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Dedic v. Securitas Security Services USA, Inc.

United States District Court, N.D. California, San Jose Division

May 7, 2018

MIZRA DEDIC, Plaintiff,
v.
SECURITAS SECURITY SERVICES USA, INC., Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION TO REMAND RE: DKT. NO. 23

          HOWARD RXLOYD, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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).

         Now 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.

         BACKGROUND

         According 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.

         Dedic 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.

         Plaintiff 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.[1] 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 relief.[2]

         Turning 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 pleadings.

         DISCUSSION

         A. Legal Standard

         Removal 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).

         Federal 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.

         However, 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.

         To 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 ...


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