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Yung Hsing Ger v. Safeway

January 9, 2013

YUNG HSING GER,
PLAINTIFF,
v.
SAFEWAY, INC.,
DEFENDANT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER REMANDING CASE

Before the Court is a Motion to Remand for lack of subject matter jurisdiction filed pro se 18 by Yung Hsing Ger ("Plaintiff"). ECF No. 9 ("Mot."). Defendant Safeway, Inc. ("Safeway") filed 19 a timely opposition. See ECF No. 11 ("Opp'n"). Plaintiff did not file a reply. Having reviewed 20 the parties' submissions and the relevant law, the Court concludes that it lacks jurisdiction over this 21 matter, and therefore GRANTS Plaintiff's Motion to Remand. 22

I.BACKGROUND

Plaintiff filed a complaint alleging workplace discrimination and harassment against Defendant in the California Superior Court for the County of Santa Clara. ECF No. 1, Ex. A 25 ("Compl."). Plaintiff alleges wrongful termination from her job as a food clerk because of being 26 53 years old, blind in one eye, and Chinese. Id. On September 4, 2012, Safeway removed this 27 action to federal court, asserting federal question jurisdiction. See ECF No. 1 ("Notice of 28 Removal") at 2. The case was reassigned to the undersigned judge on September 12, 2012. ECF 2 No. 7. 3

II.LEGAL STANDARDS AND DISCUSSION 4

A suit may be removed from state court to federal court only if the federal court would have 5 had original subject matter jurisdiction over the claims. 28 U.S.C. § 1441(a). There are two bases 6 for federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331, and 7 (2) diversity jurisdiction under 28 U.S.C. § 1332. If it appears at any time before final judgment 8 that the federal court lacks subject matter jurisdiction, the federal court must remand the action to 9 state court. 28 U.S.C. § 1447(c). "The removal statute is strictly construed against removal 10 jurisdiction." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). Consequently, "[t]he defendant bears the burden of establishing that removal is proper," id., and "any doubt about the right of removal requires resolution in favor of remand," Moore-Thomas 13 v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

A.Federal Question Jurisdiction

Federal courts have original jurisdiction over civil actions "arising under the Constitution, 17 laws, or treaties of the United States." 28 U.S.C. § 1331. Removal pursuant to Section 1331 is 18 governed by the "well-pleaded complaint rule," which provides that federal question jurisdiction 19 exists only when "a federal question is presented on the face of plaintiff's properly pleaded 20 complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Taylor v. Anderson,21 234 U.S. 74, 75-76 (1914) (stating that federal question jurisdiction "must be determined from 22 what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, 23 unaided by anything alleged in anticipation or avoidance of defenses which it is thought the 24 defendant may interpose."). 25

"A resulting corollary to the well-pleaded complaint rule, known as the complete 26 preemption doctrine, provides that Congress may so completely preempt a particular area that any 27 civil complaint raising this select group of claims is necessarily federal in character." Moore-28

Thomas, 553 F.3d at 1243 (internal quotation marks and citations omitted). "[I]f a federal cause of action completely preempts a state cause of action[,] any complaint that comes within the scope of 2 the federal cause of action necessarily 'arises under' federal law." Id. at 1243--44 (citing 3 Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24 (1983)). 4

Finally, "[e]ven where . . . state law creates the cause of action, and no federal law completely preempts it, federal jurisdiction may still lie if 'it appears that some substantial, 6 disputed question of federal law is a necessary element of one of the well-pleaded state claims." 7 Rains v. Criterion Systems, Inc., 80 F.3d 339, 345 (9th Cir. 1996) (quoting Franchise Tax Bd., 463 8 U.S. at 13).

B.Plaintiffs' Complaint

Defendant construes Plaintiff's complaint to allege a violation of Title VII of the Civil Rights Act, and on this basis asserts that this Court has ...


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