United States District Court, D. Colorado
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL NO. 7, Plaintiff,
KING SOOPERS, INC., Defendant.
RAYMOND P. MOORE, District Judge.
This matter is before the Court on Defendant King Soopers, Inc.'s ("King Soopers") motion to dismiss for lack of subject matter jurisdiction (ECF No. 5) Plaintiff United Food and Commercial Workers International Union, Local No. 7's ("Union" or "UFCW") Complaint (ECF No. 1).
For the reasons stated below, the Court DENIES Defendant's motion to dismiss.
I. LEGAL STANDARD
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss for lack of subject matter jurisdiction may be brought in two forms: "facial" or "factual." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A "facial attack" as to subject matter jurisdiction challenges the sufficiency of the complaint and in reviewing such a challenge, the Court must accept the allegations in the complaint as true. Id. A "factual attack" as to subject matter jurisdiction challenges the facts upon which subject matter jurisdiction depends and in reviewing such a challenge, the Court has discretion to consider documents outside complaint. Id. at 1003. If undertaking a review of subject matter jurisdiction predicated upon a factual attack of the complaint, "a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion." Id.
Regardless of the type of challenge to subject matter jurisdiction, the plaintiff retains the burden of establishing subject matter jurisdiction. Port City Props. v. Union Pacific R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (citation omitted).
Under Section 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), Plaintiff brings this suit to compel arbitration pursuant to a collective bargaining agreement ("CBA") between the parties (ECF No. 1-1 at 1-124). (ECF No. 1 ¶ 1.) The parties' CBA contains a grievance-arbitration provision (referred to in the parties' CBA as a "Dispute Procedure") which culminates in arbitration. (ECF No. 1-1 at 56-57.) Step 3 of the parties' Dispute Procedure states
If the grievance is not satisfactorily adjusted in Step 2, either party may, with reasonable promptness, but in no event later than thirty (30) days from the date of the Step 2 meeting, in writing, request arbitration and the other party shall be obligated to proceed with arbitration in the manner hereinafter provided. The parties shall forthwith attempt to agree upon an impartial arbitrator.
(ECF No. 1-1 at 56.) Plaintiff alleges that it filed four grievances and that Defendant has refused to arbitrate the unresolved grievances. (ECF No. 1 ¶¶ 7, 9, 11, 13, 16-20.)
Defendant brought this motion to dismiss arguing that the Court should dismiss the Complaint as the National Labor Relations Board ("NLRB") has primary jurisdiction over the suit as Plaintiff's conduct arguably violated Section 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(b). (ECF No. 5 at 2.)
A. Record to be Considered on Subject Matter Jurisdiction Challenge
Assuming Defendant's characterization of its motion to dismiss as a "factual attack" (ECF No. 5 at 3) is accurate, the Court may then consider "other documents" to resolve disputed jurisdictional facts. Holt, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)); Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990) (citation omitted). The Court construes the factual admissions within Defendant's motion to dismiss as within the "other document" language to be considered in ruling on Defendant's factual attack as it is signed by Defendant's counsel. See Fed.R.Civ.P. 11(b)(3). In Defendant's motion to dismiss, Defendant admits that the Complaint seeks to compel arbitration (ECF No. 5 at 1), that there exists a CBA between the parties (ECF No. 5 at 1), and that Defendant has refused to arbitrate the grievances (ECF No. 5 at 1). Further, Plaintiff attached to the Complaint the parties' CBA (ECF No. 1-1 at 1-124), the ...