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Romo v. Shimmick Constr. Co., Inc.

United States District Court, N.D. California

November 14, 2014

JUAN ROMO, Plaintiff,

For Juan Romo, Individually and on behalf of other members of the general public similarly situated, Plaintiff: William Bransfield Sullivan, LEAD ATTORNEY, Clint S. Engleson, Sullivan Law Group, APC, San Diego, CA; Eric Keith Yaeckel, Sullivan Law Group, San Diego, CA.

For Shimmick Construction Company, Inc., a California corporation, Defendant: William Alexander Bogdan, LEAD ATTORNEY, Arif Virji, Julie Lynn Fieber, Lynch Gilardi & Grummer, San Francisco, CA.


JOSEPH C. SPERO, United States Magistrate Judge.


Plaintiff Juan Romo moves to remand this action to state court after removal by Defendant Shimmick Construction Company, Inc. (" Shimmick") from the Superior Court of California, Alameda County. Shimmick asserts that federal question jurisdiction exists because section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (" LMRA"), preempts certain state law causes of action. Romo filed a Motion to Remand (Dkt. 10), contending the First Amended Complaint does not raise any federal question and that he is not bound by any collective bargaining agreement (" CBA") that would cause section 301 of the LMRA to preempt his state law claims.

Shimmick filed a motion to stay this action and compel arbitration (the " Motion to Compel, " Dkt. 16) pursuant to the Federal Arbitration Act (" FAA"), 9 U.S.C. § § 3, 4. Romo opposes the Motion to Compel, arguing again that he is not bound by any CBA containing an arbitration agreement, and that the arbitration provisions of the purported CBAs are unconscionable.

The Court held a hearing on the Motion to Remand on July 25, 2014, and a hearing on both Motions on September 19, 2014, and ordered additional discovery after the first hearing and supplemental briefing after the second. For the reasons explained below, Romo's Motion to Remand is GRANTED, and Shimmick's Motion to Compel is DENIED for lack of jurisdiction. Romo also filed an ex parte application requesting that the Court consider additional evidence. That application is DENIED as moot.[1]


A. Factual and Procedural Background

Romo filed this action against Shimmick on April 17, 2014, in the Superior Court of California, Alameda County, Case No. HG14721863, on behalf of himself and all other similarly situated individuals. See Notice of Removal, Ex. E (First Amended Complaint) (" Complaint" or " FAC"). Romo alleges that he was continuously employed by Shimmick from October 2011 to approximately April 23, 2013. Id. ¶ 18.

The First Amended Complaint alleges seven statutory causes of action under state law: failure to pay employees for hours worked in violation of California Labor Code § 1194; failure to provide meal and rest periods in violation of Labor Code § § 512 and 226.7 and California IWC Wage Order 16; failure to reimburse employees for necessary business expenses in violation of Labor Code § 2802; failure to include accurate information in employees' wage statements in violation of Labor Code § 226; failure to provide all compensation upon termination of employment in violation of Labor Code § § 201-03; conduct in violation of Business Professions Code § 17200 et. seq .; and a Private Attorneys General Act claim under Labor Code § § 2698-99.5.

Shimmick removed this case to federal district court asserting federal question jurisdiction on the basis that certain claims are preempted by section 301 of the LMRA, 29 U.S.C. § 185(a). Shimmick states that Romo was an employee of a joint venture between Shimmick and Obayashi Corporation, known as the Shimmick Construction Company Inc./Obayashi Corporation JV (the " Joint Venture"). Declaration of Scott Fairgrieve in Support of Notice of Removal (" Fairgrieve Decl., " Dkt. 14-1) ¶ 2. Shimmick submitted a joint venture agreement which shows that the Joint Venture was established " for the exclusive purpose of bidding on construction and related work on the San Vincente Dam Raise Project . . . and, if awarded a contract for work on the Project to enter into and perform the contract . . . ." Fairgrieve Decl. Ex. 1. The Joint Venture was awarded a portion of the San Vincente Dam Raise Project. Fairgrieve Decl. ¶ 2.

The Joint Venture then signed a Letter of Assent agreeing to be bound by the Emergency Storage Project Labor Agreement (the " Project Labor Agreement") dated June 1, 1999 that had been entered into by and between Parsons Constructors, Inc., the Building and Construction Trades Department, AFL-CIO, and other international and local unions including Laborers' International Union of North America, Local No. 89 (" Local 89"). Fairgrieve Decl. ¶ 3, Ex. 2 (Letter of Assent), Ex. 3 (Project Labor Agreement). Article II, section 4 of the Project Labor Agreement provides:

The provisions of this Project Labor Agreement (including the Schedule A's, which are the local Collective Bargaining Agreements between bona fide contractor groups or representatives and the signatory Unions having covered work that corresponds to Qualifying Work on ...

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