Michelle Meeks v. Host International, Inc.

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NOT FOR PUBLICATION MAY 22 2013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

3 11-17928
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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