United States District Court, N.D. California, San Jose Division
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND RE:
DKT. NO. 23
RXLOYD, UNITED STATES MAGISTRATE JUDGE
Mizra Dedic sued his former employer, Securitas Security
Services USA, Inc. (Securitas) in state court for alleged
wage and hour violations under state law. Securitas answered
the complaint and then removed the action here, asserting
federal question jurisdiction based on a collective
bargaining agreement (CBA) and complete preemption under
section 301 of the Labor Management Relations Act (LMRA), 29
U.S.C. § 185(a).
before the court are plaintiff's motion to remand this
matter to state court and defendant's motion for judgment
on the pleadings. All parties have expressly consented that
all proceedings in this matter may be heard and finally
adjudicated by the undersigned. 28 U.S.C. § 636(c);
Fed.R.Civ.P. 73. The matter is deemed suitable for resolution
without oral argument, and the May 8, 2018 hearing is
vacated. Civ. L.R. 7-1(b). Upon consideration of the moving
and responding papers, the court grants plaintiff's
motion to remand and does not reach defendant's motion
for judgment on the pleadings.
to the complaint's allegations: Securitas provides
security services throughout the United States and
California. (Dkt. 1, Complaint ¶ 7). Dedic was employed
by Securitas as a security guard, a non-exempt position, from
2011 to 2013 in San Jose, California. (Id. ¶
6). When they are hired, Securitas (1) provides security
guards, including Dedic, documents advising that due to the
nature of their duties, most assignments do not allow guards
to leave the job site for meal periods; and (2) requires
guards to sign an agreement to that effect. (Id.
12-14). The complaint goes on to allege that Dedic was never
informed of his right under California law to an off-duty
meal period or the circumstances under which he would be
entitled to an off-duty meal period. Additionally, plaintiff
says he routinely worked more than five hours (or multiples
thereof) without being provided off-duty meal periods.
(Id. ¶¶ 15, 17). Plaintiff further claims
that Securitas failed to provide compliant rest breaks;
failed to properly compensate him for all overtime hours
worked; and failed to provide accurate itemized wage
statements as required by Industrial Welfare Commission (IWC)
Wage Orders and the California Labor Code.
brought this suit in Santa Clara County Superior Court,
asserting five claims for relief: (1) failure to provide meal
periods or compensation therefor, IWC Wage Order 4-2001; Cal.
Labor Code §§ 200, 203, 226.7, 512; (2) failure to
provide rest periods or compensation therefor, IWC Wage Order
4-2001; Cal. Labor Code § 226.7; (3) failure to provide
accurate wage statements, Cal. Labor Code § 226; (4)
unlawful, deceptive and/or unfair business practices, Cal.
Bus. & Prof. Code § 17200, et seq. (UCL
claim); and (5) failure to pay overtime compensation, Cal.
Labor Code §§ 1194, 1197, 1197.1. Securitas removed
the matter here, asserting federal question jurisdiction
under 28 U.S.C. § 1331 based on LMRA preemption, and
supplemental jurisdiction under 28 U.S.C. § 1367.
contends that his claims arise only under state law and are
not preempted by the LMRA. He therefore moves to remand on
the ground that this court lacks subject matter jurisdiction
over this case. Maintaining that plaintiff's claims
are preempted, Securitas seeks judgment on the pleadings,
arguing that Dedic (1) cannot pursue his claims in court
because he was required, but failed, to proceed with the
grievance and arbitration process set out in the CBA; (2) is
exempt from California's statutory meal and overtime
requirements by virtue of Cal. Labor Code §§
512(e), 512(f), and 514; and (3) fails to state a claim for
first to plaintiff's motion for remand and, for the
reasons to be discussed, the court concludes that LMRA
section 301 preemption does not apply and that the court
lacks subject matter jurisdiction over this case. As such,
the court grants plaintiff's motion for remand and does
not reach defendant's motion for judgment on the
to federal court is proper where the federal court would have
original subject matter jurisdiction over the complaint. 28
U.S.C. § 1441. The removal statutes are strictly
construed against removal and place the burden on the
defendant to demonstrate that removal is proper.
Moore-Thomas 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)). Additionally,
the court has a continuing duty to determine whether it has
subject matter jurisdiction. Fed.R.Civ.P. 12(h). A case must
be remanded to the state court if it appears at any time
before final judgment that the court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c).
courts have original jurisdiction over civil actions
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. A claim
“arises under” federal law if, based on the
“well-pleaded complaint rule, ” the plaintiff
alleges a federal claim for relief. Vaden v. Discovery
Bank, 129 S.Ct. 1262, 1272 (2009). Defenses and
counterclaims asserting a federal question do not satisfy
this requirement. Id.
even when only state law claims have been pled,
“complete preemption” provides a basis for
removal. Caterpillar, Inc. v. Williams, 482 U.S.
386, 393 (1987). LMRA section 301 has complete preemptive
force and vests jurisdiction in federal courts for
“[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). Once preempted, any claim purportedly based on
preempted state law “is considered, from its inception,
a federal claim, and therefore arises under federal
law.” Caterpillar, 482 U.S. at 393.
determine whether LMRA section 301 preemption applies, courts
in the Ninth Circuit apply a two-part test. First, the court
makes “an inquiry into whether the asserted cause of
action involves a right conferred upon an employee by virtue
of state law, not by a CBA.” Burnside v. Kiewitt
Pacific Corp., 491 F.3d 1053, 1059 (9th Cir. 2007).
“If the right exists solely as a result of the CBA,
then the claim is preempted, and [the] analysis ends
there.” Id. (citing Allis-Chalmers Corp.
v. Lueck, 471 U.S. 202, 212 (1985)). But, if the right
exists independently of the CBA, then the court “must
still consider whether it is nevertheless
‘substantially dependent on analysis of a
collective-bargaining agreement.'” Id.
(quoting Caterpillar, 482 U.S. at 394). “If
such dependence exists, then the claim is preempted by
section 301; if not, then the claim can proceed under state
law.” Id. at 1059-60. LMRA section 301
“cannot be read broadly to pre-empt nonnegotiable
rights conferred on individual employees as a matter of state
law . . . it is the legal character of a claim, as