# De Leon v. J.M. Equipment Company, Inc.

> District Court, E.D. California · December 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10057596

## Case

- **Court:** District Court, E.D. California
- **Decided:** December 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10057596

## How later opinions describe it (automated extraction)

- noting that the decision to deny a motion for failure to comply 28 | with local rules is within the district court’s discretion
- explaining that 13 “a CBA provision does not trigger preemption when it is only potentially relevant to the state law 14 claims, without any guarantee that interpretation or direct reliance on the CBA terms will occur”
- holding that “the tort of wrongful 24 discharge in violation of public policy exists independent of any contractual right”

## Opinion text

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9 UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11
12 MICHAEL A. DE LEON, No. 2:23-cv-00717-DAD-KJN
13 Plaintiff,
14 v. ORDER GRANTING PLAINTIFF’S MOTION
TO REMAND FOR LACK OF SUBJECT
15 J.M. EQUIPMENT COMPANY, INC., MATTER JURISDICTION
16 Defendant. (Doc. No. 9)
17
18 This matter is before the court on plaintiff’s motion to remand this action to the
19 Sacramento County Superior Court. (Doc. No. 9.) On June 2, 2023, plaintiff’s motion was taken
20 under submission on the papers. (Doc. No. 20.) For the reasons set forth below, the court will
21 grant plaintiff’s motion to remand.
22 BACKGROUND
23 On February 15, 2023, plaintiff Michael A. De Leon filed a lawsuit against defendants
24 J.M. Equipment Company, Inc., Mike Koop, and Matt Taylor in Sacramento County Superior
25 Court. (Doc. No. 1-8.) In his original complaint, plaintiff advanced the following eleven causes
26 of action: (1) disability discrimination in violation of the California Fair Employment & Housing
27 Act (“FEHA”), California Government Code § 12940(a); (2) failure to provide reasonable
28 accommodation in violation of the FEHA, California Government Code § 12940(m); (3) failure
1 to engage in the interactive process in violation of the FEHA, California Government Code §
2 12940(n); (4) discrimination on the basis of age in violation of the FEHA, California Government
3 Code; (5) retaliation in violation of the FEHA, California Government Code § 12940(h); (6)
4 failure to prevent discrimination, harassment, and/or retaliation in violation of the FEHA,
5 California Government Code §12940(k); (7) violation of the California Family Rights Act
6 (“CFRA”), California Government Code § 12945.1, et seq.; (8) CFRA rights retaliation,
7 California Government Code § 12945.2(l), (t); (9) wrongful termination in violation of public
8 policy; (10) intentional infliction of emotional distress (“IIED”); and (11) negligent hiring,
9 supervision, and/or retention. (Doc. No. 1-8 at 4–27.)
10 On April 4, 2023, defendants removed this action to this federal court pursuant to the
11 court’s federal question jurisdiction under 28 U.S.C. §§ 1331, 1441, and 1446, as well as this
12 court’s supplemental jurisdiction under 28 U.S.C. § 1367(a), on the grounds that federal question
13 jurisdiction exists because plaintiff’s FEHA claims and claim for wrongful termination in
14 violation of public policy are preempted under § 301 of the Labor Management Rights Act
15 (“LMRA”), 29 U.S.C. § 185. (Doc. No. 1 at ¶¶ 9, 14.)
16 On May 15, 2023, plaintiff filed his first amended complaint (“FAC), removing
17 defendants Mike Koop and Matt Taylor from this action as well as his tenth cause of action for
18 IIED. (Doc. No. 8.) In his FAC, plaintiff now asserts his “negligent hiring, supervision, and/or
19 retention” claim as his tenth cause of action, while the numbering of plaintiff’s other claims
20 remains unchanged from the original complaint. (Id.)
21 Also on May 15, 2023, plaintiff filed the pending motion to remand, asserting that none of
22 his claims are preempted. (Doc. No. 9 at 12.) Defendant filed an opposition on May 30, 2023,
23 and plaintiff filed his reply thereto on June 8, 2023. (Doc. Nos. 13, 22.)
24 LEGAL STANDARD
25 A suit filed in state court may be removed to federal court if the federal court would have
26 had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case
27 originally filed in state court presents a federal question or where there is diversity of citizenship
28 /////
1 among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331,
2 1332(a).
3 The defendant seeking removal of an action from state court bears the burden of
4 establishing grounds for federal jurisdiction by a preponderance of the evidence. Geographic
5 Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106–07 (9th Cir. 2010); Hunter
6 v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009); Gaus v. Miles, Inc., 980 F.2d 564,
7 566–67 (9th Cir. 1992). “If at any time before final judgment it appears that the district court
8 lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). If there is
9 any doubt as to the right of removal, a federal court must reject jurisdiction and remand the case
10 to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003);
11 see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 (9th Cir. 2004).
12 A party’s notice of removal must contain “a short and plain statement of the grounds for
13 removal.” 28 U.S.C. § 1446(a). “By design, § 1446(a) tracks the general pleading requirement
14 stated in Rule 8(a) of the Federal Rules of Civil Procedure,” and a “statement ‘short and plain’
15 need not contain evidentiary submissions.” Dart Cherokee Basin Operating Co., LLC v. Owens,
16 574 U.S. 81, 84, 87 (2014); see also Ramirez-Duenas v. VF Outdoor, LLC, No. 1:17-cv-00161-
17 AWI-SAB, 2017 WL 1437595, at *2 (E.D. Cal. Apr. 41, 2017) (“The notice of removal may rely
18 on the allegations of the complaint and need not be accompanied by any extrinsic evidence.”).
19 “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded
20 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is
21 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams,
22 482 U.S. 386, 392 (1987); Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)
23 (“Removal based on federal-question jurisdiction is reviewed under the longstanding well-
24 pleaded complaint rule.”). “[T]he presence of a federal question . . . in a defensive argument does
25 not overcome the paramount policies embodied in the well-pleaded complaint rule—that the
26 plaintiff is the master of the complaint, that a federal question must appear on the face of the
27 complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have
28 the cause heard in state court.” Caterpillar, 482 U.S. at 398–99.
1 ANALYSIS
2 A. Preemption under § 301 of the LMRA
3 In its notice of removal, defendant asserts that this court has federal question jurisdiction
4 over this action because adjudication of plaintiff’s FEHA claims and wrongful termination claim
5 requires interpretation of the terms of the collective bargaining agreement (“CBA”) between J.M.
6 Equipment Company, Inc. and certain unions, and, therefore, those claims are preempted by
7 § 301 of the LMRA. (Doc. No. 1 at ¶¶ 10–12, 14.) In the pending motion to remand, plaintiff
8 argues that none of his claims are preempted because they do not rely on the CBA or on an
9 interpretation of the CBA’s provisions. (Doc. No. 9 at 12.)1 The central question posed here is
10 whether, as defendant argues, plaintiff’s claims are preempted by federal law. Discussion of the
11 relevant legal framework with respect to that issue is therefore necessary.
12 Section 301 of the LMRA, codified at 29 U.S.C. § 185(a), provides federal courts with
13 original jurisdiction, regardless of the amount in controversy or citizenship of the parties, over
14 any lawsuits “for violation of contracts between an employer and a labor organization
15 representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a). In the specific
16 context of preemption under § 301 of the LMRA, the Ninth Circuit has recognized that
17 preemption “has such ‘extraordinary pre-emptive power’ that it ‘converts an ordinary state
18 common law complaint into one stating a federal claim for purposes of the well-pleaded
19 complaint rule.’” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152 (9th Cir. 2019) (quoting
20 Metro. Life Ins. v. Taylor, 481 U.S. 58, 65 (1987)). Section 301 “authoriz[es] federal courts to
21 create a uniform body of federal common law to adjudicate disputes that arise out of labor
22 contracts.” Id. at 1151 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985) and
23 Loc. 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S.
24 95, 103–04 (1962)). As the Ninth Circuit has explained,
25 federal preemption under § 301 “is an essential component of federal
labor policy” for three reasons. First, “a collective bargaining
26

27 1 Defendant requests the court take judicial notice of five documents already on this court’s
docket. (Doc. No. 14 at 2.) For that reason, the request is unnecessary and duplicative.
28 Accordingly, defendant’s request for judicial notice (Doc. No. 14) will be denied.
1 agreement is more than just a contract; it is an effort to erect a system
of industrial self-government.” Thus, a CBA is part of the
2 “continuous collective bargaining process.” Second, because the
CBA is designed to govern the entire employment relationship,
3 including disputes which the drafters may not have anticipated, it
“calls into being a new common law—the common law of a
4 particular industry or of a particular plant.” Accordingly, the labor
arbitrator is usually the appropriate adjudicator for CBA disputes
5 because he was chosen due to the “‘parties’ confidence in his
knowledge of the common law of the shop and their trust in his
6 personal judgment to bring to bear considerations which are not
expressed in the contract as criteria for judgment.” Third, grievance
7 and arbitration procedures “provide certain procedural benefits,
including a more prompt and orderly settlement of CBA disputes
8 than that offered by the ordinary judicial process.”
9 Id. at 1152 (internal citations omitted).
10 The determination of whether a claim is preempted by § 301 is made by way of a two-step
11 inquiry. The first question is “whether the asserted cause of action involves a right conferred
12 upon an employee by virtue of state law,” or, if instead, the right is conferred by a CBA.
13 Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). This step requires the court
14 to consider “the legal character of a claim, as ‘independent’ of rights under the
15 collective-bargaining agreement [and] not whether a grievance arising from ‘precisely the same
16 set of facts’ could be pursued.” Livadas v. Bradshaw, 512 U.S. 107, 123 (1994) (citation
17 omitted). If the asserted cause of action is conferred solely by the CBA, the claim is preempted.
18 Burnside, 491 F.3d at 1059. If not, the court must still decide whether the claim is “‘substantially
19 dependent’ on the terms of a CBA” by determining “whether the claim can be resolved by
20 ‘looking to’ versus interpreting the CBA.” Id. at 1059–60 (citations omitted). “The term
21 ‘interpret’ is defined narrowly—it means something more than ‘consider,’ ‘refer to,’ or ‘apply.’”
22 Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000). If the claim
23 requires interpretation of the CBA, the claim is preempted; if the claim merely requires “looking
24 to” the CBA, it is not preempted. Burnside, 491 F.3d at 1060. Once preempted, “any claim
25 purportedly based on that pre-empted state law is considered, from its inception, a federal claim,
26 and therefore arises under federal law.” Caterpillar, 482 U.S. at 393.
27 The Supreme Court has explained that “not every dispute concerning employment, or
28 tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301.”
1 Allis-Chalmers, 471 U.S. at 211. Under the second step of Burnside, there will only be
2 preemption if there is an active dispute concerning the meaning of the agreement’s terms. Curtis,
3 913 F3.d at 1153; see also Torres v. S. Cal. Permanente Med. Grp., No. 22-cv-01910-MWF-
4 MAR, 2022 WL 2116339, at *7 (C.D. Cal. June 13, 2022) (finding that the plaintiff’s claims
5 required interpretation of the CBA and were thus preempted under the second step of the
6 Burnside inquiry where the plaintiff argued that “Kaiser failed to follow its own progressive
7 discipline policies required by the CBA”); Warren v. WinCo Foods, LLC, No. 1:22-cv-00594-
8 SAB, 2022 WL 3026785, at *12 (E.D. Cal. Aug. 1, 2022) (concluding that the plaintiff’s claim of
9 defamation was inextricably intertwined with the collective bargaining agreement and preempted
10 by § 301). “[A]lleging a hypothetical connection between the claim and the terms of the CBA is
11 not enough” to trigger preemption. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th
12 Cir. 2001); see also Humble v. Boeing Co., 305 F.3d 1004, 1010 (9th Cir. 2002) (explaining that
13 “a CBA provision does not trigger preemption when it is only potentially relevant to the state law
14 claims, without any guarantee that interpretation or direct reliance on the CBA terms will occur”);
15 Andrade v. Rehrig Pac. Co., No. 2:20-cv-01448-FMO-RAO, 2020 WL 1934954, at *5 (C.D. Cal.
16 Apr. 22, 2020) (finding that the defendant’s assertions were “no more than an attempt to
17 manufacture preemption unrelated to the resolution of plaintiff’s claim” and that they, at best, did
18 no more than establish a “hypothetical connection” between the CBA and the plaintiff’s claims);
19 Coy v. S. Home Care Servs., Inc., No. 2:21-cv-00067-JAM-CKD, 2021 WL 1608957, at *4 (E.D.
20 Cal. Apr. 26, 2021) (remanding a case to state court after finding that the defendants had not
21 made the requisite showing to trigger preemption under the second step of Burnside and had only
22 shown a “hypothetical connection” between the claims and the terms of the CBA). In short, state
23 law claims that do not raise questions about the CBA’s “scope, meaning, or application” avoid
24 preemption. Curtis, 913 F3.d at 1153; see also Wilson-Davis v. SSP Am., Inc., 434 F. Supp. 3d
25 806, 818 (C.D. Cal. 2020) (remanding a case after concluding that a court would not be required
26 to interpret the CBA to resolve any of the plaintiff’s claims).
27 /////
28 /////
1 B. Application
2 1. FEHA and Wrongful Termination Claims
3 As noted, defendant removed this action to this federal court, asserting federal question
4 jurisdiction based on the contention that plaintiff’s FEHA claims (claims one through six in the
5 FAC) and claim for wrongful termination in violation of public policy (claim nine in the FAC)
6 are preempted under § 301 of the LMRA. (Doc. No. 1 at ¶¶ 9, 14.) Below, the court will engage
7 in the two-step Burnside inquiry as to plaintiff’s FEHA claims and claim for wrongful
8 termination in violation of public policy to determine whether the LMRA preempts these claims.
9 a. Burnside Step One
10 With respect to the first step of the analysis set out by the court in Burnside, defendant
11 argues that plaintiff’s claims are based on rights conferred by the CBA and identifies sections of
12 the CBA related to seniority, sick leave, discharges, and the grievance procedure, among others.
13 (Doc. No. 13 at 13.)2 Plaintiff, on the other hand, argues that his claims are based on rights
14 established by the FEHA. (Doc. No. 22 at 4–5.)
15 According to plaintiff, the public policies violated by defendant were those set forth in the
16 FEHA, a California statute, as well as California’s constitutional prohibition against
17 discrimination. (Doc. No. 9 at 17; see also Doc. No. 8.) It appears clear that under binding
18 authority, plaintiff’s FEHA claims, as well as his wrongful termination in violation of public
19 policy claim, are grounded in state law and not based on the CBA. See Ramirez v. Fox Television
20 Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993) (“As we have held previously, the rights
21 conferred by the [FEHA] are defined and enforced under state law without reference to the terms
22 of any collective bargaining agreement.”) (citation and internal quotation marks omitted); Paige
23 v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir. 1987) (holding that “the tort of wrongful
24 discharge in violation of public policy exists independent of any contractual right”); Buckles v.
25 City of Hope Nat. Med. Ctr., No. 11-cv-08757-MMM-MRW, 2012 WL 273760, at *4 (C.D. Cal.
26 Jan. 31, 2012) (“The first five claims allege violations of FEHA, and are thus directly based on
27
2 The court notes that in its notice of removal, defendant concedes that plaintiff’s claims are
28 based on state law. (Doc. No. 1 at ¶ 12.)
1 rights created by state law.”); Lencioni v. UA Loc. 467, Plumbers, Steamfitters & Refrigeration
2 Fitters, No. 16-cv-04518-JCS, 2016 WL 6069232, at *7 (N.D. Cal. Oct. 17, 2016) (finding that
3 the plaintiff’s claims for retaliation under the FEHA and termination in violation of public policy
4 arise from state law); Jones v. Sysco Ventura Inc., No. 2:21-cv-04116-SVW-AGR, 2021 WL
5 6104193, at *3–5 (C.D. Cal. Sept. 1, 2021) (holding that the plaintiff’s claims alleging
6 discrimination, harassment, retaliation, failure to accommodate, and failure to provide an
7 interactive process were claims based on rights conferred by the FEHA, not the CBA).
8 Therefore, plaintiff’s claims survive the first step of Burnside.
9 b. Burnside Step Two
10 The court now turns to the question of whether plaintiff’s claims are “‘substantially
11 dependent’ on the terms of a CBA” by examining “whether the claim can be resolved by ‘looking
12 to’ versus interpreting the CBA.” See Burnside, 491 F.3d at 1060 (citations omitted). For the
13 reasons explained below, the court concludes that plaintiff’s claims are not dependent on an
14 interpretation of the CBA.
15 i. FEHA Claims
16 As noted above, in its notice of removal, defendant argues that plaintiff’s FEHA claims
17 are preempted under § 301 of the LMRA because adjudication of them requires interpretation of
18 the CBA. (Doc. No. 1 at ¶¶ 6, 12, 14.) In its opposition to plaintiff’s motion to remand,
19 defendant further expounds on its position in this regard. (Doc. No. 13 at 10–15.) First,
20 defendant contends that plaintiff’s FEHA claims are substantially dependent upon the
21 interpretation of the CBA because the CBA explicitly references the “California Family Rights
22 Act or Federal and state disability statutes,”3 and because the CBA contains a provision pledging
23
3 The provision, in full, provides as follows:
24
The Employer shall have the right to request any employee
25 (excluding authorized leaves under this Agreement, the Employer’s
policies, the Workers’ Compensation Act, the Family and Medical
26 Leave Act, the California Family Rights Act or Federal and state
disability statutes) to produce medical verification whenever the
27 employee reports absence due to illness, injury, or other disability.
28 (Doc. No. 1-10 at 10, 35, 58, 82.)
1 that the CBA itself “shall be applied fairly and in accordance with Federal and State laws relating
2 to race, color, religious creed, sex, age, and national origin.” (Doc. No. 13 at 11) (citations
3 omitted). However, even though the CBA has provisions concerning compliance with federal and
4 state law, defendant has not persuasively explained how adjudicating plaintiff’s FEHA claims
5 would require interpretation of those provisions of the CBA. See Paige, 826 F.2d at 863 (“[T]he
6 tort of wrongful discharge in violation of public policy exists independent of any contractual
7 right. It is true that Article 19 of the collective bargaining agreement states that the employer will
8 comply with all state and federal health and safety laws, including OSHA. This incorporation of
9 existing law does not, however, require an interpretation of the contract terms; it requires an
10 interpretation of the state law.”).
11 Next, defendant contends that assessing whether defendant discriminated or retaliated
12 against plaintiff requires a determination of whether the parties complied with the sick leave
13 policy outlined in the CBA. (Doc. No. 13 at 11.) Specifically, defendant highlights that the
14 CBA’s sick leave policy outlines an interactive process requiring employees to submit medical
15 documentation “verifying the inability to work.” (Doc. No. 13 at 11) (quoting Doc. No. 9-1 at
16 37). However, in his reply, plaintiff points out that he has alleged in his FAC that he was
17 discriminated against based on his disability and age, not based upon his submission of a sick
18 leave request. (Doc. No. 22 at 7.) In addition, he argues that his compliance with the CBA’s sick
19 leave policy is immaterial to the issues of retaliation or discrimination which are focused instead
20 on defendant’s motive. (Id.)
21 The Ninth Circuit has made clear that “reliance on the CBA as an aspect of a defense is
22 not enough to ‘inject[ ] a federal question into an action that asserts what is plainly a state-law
23 claim.’” Burnside, 491 F.3d at 1060 (citation omitted); see also Cramer, 255 F.3d at 691 (“If the
24 claim is plainly based on state law, § 301 preemption is not mandated simply because the
25 defendant refers to the CBA in mounting a defense.”). Here, irrespective of defendant’s stated
26 grounds for plaintiff’s termination, the core dispute between the parties lies in whether plaintiff
27 was terminated for discriminatory reasons in violation of the FEHA. Accordingly, the court finds
28 that resolution of plaintiff’s FEHA causes of action do not depend on an interpretation of the
1 CBA and are thus not preempted by the LMRA. See Detabali v. St. Luke’s Hosp., 482 F.3d 1199,
2 1203 (9th Cir. 2007) (holding that the plaintiff’s FEHA claims were not preempted by LMRA
3 because “resolution of the central issue––whether [the defendant] discriminated against [the
4 plaintiff] in applying the agreement––does not depend on interpretation of the collective
5 bargaining agreement.”); Brown v. Brotman Med. Ctr., Inc., 571 F. App’x 572, 575 (9th Cir.
6 2014) (“[The defendant] argues that [plaintiff]’s cause of action is preempted since it included an
7 allegation that [defendant] failed to follow the procedures for termination set forth in the CBA.
8 [The plaintiff]’s claim, however, is that [the defendant] discriminatorily enforced the terms of the
9 CBA; resolution of the claim will be based on [the defendant]’s motivations for applying the
10 CBA rather than the meaning of the CBA’s terms.”)4; Garcia v. Kaiser Found. Hosps., No. 08-
11 cv-04153-ODW-MAN, 2008 WL 4949045, at *4 (C.D. Cal. Nov. 17, 2008) (“[I]t would be
12 unnecessary to interpret the terms of the CBA in order to adjudicate Plaintiff’s discrimination
13 claim because her claim turns on Defendants’ motives, not the parties’ contractual rights—
14 whatever the CBA establishes those rights to be.”) (internal citations omitted); Robles v. Gillig
15 LLC, 771 F. Supp. 2d 1181, 1185 (N.D. Cal. 2011) (“Regardless of Defendant’s stated reasons for
16 terminating Plaintiff, the resolution of Plaintiff’s claims will turn on the factual determination
17 whether Defendant terminated Plaintiff on account of his disability.”).
18 /////
19 /////
20 /////
21 /////
22 /////
23 /////
24 /////
25 /////
26 /////
27
4 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
28 36-3(b).
1 In sum, the court concludes that § 301 of the LMRA does not preempt plaintiff’s FEHA
2 claims.5
3 ii. Wrongful Termination in Violation of Public Policy Claim
4 A common law state claim is not preempted if “it poses no significant threat to the
5 collective bargaining process and furthers a state interest in protecting the public transcending the
6 employment relationship.” Jackson v. S. Cal. Gas Co., 881 F.2d 638, 644 (9th Cir. 1989)
7 (citation omitted). The same analysis—whether the claim is independent of the CBA and can be
8 resolved without interpretation of its terms—applies to common law claims. Id. at 644. As
9 previously discussed, plaintiff’s ninth cause of action for wrongful termination in violation of
10 public policy survives the first step of the Burnside inquiry.
11 In his motion to remand, plaintiff argues that because his claim for wrongful termination
12 in violation of public policy is based on California’s public policy against discrimination in the
13 workplace pursuant to the FEHA, it can be resolved without interpreting the CBA. (Doc. No. 9 at
14 17.) The court agrees. This claim as asserted by plaintiff is predicated on discrimination and
15 retaliation against him based on his disability and medical condition. (Doc. No. 8 at ¶ 109.) It
16
5 The court does not address defendant’s arguments with respect to plaintiff’s remaining claims
17 because defendant merely provides a laundry list of CBA provisions that may require
interpretation, without providing any elaboration. (Doc. No. 13 at 13–14.) Specifically,
18
defendant argues in his opposition:
19
Of critical importance to a resolution of plaintiff’s claims are the
20 below pertinent sections of the CBA between the union and
defendant JM: Section 3 Terms of Employment; Section 4 Seniority
21 (as defined relative to an employee’s discharge, resignation, layoff,
or change in employer); Section 5 Temporary Layoff; Section 8 Sick
22 Leave; Section 9 Suspension and/or Discharge; Section 10
Discrimination/Equal Employment Opportunity (preventing
23 discrimination on the basis of age and retaliation against an employee
participating in a protected activity); Section 26 Grievance
24 Procedure; and Section 27 Arbitration. It is evident that the CBA
confers substantial rights to plaintiff by outlining detailed procedures
25 that the employee and employer must follow before certain actions
relating to leave, layoffs, suspension, and discharge can be taken.
26
(Doc. No. 13 at 13–14) (internal citation omitted). Of course, “[i]t is not enough for Defendants
27 to provide a laundry list of provisions that they allege the Court must interpret to resolve
Plaintiff's claims; Defendants must explain why interpretation, as opposed to mere reference to
28 the CBA, is necessary.” Wilson-Davis, 434 F. Supp. 3d at 813.
1 does not require interpretation of the CBA as it focuses on defendant’s motivations for
2 terminating plaintiff, (see id.), which would further a state interest in preventing workplace
3 discrimination. See Brown, 571 F. App’x at 575 (“[The plaintiff]’s wrongful termination claim is
4 partially premised on allegations of age discrimination and would further a state interest in
5 preventing workplace discrimination. This claim also does not require interpretation of the CBA
6 as it focuses on [the defendant]’s motivations for terminating [the plaintiff].”); Jackson, 881 F.2d
7 at 644 (“There is little doubt that California has adopted a public policy against discrimination in
8 the work place.”); Hampton v. Transfield Servs. Americas, No. 14-cv-01251-JAK-E, 2014 WL
9 5427465, at *6 (C.D. Cal. Oct. 23, 2014) (finding that the plaintiff’s claim for wrongful
10 termination in violation of public policy was not dependent on the CBA but was instead a claim
11 premised on California’s public policy against discrimination in the workplace under the FEHA
12 and was therefore not preempted by the LMRA); Garcia, 2008 WL 4949045, at *5 (finding no §
13 301 preemption of the plaintiff’s FEHA claim and wrongful termination claim).
14 For these reasons, the court finds that plaintiff’s claim for wrongful termination in
15 violation of public policy is also not preempted under § 301 of the LMRA.
16 2. IIED Claim
17 As previously mentioned, plaintiff discharged his tort claim for IIED when filing the FAC.
18 (Doc. No. 8.) In his motion to remand, plaintiff asserted that “[a]ny potential federal question
19 raised with respect to this claim is therefore moot.” (Doc. No. 9 at 11.) In its opposition to the
20 pending motion, defendant contends that “[t]his conclusory allegation ignores well established
21 case law stating that an amendment eliminating the original basis for federal jurisdiction generally
22 does not defeat jurisdiction.” (Doc. No. 13 a 9.) The court does not find defendant’s argument in
23 this regard to be compelling.
24 Defendant, in removing the case, did not argue that plaintiff’s IIED claim was subject to
25 federal question jurisdiction; rather, defendant argued that the court had supplemental jurisdiction
26 over plaintiff’s IIED claim. (See Doc. No. 1 at ¶ 16.) In defendant’s opposition to the pending
27 motion, defendant still does not argue that this court had federal question jurisdiction over
28 plaintiff’s IIED claim, but only argues that the “court should dismiss plaintiff’s argument that
1 amending his initial pleading supports an argument the case should be remanded to state court.”
2 (Doc. No. 13 at 9.) As noted above, a defendant seeking removal of an action from state court
3 bears the burden of establishing grounds for federal jurisdiction by a preponderance of the
4 evidence. Geographic Expeditions, Inc., 599 F.3d at 1106–07. Defendant has not met that
5 burden here.
6 Plaintiff’s IIED claim was based on the same conduct and allegations as his FEHA
7 retaliation and discrimination claims. (Doc. No. 1-8 at 23–24.) Thus, for the same reasons as
8 stated above, plaintiff’s previously dismissed IIED claim would not have been preempted by
9 § 301 of the LRMA. See Little v. Pac. Gas & Elec. Co., No. 22-cv-00300-TSH, 2022 WL
10 612668, at *4 (N.D. Cal. Mar. 1, 2022) (finding the plaintiff’s IIED claim based on same
11 allegations of discrimination and retaliation under the FEHA was not preempted by § 301 of the
12 LMRA).
13 3. Remaining Claims
14 In its notice of removal, defendant argued that this court had supplemental jurisdiction
15 over plaintiff’s remaining claims. (Doc. No. 1 at ¶ 16.) However, because defendant has not
16 proven that any of plaintiff’s claims are preempted by the LMRA, this court lacks subject matter
17 jurisdiction over this action and cannot exercise supplemental jurisdiction over any of plaintiff’s
18 remaining state law claims. See Moore v. Aramark Unif. Servs., LLC, No. 17-cv-06288-JST,
19 2018 WL 701258, at *5 (N.D. Cal. Feb. 5, 2018) (“Because the LMRA does not preempt any of
20 Plaintiff’s claims, this Court lacks subject matter jurisdiction over these claims and cannot
21 exercise supplemental jurisdiction.”).
22 In sum, defendant has failed to show by a preponderance of the evidence that any of
23 plaintiff’s claims trigger preemption under Burnside. Federal jurisdiction must be rejected when
24 there is any doubt as to the right of removal. See Matheson, 319 F.3d at 1090. Such doubt
25 /////
26 /////
27 /////
28 /////
1 | clearly exists here. Accordingly, this case must be remanded to the Sacramento County Superior
2 | Court.®
3 CONCLUSION
4 For the reasons explained above:
5 1. Defendant’s request for judicial notice (Doc. No. 14) is denied as unnecessary;
6 2. Plaintiff's motion to remand (Doc. No. 9) is granted;
7 3. This action is remanded to the Sacramento County Superior Court due to this
8 court’s lack of subject matter jurisdiction; and
9 4. The Clerk of the Court is directed to close the case.
10 IT IS SO ORDERED.
11
Dated: _ December 6, 2023 Dal A. 2, yet
12 DALE A. DROZD
UNITED STATES DISTRICT JUDGE

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Defendant also contends that the court should deny the motion to remand because plaintiff
23 | failed to comply with the meet and confer requirement set forth in the court’s standing order.
(Doc. No. 13 at 8.) In his reply, plaintiff argues that his counsel did meet and confer with
24 | defendant’s counsel. (Doc. No. 22 at 2.) However, irrespective of whether such a meeting
> occurred, plaintiff’s counsel did not adhere to this court’s standing order, which specified that
5 “Ta] notice of motion shall contain a certification by counsel filing the motion that meet and
26 | confer efforts have been exhausted, with a very brief summary of meet and confer efforts.” (Doe.
No. 5-1 at 2.) Nonetheless, the court is not persuaded that it should exercise its discretion to deny
27 || the pending motion to remand on that basis. See Tri-Valley CAREs v. U.S. Dep’t of Energy, 671
F.3d 1113, 1131 (9th Cir. 2012) (noting that the decision to deny a motion for failure to comply
28 | with local rules is within the district court’s discretion).
14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10057596. Public record. Not legal advice.