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Douglas Dejohn, An Individual; Alex Franey, An Individual; Nequetta M. v. At&T Corp.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 3, 2011

DOUGLAS DEJOHN, AN INDIVIDUAL; ALEX FRANEY, AN INDIVIDUAL; NEQUETTA M. THOMPSON, AN INDIVIDUAL; MYRIAM TURNER, AN INDIVIDUAL, PLAINTIFFS,
v.
AT&T CORP., A NEW YORK CORPORATION; AT&T, INC., A DELAWARE CORPORATION; PACIFIC BELL DIRECTORY, A MISSOURI CORPORATION; AT&T SERVICES, INC., A DELAWARE CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND

[Motion filed on 10/25/10]

Presently before the court is Plaintiffs' Motion To Remand to state court. After reviewing the parties' moving papers and hearing argument, the court grants the motion and adopts the following order.

I. Background

Plaintiffs are Defendants' former employees. (Complaint ¶ 4.) Plaintiffs worked as Advertising Sales Representatives at various locations in Los Angeles County. (Id. ¶ 14; Declaration of Gregory Halsey in Opposition to Plaintiffs' Motion to Remand ("Halsey Dec.") ¶ 13.) On April 26, 2010 Plaintiffs filed suit against Defendants in the Los Angeles Superior Court seeking damages for failure to pay wages, unfair business practices, and other wage and hour violations. (Cmplt. at 1.) Plaintiffs' claims stemmed from an alleged "chargeback policy," by which Defendants deprived Plaintiffs of previously earned commissions and bonuses. (Id. 4.)

While employed by Defendants, Plaintiffs were members of the International Brotherhood of Electrical Workers, AFL-CIO Local Union 2139 ("Union"). (Halsey Dec. ¶ 13.) Plaintiffs' rights to receive commission and bonus payments were governed by collective bargaining agreements. (Id.) Plaintiffs' complaint did not indicate that they were members of the Union or refer to any collective bargaining agreement.

Defendants removed this matter to federal court on September 23, 2010. Defendants argue that section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, preempts Plaintiffs' state law claims, and that this court therefore has federal question jurisdiction under 28 U.S.C. § 1331. (Notice of Removal at 2.) Plaintiffs now move to remand the case back to state court.

II. Discussion

If a notice of removal is untimely, a plaintiff may move to remand the case to state court. Carvalho v. Equifax Info. Services, LLC, 615 F.3d 1217, 1225 (9th Cir. 2010). Under 28 U.S.C. § 1446, defendants have thirty days to file a notice of removal. The thirty-day period is only triggered, however if (1) "the case stated by the initial pleading is removable on its face," or (2) defendant receives "'a copy of an amended pleading, motion, order, or other paper' from which removability may first be ascertained." Id. at 1224-25 (emphasis added) (citing Harris v. Bankers Life & Cas. Co., 425 F.3d 689 (9th Cir. 2005). "The removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009).

Here, the parties agree that removability was not apparent on face of Plaintiffs' complaint. The parties dispute, however, whether Defendants filed a notice of removal within thirty days of receiving an "other paper" from which removability could be ascertained. In discovery responses served on August 24, 2010, Plaintiffs unequivocally admitted that they were Union members, and that they were covered by a collective bargaining agreement. (Notice of Removal ¶ 7.)*fn1 Defendants filed a notice of removal on September 23, 2010, within thirty days of receiving Plaintiffs' discovery responses. Plaintiffs argue, however, that Defendants could ascertain the removability of this matter from written discovery requests served on August 3, 2010, three weeks prior to Plaintiffs' discovery responses and fifty-one days before Defendants filed a Notice of Removal. (Motion for Remand at 4.)

The court must first determine whether Plaintiffs' written discovery requests constitute an "other paper" under 28 U.S.C. 1446(b). The court concludes that they do. Courts in this district have recognized that "other paper" is a broad term. See Rice v. Equifax Info. Services, LLC, 2010 WL 128369 *2 (C.D. Cal 2010). Responses to requests for admissions, for example, clearly constitute "other paper." Id.; see also Falahee v. Heide and Cook Ltd., 2010 WL 3001918 *3 (D. Hawai'i 2010). Depositions also qualify as other paper. Riggs v. Continental Baking Co., 678 F.Supp. 236, 238 (N.D. Cal. 1988). Indeed, courts in this circuit have suggested that all "formal discovery," including "a deposition, interrogatory, or request for admission" meets the definition of "other paper." Lillard v. Joint Med. Products, 1995 WL 20609 *3 (N.D. Cal. 1995).

Having determined that Defendants did receive an "other paper" more than thirty days prior to removal, the court must determine whether Defendants could have ascertained the removability of the action from Plaintiff's discovery requests.

On August 3, Plaintiffs served Defendants with several requests for admissions and demands for production of documents. (Declaration of Benjamin Davidson in Support of Plaintiffs' Motion to Remand ("Davidson Dec."), Exs. D-F.) Plaintiffs requested, among other things, that Defendants admit that Plaintiffs' rights to commissions "did not arise from a collective bargaining agreement between Pacific Bell Directory and International Brotherhood of Electrical Workers, AFL-CIO Local Union 2139." (Id., Ex. D at 3.) Plaintiffs also sought admissions that various causes of action did not "require INTERPRETATION of a collective bargaining, or any terms or provisions therein, between Pacific Bell Directory and International Brotherhood of Electrical Workers, AFL-CIO Local Union 2139." (Id. at 3-6.) Plaintiffs also requested that, if Defendants contended that interpretation of a collective bargaining agreement was necessary, Defendants produce "all COMMUNICATIONS between [Defendants] and the International Brotherhood of Electrical Workers, AFL-CIO Local Union 2139 that [Defendants] contend are RELATED TO the INTERPRETATION of any contract term concerning 'commissions.'" (Davidson Dec., Ex. E at 11.)

Defendants explicitly acknowledge that removability of this matter depends on the need for interpretation of a collective bargaining agreement. (Opp'n at 12-18). Contrary to Defendants' arguments, however, Plaintiffs' August 24 discovery responses were not the first indication that Plaintiffs belonged to the Union, or that interpretation of a collective bargaining agreement might be necessary. Plaintiffs' August 3 discovery requests clearly referred to the applicability of the collective bargaining agreements, and were pregnant with information indicating the removability of the action. The court concludes that removability of this matter was ascertainable from Plaintiffs' August 3, 2010 discovery requests.

Plaintiffs' written requests for admission and document requests, served on August 3, 2010 constitute "other paper" under 28 U.S.C. ¶ 1446(b). The removability of this matter was clearly ascertainable from that "other paper." Thus, the thirty-day removal period began on August 3, 2010. Defendants' Notice of

Removal, filed fifty-one days later on September 23, was therefore untimely.

III. Conclusion

For the reasons set forth above, the court GRANTS the Motion for Remand. In addition, the SCHEDULING CONFERENCE set for January 10, 2011 is vacated.

IT IS SO ORDERED.


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