Michelle Meeks v. Host International, Inc. , 519 F. App'x 513 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHELLE MEEKS, No. 11-17928
Petitioner - Appellant, D.C. No. 4:11-cv-01021-CW
v.
MEMORANDUM *
HOST INTERNATIONAL, INC.; UNITE
HERE! LOCAL 2,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Michelle Meeks appeals pro se from the district court’s judgment dismissing
her petition to vacate the arbitration award concerning the termination of her
employment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Meeks’s
request for oral argument is denied.
the district court’s denial of Meeks’s motion for remand to state court, Ramirez v.
Fox Television Station, Inc., 998 F.2d 743, 747 (9th Cir. 1993), and its dismissal
for failure to state a claim under Fed. R. Civ. P. 12(b)(6), Ass’n for L.A. Deputy
Sheriffs v. County of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011). We may
affirm on any basis supported by the record, Johnson v. Riverside Healthcare Sys.,
LP, 534 F.3d 1116, 1121 (9th Cir. 2008), and we affirm.
The district court properly denied Meeks’s motion for remand because her
petition, at least in part, arose under federal law. See Provincial Gov’t of
Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1086-87 (9th Cir. 2009) (federal
question jurisdiction arises under 28 U.S.C. § 1331 if a federal right or immunity is
an essential element of plaintiff’s claim or if a state law claim necessarily raises a
disputed and substantial federal issue); see also Ramirez, 998 F.2d at 747 (state law
claims are completely preempted by § 301 of the Labor Management Relations Act
where their resolution depends upon the meaning of a collective bargaining
agreement, and removal of such claims is permissible).
Dismissal of Meeks’s petition to vacate the arbitration decision was proper
because the petition lacked a viable basis under federal or state law. See Andrus v.
Convoy Co., 480 F.2d 604, 606 (9th Cir. 1973) (“[E]mployees cannot attack [a]
final [arbitration] award, except on the grounds of fraud, deceit or breach of the
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duty of fair representation or unless the grievance procedure was a sham,
substantially inadequate or substantially unavailable.” (citation and internal
quotation marks omitted)); Melander v. Hughes Aircraft Co., 239 Cal. Rptr. 592,
594-96 (Ct. App. 1987) (concluding that only a party to the arbitration agreement
has standing to petition to vacate an arbitration decision, and that employee-union
member lacked standing to attack the arbitration award).
To the extent that Meeks sought to assert a hybrid § 301/fair representation
claim, dismissal was proper because Meeks failed to allege facts showing that the
union’s actions were arbitrary, discriminatory, or in bad faith. See Bliesner v.
Commc’n Workers of Am., 464 F.3d 910, 913 (9th Cir. 2006) (“In order to prevail
in any [hybrid § 301/fair representation] suit, the plaintiff must show that the union
and the employer have both breached their respective duties.”); Peterson v.
Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985) (“A union breaches its duty of fair
representation only when its conduct toward a member of the collective bargaining
unit is arbitrary, discriminatory, or in bad faith.” (citation and internal quotation
marks omitted)).
To the extent that Meeks sought to assert a claim for ineffective assistance of
counsel, the district court properly dismissed that claim because the Sixth
Amendment right to assistance of counsel is generally limited to criminal
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proceedings. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985) (per
curiam).
Dismissal of Meeks’s claim for violation of her right to a jury trial was also
proper. See Southland Corp. v. Keating, 465 U.S. 1, 10-11 (1984) (explaining that
in enacting the Federal Arbitration Act, Congress, with two limited exceptions,
“withdrew the power of the states to require a judicial forum for the resolution of
claims which the contracting parties agreed to resolve by arbitration”); cf. Ruiz v.
Podolsky, 237 P.3d 584, 594 (Cal. 2010) (California legislature’s reasonable
delegation of authority to enter into arbitration agreements does not violate state
constitutional right to a jury trial).
Meeks’s contentions concerning the constitutionality of the removal statute,
arbitration generally, and the National Labor Relations Act, as well as those
concerning the involvement of William R. Henshall in this matter, are
unpersuasive.
AFFIRMED.
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