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Charles Smith, Craig andrade, Darryl Shaw, and Gary v. Dreyer's Grand Ice Cream

February 14, 2012




Plaintiffs Charles Smith, Craig Andrade, Darryl Shaw, And Gary Elizarrey (collectively, "Plaintiffs") brought this putative class 19 action in Alameda County Superior Court alleging that Defendants 20 Dreyer's Grand Ice Cream, Inc., dba Nestle Dreyer's Ice Cream 21 Company ("Defendant"), and Does 1 through 50 failed to pay wages 22 and provide meal periods as required by California law. ECF No. 2 Ex. 1 ("Compl."). Defendant subsequently removed the action to 24 federal court. ECF No. 1 ("Not. of Removal."). Now before the 25 Court is Plaintiffs' Motion to Remand this action back to state 26 court. ECF No. 7 ("Mot."). The Motion is fully briefed. ECF Nos. 27 17 ("Opp'n"), 20 ("Reply"). Pursuant to Civil Local Rule 7-1(b), 28 the Court finds the motion suitable for determination without oral argument. For the following reasons, the Court GRANTS Plaintiffs' Motion and REMANDS this action to the Superior Court of the State 3 of California in and for the County of Alameda. 4 5


Defendant is a Delaware Corporation which delivers Nestle and Dreyer's ice cream products nationwide, including in the state of California. Compl. ¶ 4. Plaintiffs are current or former delivery 9 or route drivers for Defendant at its Hayward, California location. Id. ¶ 3. Plaintiffs are all California residents. Id. Plaintiffs court 11 allege that Defendant: (1) fails to provide Plaintiffs with meal breaks as required by California law; (2) automatically deducts thirty minutes from Plaintiffs' hours worked every day, denying tates D Plaintiffs wages for all hours worked; and (3) fails to provide Plaintiffs with a second meal period when they work more than 10 hours per day. Id. ¶¶ 8-12.

On September 8, 2011, Plaintiffs filed this putative class

18 action in Alameda County Superior Court on behalf of themselves and 19 all other current and former delivery drivers employed by Defendant 20 in the state of California. Id. ¶ 13. Plaintiffs' Complaint 21 alleges seven statutory causes of action arising under California 22 law: (1) failure to provide meal periods in violation of California 23 Labor Code § 226.7; (2) & (3) failure to pay earned wages in 24 violation of California Labor Code §§ 204, 216; (4) failure to pay 25 minimum wage in violation of California Labor Code § 1194; (5) 26 penalty for failure to provide accurate wage statements in 27 violation of California Labor Code § 226; (6) penalty for failure 28 to pay unpaid wages to severed employees in violation of California Labor Code §§ 201, 202 and 203; and (7) unfair competition and 2 unfair business practices in violation of California Labor Code § 17200. Id. ¶¶ 20-61. Plaintiffs do not assert any federal causes 4 of action. 5

On October 26, 2011, Defendant removed this action to federal 6 court pursuant to 28 U.S.C. §§ 1331 and 1441, claiming that the Court could assert federal question jurisdiction. Specifically, Defendant argued that Plaintiffs' claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, because they require substantial interpretation of siX provisions of a collective bargaining agreement ("CBA") governing the terms and conditions of Plaintiffs' employment. Not. of Removal at 7. Defendants' Notice of Removal does not explain why or how Plaintiffs' claims will require interpretation of the CBA.

Plaintiffs subsequently moved to remand and sought attorney's fees for the cost incurred as a result of the removal.


A complaint originally filed in state court may be removed to 20 federal court within thirty days of service on the defendant. 28 21 U.S.C. §§ 1441(a), 1446(b). On a motion to remand, a defendant 22 bears the burden of showing that a federal court would have 23 jurisdiction from the outset; in other words, that removal was 24 proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 25 Courts "strictly construe the removal statute against removal 26 jurisdiction," and "[f]ederal jurisdiction must be rejected if 27 there is any doubt as to the right of removal in the first 28 instance." Id., see also Plute v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 (N.D. Cal. 2001)("any doubt is resolved in 2 favor of remand"). A district court's subject matter jurisdiction 3 is determined on the basis of the complaint at time of removal, not 4 as subsequently amended. Sparta Surgical Corp. v. Nat'l Ass'n of Secs. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). 6


A. Preemption Under Section 301 of the LMRA Plaintiffs' Motion turns on whether the LMRA preempts Plaintiffs' state law claims. Section 301 of the LMRA vests federal jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce[.]" 29 U.S.C. § 185(a). The Supreme Court has expanded the preemptive scope of Section 301 to cases for which resolution "is substantially dependent upon analysis of the terms of [a CBA.]" Allis-Chambers Corp. v. Lueck, 471 U.S. 202, 220 (1985). 18

However, "mere consultation of the CBA's terms, or a 19 speculative reliance on the CBA will not suffice to preempt a state 20 law claim." Humble v. Boeing Co., 305 F.3d 1004, 1008 (9th Cir. 21 2002). "[A]s long as the state-law claim can be resolved without 22 interpreting the agreement itself, the claim is 'independent' of 23 the agreement for § 301 pre-emption purposes." Cramer v. Consol. 24 Freightways, Inc., 255 F.3d 683, 690 (9th Cir. 2001). The Ninth 25 Circuit has "stressed that, in the context of § 301 complete 26 preemption, the term 'interpret' is defined narrowly - it means 27 something more than 'consider,' 'refer to,' or 'apply.'" Balcorta 28 v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2 2000). enacted by state legislatures. Humble, 305 F.3d at 1007. 5

Accordingly, a claim brought on the basis of a state law right that 6 is independent of the rights provided for under a CBA is not 7 preempted, even if the grievance arises under the same set of facts 8 that could be pursued under the CBA. Livadas v. Bradshaw, 512 U.S. 9 Section 301 is not intended to trump substantive labor laws 107, 123-24 (1994). "When the meaning of the [CBA] terms is not 10 the subject of dispute, the bare fact that a [CBA] will ...

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