Thomas M. Falahee v. Heide and Cook, Ltd.; John Does, 1-10; Doe Entities, 1-10

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS M. FALAHEE,
Plaintiff - Appellant,
v.
HEIDE AND COOK, LTD.; JOHN DOES,
1-10; DOE ENTITIES, 1-10,
Defendants - Appellees.
No. 10-17653
D.C. No. 1:10-cv-00218-HG-BMK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Submitted October 11, 2011 **
Honolulu, Hawaii
Before: O’SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Thomas Falahee appeals the district court’s dismissal of
his wrongful termination suit on the grounds that Falahee, whose employment with
Defendants–Appellees was governed by a collective bargaining agreement (CBA),
FILED
OCT 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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failed to exhaust the CBA’s grievance procedures. Falahee also appeals the district
court’s denial of his motion to remand this action, which Defendants removed from
state court on the grounds that Falahee’s claims are completely preempted by the
Labor Management Relations Act (LMRA), 29 U.S.C. § 185. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Removal of this action was proper because Falahee’s state law claims are
preempted by § 301 of the LMRA, 29 U.S.C. § 185(a). “The pre-emptive force of
§ 301 is so powerful as to displace entirely any state cause of action ‘for violation
of contracts between an employer and a labor organization.’” Balcorta v.
Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir. 2000) (quoting
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463
U.S. 1, 23 (1983)). A cause of action is not preempted by the LMRA only if it
depends on a personal right conferred entirely by state law and the vindication of
the right does not depend on analyzing the collective bargaining agreement. See
Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). Plaintiff’s
estoppel and emotional distress claims depend on the terms of the CBA, and
Plaintiff’s failure to adequately plead a recognized public policy means there was
no error in the district court’s holding that aspect of Plaintiff’s complaint also

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preempted. See Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1062–63 (9th Cir.
1989).
“Prior to bringing suit, an employee seeking to vindicate personal rights
under a collective bargaining agreement must first attempt to exhaust any
mandatory or exclusive grievance procedures provided in the agreement.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 985–86 (9th Cir. 2007). Section
17 of the CBA, sets forth a two-step dispute resolution process which there is no
dispute was not utilized by Falahee. Accordingly, the district court properly
granted summary judgment for Falahee’s failure to exhaust.
AFFIRMED.

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