United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO DISMISS AND GRANTING LEAVE TO
FILE SECOND AMENDED COMPLAINT
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Total Terminals
International, LLC (“TTI”)'s Motion to
Dismiss brought under Rules 12(b)(1) and 12(b)(6) (Dkt. #20)
and Plaintiff Abin'Bola Nellams' Motion for Leave to
File Second Amended Complaint (Dkt. #31).
moves for Rule 12(b)(1) dismissal arguing that Plaintiff
Nellams must arbitrate his claims under a collective
bargaining agreement, the Pacific Coast Longshore Contract
Document (“PCLCD”). This agreement includes a
provision stating that “[a]ll grievances and complaints
alleging incidents of discrimination or harassment (including
hostile work environment) in connection with any action
subject to the terms of this Agreement based on race, creed,
color, sex (including gender, pregnancy, sexual orientation),
age (forty or over), national origin, or religious or
political beliefs, or alleging retaliation of any kind for
filing or supporting a complaint of such discrimination or
harassment, shall be processed solely under the Special
Grievance/Arbitration Procedures…” Dkt. #21-1 at
80. TTI argues this is a waiver of access to the federal
court system that applies here where Mr. Nellams asserts
claims against TTI for racial discrimination, harassment and
retaliation based upon his race. See Dkts. #20 and
#7 (First Amended Complaint).
12(b)(1) of the Federal Rules of Civil Procedure provides for
dismissal for lack of subject matter jurisdiction and is
appropriately applied where a collective bargaining agreement
provides for mandatory arbitration of the claims alleged.
See Flight Attendants, AFL-CIO v. Horizon Air Indus.,
Inc., 280 F.3d 901, 903 (9th Cir. 2002) (affirming
dismissal pursuant to Rule 12(b)(1) because dispute was
within the scope of a collective bargaining agreement).
Parties to a collective bargaining agreement can waive the
judicial forum as an avenue for bringing federal and state
anti-discrimination claims. 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247, 256, 129 S.Ct. 1456, 1464, 173
L.Ed.2d 398 (2009); Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 123, 121 S.Ct. 1302, 1313, 149
L.Ed.2d 234 (2001). However, it is “required…
that an agreement to arbitrate statutory antidiscrimination
claims be ‘explicitly stated' in the
collective-bargaining agreement.” 14 Penn Plaza
LLC, 556 U.S. at 258 (citing Wright v. Universal
Maritime Service Corp., 525 U.S. 70, 80, 119 S.Ct. 391,
142 L.Ed.2d 361 (1998)). In Wright, the Supreme
Court found the waiver at issue was not “clear and
unmistakable.” 525 U.S. at 80. The waiver in
Wright discussed “matters affecting wages,
hours, and other terms and conditions of employment, ”
but failed to mention specific laws protecting against
discrimination. Id. at 73. In 14 Penn Plaza
LLC, the waiver at issue was found to be clear and
unmistakable. 556 U.S. at 260. That waiver explicitly
mentioned “claims made pursuant to Title VII of the
Civil Rights Act, ” and listed other such
anti-discrimination statutes by name. Id. at 252.
the Court finds that the waiver at issue is not sufficiently
“clear and unmistakable” so as to waive Mr.
Nellams' statutory right to a federal judicial forum for
his federal employment discrimination claims. The collective
bargaining agreement in this case indicates only that
“grievances and complaints alleging incidents of
discrimination or harassment… based on race...”
are subject to arbitration, not that claims brought in
federal court would be subject to arbitration. By failing to
cite to Title VII and similar federal laws, the waiver in
this case is more like the waiver in Wright than the
waiver in 14 Penn Plaza LLC. Accordingly, this
waiver cannot form the basis of a Rule 12(b)(1) motion to
dismiss and that portion of TTI's Motion will be denied.
also moves the Court to dismiss the Amended Complaint under
Rule 12(b)(6) for failing to allege sufficient facts with
regard to TTI's actions or inactions, as opposed to the
actions or inactions of other Defendants. Dkt. #20 at 8-11.
making a 12(b)(6) assessment, the court accepts all facts
alleged in the complaint as true, and makes all inferences in
the light most favorable to the non-moving party. Baker
v. Riverside County Office of Educ., 584 F.3d 821, 824
(9th Cir. 2009) (internal citations omitted). However, the
court is not required to accept as true a “legal
conclusion couched as a factual allegation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The complaint “must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. at 678. This
requirement is met when the plaintiff “pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. The complaint need not include
detailed allegations, but it must have “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Absent facial
plausibility, a plaintiff's claims must be dismissed.
Id. at 570.
Court generally agrees with TTI that the First Amended
Complaint lacks necessary information to meet the standards
set forth in Twombly and Iqbal. However,
Mr. Nellams has subsequently filed a Motion for leave to
amend his complaint to address this problem. See
Dkt. #31. Typically, if this Court grants leave to amend a
complaint, a pending motion to dismiss based solely on the
inadequacy of pleadings under Rule 12(b)(6) will be denied as
to Fed.R.Civ.P. 15(a)(2), a “court should freely give
leave [to amend] when justice so requires, ”
Fed.R.Civ.P. 15(a)(2). Courts apply this policy with
“extreme liberality.” Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003).
Five factors are commonly used to assess the propriety of
granting leave to amend: (1) bad faith, (2) undue delay, (3)
prejudice to the opposing party, (4) futility of amendment,
and (5) whether plaintiff has previously amended the
complaint. Allen v. City of Beverly Hills, 911 F.2d
367, 373 (9th Cir. 1990); Foman v. Davis, 371 U.S.
178, 182 (1962). In conducting this five-factor analysis, the
court must grant all inferences in favor of allowing
amendment. Griggs v. Pace Am. Group, Inc., 170 F.3d
877, 880 (9th Cir. 1999). In addition, the court must be
mindful of the fact that, for each of these factors, the
party opposing amendment has the burden of showing that
amendment is not warranted. DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 187 (9th Cir. 1987); see
also Richardson v. United States, 841 F.2d 993, 999 (9th
Court has reviewed Mr. Nellams' Motion for Leave to Amend
and the Responses from Defendants. Defendants Pacific
Maritime Association and SSA Marine, Inc. do not oppose the
Motion. Dkt. #35. TTI argues that the proposed amendment
would be futile because, “[b]ased upon the allegations
in the proposed [Second Amended Complaint], Mr. Fletcher was
not TTI's employee and Mr. Fletcher's conduct cannot
be imputed to TTI under the cases cited by Plaintiff,
“and because “Plaintiff's [Second Amended
Complaint] is centered almost exclusively on alleged
discrimination, harassment or retaliation Plaintiff claims he
experienced while employed by SSA - not TTI.” Dkt. #36
at 2. TTI argues that “the lone paragraph regarding the
single period Plaintiff claims to have been employed by TTI
still does not state a claim against TTI.” Id.
This “lone paragraph” cited by TTI states:
5.29 May 23, 2016, Plaintiff Nellams was working for TTI. At
the beginning of Plaintiff Nellams' shift his co-worker,
Brian Woods, pulled him over and told him that Supervisor
Faron Fletcher “is saying ‘bad things' about
him” and that Plaintiff Nellams was “suing”
and “speaking about prior grievances that are supposed
to be confidential.” Plaintiff Nellams and Ron Thomas
reported these actions by Faron Fletcher to Foreman Steve
Onion. Foreman Steve Onion ordered Plaintiff Nellams and Mr.
Thomas to go back to work or they would be fired.
Dkt. #31-1 at 9.
paragraph appears to allege that Mr. Nellams reported
inappropriate conduct of Defendant Fletcher to a supervisor,
and that this conduct was related to prior claims of
race-based harassment. This apparently occurred while
“working for TTI, ” and that supervisor, who
presumably works for TTI, told Mr. Nellams “to go back
to work or… be fired.” Elsewhere, the Second
Amended Complaint alleges that “the harasser (Mr.
Fletcher) was Plaintiff Nellams' supervisor on TTI
worksites - SSA, PMA and TTI ‘authorized, knew, or
should have known of the harassment and ... failed to take
reasonably prompt and adequate corrective action' to
address the harassment against Plaintiff Nellams. Mr.
Fletcher's actions against Plaintiff Nellams are thus
imputed to SSA, PMA and TTI under Vicarious Liability.”
Id. at 15. The Second Amended Complaint also adds
the language “supervised by TTI” to several facts
in the pleading, indicating an arrangement between TTI and
SSA Marine, Inc. that could potentially expose TTI to
liability. It is TTI's burden to show that amendment is
not warranted. See DCD Programs, Ltd., supra.
together, and granting all inferences in favor of amendment,
TTI has not met its burden to show futility because the facts
as alleged present a facially plausible basis for Mr. Nellams
claims to be brought against TTI. TTI does not argue bad
faith, undue delay, prejudice, or that Mr. Nellams has
amended his complaint too many times. ...