United States District Court, D. Oregon
JOSEPH J. MUNGER, SR., Plaintiff,
CASCADE STEEL ROLLING MILLS, INC., Defendant.
Benjamin Rosenthal, Of Attorneys for Plaintiff.
Anthony D. Kuchulis and Chris M. Morgan, Barran liebman llp,
Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Joseph J. Munger, Sr. (“Munger”), formerly was
employed by Defendant, Cascade Steel Rolling Mills, Inc.
(“Cascade”). After Cascade terminated
Munger's employment based on asserted violations of its
attendance policy, Munger filed a grievance with his union,
challenging Cascade's employment action. Munger's
union grieved his challenge under the collective bargaining
agreement between Cascade and the union, requiring the
parties to engage in binding arbitration. After a hearing,
the arbitrator ruled in favor of Cascade, finding that
Cascade had just cause to terminate Munger's employment
and dismissing Munger's grievance. Munger then filed this
lawsuit in federal court. Cascade moves to dismiss solely
under Rule 12(b)(1) of the Federal Rules of Civil Procedure,
arguing that Munger lacks standing thus depriving this Court
of subject matter jurisdiction. Cascade reserves all other
defenses for another time. For the reasons that follow, the
Court denies Cascade's motion to dismiss for lack of
subject matter jurisdiction.
courts are courts of limited jurisdiction. Gunn v.
Minton, 568 U.S. 251, 256 (2013) (quotation marks
omitted). A court must presume “that a cause lies
outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994) (citations omitted);
see also Robinson v. United States, 586 F.3d 683,
685 (9th Cir. 2009); Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). Under Rule 12(b)(1) of
the Federal Rules of Civil Procedure, a motion to dismiss for
lack of subject matter jurisdiction, “because it
involves a court's power to hear a case, can never be
forfeited or waived.” United States v. Cotton,
535 U.S. 625, 630 (2002). Thus, an objection that a court
lacks subject matter jurisdiction may be raised by any party,
or by the court on its own initiative, at any time.
Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006).
Further, the Court must dismiss any case over which it lacks
subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see
also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir.
2015) (noting that when a court lacks subject matter
jurisdiction, meaning it lacks the statutory or
constitutional power to adjudicate a case, the court must
dismiss the complaint, even sua sponte if
motion to dismiss for lack of subject matter jurisdiction may
be either “facial” or “factual.”
See Safe Air for Everyone, 373 F.3d at 1039. A
facial attack on subject matter jurisdiction is based on the
assertion that the allegations in the complaint are
insufficient to invoke federal jurisdiction. Id.
“A jurisdictional challenge is factual where ‘the
challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
jurisdiction.'” Pride v. Correa, 719 F.3d
1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for
Everyone, 373 F.3d at 1039). When a defendant factually
challenges the plaintiff's assertion of jurisdiction, a
court does not presume the truthfulness of the
plaintiff's allegations and may consider evidence
extrinsic to the complaint. See Terenkian v. Republic of
Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012);
Robinson, 586 F.3d at 685; Safe Air for
Everyone, 373 F.3d at 1039. A factual challenge
“can attack the substance of a complaint's
jurisdictional allegations despite their formal
sufficiency.” Dreier v. United States, 106
F.3d 844, 847 (9th Cir. 1997) (citation and quotation marks
employed Munger from February 2, 1993, through June 2, 2016,
most recently as a crane operator. Munger alleges that he
requested medical leave for September 21-23, 2015, October
5-9, 2015, and May 25-26, 2016. Munger also alleges that
Cascade wrongfully treated his absences on those dates as
non-medical events. Munger adds that Cascade wrongfully
suspended Munger on October 26, 2015, and wrongfully
terminated his employment on June 2, 2016. In this lawsuit,
Munger asserts claims alleging retaliation and discrimination
in violation of the federal Family and Medical Leave Act
(“FMLA”), the Oregon Family Leave Act, and the
Oregon Sick Time Leave Act. Munger also alleges common law
Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union,
AFL-CIO, for and on behalf of Local Union 8378 (the
“Union”) and Cascade are parties to a Collective
Bargaining Agreement (“CBA”). Among other
things, the CBA states: “It is agreed that the Company
[Cascade] and the Union shall comply with all the appropriate
state and federal statutes dealing with
discrimination.” CBA, § 3.2. The CBA also
contains, in Article 28, a process for the adjustment of
grievances. The preamble to that article provides:
Should any dispute arise between the Company and the Union
or the employees represented by the Union during the
term of this Agreement, there shall be no interruption of
work at any time but the matter shall be settled in
accordance with the following provisions.
CBA, § 28.1 (emphasis added). Article 28 continues by
describing the grievance adjustment process, including,
ultimately, arbitration. The CBA also states: “The
award of the arbitrator shall be final and binding on all
parties.” CBA, § 28.3(D).
employed by Cascade, Munger was represented by the Union.
After the termination of his employment, Munger filed a
grievance, challenging his discharge under Cascade's
“modified strict attendance policy.” The Union
grieved Munger's challenge through arbitration. The
arbitrator held hearings on March 23, 2017, and April 20,
2017. Both Cascade and the Union were represented, and Munger
participated as a witness for the Union. The parties agree
that the issue presented in arbitration was whether Cascade
had “just cause to terminate Joe Munger, and if not,
what is the appropriate remedy.” Cascade and the Union
each submitted a post-hearing brief to the arbitrator. On
July 7, 2017, the arbitrator issued a 15-page decision,