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GERMANN v. VULCAN MATERIALS CO.

July 26, 2000

ROBERT E. GERMANN, PLAINTIFF,
V.
VULCAN MATERIALS CO., CALMAT DIVISION D/B/A CALMAT CONCRETE & AGGREGATE DIVISION, A DIVISION OF VULCAN MATERIALS, AN ALABAMA CORPORATION D/B/A CALMAT COMPANY D/B/A CALMAT CONCRETE; AND DOES 1 THROUGH 50, DEFENDANT.



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.

BACKGROUND

A. Factual History

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.

B. Plaintiff's Complaint

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.

Defendant filed a timely notice of removal to federal court contending that plaintiff's claim for wrongful termination in violation of public policy was an artfully pled claim for relief under the Labor Management Relations Act ("LMRA"), the Surface Transportation Assistance Act ("STAA"), and the Occupational Safety and Health Act ("OSHA"). Defendant insists that the LMRA, STAA, and OSHA preempt plaintiff's state law claim, and original jurisdiction of plaintiff's cause of action therefore lies in federal court. Plaintiff timely filed this motion to remand.

DISCUSSION

A. Removal Jurisdiction

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. ยง 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 generally ...


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