The opinion of the court was delivered by: Moskowitz, District Judge.
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND; DENYING DEFENDANT'S
MOTION TO DISMISS
This matter comes before the Court on plaintiff's motion to
remand his case to the Superior Court of San Diego County and on
defendant's motion to dismiss plaintiff's complaint. Defendant
removed the case based on federal question jurisdiction,
28 U.S.C. § 1331, arguing that plaintiff's state law claim was an
artfully pled cause of action arising under federal law.
Concluding that removal jurisdiction is lacking, the Court grants
plaintiff's motion to remand. Accordingly, the Court denies
defendant's motion to dismiss.
Plaintiff, Robert E. Germann, was a concrete mixer driver who
was fired by defendant, CalMat Concrete ("CalMat"), on November
17, 1998. During his employment, in April of 1998, plaintiff
notified CalMat management that its drivers were violating hours
of service laws as set forth in the California Vehicle Code.
Thereafter, plaintiff filed a complaint with the California
Highway Patrol. As a result, CalMat convened a meeting of all
drivers, and a representative of the California Highway Patrol
explained the hours of service regulations. According to
plaintiff, after this meeting, CalMat continued to direct its
drivers to violate safety regulations. Because of his complaint
to the state law enforcement authorities, plaintiff contends that
his employment with CalMat was terminated.
Pertinent to the issue facing the Court today are the specific
allegations in plaintiff's complaint. Plaintiff raises a single
cause of action against defendant for "Wrongful Termination in
Violation of Public Policy." According to plaintiff, "[i]n
terminating Mr. Germann's employment . . . CALMAT acted in
violation of strongly enumerated public policy as set forth in
the California Vehicle Code Sections [34501.2] and Labor Code
Sections 1102 and 6310." Generally, California Vehicle Code
section 34501.2 provides maximum driving times within a work
period for drivers of trucks. California Labor Code sections 1102
and 6310 prohibit employer retaliation for an employee's
disclosure to the government or to law enforcement of suspected
violations or noncompliance with federal or state law safety
requirements. Plaintiff claims that he was fired by defendant in
retaliation for reporting violations of state safety laws to the
California Highway Patrol. Plaintiff's complaint, originally
filed in the San Diego Superior Court, references only state law.
A suit can be removed to federal court under
28 U.S.C. § 1441(b) if "the district courts have original jurisdiction
founded on a claim or right arising under the Constitution,
treaties, or laws of the United States." A claim, however, cannot
be removed to federal court if the federal claim is only a
defense. See Harper v. San Diego Transit Corp., 764 F.2d 663,
666 (9th Cir. 1985). "Because preemption is ordinarily raised as
a defense, preemption alone is an insufficient basis for
removal." Id. If, however, federal law displaces state law and
confers a federal remedy on the plaintiff, removal may be
appropriate. See id.
Whether federal law displaces state law implicates the
"well-pleaded complaint rule." "A plaintiff may not . . . avoid
federal jurisdiction simply by omitting from the complaint
federal law essential to his claim, or by casting in state law
terms a claim that can be made only under federal law.
Jurisdiction is determined on the well-pleaded complaint."
Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1472
(9th Cir. 1984), overruled on other grounds, Allis-Chalmers v.
Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see
also Parrino v. FHP, Inc., 146 F.3d 699, 704 (9th Cir.), cert.
denied, 525 U.S. 1001, 119 S.Ct. 510, 142 L.Ed.2d 423 (1998). In
other words, if a federal cause of action completely preempts a
state cause of action, any claim that falls within the scope of
the federal law necessarily implicates federal jurisdiction. See
Franchise Tax Bd. v. Construction Laborers Vacation Trust,
463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).
Courts refer to complete preemption in the removal context as
the "artful pleading" doctrine. A plaintiff cannot "artfully
plead" a preemptive federal claim in state law terms to avoid
jurisdiction of the federal court. See Brennan v. Southwest
Airlines, Co., 134 F.3d 1405, 1409 (9th Cir. 1998); Hyles v.
Mensing, 849 F.2d 1213, 1215 (9th Cir. 1988). Claims falling
into the artful pleading category are the exception; plaintiff is
generally free to be the master of his complaint. See Clinton v.
Acequia, 94 F.3d 568, 571 (9th Cir. 1996). In fact, the Supreme
Court has largely limited a finding of complete preemption to two
federal statutes: the LMRA and the Employee Retirement Income
Security Act, 29 U.S.C. § 1144(a) ("ERISA"). As Congress has
never exercised the authority to occupy the entire field of labor
law, the touchstone of federal preemption lies with the court's
examination of congressional intent. See Allis-Chalmers, 105
S.Ct. at 1910. If Congress fails to indicate the extent to which
it intends federal law to supplant state involvement, a court