United States District Court, C.D. California
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
(in chambers): ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO REMAND [Docket No. 15]
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.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.
FACTUAL AND PROCEDURAL BACKGROUND
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. ¶
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"). (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.)
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. 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.
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).
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).
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).
Defendants Fail to Establish that Federal Question
Jurisdiction Exists Based on Federal Preemption
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 ...