1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BETTY HUSSEIN, Case No. 24-cv-06296-KAW

8 Plaintiff,

ORDER GRANTING IN PART

9 v. MOTION TO DISMISS, GRANTING

MOTION TO REMAND

10 MARIN GENERAL HOSPITAL, Re: Dkt. Nos. 6, 11 11 Defendant.

12 13 On July 31, 2024, Plaintiff Betty Hussein filed the instant putative class action, asserting 14 violations of various California Labor Code provisions. (Req. for Judicial Notice (“RJN”), Exh. A 15 (“Compl.”) ¶ 3, Dkt. No. 5.) On September 6, 2024, Defendant Marin General Hospital removed 16 the case to federal court, asserting federal question jurisdiction based on preemption by the Labor 17 Management Relations Act (“LMRA”). (Not. of Removal ¶ 2, Dkt. No. 1.) 18 Pending before the Court are: (1) Plaintiff’s motion to remand, and (2) Defendant’s motion 19 to dismiss. (Pl.’s Mot. to Remand, Dkt. No. 11; Def.’s Mot. to Dismiss, Dkt. No. 6.) Having 20 considered the parties’ filings, the relevant legal authorities, and the arguments made at the 21 December 19, 2024 hearing, the Court GRANTS IN PART Defendant’s motion to dismiss, and 22 GRANTS the motion to remand the remaining case to state court. 23 I. BACKGROUND 24 From March 25, 2024 through June 20, 2024, Plaintiff was employed by Defendant as a 25 non-exempt employee. (Compl. ¶ 16.) Plaintiff alleges that Defendant had various policies and 26 practices that resulted in unpaid wages, including unevenly rounding non-exempt employees’ time 27 entries to the nearest 15-minute interval, not including all forms of compensation and 1 (Compl. ¶¶ 18, 24, 29, 30, 33.) During her employment, Plaintiff was a member of the Teamsters 2 Union Local 856 and subject to collective bargaining agreements (“CBA”) between Defendant and 3 Teamsters Union Local 856 (“Teamsters CBAs”). (Lewis Decl. ¶¶ 6-8, 10, Dkt. No. 1-3.) 4 On July 31, 2024, Plaintiff filed suit in state court, asserting claims for: (1) failure to pay 5 minimum wage, (2) failure to pay overtime, (3) meal period violations, (4) rest period violations, 6 (5) failure to pay sick time, (6) failure to provide accurate itemized wage statements, (7) waiting 7 time penalties, and (8) unfair competition. Plaintiff’s claims were based on violations of various 8 California Labor Code provisions and Wage Orders. On September 6, 2024, Defendant removed 9 the case, asserting that § 301 of the LMRA preempted Plaintiff’s overtime claim because it was 10 based solely on rights created by the Teamsters CBAs, not the California Labor Code. (Not. of 11 Removal ¶ 2.) Defendant further asserted that all of Plaintiff’s claims required significant 12 interpretation of the Teamsters CBAs. (Not. of Removal ¶ 2.) 13 On September 13, 2024, Defendant moved to dismiss the case. On September 26, 2024, 14 Plaintiff filed her opposition. (Pl.’s Opp’n, Dkt. No. 10.) On October 4, 2024, Defendant filed its 15 reply. (Def.’s Reply, Dkt. No. 12.) 16 On September 26, 2024, Plaintiff filed a motion to remand. On October 10, 2024, 17 Defendant filed its opposition. (Def.’s Opp’n, Dkt. No. 13.) On October 17, 2024, Plaintiff filed 18 its reply. (Pl.’s Reply, Dkt. No. 14.) 19 II. LEGAL STANDARD 20 A. Motion to Dismiss 21 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based 22 on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 23 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 24 F.3d 729, 732 (9th Cir. 2001). 25 In considering such a motion, a court must “accept as true all of the factual allegations 26 contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation 27 omitted), and may dismiss the case or a claim “only where there is no cognizable legal theory” or 1 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 2 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation 3 marks omitted). 4 A claim is plausible on its face when a plaintiff “pleads factual content that allows the 5 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate 7 “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 8 will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 9 “Threadbare recitals of the elements of a cause of action” and “conclusory statements” are 10 inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th 11 Cir. 1996) (“[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat 12 a motion to dismiss for failure to state a claim.”). “The plausibility standard is not akin to a 13 probability requirement, but it asks for more than a sheer possibility that a defendant has acted 14 unlawfully . . . When a complaint pleads facts that are merely consistent with a defendant's 15 liability, it stops short of the line between possibility and plausibility of entitlement to relief.” 16 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal citations omitted). 17 Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no 18 request to amend is made “unless it determines that the pleading could not possibly be cured by 19 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations 20 omitted). 21 B. Motion to Remand 22 “The strong presumption against removal jurisdiction means that the defendant always has 23 the burden of establishing that removal is proper, and that the court resolves all ambiguity in favor 24 of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 25 (quotations and citations omitted). Federal courts must “reject federal jurisdiction if there is any 26 doubt as to the right of removal in the first instance.” Grancare, LLC v. Thrower by & through 27 Mills, 889 F.3d 543, 550 (9th Cir. 2018) (quotations and citations omitted). 1 III. DISCUSSION 2 At issue in both the motion to dismiss and motion to remand is whether Plaintiff’s claims 3 are preempted by the LMRA, such that federal question jurisdiction is proper. In general, “[t]he 4 presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint 5 rule,’ which provides that federal jurisdiction exists only when a federal question is presented on 6 the face of the plaintiff’s properly pleaded complaint.” Balcorta v. Twentieth Century-Fox Film 7 Corp., 208 F.3d 1102, 1106 (9th Cir. 2000); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 8 (1987). Thus, removal is usually not appropriate for “[a] defense of pre-emption, even if the 9 defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal 10 defense is the only question truly at issue.” Caterpillar, Inc., 482 U.S. at 393. 11 “A corollary to the well-pleaded complaint rule is the ‘complete preemption’ doctrine, 12 which applies in cases in which ‘the preemptive force of a statute is so extraordinary that it 13 converts an ordinary state common-law complaint into one stating a federal claim for purposes of 14 the well-pleaded complaint rule.’” In re NOS Commc'ns, MDL No. 1357, 495 F.3d 1052, 1057 15 (9th Cir. 2007) (quoting Caterpillar, 482 U.S. at 393). One such statute is § 301 of the LMRA, 16 which provides “[s]uits for violation of contracts between an employer and a labor organization… 17 may be brought in any district court of the United States.” 29 U.S.C. § 185(a). In Curtis v. Irwin 18 Industries, Inc., the Ninth Circuit expressly found that § 301 was an exception to the general rule 19 that “federal preemption is a defense that does not authorize removal to federal court, [because] § 20 301 has such ‘extraordinary pre-emptive power’ that it ‘converts an ordinary state common law 21 complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’” 913 22 F.3d 1146, 1152 (9th Cir. 2019) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). 23 As a result, “a civil complaint raising claims preempted by § 301 raises a federal question that can 24 be removed to a federal court.” Id. 25 In Burnside v. Kiewit Pacific Corp., the Ninth Circuit adopted a two-part test for analyzing 26 whether § 301 preempts a state law claim. 491 F.3d 1053, 1059 (9th Cir. 2007). Under the 27 Burnside test, courts first “ask whether the asserted cause of action involves a right [that] exists 1 If the answer to the first question is yes, then “the claim is preempted and [the] analysis ends 2 there.” Id. at 1153 (quoting Burnside, 491 F.3d at 1059). If the answer to the first question is no, 3 then courts “proceed to the second step and ask whether a plaintiff's state law right is substantially 4 dependent on analysis of” the collective bargaining agreement. Id. (quotations and citations 5 omitted). To answer this question, courts consider “whether the claim cannot be resolved by 6 simply look[ing] to versus interpreting the CBA.” Id. (quotations and citations omitted). 7 A. Second Claim: Overtime 8 Defendant asserts that Plaintiff’s overtime claim is preempted by the LMRA because 9 pursuant to California Labor Code § 514, her right to overtime arises under the Teamsters CBAs, 10 not California labor law. (Def.’s Mot. to Dismiss at 11-12; Def.’s Opp’n at 2.) Labor Code § 514 11 provides that Labor Code § 510’s overtime requirement “does not apply to an employee covered 12 by a valid [CBA] if the agreement expressly provides for the wages, hours of work, and working 13 condition of the employees, and if the agreement provides premium wage rates for all overtime 14 hours worked and a regular hourly rate of pay for those employees of not less than 30 percent 15 more than the state minimum wage.” Thus, if the Teamsters CBAs “meet the requirements of 16 section 514, [Plaintiff]’s right to overtime exists solely as a result of the CBA, and therefore is 17 preempted under § 301.” Curtis, 913 F.3d at 1154. 18 Plaintiff argues that her overtime claim is not preempted because § 514’s applicability is 19 an affirmative defense, relying primarily on pre-Curtis district court opinions. (Pl.’s Mot. to 20 Remand at 2; Pl.’s Opp’n at 4.) Post-Curtis, however, a majority of courts in this circuit have 21 found that an affirmative defense of § 301 is sufficient to raise a federal question that can be 22 removed even absent mention of a CBA or a concession from the plaintiff that the CBA applied to 23 them. See, e.g., Jimenez v. Young's Mkt. Co., LLC, No. 21-CV-02410-EMC, 2021 U.S. Dist. 24 LEXIS 24242482, at *17-18 (N.D. Cal. Dec. 20, 2021) (collecting cases). In so finding, such 25 courts have explained that “Curtis clearly stated that ‘a civil complaint raising claims preempted 26 by § 301 raises a federal question that can be removed to a federal court.’” Radcliff v. San Diego 27 Gas & Elec. Co., 519 F. Supp. 3d 743, 751 (S.D. Cal. 2021) (quoting Curtis, 913 F.3d at 1152). 1 conceded that the CBA was applicable. (Pl.’s Opp’n at 5; Pl.’s Reply at 3 (citing Ross v. Stater 2 Bros. Mkts., No. 5:19-CV-00755-SJO (KKx), 2019 U.S. Dist. LEXIS 208450, at *10 (C.D. Cal. 3 Aug. 8, 2019)).) Again, post-Curtis, a majority of courts in this Circuit -- including this Court -- 4 “have found that an affirmative defense of §301 is sufficient to raise a federal question that can be 5 removed even absent mention of a CBA or a concession from the plaintiff that the CBA applied to 6 them.” Lainez v. Wilhelm, Case No. 23-cv-04421-KAW, 2024 U.S. Dist. LEXIS 173859, at *11- 7 12 (N.D. Cal. Sept. 25, 2024); see also Radcliff, 519 F. Supp. 3d at 750 (“Plaintiff cannot artfully 8 plead around his CBA in his complaint because, regardless, preemption attaches to a CBA dispute 9 dressed in state law garb. Therefore, neither Plaintiff’s neglect in mentioning the CBA, nor his 10 refusal to explicitly concede the CBA applies to him in the first place, is dispositive[.]”); Jimenez, 11 2021 U.S. Dist. LEXIS 242424, at *17 (same). 12 Finally, Plaintiff argues that § 514 does not apply because the Teamsters CBAs do not 13 meet its requirements. (Pl.’s Opp’n at 1; Pl.’s Reply at 3.) Specifically, Plaintiff complains that 14 there is no provision for “final and binding arbitration.” (Id.) Section 514, however, does not 15 require “binding and final arbitration.” As Plaintiff does not dispute that the Teamsters CBAs 16 otherwise satisfy § 514, this argument fails. 17 Accordingly, the Court finds that because the Teamsters CBAs meet the requirements of § 18 514, Plaintiff’s “right to overtime exists solely as a result of the CBA, and therefore is preempted 19 under § 301.” Curtis, 913 F.3d at 1154. “Because [Plaintiff]’s right to overtime exists solely as a 20 result of the CBA . . . [her] claim fails at step one of the preemption analysis.” Id. at 1155. Thus, 21 the Court has federal question jurisdiction over Plaintiff’s overtime claim, and concludes that it 22 must be dismissed with prejudice because it is preempted. See id. (affirming dismissal of overtime 23 claim as preempted by § 301). 24 B. Fifth Claim: Sick Leave 25 Similarly, Defendant asserts that Plaintiff’s sick leave claim is preempted by the LMRA 26 because pursuant to California Labor Code § 245.5, her right to sick leave arises under the 27 Teamsters CBAs. (Def.’s Mot. to Dismiss at 14.) Section 245.5 states that § 246’s sick leave 1 provides for the wages, hours of work, and working conditions of employees, and expressly 2 provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days 3 for those employees, final and binding arbitrations of disputes . . . , and regular hourly pay of not 4 less than 30 percent more than the state minimum wage rate.” 5 Plaintiff argues that the Teamsters CBAs do not meet § 245.5’s requirement for final and 6 binding arbitration because the grievance procedure is insufficient. (Pl.’s Opp’n at 1.) First, 7 Plaintiff argues that there is no provision for final and binding arbitration depending on which 8 grievance procedure the parties choose. (Id. at 1-2.) The Court disagrees. The Teamsters CBAs 9 provide that, following best efforts by the union and Defendant to resolve the grievance, a party 10 may require an Adjustment Board to consider the matter. (RJN, Exh. B (“Teamsters CBA”) § 30.) 11 In the alternative, the Teamsters CBAs allow either party to bypass going before the Adjustment 12 Board and proceeding directly to arbitration. (Id.) Plaintiff complains that going before the 13 Adjustment Board means there is no option of arbitration, but a party can still choose to either go 14 to the Adjustment Board or arbitration. (Pl.’s Opp’n at 1-2.) Plaintiff provides no explanation for 15 why this is insufficient. Plaintiff also argues that the words “final and binding” do not appear in 16 the Teamsters CBAs, but fails to provide any explanation for how the arbitration provision is not 17 final and binding in practice. (See id. at 2.) Indeed, there is nothing in the Teamsters CBAs to 18 suggest that arbitration is not final or binding. 19 In the alternative, Plaintiff argues that the grievance procedure is unconscionable because 20 it includes shorter periods to bring a grievance, as well as shifting the fees of the arbitrator on the 21 losing party. (Pl.’s Opp’n at 2-4.) In so arguing, Plaintiff relies on general authority concerning 22 the enforceability of arbitration provisions, not whether an arbitration provision satisfies § 245.5’s 23 requirement for final and binding arbitration. (Id.) In any case, Plaintiff fails to satisfy the 24 unconscionability analysis. Courts apply state contract law to determine the enforceability of an 25 arbitration agreement. Pokorny v. Quixtar, 601 F.3d 987, 994 (9th Cir. 2010). Under California 26 law, “a contractual provision is unenforceable if it is both procedurally and substantively 27 unconscionable.” Kilgore v. KeyBank, Nat’l Ass’n, 718 F.3d 1052, 1058 (9th Cir. 2013) (emphasis 1 Procedural unconscionability concerns “oppression or surprise due to unequal bargaining power.” 2 Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1260 (9th Cir. 2017) (internal quotation omitted). 3 Here, Plaintiff provides no analysis regarding procedural unconscionability, let alone suggests that 4 there was unequal bargaining power between Defendant and the Teamsters Union Local 856. See 5 Allmaras v. Univ. Mech. & Eng’g Contr., Inc., No. 24-CV-01581-GPC-SBC, 2024 U.S. Dist. 6 LEXIS 212432, at *31-32 (S.D. Cal. Nov. 20, 2024) (“Here, the CBA was not a standardized 7 contract drafted by the employer[;] instead it was mutually arrived at after a negotiation process. 8 Moreover, the employer did not have superior bargaining power given that it was negotiating with 9 a union made up of hundreds of employees.”). 10 In the alternative, Plaintiff again argues that the applicability of § 245.5 is an affirmative 11 defense and that Curtis is distinguishable. (Pl.’s Opp’n at 6-7.) As discussed above, however, the 12 Ninth Circuit and the Supreme Court have recognized that the LMRA has such preemptive effect 13 as to “convert[] an ordinary state common law complaint into one stating a federal claim for 14 purposes of the well-pleaded complaint rule.” Curtis, 913 F.3d at 1152; Metro. Life Ins. Co. v. 15 Taylor, 481 U.S. at 65. Thus, as with the overtime claim, the Court finds that it has federal 16 jurisdiction over Plaintiff’s sick leave claim, and that this claim must be dismissed. 17 C. First, Third, and Fourth Claims: Minimum Wage, Meal and Rest Breaks 18 Next, Defendant argues that Plaintiff’s claims for minimum wage violations and meal and 19 rest period violations must be dismissed because they are preempted under the second Burnside 20 prong. (Def.’s Mot. to Dismiss at 16.) Specifically, Defendant contends that because these claims 21 are based on Defendant’s alleged failure to calculate the “regular rate of pay,” they are 22 “substantially dependent on interpretation of the CBA to calculate the ‘regular rate of pay.’” (Id.) 23 Under the second step of the Burnside test, the Court must consider “whether the claim can 24 be resolved by looking to versus interpreting the CBA.” Burnside, 491 F.3d at 1060. Only claims 25 that require “interpretation” are preempted. Id. “Interpret,” in turn, “is defined narrowly -- it 26 means something more than ‘consider,’ ‘refer to,’ or ‘apply.” Balcorta v. Twentieth Century-Fox 27 Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000). The Supreme Court has made “clear that when 1 consulted in the course of state-law litigation plainly does not require the claim to be 2 extinguished.” Livadas v. Bradshaw, 512 U.S. 107, 124 (1994). While the distinction between 3 “looking to” and “interpreting” is “not always clear or amenable to a bright-line test,” the Ninth 4 Circuit has explained that “neither looking to the CBA merely to discern that none of its terms is 5 reasonably in dispute, nor the simple need to refer to bargained for wage rates in computing a 6 penalty is enough to warrant preemption.” Burnside, 491 F.3d at 1060 (internal quotations 7 omitted). 8 In Wilson-Davis v. SSP America, Inc., the defendant argued that the court would have to 9 interpret numerous provisions of the CBA to determine the regular rate of pay, including rate 10 increases by supervisors, rate increases based on years of service, tips and gratuities, rates for 11 relief employees, rates for time between meetings and the start of the shift, reporting time, and 12 rates for work less than the scheduled shift. 434 F. Supp. 3d 806, 813 (C.D. Cal. 2020). In 13 rejecting the defendant’s argument, the district court noted that “[i]t is not enough for Defendants 14 to provide a laundry list of provisions that they allege the Court must interpret to resolve 15 Plaintiff’s claims; Defendants must explain why interpretation, as opposed to mere reference to the 16 CBA, is necessary.” Id. While the district court acknowledged there were numerous provisions 17 that it would need to look to, that did not mean interpretation was required. Id. at 813-14. 18 Here, Defendant likewise argues that the Court will have to examine the Teamsters CBAs’ 19 various rates of pay to determine when premium pay applies and at what rate, which includes 20 “forty-two (42) different job titles, with various employee and wage categories, subject to shift and 21 weekend differentials, standby and call-back pay, and different working hours, shifts, and 22 alternative work schedules.” (Def.’s Reply at 11.) None of this, however, suggests that 23 interpretation of the Teamsters CBAs is required, as opposed to application. That a court would 24 need to apply numerous provisions does not mean that there is a dispute over the contract terms, 25 such that interpretation is required. Indeed, at the hearing, Defendant merely argued there was a 26 dispute over the merits of the claim, but could not identify a dispute over the actual terms of the 27 Teamsters CBAs. 1 “regular rate” would be sufficient to satisfy Burnside’s “interpretation” requirement. (Def.’s Mot. 2 to Dismiss at 17 (citing No. CV 15-2939-AB (JPRx), 2015 U.S. Dist. LEXIS 69128 (C.D. Cal. 3 May 19, 2015)).) There, the district court found that it had to interpret the CBA because it needed 4 to “examine multiple CBA provisions to evaluate” the plaintiff’s claim. See McKinley, 2015 U.S. 5 Dist. LEXIS 69128, at *21. The Court disagrees that this is sufficient to require “interpretation” 6 of the CBA. Again, binding authority makes clear that reference or application of the CBA is 7 insufficient; interpretation requires a dispute over how to read the CBA terms itself. Burnside, 8 491 F.3d at 1060; Livadas, 512 U.S. at 124; Balcorta, 208 F.3d at 1108. 9 Accordingly, the Court finds that the first, third, and fourth claims are not preempted by 10 the LMRA. 11 D. Sixth through Eighth Claims: Wage Statement Violations, Waiting Time Penalties, and UCL 12 13 Defendant argues that because these claims are derivative of the overtime and sick leave 14 claims, they are also preempted and should therefore be dismissed. (Defs.’ Mot. to Dismiss at 15- 15 16.) Plaintiff does not respond. As discussed above, however, the Court finds that Plaintiff’s 16 claims for failure to pay minimum wage and provide for meal and rest breaks are not preempted 17 by the LMRA. Because the Court is dismissing the overtime and sick leave claims, the derivative 18 claims can only be based on the claims that are not preempted, i.e., the minimum wage and meal 19 and rest breaks claims. 20 E. Remand 21 Here, the Court finds that Plaintiff’s second and fifth claims for overtime and sick leave are 22 preempted by the LMRA, and thus must be dismissed. Likewise, the sixth through eighth claims 23 must also be dismissed to the extent that they are based on the overtime and sick leave claims. 24 As to the remaining claims, however, the Court finds that these claims are not preempted. 25 While the Court could retain supplemental jurisdiction over these claims, “federal courts have 26 discretion to remand supplemental claims in a properly removed case to state court where none of 27 the federal claims are remaining, upon a proper determination that retaining jurisdiction over the 1 would be inappropriate because the Court has “dismissed all claims over which it has original 2 || jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Chatman, 2022 U.S. Dist. LEXIS 199533, at *35. 3 At the hearing, Defendant acknowledged that remand would be appropriate if the Court dismissed 4 || the preempted claims. Thus, the Court GRANTS Plaintiff's motion to remand the claims 5 || remaining in this case. 6 IV. CONCLUSION 7 For the reasons stated above, the Court GRANTS IN PART Defendant’s motion to 8 || dismiss, and DISMISSES the second and fifth claims as being preempted by the LMRA. Having 9 || dismissed the preempted claims, the Court GRANTS IN PART Plaintiff's motion to remand the 10 || remaining claims to state court. 11 IT IS SO ORDERED. a 12 Dated: January 9, 2025 '

ANDIS A. WESTMORE

14 United States Magistrate Judge

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