                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 19 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ARTHUR HERNANDEZ, JR.,                           No. 08-55490

             Plaintiff - Appellant,              D.C. No. 2:07-cv-05230-R-AGR

  v.
                                                 MEMORANDUM *
PACIFIC MARITIME ASSOCIATION
and JANET SNYDER,

             Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                      Argued and Submitted October 9, 2009
                              Pasadena, California

Before: HALL and TALLMAN, Circuit Judges, and LAWSON,** District Judge.


       Plaintiff Arthur Hernandez, Jr. appeals from the orders of the district court

denying his motion to remand for lack of subject matter jurisdiction. The district



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable David M. Lawson, United States District Judge for the
Eastern District of Michigan, sitting by designation.
court also dismissed Hernandez’s case without prejudice, but he does not challenge

that order. He argues that the district court had no subject matter jurisdiction over his

second amended complaint, which pleaded only state law claims, and therefore the

court should have granted his motion to remand to state court. We have jurisdiction

under 28 U.S.C. § 1291, see De Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir.

1998) (distinguishing between the dismissal of a complaint with leave to amend,

which is a non-final order, and the dismissal of an action, even if it is without

prejudice, which is a final order), and we affirm.

      The key question in this appeal is whether resolution of one or more of the

causes of action in the plaintiff’s second amended complaint “depends upon the

meaning of a collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef,

Inc., 486 U.S. 399, 405-06 (1988). An affirmative answer to that question sets in

motion the cascade of legal determinations that concludes in the finding that the state

law claim is completely preempted by federal labor law, specifically section 301 of

the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, which displaces the

state law claim and results in a proper finding that the district court had federal

question jurisdiction over the action, with authority to dismiss it. See Caterpillar Inc.

v. Williams, 482 U.S. 386, 394 (1987) (“[T]he pre-emptive force of § 301 [of the

LMRA] is so powerful as to displace entirely any state cause of action for violation


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of contracts between an employer and a labor organization. Any such suit is purely

a creature of federal law, notwithstanding the fact that state law would provide a cause

of action in the absence of § 301.”) (quoting Franchise Tax Bd. of Cal. v. Constr.

Laborers Vacation Trust for S. Cal., 463 U.S. 1, 23 (1983) (internal quotation marks

omitted).

      We agree with the district court that resolution of the plaintiff’s claims of

intentional and negligent interference with prospective economic advantage cannot

be achieved without interpreting the Pacific Coast Longshore Contract Document (the

collective bargaining agreement (CBA) entered into by defendant Pacific Maritime

Association (PMA) and the International Longshore and Warehouse Union), and the

Coastwise Rules Covering Registration and Deregistration of Longshoremen and

Clerks (the side agreement that regulated the dispatch list for casual laborers).

      Under California law, the tort of interference with prospective economic

advantage requires proof, among other things, of the existence of an economic

relationship between the plaintiff and a third party, with the probability of future

economic benefit to the plaintiff. See Pac. Gas & Elec. Co. v. Bear Stearns & Co.,

791 P.2d 587, 590 n.2 (Cal. 1990) (quoting Youst v. Longo, 729 P.2d 728, 733 n.6

(Cal. 1987)). The plaintiff also must prove that the interference was “wrongful by

some legal measure other than the fact of interference itself.” Overstock.com, Inc. v.


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Gradient Analytics, Inc., 61 Cal. Rptr. 3d 29, 49 (Cal. Ct. App. 2007) (quoting Della

Penna v. Toyota Motor Sales, U.S.A., Inc., 902 P.2d 740, 751 (Cal. 1995)).

      Resolution of these claims will require interpretation of the CBA for several

reasons.   First, interpretation of the CBA and related documents is required to

determine whether an economic relationship existed between Hernandez and the

employers. PMA alleges that the plaintiff had been removed from the dispatch list in

2003 under the Port Hueneme Joint Port Labor Relations Committee’s (JPLRC) rules,

which ended his economic relationship with the employers and made impossible any

future economic benefit from the employers. The JPLRC regulates dispatch lists

using the Coastwise Rules, which fall under the “CBA” rubric for the purpose of

section 301 preemption. See Inlandboatmens Union of the Pac. v. Dutra Group, 279

F.3d 1075, 1079 (9th Cir. 2002) (observing that “a collective bargaining agreement

is not limited solely to the specific provisions of the basic labor contract formally

executed by the parties, but it may also include, among other things, written side

agreements and oral understandings entered into by the parties”). If the CBA or the

Coastwise Rules provide for removal from dispatch lists based on an absence from the

dispatch halls and the plaintiff was subject to removal thereunder, then he no longer

had an economic relationship with the employers at the time of PMA’s allegedly

tortious conduct. Since the plaintiff disputes the validity or relevance of his removal


                                          4
from the dispatch list, a court would be required to determine the meaning of the

relevant rules and the effect of the JPLRC’s action removing the plaintiff from the

dispatch list. Such a determination necessarily amounts to a “state law factual inquiry

. . . [that] turn[s] on the meaning of a[] provision of the collective-bargaining

agreement.” Ward v. Circus Circus Casinos, Inc., 473 F.3d 994, 998 (9th Cir. 2007)

(quoting Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir. 1991)).

      Second, after the plaintiff proves that there is an economic relationship, he must

also prove that “it is reasonably probable that the lost economic advantage would have

been realized but for defendant’s interference.” Youst, 729 P.2d at 733. The parties

accept the fact that all longshore work on the West Coast is governed by the CBA, and

the plaintiff could not work and be paid as a casual worker unless the JPLRC finds

reinstatement of the plaintiff to the dispatch list proper under the CBA and the

Coastwise Rules. The JPLRC has authority “under the CBA to limit the number of

workers in each category [i.e., casuals, identified casuals, B registered workers, and

A registered workers] to conform to the volume of available work.” Audette v. Int’l

Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1112 (9th Cir. 1999).

Therefore, any interpretation of the JPLRC’s ability to reinstate casual workers under

the CBA would require interpretation of the CBA and the Coastwise Rules.




                                           5
      Third, the defendants maintain that the plaintiff was properly removed from the

list in 2003 for reasons unrelated to the alleged false statements on his U.S.

Department of Labor Form LS-208.          If that is true, the removal would not be

“wrongful,” Overstock.com, 61 Cal. Rptr. 3d at 49, since it would have been

authorized by the CBA or a related side agreement. A determination of whether the

removal was actually authorized by the CBA requires interpretation of the CBA.

      Fourth, the defendants argue that they refused to reinstate the plaintiff to the

dispatch list because he submitted false documentation on his Form LS-208 and

thereby violated section 9.11 of the Coastwise Rules, which required the revocation

of a casual worker’s dispatch privileges. The parties dispute whether section 9.11

even applies to casual workers, and whether a violation of that rule actually bars

reinstatement. The district court, therefore, would have to determine whether section

9.11 gave the JPLRC authority to deny the plaintiff’s request for reinstatement, and

then decide whether the plaintiff actually submitted false documentation as defined

by the Coastwise Rules. Proof of a necessary element of the plaintiff’s state law cause

of action – that is, the wrongfulness of the interference – thus requires interpretation

of the CBA and the related Coastwise Rules.

      Because the plaintiff’s state law claims for intentional and negligent

interference with prospective economic advantage was preempted by section 301 of


                                           6
the LMRA, the district court had federal question jurisdiction over at least some of the

plaintiff’s claims. Subject matter jurisdiction over the balance of the claims in the

amended complaint was proper under 28 U.S.C. § 1367(a). The denial of the motion

to remand was correct. The judgment of the district court is AFFIRMED.




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