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Herring v. Union Pacific Railroad Co.

United States District Court, C.D. California

April 19, 2017

Christopher Herring
Union Pacific Railroad Co., et al.




         This matter is before the Court on Plaintiff Christopher Herring's ("Plaintiff") Motion to Remand ("Motion"), filed March 30, 2017. Defendants Union Pacific Railroad Co., George Slaats, Christopher Mengel, Robert Morrison, Robert M. Grimaila, and Joshua N. Closson (collectively, "Defendants") filed their Opposition on April 10, 2017, to which Plaintiff replied on April 14, 2017.[1]The Court found this matter suitable for disposition without oral argument and vacated the hearing set for May 1, 2017. See Fed. R. Civ. P. 78(b). For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion.


         In his Complaint, Plaintiff alleges the following. Plaintiff is and at all times was employed by Defendant Union Pacific Railroad Co. ("Union Pacific") as a lieutenant in its police force in Los Angeles County and other counties in California. (Notice of Errata and Correction to Defs.' Notice of Removal ("Errata"), ECF No. 6, Ex. A Complaint ("Compl.") ¶ 10, ECF No. 6-1.) The individual named Defendants are employees at Union Pacific and were Plaintiff's supervisors. (Compl. ¶ 18.) Plaintiff alleges that, on or about January 29, 2014, a Union Pacific Police Department Special Agent was injured during the course of his employment. (Compl. ¶ 19.) Although Plaintiff had no involvement in the injury, Plaintiff learned in the fall of 2014 that his 2015 pay, stock options, and bonus would be adversely affected by the injury. (Compl. ¶ 23.) On February 5, 2015, Plaintiff learned that he was denied any stock options and did not receive his full annual bonus or pay raise for 2014 as a result of the injury. (Compl. ¶ 25.)

         On April 8, 2015, another Special Agent was allegedly injured in the course of his employment. (Compl. ¶ 26.) Plaintiff alleges that he was ordered by his supervisors to, but refused to, participate in Union Pacific's harassment, retaliation, and discrimination against the Special Agent for sustaining an on-the-job injury. (Compl. ¶ 29.) Plaintiff filed a complaint with Union Pacific and its law enforcement agency about the proposed and actual illegal retaliatory actions against the Special Agent. Thereafter, Defendant Robert Morrison ("Morrison") called Plaintiff to admonish him about his filing a whistleblower complaint. (Compl. ¶ 31.) On May 4, 2015, Plaintiff learned that he would no longer be permitted to be part of the hiring panel, a position he had been involved in for over nine years. (Compl. ¶ 32.) On May 29, 2015, Plaintiff filed an online whistleblower complaint with the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA"), alleging that he received a negative performance evaluation in February 2015 arising out of an on-duty injury that an employee reported to him, which he reported to his supervisors (the "Whistleblower Complaint").[2] (See Compl. ¶ 33; Removal, Ex. 2 Decl. of Betsy S. Gassaway ("Gassaway Decl."), ECF No. 1-5, Ex. A 8-9.) Plaintiff alleges that Defendants continued to retaliate against Plaintiff and his patrol unit. (See Compl. ¶¶ 35-42.)

         On January 31, 2017, Plaintiff filed his Complaint in the California Superior Court for the County of Riverside, alleging: (1) retaliation in violation of public policy (Tameny claim); (2) harassment in violation of public policy; and (3) California Labor Code ("CLC") violations.[3] Most of the Defendants were served with the Summons and Complaint on February 2, 2017, February 6, 2017, and February 9, 2016. (Notice of Removal ("Removal") ¶¶ 3-8, ECF No. 1.) On March 3, 2017, Defendants removed the action to this Court; all Defendants join in the removal. (Removal ¶¶ 14, 42.) Defendants removed the action pursuant to 28 U.S.C. section 1331, on the basis that the Federal Railroad Safety Act, 49 U.S.C. §§ 20101, et seq. ("FRSA"), preempts the Complaint. (Removal ¶ 20.) As discussed below, the Court REMANDS the action.


         A. Legal Standard

         An action is removable to federal court only if it might have been brought there originally. See 28 U.S.C. § 1441(a). The removal statute is "strictly construe[d] . . . against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (internal citations omitted). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal . . . ." Id. (internal citation omitted). "Th[is] 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (internal citations omitted).

         In determining whether a claim "aris[es] under the Constitution, laws, or treaties of the United States" under 28 U.S.C. section 1331, the well-pleaded complaint rule "provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Fisher v. NOS Commc'ns, 495 F.3d 1052, 1057 (9th Cir. 2007) (internal quotation marks and citations omitted). Thus, "the plaintiff is the master of his complaint and may avoid federal jurisdiction by relying exclusively on state law." Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quotation marks and citation omitted). It is "settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 14 (1983); accord, Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005).

         Under the "complete preemption doctrine" exception, however, if "federal law completely preempts a plaintiff's state-law claim . . . any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Botsford v. Blue Cross & Blue Shield of Mont., 314 F.3d 390, 393 (9th Cir. 2002) (internal citation and quotations omitted). In order to completely preempt state-law causes of action, the "federal law must both: (1) conflict with state law (conflict preemption) and (2) provide remedies that displace state[-]law remedies (displacement)." Id. (internal citations omitted).

         B. Defendants Fail to Establish that Federal Question Jurisdiction Exists Based on Federal Preemption

         Defendants' sole basis for removal is that the FRSA completely preempts the Complaint. (Removal ¶ 20; Opp'n 3, ECF No. 22.) Specifically, Defendants argue that the FRSA's election of remedies provision bars a railroad employee from seeking protection under both the FRSA "and another provision of law for the same allegedly unlawful act of the railroad carrier." (Removal ¶ 28) (citing 49 U.S.C. § 20109(f)). Thus, Defendants argue, by virtue of Plaintiff's filing of the Whistleblower Complaint "for the same allegedly wrongful acts that he ...

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