1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION ) 11 ) Case No.: SACV 21-01492-CJC(DFMx) ) 12 MARC LOPEZ, ) ) 13 ) ) Plaintiff, 14 ) ORDER GRANTING PLAINTIFF’S ) MOTION TO REMAND [Dkt. 9] v. 15 ) ) 16 UNITED PARCEL SERVICE, INC., ) ) 17 MARK SORIANO, and DOES 1–25, ) inclusive, ) 18 ) ) 19 Defendants. ) ) 20 ) 21 22 I. INTRODUCTION 23 24 In this case, Plaintiff Mark Lopez alleges that Defendants United Parcel Service 25 (“UPS”) and Mark Soriano unlawfully terminated him. (Dkt. 1-1 [First Amended 26 Complaint, hereinafter “FAC”].) Before the Court is Plaintiff’s motion to remand the 27 1 case to Orange County Superior Court. (Dkt. 9 [hereinafter “Mot.”].) For the following 2 reasons, that motion is GRANTED.1 3 4 II. BACKGROUND 5 6 Plaintiff was employed as a mechanic at the UPS Anaheim facility from July 2015 7 through July 3, 2020. (FAC ¶ 7.) As part of his employment, he was a union member of 8 the affiliated Local Lodge No. 1186 of The International Association of Machinists and 9 Aerospace Workers, District Lodge No. 947, and a collective bargaining agreement 10 (“CBA”) therefore applied to him. (Dkt. 12 [Opposition, hereinafter “Opp.”] at 3; Dkt 11 14-1 [Amended Declaration Of Sarah Abshear] ¶ 9.) In February 2020, Plaintiff took on 12 the role of shop steward. (Id. ¶ 8.) In that role, Plaintiff “was a vocal advocate for the 13 health and safety of his coworkers,” reporting “several safety violations he witnessed 14 within the shop.” (Id. ¶¶ 9–11.) As a result, Plaintiff alleges that “UPS management 15 devised a plan to terminate him.” (Id. ¶ 13.) 16 17 On July 3, 2020, Plaintiff and three other employees were terminated for falsifying 18 timesheets. (Id.) Plaintiff alleges, however, that their conduct “was done at the direction 19 of their supervisor, defendant Mark Soriano,” who “repeatedly instructed employees to 20 falsify timesheets if they were unable to take their meal or rest breaks at the required 21 time.” (Id. ¶ 14.) The three other employees terminated were rehired within less than a 22 week, but Plaintiff was not rehired. (Id. ¶ 16.) Plaintiff alleges that the reason he was not 23 rehired is because he reported health and safety violations. (Id.) 24 25 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 Plaintiff alleges claims for (1) wrongful termination in violation of public policy, 2 (2) retaliation, (3) failure to provide meal and rest periods, (4) intentional infliction of 3 emotional distress, (5) intentional misrepresentation, and (6) negligent misrepresentation. 4 (Id. ¶¶ 19–58.) 5 6 III. LEGAL STANDARD 7 8 “Federal courts are courts of limited jurisdiction,” possessing “only that power 9 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 10 (internal quotations omitted). A defendant may remove to federal district court a civil 11 action brought in state court when a federal court has original jurisdiction over the action. 12 28 U.S.C. § 1441(a). By statute, federal courts have diversity jurisdiction over suits 13 where more than $75,000 is in controversy if the citizenship of each plaintiff is different 14 from that of each defendant. 28 U.S.C. § 1332(a). The burden of establishing subject 15 matter jurisdiction falls on the defendant. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 16 Cir. 1992). 17 18 The removal statute is strictly construed against removal jurisdiction. Id. Indeed, 19 “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in 20 the first instance.” Id. If the court determines that it lacks subject matter jurisdiction, the 21 action shall be remanded to state court. 28 U.S.C. § 1447(c). 22 23 IV. ANALYSIS 24 25 Defendant removed this case based on diversity jurisdiction and federal question 26 jurisdiction. In this motion, Plaintiff challenges both theories of jurisdiction. The Court 27 addresses each challenge in turn. 1 A. Diversity Jurisdiction 2 3 Plaintiff first argues that this case should be remanded because Defendant Mark 4 Soriano is a California citizen who destroys complete diversity. (Mot. at 5–6.) 5 Defendant responds that Mr. Soriano does not destroy complete diversity because he has 6 not yet been served. (Opp. at 6–7.) 7 8 Defendant relies on 28 U.S.C. § 1441(b)(2), which states that “a civil action 9 otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if 10 any of the parties in interest properly joined and served as defendants is a citizen of the 11 State in which such action is brought.” 28 U.S.C. § 1441(b)(2) (emphasis added). 12 Defendant contends that the phrase “properly joined and served” means that a defendant 13 must have been served to defeat diversity jurisdiction. (Opp. at 6–7 [collecting cases, 14 including Choi v. Gen. Motors LLC, 2021 WL 4133735, at *2 (C.D. Cal. Sept. 9, 2021) 15 (applying the “plain language” of the statute to conclude that an action may be removed 16 only if a local defendant has not yet been served)].) 17 18 But “Section 1441(b) does not abrogate Section 1332’s requirement of complete 19 diversity.” Scates v. FedEx Ground Package Sys., Inc., 2020 WL 5759121, at *6 (C.D. 20 Cal. Sept. 25, 2020). Rather, it is “an additional limitation on the removal doctrine that 21 the Court reaches only if diversity jurisdiction is already present.” Id.; see Pinter v. 22 Arthury J. Gallagher Serv. Co., LLC, 2016 WL 614348, at *4 (C.D. Cal. Feb. 16, 2016) 23 (explaining that Section 1441(b) “functions as a limitation on removal, not an expansion 24 of diversity jurisdiction”); see also Zirkin v. Shandy Media, Inc., 2019 WL 626138, *2 25 (C.D. Cal. Feb. 14, 2019) (analyzing Section 1441(b) after diversity jurisdiction under 26 Section 1332 was established). In other words, even when diversity jurisdiction exists, 27 Section 1441(b) provides that an action may not be removed if any properly joined and 1 Gallagher Serv. Co., LLC, 2016 WL 614348, at *4 (C.D. Cal. Feb. 16, 2016). For 2 example, Section 1441(b) comes into play when an action is “filed in California state 3 court by a New York citizen against a Florida defendant and a California defendant.” Id. 4 In such a case, “removal would not be permitted despite complete diversity of 5 citizenship,” id., because “a civil action otherwise removable solely on the basis of 6 [diversity jurisdiction] may not be removed if any of the parties in interest properly 7 joined and served as defendants is a citizen of the State in which such action is brought,” 8 28 U.S.C. § 1441(b)(2). 9 10 Accordingly, the Ninth Circuit “has specifically rejected the contention 11 that § 1441(b) implies that service is the key factor in determining diversity.” Preaseau 12 v. Prudential Ins. Co. of Am., 591 F.2d 74, 78 (9th Cir. 1979) (discussing its decision in 13 Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174 (9th Cir. 1969)); see Pecherski v. Gen. 14 Motors Corp., 636 F.2d 1156, 1160 (8th Cir. 1981) (explaining that “the mere failure to 15 serve a defendant who would defeat diversity jurisdiction does not permit a court to 16 ignore that defendant in determining the propriety of removal,” and expressly stating its 17 agreement with Preaseau). Instead, diversity is determined by the “citizenship of any 18 codefendant, joined by the plaintiff in good faith,” regardless of whether the defendant 19 has yet been served. Preaseau, 591 F.2d at 79. The Supreme Court has also stated that 20 “the fact that the resident defendant has not been served with process does not justify 21 removal by the non-resident defendant,” and that “the non-resident defendant should not 22 be permitted to seize an opportunity to remove the cause before service upon the resident 23 co-defendant is effected.” Pullman Co. v. Jenkins, 305 U.S. 534, 541 (1939). 24 25 Here, there is not complete diversity because both Plaintiff and Defendant Mark 26 Soriano are California citizens. Plaintiff appears to have joined Mr. Soriano, a California 27 citizen, in good faith. See Preaseau, 591 F.2d at 79. Indeed, he alleges that Mr. Soriano 1 terminated. (Compl. ¶¶ 14–15.) The fact that Mr. Soriano has not yet been served does 2 not change the fact that there is not complete diversity. See Preaseau, 591 F.2d at 79; 3 Pecherski, 636 F.2d at 1160; Pullman, 305 U.S. at 541; Scates, 2020 WL 5759121, at *6; 4 Pinter, 2016 WL 614348, at *4. Because there is not complete diversity under Section 5 1332, this case is not “otherwise removable solely on the basis of [diversity 6 jurisdiction],” and Section 1441(b)(2) does not apply. 7 8 B. Federal Question Jurisdiction 9 10 Defendants also removed based on federal question jurisdiction, arguing that 11 Plaintiff’s claims for retaliation and intentional infliction of emotional distress arise under 12 and are wholly preempted by Section 301 of the Labor Management Relations Act 13 (“LMRA”). (Opp. at 9–11.) Federal courts have subject matter jurisdiction over cases 14 “arising under” federal law. 28 U.S.C. § 1331. Generally, under the “well-pleaded 15 complaint rule,” cases arise under federal law only when “a federal question is presented 16 on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 17 482 U.S. 386, 392 (1987). An exception to the well-pleaded complaint rule occurs “when 18 a federal statute wholly displaces the state-law cause of action through complete pre- 19 emption.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8 (2003). In these instances, 20 cases asserting state law claims that fall within the scope of the preemption are removable 21 under 28 U.S.C. § 1441 even though no federal claim expressly appears on the face of the 22 complaint. See id. 23 24 Defendant argues that it has a federal preemption defense under Section 301 of the 25 LMRA. (Opp. at 7–11.) Section 301 of the LMRA gives federal courts exclusive 26 jurisdiction to adjudicate “[s]uits for violation of contracts between an employer and a 27 labor organization.” 29 U.S.C. § 185(a). Section 301 “mandate[s] resort to federal rules 1 [‘CBAs’], and thus to promote the peaceable, consistent resolution of labor-management 2 disputes.” Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 404 n.3 (1988). 3 Accordingly, any suit “alleging a violation of a provision of a labor contract must be 4 brought under § 301 and be resolved by reference to federal law.” See Allis-Chalmers 5 Corp. v. Lueck, 471 U.S. 202, 210 (1985). However, it is well settled that Section 301 6 does not preempt “nonnegotiable rights conferred on individual employees as a matter of 7 state law.” Livadas v. Bradshaw, 512 U.S. 107, 123 (1994). “Setting minimum wages, 8 regulating work hours and pay periods, requiring paid and unpaid leave, protecting 9 worker safety, prohibiting discrimination in employment, and establishing other worker 10 rights remains well within the traditional police power of the states, and claims alleging 11 violations of such protections will not necessarily be preempted, even when the plaintiff 12 is covered by a CBA.” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152 (9th Cir. 2019) 13 (quotations omitted). 14 15 Courts in the Ninth Circuit apply a two-step approach to determine whether 16 Section 301 preempts a state law claim. “First, we ask whether the asserted cause of 17 action involves a right that exists solely as a result of the CBA.” Id. (quotations omitted). 18 In other words, the first step considers whether the claim seeks to vindicate a right or 19 duty created by the CBA. See id. If so, the claim is preempted and the analysis ends. 20 See id. If not, courts proceed to the second step and consider “whether a plaintiff’s state 21 law right is substantially dependent on analysis of the CBA.” Id. at 1153 (cleaned up). A 22 state law right is “substantially dependent” if it requires “interpreting,” as opposed to 23 simply “looking to,” the CBA. See id. Here, Plaintiff asserts claims based on state law 24 rights. Specifically, he alleges that he was retaliated against for reporting health and 25 safety violations. Accordingly, his claims are only preempted if they are “substantially 26 dependent on analysis of the CBA.” See id. 27 1 Plaintiff’s claim for retaliation for reporting health and safety violations is not 2 preempted by the LMRA. See Brown v. Brotman Med. Ctr., Inc., 571 F. App’x 572, 575 3 (9th Cir. 2014) (reversing district court’s decision that a retaliation claim under California 4 Labor Code § 1102.5(b) was preempted by the LMRA); Paige v. Henry J. Kaiser Co., 5 826 F.2d 857, 863 (9th Cir. 1987); see Balog v. LRJV, Inc., 204 Cal. App. 3d 1295, 1304 6 (Ct. App. 1988), reh’g denied and opinion modified (Sept. 20, 1988) (concluding that 7 claim of wrongful termination based on reporting violations of health and safety 8 regulations “in no way implicate[d] collective bargaining or unionization” and was not 9 preempted); Garcia v. Rite Aid Corp., 2017 WL 1737718, at *5 (C.D. Cal. May 3, 2017) 10 (“[W]rongful termination claims based on allegedly discriminatory discharge are not 11 preempted.”). This is because “[t]he elements of [a retaliation] claim require an inquiry 12 into the respective actions of the employer and employee in order to determine whether 13 [the employer] retaliated against [the employee]”—an inquiry that does “not depend on 14 interpretation of terms in the CBA.” Brown, 571 F. App’x at 575; see Garcia v. Rite Aid 15 Corp., 2017 WL 1737718, at *7 (C.D. Cal. May 3, 2017) (finding no preemption of 16 retaliation claim under Cal. Lab. Code § 1102.5). 17 18 Defendant argues that deciding Plaintiff’s claims will require interpreting the CBA 19 because the true reason Plaintiff was fired was “proven dishonesty” under Article 21, 20 Section 21.20 of the CBA. (Reply at 9.) Defendant argues that the Court will have to 21 interpret “proven dishonesty,” a defined concept in the CBA. (Id.) But “in the context of 22 § 301 complete preemption, the term ‘interpret’ is defined narrowly—it means something 23 more than ‘consider,’ ‘refer to,’ or ‘apply.’” Kobold v. Good Samaritan Reg’l Med. Ctr., 24 832 F.3d 1024, 1033 (9th Cir. 2016) (quoting Balcorta v. Twentieth Century–Fox Film 25 Corp., 208 F.3d 1102, 1108 (9th Cir. 2000)). The Court is not persuaded that 26 determining whether dishonesty was a valid ground for termination will require anything 27 more than reference to the CBA. Moreover, because Plaintiff’s claim “is plainly based 1 || on state law, § 301 preemption is not mandated simply because [Defendant] refers to the 2 ||CBA in mounting a defense.” JId.? 3

CONCLUSION

5 6 For the foregoing reasons, Plaintiff's motion to remand is GRANTED, and this 7 is hereby REMANDED to Los Angeles County Superior Court. 8 9 DATED: November 3, 2021

u CORMAC J. CARNEY 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 —————- 6 > For similar reasons, Plaintiff s intentional infliction of emotional distress claim is not preempted. “{E]motional distress claims are preempted if they can be resolved only by referring to the terms of the 27 || CBA.” Perugini v. Safeway Stores, Inc., 935 F.2d 1083, 1087 (9th Cir. 1991). However, such claims “arising from discrimination, harassment, and retaliation are not preempted because such conduct is not 28 || controlled by the terms of the CBA.” Garcia, 2017 WL 1737718, at *6; see Brown, 571 F. App’x at

STA.