane a letter declining to pursue his grievance and noting that the 3 prohibition on future employment was not permanent. Id. ¶ 24. 4 Kane filed this suit on August 8, 2022. See Dkt. No. 1. After the defendants moved to 5 dismiss, Kane filed the FAC, which alleges six causes of action: retaliation, breach of employment 6 contract, breach of good faith and fair dealing, intentional interference with economic relations, 7 defamation, and intentional infliction of emotional distress. FAC ¶¶ 31-80; see also Dkt. Nos. 9, 8 18. The defendants again moved to dismiss the complaint. Dkt. No. 20. 9 LEGAL STANDARD 10 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 11 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, the 12 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 13 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff 14 pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for 15 the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There 16 must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts 17 do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to 18 “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555, 570. 19 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 20 court accepts his allegations as true and draws all reasonable inferences in his favor. See Usher v. 21 City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to 22 accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or 23 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 24 If the court dismisses the complaint, it “should grant leave to amend even if no request to 25 amend the pleading was made, unless it determines that the pleading could not possibly be cured 26 by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 27 1 DISCUSSION 2 I. SECTION 301 PREEMPTION 3 Section 301 of the LMRA provides that

4 [s]uits for violation of contracts between an employer and a labor organization 5 representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties, without 6 respect to the amount in controversy or without regard to the citizenship of the parties. 7 29 U.S.C. § 185(a). The Supreme Court has held that section 301 “not only provides federal court 8 jurisdiction over controversies involving collective bargaining agreements, but also authorizes 9 federal courts to fashion a body of federal law for the enforcement of these collective bargaining 10 agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403 (1988) (citation and 11 quotation marks omitted). 12 When a state law claim “arises entirely from or requires construction of a CBA,” section 13 301 preempts the claim. Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 914 (9th Cir. 2018) (citing 14 cases). The Ninth Circuit established a two-part inquiry to determine whether a claim is so 15 preempted. Id. at 920. First, the court must “evaluate the ‘legal character’ of the claim by asking 16 whether it seeks purely to vindicate a right or duty created by the CBA itself.” Id. at 920-21 17 (citation omitted). “If a claim arises entirely from a right or duty of the CBA—for example, a 18 claim for violation of the labor agreement, whether sounding in contract or tort—it is, in effect, a 19 CBA dispute in state law garb, and is preempted.” Id. at 921 (citations omitted). However, 20 “claims are not simply CBA disputes by another name” and are not preempted under the first step, 21 “if they just refer to a CBA-defined right; rely in part on a CBA’s terms of employment; run 22 parallel to a CBA violation; or invite use of the CBA as a defense.” Id. (citing cases). 23 If a right is not grounded in a CBA at the first step, the court then asks “whether litigating 24 the state law claim nonetheless requires interpretation of a CBA, such that resolving the entire 25 claim in court threatens the proper role of grievance and arbitration.” Id. (citing cases). 26 “Interpretation” of a CBA is narrowly construed and “means something more than ‘consider,’ 27 ‘refer to,’ or ‘apply.’” Id. (citation omitted). Instead, “claims are only preempted to the extent 1 there is an active dispute over the meaning of contract terms.” Id. (citation and quotation marks 2 omitted). “Accordingly, a state law claim may avoid preemption if it does not raise questions 3 about the scope, meaning, or application of the CBA.” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 4 1153 (9th Cir. 2019) (citation omitted). 5 The defendants’ motion to dismiss relies on section 301 of the LMRA and its applicability 6 to Kane’s claims. See MTD at 7:6-8:23. They contend that section 301 preempts all but Kane’s 7 retaliation claim, as the remainder arise from or otherwise require analysis of the CBA between 8 Matson and SUP. See id. 9 A. Breach of Contract 10 Turning first to Kane’s allegations of breach of contract, the defendants argue that section 11 301 preempts the claim because it is “based on the underlying allegations that his treatment and 12 termination were violations of the CBA,” pointing to the FAC’s assertion that “the grievance 13 procedure established in the above-mentioned collective bargaining agreement assured [Kane] that 14 defendant Matson would not arbitrarily terminate him.” Id. at 17:1-6 (citing FAC ¶ 44). 15 Kane’s response is twofold. First, he argues that this claim is not based on the CBA’s 16 terms and conditions, but on California Labor Code section 2924, which states:

17 An employment for a specified term may be terminated at any time by the 18 employer in case of any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity 19 to perform it. 20 See Oppo. [Dkt. No. 22] 14:2-18; Cal. Lab. Code § 2924. This, he contends, does not require me 21 to interpret the CBA, as the rights afforded under section 2924 “are not substantially dependent” 22 on the CBA’s terms. See Oppo. at 12:12-16, 14:2-18. Second, he argues that the “grievance 23 procedure in the collective bargaining agreement is not at issue” because he does not challenge its 24 legality. Id. at 12:17-18. According to Kane, all I need to do is “look to the CBA to facially 25 acknowledge that the grievance procedure exists.” Id. at 14:13-14. 26 It is not entirely clear from the FAC upon which contract Kane bases his claim. The FAC 27 alleges that Kane and Matson “were parties to an employment contract for a specified time” and 1 that it would employ him for the specified time.” FAC ¶¶ 44-45. This could be the CBA, but it 2 could also be the shipping articles that Kane briefly references in the FAC, which “entitled him to 3 work for . . . a total of 105 days, from September 13, 2021, until December 26, 2021.” Id. ¶ 10. 4 Then again, the breach of contract claim expressly references the CBA, alleging that “the 5 grievance procedure established in the above-mentioned collective bargaining agreement assured 6 plaintiff that defendant Matson would not arbitrarily terminate him.” Id. ¶ 44. 7 It appears that Kane alleges the relevant breach in Paragraph 47, which states:

8 Notwithstanding the express promise not to terminate the employment contract but 9 for willful breach of duty or habitual neglect, on December 7, 2021, defendant Matson terminated plaintiff’s employment on defendant Bernhard’s representations 10 of alleged violations of workplace policy, even though there is no history or record of such violations. 11 Id. ¶ 47. But Kane does not plead that his shipping articles contained this promise, and the CBA 12 itself does not appear to discuss a “willful breach of duty” or “habitual neglect.” See id. ¶ 10; see 13 generally Defanti Decl., Ex. A (“CBA”). Instead, it appears that this language comes from the 14 California labor law that Kane invokes, section 2924. See Cal. Lab. Code § 2924. 15 Based on a holistic reading of the FAC, it appears that the CBA is the contract at issue. 16 The FAC expressly mentions the shipping articles only once. See generally FAC. Meanwhile, it 17 repeatedly references the CBA, alleging in part that Kane’s treatment “was not in compliance with 18 . . . the collective bargaining agreement,” that Matson “violated . . . its own collective bargaining 19 agreement with the SUP by wrongfully terminating” Kane, and that Kane is “entitled to back 20 wages under the terms of the collective bargaining agreement.” Id. ¶¶ 18, 20, 30. If the contract 21 purportedly breached was the CBA, then section 301 clearly preempts the claim at step one of the 22 analysis. See Alaska Airlines, 898 F.3d at 921 (“If a claim arises entirely from a right or duty of 23 the CBA—for example, a claim for violation of the labor agreement, whether sounding in contract 24 or tort—it is, in effect, a CBA dispute in state law garb, and is preempted.”) (emphasis added). 25 Even if Kane’s breach of contract claim is based on the shipping articles, analyzing the 26 claim requires an interpretation of the CBA. Section 2924 contemplates the termination of an 27 employee if he willfully breaches a duty in the course of his employment, habitually neglects his 1 duty, or is continually incapable of performing it. See Cal. Lab. Code § 2924. This necessarily 2 raises the question of what Kane’s duties were—which are covered by the CBA. The CBA 3 provides that “[t]he duties of sailors shall include the recognized and customary duties of the deck 4 department of a vessel,” and then lists what those duties include. See CBA at 34. 5 To determine what Kane’s “recognized and customary duties” were and whether he 6 adequately performed them requires more than considering, referring to, or applying the CBA. 7 See Alaska Airlines, 898 F.3d at 921. If the question merely involved looking at the list of 8 enumerated duties to see if Kane performed them, then the claim may not be preempted. But the 9 list is non-exhaustive. See CBA at 34 (“shall include the following duties”). And the phrase 10 “recognized and customary” requires more digging in order to interpret its meaning. The nature of 11 Kane’s duties, as provided in the CBA, directly implicates whether Matson breached the contract, 12 as Kane apparently premises his breach of contract claim on section 2924. 13 Whether the contract at issue is the CBA or the shipping articles, Kane’s claim is 14 preempted by section 301. If he alleges a breach of the CBA, the claim is preempted at the first 15 step of the Ninth Circuit’s inquiry, as Kane seeks to vindicate a right or duty created by the CBA 16 itself. See Alaska Airlines, 898 F.3d at 921. And if he alleges a breach of the shipping articles, 17 and relies on section 2924 as he argues, then I must interpret the CBA to determine what his duties 18 were, meaning his claim is preempted at the second step. See id. 19 The breach of contract claim is DISMISSED. I am not convinced that Kane will be able to 20 cure this issue with amendment. However, because the FAC is ambiguous concerning the details 21 of the shipping articles, he may be able to allege additional facts that avoid preemption. I will 22 therefore grant him leave to amend. 23 B. Breach of Good Faith and Fair Dealing 24 Whether section 301 preempts Kane’s breach of good faith and fair dealing claim is a far 25 more straightforward question. The FAC expressly alleges that Kane “performed all the duties 26 and conditions of the employment agreement, as detailed in the collective bargaining agreement” 27 and that Matson breached the covenant by “violating and failing to follow its obligations for due 1 action against plaintiff.” FAC ¶¶ 51, 54. The claim therefore either seeks to “vindicate a right or 2 duty created by the CBA itself” (if the covenant is implied in the CBA itself) or requires 3 interpretation of it (to determine Kane’s and Matson’s respective duties under the CBA). See 4 Alaska Airlines, 898 F.3d at 921. Either way, the claim is preempted by section 301. It too is 5 DISMISSED with leave to amend, for the same reasons articulated above. 6 C. Intentional Interference with Economic Relations 7 Under California law, the elements of an intentional inference with economic relations 8 claim are: “(1) the existence, between the plaintiff and some third party, of an economic 9 relationship that contains the probability of future economic benefit to the plaintiff; (2) the 10 defendant’s knowledge of that relationship; (3) intentionally wrongful acts designed to disrupt the 11 relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused 12 by the defendant’s action.” Mandel v. Hafermann, 503 F. Supp. 3d 946, 979 (N.D. Cal. 2020) 13 (citation omitted). 14 Kane alleges that Bernhard “knew of the above-described employment contract existing 15 between” Kane and Matson and falsely represented in the warning and termination letters that 16 Kane had violated workplace policy “to induce defendant Matson to breach its contract and sever 17 its employment relationship with plaintiff.” FAC ¶¶ 58-59. Kane further alleges that as a result of 18 Bernhard’s conduct and Matson’s “breach of the employment contract,” he lost past wages, future 19 earnings, and other employment benefits. Id. ¶ 60. 20 As alleged, Kane’s interference claim hinges on the breach of contract between him and 21 Matson. It is again unclear exactly which contract is at issue—the CBA or the shipping articles— 22 but either requires an interpretation of the CBA to determine if any breach occurred, as I have 23 explained. Kane’s interference claim is therefore preempted for the same reasons as his breach of 24 contract claim. It too is DISMISSED with leave to amend. 25 D. Defamation 26 The Ninth Circuit has found that defamation claims are preempted by section 301 when 27 they are “based on facts inextricably intertwined with the grievance machinery of the collective 1 F.2d 589, 594 (9th Cir. 1987). The case law draws a line between allegedly defamatory statements 2 made in the context of a grievance procedure provided for within a CBA (which are preempted) 3 and those that are not (which are not). See, e.g., Tellez v. Pac. Gas & Elec. Co., Inc., 817 F.2d 4 536, 538 (9th Cir. 1987) (holding that a defamation claim was not preempted because the 5 purportedly defamatory letter did not implicate the CBA, which “neither require[d] management 6 to send written notice of suspension nor provide[d] guidelines in the event such notice [was] 7 sent”); Jackson v. S. Cal. Gas. Co., 881 F.2d 638, 645 (9th Cir. 1989) (holding that a defamation 8 claim was not preempted because the allegedly defamatory accusations did not appear to have 9 been made “pursuant to any requirements of the disciplinary procedures” outlined in the CBA); 10 but see Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1063 (9th Cir. 1989) (holding that any 11 defamation claim based on discharge notices were preempted because the CBA at issue 12 “require[d] employers to notify employees of intended disciplinary action in writing, and 13 simultaneously to notify their union”); Scott, 827 F.2d at 594 (holding that a defamation claim was 14 preempted because the allegedly defamatory remarks were made in the course of a counseling 15 session, prearbitration meetings, and investigative hearings—“the grievance procedure provided 16 by the contract”). This distinction makes sense, as a defamation claim can arise under state law 17 without asserting any rights deriving from a CBA or requiring the interpretation of its terms. See 18 Tellez, 817 F.2d at 538. As the Ninth Circuit succinctly stated in Tellez: “California’s defamation 19 law establishes nonnegotiable rights and obligations independent of any labor contract. One can 20 sue for defamation regardless of employment status or union membership.” Id. 21 Kane alleges that the warning and termination letters that Bernhard published were 22 defamatory because they “falsely allege repeated violations of workplace policies” and “falsely 23 and injuriously characterize [Kane] as ignoring safety precautions, being unwilling to cooperate, 24 and having a negative impact on the crew by using vulgar language, taking a harassing or 25 aggressive tone, and bullying others.” FAC ¶ 67. The defendants argue that Kane’s defamation 26 claim is preempted because the “alleged defamatory statements expressly relate to the grievance 27 procedure for discharges governed by the CBA,” and thus is inextricably intertwined with the 1 against Kane were a valid basis for his termination and whether Matson properly barred him from 2 employment “necessarily requires interpretation of the CBA.” Id. at 20:22-24. 3 In response, Kane argues that the defamatory statements in the letters were extrinsic to the 4 CBA, and that they were not part of a grievance procedure, an initial incident report, or subsequent 5 investigation. Oppo. at 18:20-28. And, he notes, SUP declined to pursue a grievance on his 6 behalf. Id.; see also FAC ¶ 24. Therefore, Kane contends, his defamation claim is not 7 inextricably intertwined with the CBA and is not preempted. Oppo. at 18:28-19:2. 8 Kane has the better argument, at least at the pleadings stage. The defendants argue that the 9 letters “were generated as part of the disciplinary and investigative process,” but do not point to 10 any specific provisions of the CBA requiring the issuance of such letters.2 See Reply [Dkt. No. 11 23] 10:11-13. They then offer a somewhat-contradictory argument that “to know whether the 12 CBA explicitly or implicitly required that action requires interpretation of the CBA.” Id. at 11:14- 13 15. But the Ninth Circuit has instructed that interpretation is “construed narrowly,” and “means 14 something more than ‘consider,’ ‘refer to,’ or ‘apply.’” See Alaska Airlines, 898 F.3d at 921 15 (citation omitted). Mere reference to the CBA supports Kane’s argument that the letters did not 16 arise in any grievance procedure. The letters do not appear to have been issued pursuant to any 17 requirements of the disciplinary process; indeed, the CBA does not mention letters in any 18 disciplinary context. See generally CBA. Similar to Tellez, there are no provisions that require 19 management to send sailors written notices of warning or termination, or that provide guidance if 20 any notices are sent. See generally id.; see also Tellez, 817 F.2d at 538. I see nothing that requires 21 Matson to “notify employees of intended disciplinary action in writing.” See Shane, 868 F.2d at 22 1063. 23 Moreover, there are no allegations in the FAC that support a finding that the letters arose 24 from “the grievance machinery of the collective bargaining agreement.” See Scott, 827 F.2d at 25 2 Later, the defendants point to section 2(b) of the CBA’s “Matson Work Rules,” which states that 26 “[w]hen the employer rejects men furnished who are considered unsuitable and unsatisfactory, the employer shall furnish a statement in writing to the Union stating the reason for the rejection.” 27 Reply at 11:4-11 (citing CBA at 34]. But Kane does not allege that the letters arose in this 1 594. The grievance procedure set forth in the CBA contemplates the settlement of “all grievances 2 and disputes” first through discussion between union delegates and vessel department heads, then 3 union and company representatives, the Joint Labor Relations Committee, and/or an arbitrator— 4 discussions that are not alleged here. See CBA at 7-8; see generally FAC. If a dispute or 5 grievance is not settled at this first step, it “shall be reduced to writing by the moving party, shall 6 be submitted in writing to the opposite party’s designated representative, and shall be jointly 7 investigated and discussed.” See CBA at 8. This is the closest reference to written notice that I 8 can find in the CBA. But the FAC does not allege that the letters were issued in this context; 9 instead, it alleges that Bernhard read the letter aloud to Kane in front of four of his shipmates. See 10 FAC ¶ 13. Moreover, Kane never alleges that he instituted a formal grievance process. See 11 generally id. Instead, the FAC alleges that SUP decline to pursue any grievance on his behalf. Id. 12 ¶¶ 24-25. The fact that neither letter cites the grievance procedure set forth in the CBA—or any 13 provision of the CBA, for that matter—supports a finding that the allegedly defamatory statements 14 were made outside of that procedure. See id., Exs. A, B. 15 The defendants make much of one sentence in Kane’s defamation claim, which alleges that 16 Bernhard “willfully and consciously disregarded the rights of plaintiff under the law, including 17 California Labor Code section 2924, and the collective bargaining agreement.” See MTD at 20:5- 18 12 (citing FAC ¶ 72). But this conclusory statement, without more, is not enough to bring the 19 entirety of the defamation claim within section 301’s ambit. Neither is the defendants’ argument 20 that the CBA “implicitly requires good cause for termination.” Reply at 10:15-17 (citing CBA at 21 9) (“In the event the discharge or rejection is found to be unjustified, the employee concerned shall 22 be reinstated promptly.”)). Kane’s defamation claim does not depend on whether his termination 23 was justified; instead, the focus is on whether the statements by Bernhard were published, false, 24 defamatory, unprivileged, and injurious. See John Doe 2 v. Superior Court, 1 Cal. App. 5th 1300, 25 1312 (2016) (“The elements of a defamation claim are (1) a publication that is (2) false, (3) 26 defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.”) 27 (citation omitted). 1 his favor, he has not alleged that the letters were issued as part of the grievance procedure set forth 2 in the CBA. His claim is therefore not inextricably intertwined with the CBA and not preempted 3 under section 301. The motion to dismiss the claim on these grounds is DENIED.3 4 E. Intentional Infliction of Emotional Distress 5 The Ninth Circuit has stated that IIED claims are preempted by section 301 if they require 6 “examination or interpretation” of a CBA. See Tellez, 817 F.2d at 539; see also Cook v. Lindsay 7 Olive Growers, 911 F.2d 233, 239 (9th Cir. 1990) (“If the CBA does not govern the offending 8 behavior, section 301 does not preempt [the plaintiff’s] emotional distress claim.”). 9 Similar to the defamation claim, the defendants argue that Kane’s IIED claim is preempted 10 by section 301 because “it is premised on wrongful discharge and purported violations subject to 11 the grievance procedure established by the CBA,” specifically Bernhard’s public reading of the 12 letters and confinement of Kane to his quarters until placed ashore in Guam. See MTD at 21:15- 13 26 (citing in part FAC ¶ 75). 14 In response, Kane again points to the CBA’s silence with regard to “the possible grounds 15 for discharge”; “letters of warning or termination”; and “post-termination employment 16 embargoes.” Oppo. at 19:23-20:1. He argues that the IIED claim does not allege “improper 17 administration of discipline under the collective bargaining agreement because the collective 18 bargaining agreement does not set standards for the administration of discipline” and that “there is 19 nothing for the court to interpret” in the CBA “regarding the cause or grounds for plaintiff’s 20 termination regarding his emotional distress claim.” Id. at 20:2-7. 21 The FAC alleges a laundry list of actions by Bernhard underlying the IIED claim, 22 including: his reading of the warning and termination letters; his refusal to allow Kane to discuss 23 the allegations against him or remedy them; and his confinement of Kane to his quarters, with 24 threats of being handcuffed if he left. See FAC ¶ 75. Kane further alleges that he was barred from 25 employment by Matson for two years. See id. Although Kane “denies the trumped-up allegations 26

27 3 The defendants focused their motion on section 301’s applicability to Kane’s claims, and did not 1 made against him,” he does not allege, for the purposes of the IIED claim, that he was wrongfully 2 terminated. See id. 3 This case is therefore distinguishable from Cook, on which the defendants rely in support, 4 because the basis of that emotional distress claim was whether the plaintiff was wrongfully 5 discharged. See MTD at 21:2-26; see also Cook, 911 F.2d at 239. Moreover, although the CBA 6 in Cook did not have “a detailed section on discharge and the possible grounds therefor,” it did 7 “indicate that discharge will be for cause” and provided a “detailed grievance procedure, which 8 [the plaintiff] followed.” See 911 F.2d at 239. Similarly, in Shane—upon which the defendants 9 also rely—the court held that an IIED claim was preempted by section 301 because it essentially 10 alleged “that administration of discipline was improper under the standards set by the collective 11 bargaining agreement.” See 868 F.2d at 1063 (citation omitted). 12 Although the CBA at issue includes a grievance procedure, Kane does not allege that he 13 followed it. See generally FAC. And although the grievance procedure covers “[d]isputes relating 14 to the discharge or rejection of unlicensed seaman,” it does not outline any possible grounds for 15 discharge or discipline. See CBA at 9. The CBA is instead more similar to that in Tellez, which 16 was “vague on disciplinary formalities” and “neither requires nor regulates suspension letters.” 17 See 817 F.2d at 539. Just as the Ninth Circuit held that “examination or interpretation of the 18 agreement would not help to resolve Tellez’s claim,” interpreting this CBA does not answer the 19 question of whether Bernhard’s actions support an IIED claim. See id. 20 There is one caveat to this. Kane alleges that he was “confined to his quarters until placed 21 ashore in violation of the collective bargaining agreement and general maritime law.” See FAC ¶ 22 75. Although it is unclear whether Kane alleges that the confinement violates the CBA, or the 23 placing ashore, or both, to the extent that Kane’s IIED claim relies on a violation of the CBA, that 24 portion of the claim would be preempted by section 301, as it arises from a right or duty of the 25 CBA. See Alaska Airlines, 898 F.3d at 921. Otherwise, the IIED claim is not preempted by 26 section 301 and may proceed. That said, as with the defamation claim, the defendants did not 27 challenge this claim on anything but section 301 grounds. Whether Kane adequately alleged an 1 II. REMAINING SECTION 301 ARGUMENTS 2 The defendants make two other primary arguments against Kane’s claims, both of which 3 also rely on section 301. First, they argue that Kane’s claims are time-barred by section 301’s six- 4 month statute of limitations. MTD at 22:1-23:18. Second, they contend that the breaches of 5 contract and good faith and fair dealing claims cannot proceed against Bernhard because an 6 individual cannot be sued under section 301. Id. at 24:9-19. Although Kane responds to the 7 statute of limitations argument, he does not address individual liability under section 301, nor do 8 the defendants return to this argument in their reply. See generally Oppo.; see generally Reply. 9 When courts find that resolution of a state law claim depends on the interpretation of a 10 CBA, “that claim must either be treated as a section 301 claim or dismissed as pre-empted by 11 federal labor-contract law.” See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985); see 12 also Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1034 (9th Cir. 2016) (quoting the 13 same). Rather than treat Kane’s claims as section 301 claims, I will dismiss them as preempted. 14 Because I am granting Kane leave to amend, I find that it would be premature to decide these 15 remaining issues now. Kane may be able to amend his complaint to allege additional facts or a 16 new legal basis for his breach of contract claim that avoids preemption. The same is true for the 17 other two claims. Any further analysis under section 301 is not needed at this point. 18 III. RETALIATION 19 Finally, the defendants contend that Kane’s first claim, retaliation, fails as a matter of law 20 against Bernhard, both because an individual cannot be sued for retaliation under FEHA and 21 because Kane failed to exhaust his administrative remedies with respect to Bernhard. MTD at 22 24:20-25:2. The California Supreme Court has held that although an employer may be held liable 23 for a retaliation claim brought under FEHA, “nonemployer individuals are not personally liable for 24 their role in that retaliation.” Jones v. Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1173 25 (2008); see also id. at 1160 (“The employer, but not nonemployer individuals, may be held 26 liable.”). Kane provides no argument or case law to the contrary. See generally Oppo. 27 Accordingly, his retaliation claim is DISMISSED with prejudice against Bernhard. 1 CONCLUSION 2 For these reasons, the motion to dismiss is GRANTED in part and DENIED in part, with 3 || leave to amend. Any amended complaint is due by January 10, 2023. 4 IT IS SO ORDERED. 5 Dated: December 12, 2022 6 . 7 liam H. Orrick 8 United States District Judge 9 10 11 12

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