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McKinney v. Alcoa

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


February 5, 2009

WILLIAM MCKINNEY, PLAINTIFF,
v.
ALCOA, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: S. James Otero United States District Judge

ORDER GRANTING IN PART, DENYING IN PART PLAINTIFF WILLIAM McKINNEY'S MOTION FOR ORDER REMANDING CASE TO STATE COURT AND FOR ATTORNEYS' FEES OF $8,550.00 FROM DEFENDANTS [Docket No. 8]

This matter is before the Court on Plaintiff William McKinney's ("McKinney") Motion for Order Remanding Case to State Court and for Attorneys' Fees of $8,550.00 from Defendants, filed December 23, 2008. Defendants Alcoa, Inc. ("Alcoa"), Alcoa Global Fasteners, Inc. ("Alcoa Global"), Alcoa Fastening Systems, Inc. ("Alcoa Fastening"), Joe Tauro ("Tauro"), and Jim Vitocruz ("Vitocruz") (collectively, "Defendants") filed an Opposition, to which McKinney replied. The Court found this matter suitable for disposition without oral argument and vacated the hearing set for January 26, 2009. See Fed. R. Civ. P. 78(b). For the following reasons, McKinney's Motion to Remand is GRANTED and Motion for Attorneys' Fees is DENIED.

I. BACKGROUND

McKinney worked for Defendants from August 26, 1985 until he was terminated in 2008.

(Compl. ¶ 8.) McKinney alleges that Defendants terminated him in retaliation for making complaints to Defendants regarding "numerous safety concerns" about Defendants' "decisions concerning worker safety that violated . . . fundamental public policies." (Compl. ¶¶ 8, 11--12.)

On October 1, 2008, McKinney filed this lawsuit in the Superior Court for the County of Los Angeles, bringing various California state law claims against Defendants. (See generally Compl.) McKinney's first cause of action for "wrongful termination of employment in violation of public policy in retaliation for complaining of unsafe work place in violation of OSHA" against Alcoa, Alcoa Global, and Alcoa Fastening contends that Alcoa, Alcoa Global, and Alcoa Fastening, in terminating McKinney, violated a number of fundamental public policies, including "California Labor Code section 1102.5, California Labor Code section 6311, and various provisions of the California Occupational Safety and Health Act that encourage employees to communicate with their employers and outside agencies about safety concerns on the job, without reprisal." (Compl. ¶¶ 15--16.) Similarly, McKinney's second cause of action for "wrongful termination of employment in violation of public policy in retaliation for enforcing safety laws and internal procedures" against Alcoa, Alcoa Global, and Alcoa Fastening alleges that because "a motivating factor in [D]efendants' termination of his employment was his enforcement of California and federal OSHA laws in the work place," specifically his "implementati[on of] OSHA's lock-out/tag-out procedure for machines that are not operating safely," Defendants violated "a fundamental public policy of the State of California . . . reflected in California Labor Code sections 1102.5 through 6300, et seq., which prohibit retaliation against any employee who enforces California or federal OSHA in the workplace." (See Compl. ¶¶ 19--25.) McKinney further alleges causes of action against all Defendants under California state law for breach of implied-in-fact contract; intentional infliction of emotional distress; negligent hiring, retention, and supervision; defamation; and compelled self-defamation. (See Compl. ¶¶ 26--48.)

On December 18, 2008, Defendants removed the action to this Court on the basis of federal question jurisdiction, asserting that the case "arises under the laws of the United States and/or raises substantial federal question(s) under federal law." (See Notice Removal Action Defs. Alcoa, Inc., Alcoa Global Fasteners, Inc., Alcoa Fastening Systems, Inc., Joe Tauro & Jim Vitocruz Pursuant to 28 U.S.C. § 1441 (Federal Question) ¶ 6.) McKinney now moves to remand the case to the Superior Court of the State of California for the County of Los Angeles and for attorneys' fees and costs of $8,550.00 incurred as a result of the removal. (See Pl. William McKinney's Notice Mot. & Mot. Order Remanding Case State Court & Attorneys' Fees $8,550.00 Defs. ("Pl.'s Mot.") 2, 6.)

II. DISCUSSION

A. Motion to Remand

Under 28 U.S.C. § 1441, the removal statute, an action is removable to federal court only if it might have been brought there originally. See 28 U.S.C. § 1441(a). The removal statute is "strictly construe[d] . . . against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citations omitted). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal . . . ." Id. (internal citation omitted). "Th[is] 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (internal citations omitted).

28 U.S.C. § 1331 gives federal courts "original jurisdiction" over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A case "arises under" federal law if a plaintiff's "well-pleaded complaint establishes either that federal law creates the cause of action" or that the "plaintiff's right to relief under state law requires resolution of a substantial question of federal lawin dispute between the parties." Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13, 27--28 (1983); see Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 689--90 (2006) (internal citation omitted).

1. McKinney's Claims Do Not Necessarily Raise a Federal Issue

Defendants oppose McKinney's Motion to Remand, arguing that McKinney's first and second claim, both for wrongful termination in violation of public policy, "require an interpretation of federal OSHA regulations." (Defs.' Opp'n Mot. Order Remanding Case State Court & Attorneys' Fees $8,550.00 Defs ("Defs.' Opp'n") 1.) Thus, Defendants contend that these wrongful termination claims necessarily raise "a substantial federal question under OSHA . . . ." (Defs.' Opp'n 3--5.) McKinney responds that the case does not require an interpretation of federal OSHA provisions, as plaintiff has merely identified OSHA as one source, among other state sources, of the public policy that Defendants violated in terminating his employment. (Pl. William McKinney's Reply Defs.' Opp'n Mot. Order Remanding Case State Court & Attorneys' Fees $8,500.00 Defs. ("Pl.'s Reply") 1--2, 4.)

With regard to cases "arising under" federal law because plaintiff's right to relief under state law requires resolution of a substantial question of federal law, or "embedded federal issue" cases, the presence of a federal issue is not "a password opening federal courts to any state action embracing a point of federal law." See Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). "[C]ountless claims can be said to depend in some way on federal propositions, yet not all such cases 'arise under' federal law." Hunter v. United Van Lines, 746 F.2d 635, 645 (9th Cir. 1985). Rather, to qualify for federal question jurisdiction, a state law claim must "necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable, 545 U.S. at 314. "When a [state-law] claim can be supported by alternative and independent theories-one of which is a state law theory and one of which is a federal law theory-federal question jurisdiction does not attach because federal law is not a necessary element of the claim." Glanton v. Harrah's Entm't, Inc., et al., No. 07-15425, 2008 WL 4726413, at *1 (9th Cir. 2008) (citing Rains v. Criterion Sys., Inc., 80 F.3d 339, 342--43 (9th Cir. 1996)); Rains, 80 F.3d at 346.

Here, McKinney's wrongful termination claims under California state law do not qualify for federal question jurisdiction because they do not "necessarily" raise a federal issue. See Grable, 545 U.S. at 314. Under California law, in order to prevail on a claim for wrongful termination in violation of public policy,which McKinney has alleged in his first and second claims, a plaintiff must show that: (1) the plaintiff-employee performed an act supported by a "fundamental public policy . . . that is delineated in constitutional or statutory provisions;" (2) the employer subjected the plaintiff to an "adverse employment action;" and (3) a causal link exists between the plaintiff's act and the "adverse employment action." See Rains, 80 F.3d at 343 (internal citation and quotations omitted); Loggins v. Kaiser Permanente Int'l, et al., 60 Cal. Rptr. 3d 45, 51--52 (Cal. Ct. App. May 14, 2007) (internal citations omitted); Carter v. Escondido Union High Sch. Dist., 56 Cal. Rptr. 3d 262, 264 (Cal. Ct. App. 2007); Mathieu v. Norrell Corp., et al., No. B159471, 10 Cal. Rptr. 3d 52, 60 (Cal. Ct. App. 2004); Compl. ¶¶ 9--25. Both of McKinney's wrongful termination claims reference state laws supplying the "fundamental public policy" allegedly violated, as the California Labor Code expressly prohibits an employer from retaliating against an employee for refusing to perform work that would violate state or federal safety standards. See Cal. Lab. Code §§ 1102.5, 6311. (See Compl. ¶¶ 15--16, 20.) Specifically, McKinney's first cause of action for "wrongful termination of employment in violation of public policy in retaliation for complaining of unsafe work place in violation of OSHA" mentions only California laws, including "California Labor Code section 1102.5, California Labor Code section 6311, and various provisions of the California Occupational Safety and Health Act," to supply the violated fundamental public policies. (Compl. ¶¶ 15--16.) Furthermore, although McKinney's second cause of action for "wrongful termination of employment in violation of public policy in retaliation for enforcing safety laws and internal procedures" references both California and federal OSHA laws, alleging that Defendants violated of "a fundamental public policy of the State of California . . . reflected in California Labor Code sections 1102.5 through 6300, et seq., which prohibit retaliation against any employee who enforces California or federal OSHA in the workplace," the allegations make clear that the "fundamental public policy" McKinney intends to rely on is that of California state. (See Compl. ¶ 20 (emphasis added).) Even if McKinney also intends to reference federal public policy reflected in federal OSHA, California state law would nevertheless provide an "alternative and independent" public policy supporting McKinney's alleged behavior. See Glanton, 2008 WL 4726413, at *1 (citing Rains, 80 F.3d at 342--43); Rains, 80 F.3d at 346. Therefore, federal OSHA is not a "necessary element" of either of McKinney's wrongful termination claims because California state law "independently espouses the same public policy established" in federal OSHA. See Rains, 80 F.3d at 345. Moreover, despite Defendants' emphasis on McKinney's allegation in his second cause of action that his termination resulted from his enforcement of both "California and federal OSHA laws," specifically his "implementati[on of] OSHA's lock-out/tag-out procedure for machines that are not operating safely," McKinney's reference to federal OSHA law is insufficient to create federal question jurisdiction because California's OSHA regulates "the same or similar conduct as [its] federal counterpart[] and do[es] not depend on [its] federal counterpart[]." See Glanton, 2008 WL 4726413, at *2; Compl. ¶¶ 21--22. McKinney may rely on his enforcement of the lock-out/tagout procedures of California OSHA. See Cal. Code Regs. tit. 8, § 3314 (2009). Thus, federal law is not the sole means of establishing McKinney's wrongful termination claims, as McKinney's alleged enforcement activity and the underlying fundamental public policy allegedly violated rely on an "alternative and independent" state-law theory. As such, McKinney's claims do not "necessarily" raise a federal issue under federal OSHA and this Court does not have subject matter jurisdiction over McKinney's claims on "embedded federal issue" grounds. See Grable & Sons Metal Prods., Inc., 545 U.S. at 314; Glanton, 2008 WL 4726413, at *2; Rains, 80 F.3d at 345--46.

2. The Artful Pleading Doctrine is Inapplicable

Defendants further argue that the case should not be remanded because McKinney's wrongful termination claims, although "carefully articulated" in state law terms, "constitute a federal cause of action under OSHA." (Defs.' Opp'n 1, 3, 7--9.) McKinney contests Defendants' attempts to recharacterize these state law claims as federal claims, arguing that his claims were properly pled under state law. (See Pl.'s Reply 2--4.)

Under the well-pleaded complaint rule, federal courts generally have subject matter jurisdiction pursuant to federal question jurisdiction only if a federal question appears on the face of a plaintiff's complaint. Brennan v. Sw. Airlines Co., 134 F.3d 1405, 1409 (9th Cir. 1998) (internal citations omitted). The artful pleading doctrine, however, creates an exception to the well pleaded-complaint rule and provides that "a plaintiff may not avoid federal jurisdiction by omitting from the complaint federal law essential to [the plaintiff's] claim . . . or by casting in state law terms a claim that can be made only under federal law." Rains, 80 F.3d at 344; see Lippitt v. Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1041 (9th Cir. 2003) (internal citations omitted); Brennan, 134 F.3d at 1409. As such, "the artful pleading doctrine allows courts to delve beyond the face of the state court complaint and find federal question jurisdiction by recharacterizing a plaintiff's state-law claim as a federal claim." Lippitt, 340 F.3d at 1041 (internal citations and quotations omitted). The Ninth Circuit has explained that courts "should invoke the doctrine only in limited circumstances as it raises difficult issues of state and federal relationships and often yields unsatisfactory results." Id. (internal citations and quotations omitted). The limited circumstances in which the artful pleading doctrine apply include where a plaintiff's state law claim: (1) is completely preempted by federal law; (2) is an "inherently federal claim;" or (3) is "dependant on the resolution of a substantial, disputed federal question." See Lippitt, 340 F.3d at 1041--42; Brennan, 134 F.3d at 1409.

McKinney did not bring a complaint that was artfully pleaded to avoid federal jurisdiction. Of the three circumstances in which the artful pleading doctrine is applicable, Defendants do not argue that McKinney's state law claims are preeempted by federal law. Rather, Defendants contend that McKinney's claims for wrongful termination are "inherently federal" and depend "on the resolution of a substantial, disputed federal question." See Lippitt, 340 F.3d at 1041--42; Brennan, 134 F.3d at 1409; Defs.' Opp'n 3--9. For the reasons stated previously, McKinney's wrongful termination claims do not depend on the resolution of a federal question pursuant to federal OSHA. See supra Part II.1. As to Defendants' argument that the claims are "inherently federal," constituting a federal cause of action under OSHA, Defendants' contention is erroneous. (See Defs.' Opp'n 1, 3, 7--9.) "OSHA does not provide a private cause of action" for violations of OSHA or its implementing regulations. Glanton, 2008 WL 4726413, at *2 (citing 29 U.S.C. § 653(b)(4); Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir. 1994)); see Crane, 41 F.3d at 553. Instead, "OSHA creates an intra-agency mechanism by which an alleged violation can be raised by a private actor" to the Secretary who must investigate the allegation and if necessary, bring an action in a federal district court. See Glanton, 2008 WL 4726413, at *2 (citing 29 U.S.C. §§ 657(f)(1), 660(c)); 29 U.S.C. § 660(c)(2). Federal OSHA, however, makes clear that it is not to impact an employee's "common law or statutory rights." See 29 U.S.C. § 653(4). Thus, the federal law was not intended to affect McKinney's right to sue for wrongful termination of employment under California state law. Because McKinney could not bring a claim against Defendants under federal OSHA, the Court cannot "recharacteriz[e] [McKinney] state-law claim as a federal claim." Lippitt, 340 F.3d at 1041 (internal citations and quotations omitted). Thus, McKinney properly pleaded his claims for wrongful termination of employment under California state law. "The artful pleading doctrine does not permit [D]efendants to achieve what they are trying to accomplish here: to rewrite a plaintiff's properly pleaded claim in order to remove it to federal court." See Rains, 80 F.3d at 344.

Accordingly, McKinney's Motion to Remand is GRANTED.

B. Request for Attorneys' Fees

McKinney also requests $8,550.00 in attorneys' fees and costsassociated with the removal pursuant to 28 U.S.C. § 1447(c), arguing that Defendants' removal, based on arguments that are "patently untenable," was not "objectively reasonable." (See Pl.'s Mot. 2, 6; Pl.'s Reply 5.) Defendants contend that McKinney is not entitled to an award of attorneys' fees because even if the Court deems the removal to be improper, Defendants' position on removal was objectively reasonable, as the case presents a unique situation in which state wrongful termination claims rely on the interpretation of federal OSHA regulations. (See Defs.' Opp'n 10--11.)

28 U.S.C. § 1447(c) provides that an order remanding a case to state court may require the removing party to pay the other party's costs, including attorneys' fees, incurred as a result of the removal. See 28 U.S.C. § 1447(c). "[A]bsent unusual circumstances, attorney[s'] fees should not be awarded when the removing party has an objectively reasonable basis for removal." Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005)). "[R]emoval is not objectively unreasonable solely because the removing party's arguments lack merit, or else attorney[s'] fees would always be awarded whenever remand is granted." Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008).

Here, the Court finds that Defendants' removal was not objectively unreasonable. Given that McKinney referenced federal OSHA in his wrongful termination claims, Defendants' argument that McKinney's wrongful termination claims necessitated resolution of a federal issue under federal OSHA was reasonable, though not meritorious. (See Compl. ¶¶ 10, 20--22.)

Accordingly, McKinney's Requests for Attorneys' Fees is DENIED. III. RULING For the foregoing reasons, McKinney's Motion to Remand is GRANTED and Motion for

Attorneys' Fees of $8,550.00 is DENIED. This matter is hereby remanded to the Superior Court of the State of California for the County of Los Angeles.

IT IS SO ORDERED.

20090205

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