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Van Bebber v. Dignity Health

United States District Court, E.D. California

August 30, 2019

ROBERT VAN BEBBER, on behalf of himself and all others similarly situated and the general public, Plaintiffs,
DIGNITY HEALTH, a California Corporation; dba MERCY MEDICAL CENTER - MERCED, and DOES 1 to 100, inclusive, Defendants.


         This matter is before the court on plaintiff Robert Van Bebber's motion to remand this action to Merced County Superior Court and to impose sanctions on defendant Dignity Health, doing business as Mercy Medical Center - Merced ("Dignity Health"), for removing the action to this federal court. (Doc. No. 9.) On May 21, 2019, that motion came before the court for hearing. Attorney Janelle Carney appeared on behalf of plaintiff, and attorney Daniel McQueen appeared on behalf of defendant. Following the hearing, the court issued an order directing the parties to submit supplemental briefing addressing the timeliness of the removal. (Doc. No. 17.) On August 15, 2019 the parties filed their supplemental briefs. (Doc. Nos. 21, 22.) Having considered all of the parties' briefing and heard from counsel, and for the reasons that follow, plaintiffs motion will be denied.


         Plaintiff filed his complaint in Merced County Superior Court on July 13, 2017. (Doc. No. 1-1 at 5.) On behalf of himself and all others similarly situated, as well as on behalf of the general public, plaintiff alleges multiple violations of California wage and hour statutes. (Id.) These include the alleged failure to pay proper wages and overtime compensation, a failure to provide for meal and rest breaks, and a violation of California's Unfair Competition Law. After proceeding in state court for roughly a year and a half, defendant removed this action to this federal court on February 22, 2019 pursuant to 28 U.S.C. § 1446(b)(3). (Doc. No. 1 at ¶ 8.) On March 22, 2019, plaintiff filed the pending motion to remand. (Doc. No. 9.) Defendant filed an opposition on May 7, 2019. (Doc. No. 13.) Plaintiff filed his reply on May 14, 2019. (Doc. No. 14.)


         A defendant in state court may remove a civil action to federal court so long as that case could originally have been filed in federal court. 28 U.S.C. § 1441(a); City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997). Thus, removal of a state action maybe based on either diversity jurisdiction or federal question jurisdiction. City of Chicago, 522 U.S. at 163; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Removal jurisdiction is based entirely on federal statutory authority. See 28 U.S.C. § 1441 et seq. These removal statutes are strictly construed, and removal jurisdiction is to be rejected in favor of remand to the state court if there are doubts as to the right of removal. Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012); Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The defendant seeking removal of an action from state court bears the burden of establishing grounds for federal jurisdiction by a preponderance of the evidence. Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009); Gaus, 980 F.2d at 566-67. The district court must remand the case "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c); see also Smith v. Mylan, Inc., 761 F.3d 1042, 1044 (9th Cir. 2014); Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (holding that remand for lack of subject matter jurisdiction "is mandatory, not discretionary").


         Central to resolution of the pending motion is the question of whether, as defendant argues, plaintiffs claim for unpaid overtime is preempted by federal law. Discussion of the relevant legal framework with respect to that issue is therefore necessary.

         In its answer to plaintiffs complaint, defendant asserted that some or all of plaintiff's claims "are barred and/or preempted by the Labor Management Relations Act." (Doc. No. 1-8 at 6.) In its opposition to plaintiffs motion for remand, defendant has clarified its argument that removal to federal court is appropriate because plaintiffs second cause of action for failure to pay overtime is preempted by § 301 of the Labor Management Relations Act ("LMRA"), 28 U.S.C. § 185. (Doc. No. 13 at 5.)

         Ordinarily, a defendant's assertion of a federal affirmative defense to a state law claim does not render the action removable. Instead, "the presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998); Provincial Gov't of Marinduque, 582 F.3d at 1091. "A defense is not part of a plaintiff s properly pleaded statement of his or her claim." Rivet, 522 U.S. at 475. However, in the specific context of preemption under § 301 of the LMRA, the Ninth Circuit has recognized that preemption "has such 'extraordinary pre-emptive power' that it 'converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152 (9th Cir. 2019) (quoting Metro. Life Ins. v. Taylor, 481 U.S. 58, 65 (1987)).

         Section 301 "authorizes] federal courts to create a uniform body of federal common law to adjudicate disputes that arise out of labor contracts." Id. at 1151 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985) and Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04 (1962)). As the Ninth Circuit recently explained,

federal preemption under § 301 "is an essential component of federal labor policy" for three reasons. Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 917-18 (9th Cir. 2018) (en banc). First, "a collective bargaining agreement is more than just a contract; it is an effort to erect a system of industrial self-government." Id. at 918 (internal quotation marks and citations omitted). Thus, a CBA is part of the "continuous collective bargaining process." United Steelworkers v. Enter. Wheel & Car Corp. (Steelworkers III), 363 U.S. 593, 596 (1960). Second, because the CBA is designed to govern the entire employment relationship, including disputes which the drafters may not have anticipated, it "calls into being a new common law-the common law of a particular industry or of a particular plant." United Steelworkers v. Warrior & Gulf Navigation Co. (Steelworkers II), 363 U.S. 574, 579 (1960). Accordingly, the labor arbitrator is usually the appropriate adjudicator for CBA disputes because he was chosen due to the "parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment." Mat 582. Third, grievance and arbitration procedures "provide certain procedural benefits, including a more prompt and orderly settlement of CBA disputes than that offered by the ordinary judicial process." Schurke, 898 F.3d at 918 (internal quotation marks and citations omitted).

Curtis, 913 F.3d at 1152.

         The determination of whether a claim is preempted by § 301 is made by way of a two-step inquiry. The first question is "whether the asserted cause of action involves a right conferred upon an employee by virtue of state law," or if instead the right is conferred by a CBA. Burnside v. KiewitPac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). If it is conferred solely by the CBA, the claim is preempted. Id. If not, courts proceed to the second step and ask whether the right is "nevertheless 'substantially dependent on analysis of a collective-bargaining agreement.'" Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987)). Once preempted, "any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Caterpillar Inc., 482 U.S. at 393; see also Diaz v. Sun-Maid Growers of Cal, No. 1:19-cv-00149-LJO-SKO, 2019 WL 1785660, at *7-8 (E.D. Cal. Apr. 24, 2019) (denying plaintiffs motion to remand after determining that plaintiffs overtime claim was preempted by § 301).

         A. Timeliness of Removal

          Before resolving the question of whether the overtime claim brought in this case is preempted, the court first addresses plaintiffs argument that defendant's removal of the action from state court was untimely. (Doc. No. 9-1 at 18.) Generally speaking, removal of a civil action or proceeding must be filed within 30 days after receipt by the defendant of a copy of the initial pleading. 28 U.S.C. § 1446(b)(1). However, a separate provision of that statute provides that "if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). Defendant argues in its opposition brief that the Ninth Circuit's January 25, 2019 decision in Curtis v. Irwin Industries, Inc. constitutes ...

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