ORDER DISMISSING FIRST AMENDED COMPLAINT

SUSAN ILLSTON, District Judge.

Now before the Court is defendant's motion to dismiss the first amended complaint. For the reasons set forth below, the Court GRANTS defendant's motion and DISMISSES the first amended complaint with prejudice.

DISCUSSION

On October 18, 2013, plaintiff Nick Miletak filed a pro se complaint against his former union, Communication Workers of America, Local 9423 ("CWA"), and Joe Beirne.1 The original complaint alleged that CWA breached its duty of fair representation and breached a collective bargaining agreement by withdrawing two grievances that CWA filed on behalf of plaintiff against his former employer, AT&T. The complaint also alleges that CWA inflicted emotional distress on plaintiff by withdrawing the grievances.

In an order filed April 22, 2014, the Court dismissed the complaint and granted plaintiff limited leave to amend. The Court held that the claims for breach of the duty of fair representation and breach of contract based on the grievances withdrawn on August 12, 2012, August 27, 2012, and October 12, 2012,2 were time barred because this lawsuit was filed after the expiration of the six month statute of limitations governing such claims. See 29 U.S.C. § 160(b); DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169-70 (1983); Allen v. United Food & Commercial Workers Int'l Union, AFL-CIO, CLC, 43 F.3d 424, 426 (9th Cir. 1994). The Court also rejected plaintiff's argument that the continuing violation doctrine applied to allegations that a union breached the duty of representation. See Harper v. San Diego Transit Corp., 764 F.2d 663, 669 (9th Cir. 1985) ("Harper claims, however, that the Union continually breached its duty of fair representation by continuing to fail to pursue his grievance. This continuing breach theory finds no support in the case law, and it contradicts one of the premises of the hybrid § 301 lawsuit."). The Court granted plaintiff "leave to amend the complaint if plaintiff can allege that he actually filed or attempted to file grievances that are distinct from the grievances alleged in the complaint, and that those grievances were filed within the six month statute of limitations." Docket No. 51 at 6:2-5.

The Court also dismissed without leave to amend plaintiff's claims for emotional distress arising from the withdrawal of the grievances. The Court found that those claims were preempted by federal labor law because the Court would be required to interpret the CBA in order to determine liability. See Adkins v. Aireles, 526 F.3d 531, 539 (9th Cir. 2008) ("LMRA § 301 preempts state-law claims that are "substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract[.]") (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)). The Court granted plaintiff "leave to amend the emotional distress claims only if the alleged conduct does not require interpretation of the CBA." Docket No. 51 at 7:24-25.

On May 19, 2014, plaintiff filed the First Amended Complaint ("FAC"). Docket No. 58. On June 2, 2014, defendant filed a motion to dismiss the FAC. On July 7, 2014, as plaintiff had not filed an opposition, the Court issued an Order to Show Cause Why Case Should Not be Dismissed for Failure to Prosecute. Docket No. P0. In response to that order, plaintiff filed a Notice of Voluntary Dismissal Without Prejudice. Docket No. 62. On July 18, 2014, defendant filed an Opposition to Notice of Voluntary Dismissal, based upon plaintiff's indication to defendant that he planned to file a parallel state court case to attempt to avoid the preclusive effect of a judgment. Docket No. 61.

On July 24, 2014, the Court issued an Order Setting Briefing Schedule on Defendant's Motion to Dismiss First Amended Complaint (Document 63), finding that in light of the procedural posture of the case, dismissal without prejudice would be inappropriate. The Court directed plaintiff to file an opposition by August 1, 2014. Plaintiff did not file an opposition.

The Court concludes that the FAC should be dismissed with prejudice. As an initial matter, the Court notes that the FAC improperly names an additional new defendant, Robert Hogue, and adds two new causes of action for fraud and deceit, all without leave of Court. Further, the FAC suffers from the same deficiencies as the original complaint. The FAC does not allege that plaintiff attempted to file timely grievances distinct from those alleged in the original complaint. Instead, the FAC contains new allegations regarding the same two grievances that were the subject of the original complaint. In the original complaint, plaintiff alleged that those grievances were withdrawn in August and October 2012. In the FAC, plaintiff alleges that "written notification of withdrawal of both grievances was received December 13, 2012." FAC ¶ 20. Even assuming that plaintiff received notification of the withdrawal of the grievances in December, rather than in August and October 2012 as previously alleged, December 13, 2012 is more than six months prior to the filing of the original complaint on October 18, 2013, and thus this claim is time barred. In addition, for the reasons set forth in the Court's April 22, 2014 order, plaintiff's claims were not revived in April 2013 when plaintiff signed a settlement agreement with his former employer, AT&T. See Docket No. 51 at 5:10-15.

Similarly, the FAC continues to allege that plaintiff suffered emotional distress based upon the withdrawal of the grievances, and thus the emotional distress claims are preempted by federal law for the reasons stated in the April 22, 2014 order. Plaintiff's new fraud and deceit claims were added without leave of court, and allege that the union engaged in misrepresentation when it informed him that there was no evidence to advance the grievances. As presented, these state tort claims, like the emotional distress claims, would require interpretation of the CBA to determine whether, in fact, there was a basis for pursuing the grievances. Accordingly, the deceit and fraud claims are also preempted by federal labor law.

CONCLUSION

For the foregoing reasons the Court DISMISSES the FAC with prejudice.

IT IS SO ORDERED.