United States District Court, E.D. California
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.
ORDER DENYING PLAINTIFF'S MOTION TO REMAND (Doc.
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.
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.)
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").
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
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.)
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)).
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.
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
Timeliness of Removal
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 ...