The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Leslie Ann Chissie ("Plaintiff") moves to remand this removed action back to the Superior Court of the State of California in and for the County of Sutter, where her lawsuit was originally instituted.*fn1 For the reasons set forth below, Plaintiff's Motion will be denied.
Plaintiff began working at WinCo Foods, LLC ("WinCo") on December 17, 1996 in the Bakery Department. On September 17, 2008, Plaintiff was terminated by Defendant Joel Clark for "gross misconduct." According to Plaintiff, she was fired in retaliation for filing a complaint with WinCo's human resources department alleging sexual harassment and age discrimination. On September 25, 2008, Plaintiff filed a claim with the California Department of Fair Employment and Housing ("DFEH"). In her DFEH claim, Plaintiff alleged sexual harassment, age discrimination, and retaliation. On October 9, 2008 the DFEH issued a right to sue notice which permitted Plaintiff to file a lawsuit.
On October 23, 2008, after making the above-described claims, Plaintiff was reinstated to her supervisorial position in the Bakery Department. On November 1, 2008, however, Plaintiff alleges that she was retaliated against when she was demoted to a clerk position and later suspended. She asserts that the retaliation stemmed from her use of the grievance procedure and for filing the DFEH claim. On November 13, 2008 Plaintiff was terminated. Defendants assert that Plaintiff voluntarily quit.
On August 18, 2009, Plaintiff filed suit in state court against WinCo and Joel Clark (collectively "Defendants") alleging multiple causes of action. Defendants removed the action to federal court alleging that the action was pre-empted by § 301 of the Labor-Management Relations Act.
A defendant may remove any civil action from state court to federal district court if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). Generally, district courts have original jurisdiction over civil actions in two instances: (1) where there is complete diversity between the parties, or (2) where a federal question is presented in an action arising under the Constitution, federal law, or treaty.
28 U.S.C. §§ 1331 and 1332.
The removing party bears the burden of establishing federal jurisdiction. Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988). Furthermore, courts construe the removal statute strictly against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). If there is any doubt as to the right of removal in the first instance, remand must be granted. See Gaus, 980 F.2d at 566. Therefore, if it appears before final judgment that a district court lacks subject matter jurisdiction, the case shall be remanded to state court.
The district court determines whether removal is proper by first determining whether a federal question exists on the face of the plaintiff's well-pleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). If a complaint alleges only state-law claims and lacks a federal question on its face, then the federal court must grant the motion to remand. See 28 U.S.C. § 1447(c); Caterpillar, 482 U.S. at 392.
Nonetheless, there are rare exceptions when a well--pleaded state-law cause of action will be deemed to arise under federal law and support removal. They are "...(1) where federal law completely preempts state law, (2) where the claim is necessarily federal in character, or (3) where the right to relief depends on the resolution of a substantial, disputed federal question." ARCO Envtl. Remediation L.L.C. v. Dep't of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000) (internal citations omitted).
If the district court determines that removal was improper, then the court may also award the plaintiff costs and attorney fees accrued in response to the defendant's removal. 28 U.S.C. § 1447(c). The court has broad discretion to award costs and fees whenever it finds that removal was wrong as a matter of law. ...