# Sheppard v. Staffmark Investment, LLC

> District Court, N.D. California · February 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10066850

## Case

- **Court:** District Court, N.D. California
- **Decided:** February 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10066850

## How later opinions describe it (automated extraction)

- finding that warehousemen who load and unload trucks 26 27 9 1 2 used to deliver goods in interstate commerce, but do not deliver the goods themselves, are not 3 transportation workers
- discussing history and purpose of PAGA

## Opinion text

1
2
3
4
5 UNITED STATES DISTRICT COURT
6 NORTHERN DISTRICT OF CALIFORNIA
7 SAN JOSE DIVISION
8
9 TRACEE SHEPPARD, Individually and on Case No. 20-cv-05443-BLF
Behalf of All Others Similarly Situated,
10
Plaintiff, ORDER GRANTING DEFENDANTS’
11 MOTIONS TO COMPEL
v. ARBITRATION; AND REMANDING
12 STATE LAW CLAIM
STAFFMARK INVESTMENT, LLC; UPS
13 MAIL INNOVATIONS, INC.; and DOES 1 [Re: ECF 22, 30]
Through 20, Inclusive,
14
Defendants.
15

16

17
Defendant Staffmark Investment, LLC (“Staffmark”) moves this Court to compel Plaintiff
18
Tracee Sheppard (“Plaintiff”) to arbitrate Plaintiff’s individual employment claims against
19
Staffmark, and co-Defendant UPS Mail Innovations, Inc. (“UPSMI”) and to stay Plaintiff’s
20
Private Attorney General Act (“PAGA”) claim pending resolution of the arbitration. See Mot. to
21
Compel Arbitration (“Mot.”), ECF 22. On September 17, 2020, Plaintiff filed her Opposition to
22
Staffmark’s Motion to Compel Arbitration. See Opp’n. to Mot. To Compel. (“Opp’n.”), ECF 25.
23
Staffmark filed a Reply to Plaintiff’s Opposition on September 24, 2020. See Reply to Opp’n.
24
(“Reply”), ECF 29. UPSMI filed a Motion to Compel on January 14, 2021. See Mot. to Compel
25
Arbitration (“UPSMI Mot.”), ECF 30. Plaintiff did not respond to this motion and acknowledged
26
at the February 11, 2021 hearing on Staffmark’s motion that the Court’s decision would be
27
dispositive of both motions.
1

2
For the foregoing reasons, the Court GRANTS Defendants’ Motions to Compel
3
Arbitration for Plaintiff’s individual Claims One through Five against Staffmark and UPSMI, and
4
those claims are DISMISSED WITHOUT PREJUDICE. Plaintiff's class claims are DISMISSED
5
WITH PREJUDICE as to Plaintiff and DISMISSED WITHOUT PREJUDICE as to the putative
6
class members. In lieu of staying Plaintiff’s remaining state law PAGA claim, the Court declines
7
to exercise supplemental jurisdiction over the claim, and it is REMANDED to the Santa Clara
8
County Superior Court.
9
I. BACKGROUND1
10
11 Defendant Staffmark is a staffing agency, which places workers at temporary worksites
12 around the United States, including California. Declaration of Suzanne Perry (“Perry Decl.”) ¶ 7,
13 ECF 22-1. Staffmark made an offer of employment to Plaintiff Sheppard on or around February 7,
14
2019. Perry Decl. ¶ 10. The offer was contingent on Plaintiff’s completion of Staffmark’s
15
conditional job offer (“CJO”) packet, which included the arbitration agreement (“Arbitration
16
Agreement”). Perry Decl. ¶¶ 23-29. The Arbitration Agreement was presented to Plaintiff during
17
the electronic onboarding process. Declaration of Emily Giltner (“Giltner Decl.”) ¶¶ 29-32, ECF
18
19 22-2. Plaintiff was allowed to complete this process at her own pace. Perry Decl. ¶¶ 18-20;
20
21

22 1 Defendants Staffmark and UPSMI request judicial notice of Plaintiff’s First Amended Complaint.
See ECF 23, 31. Plaintiff's verified complaint is already contained in the record as it is attached to
23 Defendants’ Notice of Removal. See ECF 1-1. While there is little need to take judicial notice of the
complaint as it has already been filed on this docket, Courts may take judicial notice of records of “(1)
24 any court of this state or (2) any court of record of the United States or of any state of the United
States.” Fed. R. Evid. 201(d). Specifically, “[the Court] may take judicial notice of undisputed matters
25
of public record, . . . including documents on file in federal or state courts.” Harris v. Cty. of Orange,
26 682 F.3d 1126, 1132 (9th Cir. 2012). Accordingly, as this document is on file and publicly available,
the Court takes judicial notice of Plaintiff’s First Amended Complaint.
27 2
1

2 Declaration of Lucero Lopez (“Lopez Decl.”), ¶¶ 5-9, ECF 22-3. To finish the onboarding process,
3
Plaintiff had to create a personal password and review and execute an E-Signature
4
Acknowledgment Statement, which stated that her e-signature had the same legal binding effect as
5
if it were a handwritten signature. Perry Decl., ¶¶ 20-24. Plaintiff accessed and electronically
6
signed the Arbitration Agreement during the onboarding process. Lopez Decl. ¶ 12. Plaintiff
7
8 completed the CJO packet, including signing the Arbitration Agreement, by February 7. Id. On
9 February 8, 2019, Plaintiff went on-site to Staffmark to complete the hiring process. Id. at ¶¶ 13-
10 15. At that time, Plaintiff was asked whether she had any questions regarding the documents in the
11
CJO packet, including the Arbitration Agreement. Id. Plaintiff said that she did not. Id.
12
The Arbitration Agreement covers, in relevant part:
13
This Agreement to Arbitrate Claims and Disputes (“Agreement”) is
14
made and entered into, by and between Staffmark Holdings, Inc. and
15 its subsidiaries, Staffmark Investment LLC, CBS Personnel
Services, LLC, and Kilgore Group, Inc. (“Company”) and Tracee
16 Sheppard (“Employee”) (collectively the “Parties”).

17 . . .

18
1.1. This Agreement between the Parties establishes procedures for
19 resolution by arbitration of any Employment Claim(s) arising out of
Employee's application or candidacy for employment, employment,
20 or cessation of employment with Company, whether such
Employment Claim(s) are brought by the Employee against the
21 Company or by the Company against the Employee. The Parties
agree that any Excluded Claim is not subject to this Agreement.
22

23 . . .

24 3.1. ''Claims Must be Decided by Binding Arbitration." Any and all
Employment Claims of any party shall be resolved by final and
25 binding arbitration by a neutral arbitrator in accordance with the
terms of this Agreement and not by a court trial or a jury trial in
26
court.
27 3
1

2
3 CA Standard Arbitration Agreement 15, ECF 22-1. The Arbitration Agreement
4 defines Employment Claims subject to arbitration, in relevant part, as:

5
2.2. “Employment Claim(s).” For purposes of this Agreement,
6 “Employment Claim(s)” shall include: claims arising out of; claims
for non-payment of wages, overtime, other compensation or
7 penalties due; … and claims for violation of any federal, state, or
other government law, statute, regulation or ordinance, except for
8 claims excluded in the following paragraph. This Agreement is also
intended to apply to any Employment Claims the Employee may
9
have against the Company's current or former officers, directors,
10 employees, agents, or customers, or any of the Company's affiliated
or related entities; as well as to any claims that the Company or any
11 such persons may have against Employee. All such disputes,
whether based on past, present, or future events, shall be resolved
12 only by an arbitrator through final and binding arbitration and not by
way or court or jury trial except as otherwise stated in this
13
Agreement.
14
Id.
15
In late February 2019, Plaintiff was placed by Staffmark on a temporary work assignment
16
17 at UPSMI, a company which provides domestic and international high-volume mailing services.
18 Lopez Decl. ¶ 23; Perry Decl. ¶¶ 10-12. Plaintiff’s job at UPSMI was a sorter, and her duties
19 included removing mail from the conveyer belt, hand sorting the mail based upon zip code, and
20
then placing the mail in the appropriate mail bag. Lopez Decl. ¶¶ 23-24. Although Plaintiff was
21
staffed at other work locations while employed by Staffmark, all of Plaintiff’s claims in this
22
litigation arise from Plaintiff’s employment while she was assigned at UPSMI. See generally
23
FAC. On March 19, 2020, Plaintiff filed a Complaint against Staffmark and UPSMI in the
24
25 Superior Court of California, with five class action claims. Notice of Removal ¶ 1, ECF 1-1. On
26 June 1, 2020, Plaintiff filed her First Amended Complaint (“FAC”) to add a representative cause
27 4
1

2 of action under the California Private Attorneys General Act (“PAGA”). See First Amended
3
Compl. (“FAC”), ECF 1-1, Exh. A. In the FAC, Plaintiff alleges six causes of action: 1) Failure to
4
Provide Meal Periods; 2) Failure to Provide Rest Breaks; 3) Failure to Provide Accurate Itemized
5
Wage Statements; 4) Failure to Pay All Wages Due Upon Separation of Employment; 5) Violation
6
of Business and Professions Code §§ 17200 (“Unfair Practices”); and 6) Civil Penalties Under
7
8 PAGA. FAC. Staffmark argues that Plaintiff’s first five claims are directly related to, and arise out
9 of, Plaintiff’s employment relationship with Staffmark, and thus are subject to arbitration under
10 the Arbitration Agreement. Mot. 13. Staffmark’s counsel has attempted to correspond with
11
Plaintiff’s counsel regarding arbitration. Declaration of Susan Steward (“Steward Decl.”) ¶ 3, ECF
12
22-4. Plaintiff’s counsel has maintained that the Arbitration Agreement is unenforceable and has
13
refused to submit the claims to arbitration. Steward Decl. ¶¶ 5, 7. Staffmark accordingly brings
14
15 this action to compel arbitration. See generally, Mot.
16
II. LEGAL STANDARD
17
Enforceability of an arbitration clause, and the determination of the scope of that clause, is
18
governed by the Federal Arbitration Act (“FAA”). 9 U.S.C. §§ 1 et seq. Under the FAA,
19
20 arbitration agreements are “a matter of contract,” and “shall be valid, irrevocable, and enforceable,
21 save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. §
22 2.
23
A district court faced with a petition to enforce an arbitration clause engages in a limited
24
two-part inquiry: first, it determines whether the arbitration agreement is valid, and second, it
25
determines whether the agreement encompasses the claims at issue. See, e.g., Mitsubishi Motors
26
27 5
1

2 Co. v. Soler Chrysler-Plymouth, 473 U.S. 614, 627–28 (1985); see also Trompeter v. Ally
3
Financial, Inc., 914 F. Supp. 2d 1067, 1071 (N.D. Cal. 2012) (“A district court must compel
4
arbitration under the FAA if it determines that: (1) there exists a valid agreement to arbitrate; and
5
(2) the dispute falls within its terms.”). A district court does not consider challenges to the
6
contract as a whole, but rather only specific challenges to the validity of the arbitration clause
7
8 itself. Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 71 (2010) (“There are two types of
9 validity challenges under § 2: ‘one type challenges specifically the validity of the agreement to
10 arbitrate,’ and ‘the other challenges the contract as a whole.’ . . . [O]nly the first type of challenge
11
is relevant to a court’s determination whether the arbitration agreement at issue is enforceable.”).
12
When determining whether the arbitration clause encompasses the claims at issue, “all
13
doubts are to be resolved in favor of arbitrability.” Simula v. Autoliv, 175 F.3d 716, 721 (9th Cir.
14
15 1999) (interpreting the language “arising in connection with” in an arbitration clause to “reach[]
16 every dispute between the parties having a significant relationship to the contract and all disputes
17 having their origin or genesis in the contract.”).
18
III. DISCUSSION
19
A. Motions to Compel Arbitration
20

21
First, the Court must determine whether the parties agreed to arbitrate. Staffmark has
22
provided sufficient evidence that Plaintiff knowingly digitally signed the arbitration agreement.
23
See Perry Decl. ¶¶ 20-37 (stating that Plaintiff electronically accessed and signed the arbitration
24
agreement using a personal password and that Plaintiff was made aware of and able to carefully
25
26 examine the Arbitration Agreement multiple times prior to completing the onboarding process).
27 6
1

2 Plaintiff does not contest the fact that she willingly and knowingly signed the Arbitration
3
Agreement. See generally Opp’n.
4
Second, the Court must determine whether the scope of the Arbitration Agreement
5
encompasses the employment claims at issue. The Arbitration Agreement narrows the scope of
6
arbitration to employment-related claims: “This Agreement between the Parties establishes
7
8 procedures for resolution by arbitration of any Employment Claim(s) arising out of Employee’s
9 application . . . with Company.” CA Standard Arbitration Agreement 15. The Arbitration
10 Agreement further explicitly defines Employment Claims as those such as: “claims arising out of;
11
claims for non-payment of wages, overtime, other compensation or penalties due . . . and claims
12
for violation of any federal, state, or other government law, statute, regulation or ordinance, except
13
for claims excluded in the following paragraph.” Id. Plaintiff’s Claims One through Five arise out
14
15 of failure to provide meal periods, rest breaks, wages, and unfair practices arising from the same
16 conduct. FAC. Accordingly, Plaintiff’s Claims One through Five fall clearly under the
17 Agreement’s coverage. Plaintiff does not challenge that the Agreement covers these Claims. See
18
generally Opp’n. Rather, Plaintiff argues she is exempt from the provisions of the FAA under
19
Section 1 as a transportation worker. Id. at 2.
20
The Court finds that an arbitration agreement exists between Staffmark and Plaintiff, and it
21
encompasses the employment issues in dispute in Plaintiff’s Claims One through Five. The Court
22
23 now considers whether Plaintiff qualifies as a transportation worker under Section 1 of the FAA.
24
i. FAA Section 1 Exemption
25

26
27 7
1

2 Plaintiff argues that transportation workers, including postal workers such as herself, are
3
exempt from the provisions of the FAA under Section 1. Opp’n. 2. Staffmark argues that the
4
Section 1 transportation worker exemption does not apply here because Plaintiff’s duties at
5
UPSMI do not qualify her as a transportation worker under current case law. Reply. 2. The Court
6
agrees with Staffmark that Plaintiff does not qualify as a transportation worker under Section 1
7
8 such that she is exempt from the FAA. 2
9 Section 1 of the FAA contains a transportation worker exemption, which exempts from
10 coverage of the FAA all “contracts of employment of seamen, railroad employees, or any other
11
class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. In Circuit City Stores
12
Inc v. Adams, the Supreme Court narrowed the application of “any other class of workers engaged
13
in foreign or interstate commerce” from all workers in foreign or interstate commerce, to only
14
15 “transportation workers.” 532 U.S. 105, 119 (2001). The Court further defined “transportation
16 workers” as “those workers actually engaged in the movement of goods in interstate
17 commerce.” Id. at 112. However, the Court did not address what it means to be “actually engaged
18
in the movement of goods in interstate commerce.” Since Circuit City, the lower courts have
19
provided guidance as to what qualifies an individual as a transportation worker.
20
Courts have clearly established that an individual who is a driver and is directly engaged in
21
the interstate delivery of goods is a transportation worker under Section 1. Veliz v. Cintas Corp.,
22
23
24

25 2 Plaintiff further argues that under California law, which should apply instead of the FAA, the
Arbitration Agreement’s class action waiver is unenforceable. Opp’n. 4. Since the Court finds that
26 the FAA does apply and Plaintiff is not exempt under Section 1, it does not reach the question of
whether the class action waiver is enforceable under California law.
27 8
1

2 No. C 03-1180 SBA, 2004 WL 2452851, at *5 (N.D. Cal. Apr. 5, 2004), modified on
3
reconsideration, No. 03-01180(SBA), 2005 WL 1048699 (N.D. Cal. May 4, 2005) (“The most
4
obvious case where a plaintiff falls under the FAA exemption is where the plaintiff directly
5
transports goods in interstate, such as interstate truck driver whose primary function is to deliver
6
mailing packages from one state into another.”); Furlough v. Capstone Logistics, LLC, No. 18-
7
8 CV-02990-SVK, 2019 WL 2076723, at *7 (N.D. Cal. May 10, 2019) (affirming Veliz and finding
9 that “plaintiffs who are personally responsible for transporting goods in interstate commerce, no
10 matter what industry they are in, are transportation workers under the FAA exemption.”).
11
Courts have applied the exemption to individuals who do not physically transport
12
packages. However, in these cases, the individual was both 1) employed in the transportation
13
industry and 2) working closely with those who were physically transporting goods. See Palcko v.
14
15 Airborne Express, Inc., 372 F.3d 588, 593–94 (3d Cir. 2003) (finding that a manager who does not
16 herself deliver packages, but who personally monitors and directs interstate drivers who do, is a
17 transportation worker); Zamora v. Swift Transp. Corp., No. EP-07-CA-00400-KC, 2008 WL
18
2369769, at *9 (W.D. Tex. June 3, 2008), aff’d, 319 F. App’x 333 (5th Cir. 2009) (same). Courts
19
have also established that individuals are not transportation workers when they handle, but don’t
20
deliver, goods that are part of interstate commerce and do not otherwise work in the transportation
21
industry. See Furlough, 2019 WL 2076723, at *7 (holding that a warehouseman whose job duties
22
23 included “loading, unloading, and handling freight; communicating with drivers; and monitoring
24 conditions on the docks” was not a transportation worker); Kropfelder v. Snap-On Tools Corp.,
25 859 F. Supp. 952, 958–59 (D. Md. 1994) (finding that warehousemen who load and unload trucks
26
27 9
1

2 used to deliver goods in interstate commerce, but do not deliver the goods themselves, are not
3
transportation workers).
4
Here, Plaintiff neither physically transports goods herself, nor does she work closely with
5
those who do. Plaintiff’s work at the UPSMI center was limited to processing and sorting
6
packages that were received in the UPSMI facility. Declaration of Tracee Sheppard (“Sheppard
7
8 Decl.”) ¶¶ 3-4. Third-party drivers delivered packages to the UPSMI facility and picked them up
9 for delivery to another location after they were sorted. Declaration of Charles Coleman (“Coleman
10 Decl.”) ¶¶ 6-9. Plaintiff does not assert that she had any contact with the employees who delivered
11
packages, or that Plaintiff was even responsible for loading the packages onto the delivery truck.
12
See generally, Sheppard Decl. Plaintiff’s responsibilities at UPSMI were similar to those of the
13
warehouse employees that courts found do not qualify an individual as a transportation worker.
14
15 See Furlough, 2019 WL 2076723, at *7; Kropfelder, 859 F. Supp. at 958–59.
16 While Plaintiff argues that she worked in the transportation industry through her
17 employment at UPSMI, Opp’n 3-4, whether or not her employer worked in the transportation
18
industry is not dispositive of this case. Under existing case law, working in the transportation
19
industry alone, without a strong connection to the employees who are actually transporting
20
products, is not sufficient to qualify an individual as a transportation worker. This is highlighted in
21
Zamara and Palcko, two post-Circuit City cases which found that an individual who was closely
22
23 connected to the employees who physically transported products qualified as a transportation
24 worker. In both of these cases, the courts did consider that the individual was employed by a
25 company involved in the transportation industry in favor of qualifying the individual as a
26
transportation worker. See Zamora, 2008 WL 2369769, at *7; Palcko, 2003 WL 21077048, at *3.
27 10
1

2 However, both courts also emphasized that what was critical to their decision was that the
3
employee oversaw and worked closely with those involved in the actual transportation of the
4
goods, making their role akin to that of the actual transporters. See Palcko v. Airborne Express,
5
Inc., 2003 WL 21077048, at *3 (“Because [plaintiff] oversaw the delivery of goods, her job was
6
so closely related to the transport of the goods as to be in practical effect part of the shipping of the
7
8 goods and she should be considered a transportation worker.”) (internal quotation marks omitted);
9 Zamora, 2008 WL 2369769, at *7 (“[Plaintiff] was employed to ensure the smooth and continuing
10 operation of the trucks and their drivers in interstate commerce. This factor weighs heavily in
11
favor of a finding that [plaintiff] was a transportation worker.”). Plaintiff admits that her job
12
responsibilities at UPSMI did not require her to engage with the actual transportation drivers, but
13
rather that she was limited to sorting packages in the warehouse in preparation for further
14
15 transportation. Sheppard Decl. ¶¶ 3-4. Therefore, the fact that Plaintiff may have been working for
16 an employer in the transportation industry does not determine her eligibility for the FAA Section 1
17 exemption given her lack of connection to the actual delivery drivers.
18
Plaintiff’s reliance on Basachihua v. U.S. Postal Service, 859 F.2d 402, 405 (6th Cir. 1988)
19
and American Postal Workers Union, AFL-CIO v. U.S. Postal Service, 823 F.2d 466, 473
20
(11th Cir. 1987) to support that she, a postal worker, qualifies as a transportation worker is not
21
persuasive as both cases predate the Supreme Court’s ruling in Circuit City. The courts in
22
23 Basachihua and American Postal Workers Union held that postal workers qualify as transportation
24 workers engaged in “interstate commerce” for purposes of the Section 1 exemption. Basachihua,
25 859 F.2d at 405, American Postal Workers Union, 823 F.2d at 473. Both of these cases were
26
decided pre-Circuit City, where the Court significantly narrowed the Section 1 exemption. See
27 11
1

2 Circuit City, 532 U.S. at 119. Although not explicitly overruling Basachihua and American Postal
3
Workers Union, the Court’s suggestion in Circuit City that the exemption be limited to those
4
individuals “directly involved in interstate transportation” seems to conflict with the broad
5
holdings of Basachihua and American Postal Workers Union that any postal worker is a
6
transportation worker. No court post-Circuit City has applied the holding of Basachihua and
7
8 American Postal Workers Union to support that all postal workers are transportation workers as
9 Plaintiff wishes to, and a number of courts, including courts in this district, have commented that
10 Basachihua and American Postal Workers Union may no longer remain good law. Veliz, 2004 WL
11
2452851, at *6 (noting about Basachihua and American Postal Workers Union, “[i]t is unclear to
12
what degree these cases remain good law.”). As such, this Court is not persuaded by Plaintiff’s
13
argument.
14
15 Plaintiff also cites Rittmann v. Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020) for support
16 that Plaintiff need not have crossed state lines to qualify as a transportation worker. Opp’n. 4.
17 While Plaintiff is correct that she does not have to cross state lines to qualify as a transportation
18
worker, this issue is not in debate here, and Rittmann does not further support that Plaintiff is a
19
transportation worker. In Rittmann, the court evaluated whether workers who delivered interstate
20
packages exclusively in the last leg of the journey, which was only intrastate, qualified as
21
transportation workers under Section 1. Id. at 915. The Rittmann court held that the drivers
22
23 qualified as transportation workers, relying on the fact that they still physically moved packages
24 that had at one point crossed state lines. Id. This Court acknowledges that individuals who
25 physically transport packages qualify as transportation workers, but that is a factually distinct
26
circumstance from this case. The issue that is relevant in this case, which the Rittmann court does
27 12
1

2 not address, is whether individuals who do not actually transport packages can still qualify as
3
transportation workers. Accordingly, Rittmann is not instructive here.
4
5 ii. Enforcement of Arbitration Agreement Against UPSMI

6
Staffmark argues that the Arbitration Agreement should be enforced as to UPSMI such that
7
Plaintiff must also be ordered to arbitrate her Claims One through Five against UPSMI. Mot. 21.
8
Plaintiff does not suggest that a different analysis would apply to UPSMI. See generally Opp’n.
9
10 UPSMI has also filed its own Motion to Compel Arbitration, UPSMI Mot., and Plaintiff filed no
11 opposition to USPMI’s motion to compel arbitration. The Court finds it appropriate to enforce the
12 Agreement as to Plaintiff’s claims against UPSMI.
13
An individual who is a non-signatory to an arbitration agreement may nevertheless compel
14
a signatory plaintiff into arbitration if allowed by state contract law. See Arthur Andersen LLP v.
15
Carlisle, 556 U.S. 624, 631–32 (2009); see also Kramer v. Toyota Motor Corp., 705 F.3d 1122,
16
17 1130 n.5 (9th Cir. 2013). In California, a non-signatory may compel arbitration under the doctrine
18 of equitable estoppel where a plaintiff’s claims against the non-signatory are “based on the same
19 facts and are inherently inseparable” to those against a signatory. Murphy v. DirecTV, Inc., 724
20
F.3d 1218, 1229 (9th Cir. 2013) (quoting Metalclad Corp. v. Ventana Envtl. Organizational
21
P’ship, 109 Cal. App. 4th 1705, 1713 (Cal. Ct. App. 2003)).
22
The California Court of Appeal’s decision in Garcia v. Pexco, LLC, 11 Cal. App. 5th 782,
23
217 Cal. Rptr. 3d 793 (Cal. Ct. App. 2017) is instructive here. In Garcia, the plaintiff was
24
25 employed by a staffing agency, with whom he signed an employment agreement containing an
26 arbitration provision. Id. at 794. The staffing agency placed the plaintiff on a temporary
27 13
1

2 assignment at Pexco. Id. Arising out of events that occurred during this assignment, the plaintiff
3
sued both the staffing company and Pexco for violations of the Labor Code and unfair business
4
practices. Id. at 794-95. The court held that plaintiff’s claims against both the staffing agency and
5
Pexco should be compelled into arbitration, because they were “intimately founded in and
6
intertwined with his employment relationship with [staffing agency], which is governed by the
7
8 employment agreement compelling arbitration.” Id. at 796. In support, the court noted that
9 plaintiff’s complaint alleged that the defendants were agents of each other, did not differentiate
10 between the two defendants in any way, and relied on the same set of facts in its allegations
11
against Pexco as it did the staffing agency. Id. at 797.
12
This case here is nearly identical. Plaintiff’s claims against Staffmark are all based on her
13
placement at UPSMI. See generally, FAC. In her FAC, Plaintiff alleges that she was jointly
14
15 employed by Staffmark and UPSMI, and that they were agents of each other. FAC ¶¶ 13-15.
16 Further, Plaintiff refers to both Staffmark and UPSMI as “Defendants” collectively and does not
17 differentiate between the two throughout the FAC. See generally FAC. Plaintiff relies on the same
18
set of facts in her FAC to support her allegations against both Staffmark and UPSMI. See id. The
19
Court finds that Plaintiff’s claims against UPSMI, like in Pexco, are so “intimately founded in and
20
intertwined with” her employment relationship with Staffmark that they should also be governed
21
by the Arbitration Agreement. See also Ortiz v. Volt Mgmt. Corp., No. 16-CV-07096-YGR, 2017
22
23 WL 2404977, at *2 (N.D. Cal. June 2, 2017) (upholding Pexco and compelling arbitration in a
24 case where plaintiff brought claims against a staffing agency and the company where the plaintiff
25 was temporarily placed).
26
27 14
1

2 B. Motion to Stay
3
i. Plaintiff’s Individual and Class Claims
4
5 Staffmark requests that the Court stay this entire action until the completion of arbitration.
6 See Mot. 8. The Court in its discretion instead dismisses Plaintiff’s individual and class action
7 Claims One through Five.
8
Section 3 of the FAA provides that the court “shall on application of one of the parties stay
9
the trial of the action until such arbitration has been had.” 9 U.S.C. § 3. However, in the Ninth
10
Circuit, “notwithstanding the language of § 3, a district court may ... dismiss [an action] outright
11
when ... the court determines that all of the claims raised in the action are subject to
12
13 arbitration.” Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014). As the
14 Court declines to exercise supplemental jurisdiction over Plaintiff’s PAGA claim, and the
15 remaining claims are subject to arbitration, the Court chooses to dismiss Plaintiff’s individual
16
Claims One through Five without prejudice. See Hernandez v. MasterCorp, Inc., No. CV 20-6284-
17
JFW(ASX), 2020 WL 6747381, at *5 n.1 (C.D. Cal. Sept. 15, 2020) (noting that the court is acting
18
in its discretion to dismiss plaintiff’s individual claims, which were subject to arbitration, after
19
declining to exercise supplemental jurisdiction over the remaining PAGA claim).
20
21 The Arbitration Agreement also provides that “the parties agree that they shall not join or
22 consolidate claims submitted for arbitration under this Agreement with those of any other persons,
23 and that no form of class, collective, or representative action shall be maintained without the
24
mutual consent to the parties.” CA Standard Arbitration Agreement 14. Class action waivers are
25
enforceable under the FAA and California state law. See e.g., AT&T Mobility, LLC v. Concepcion,
26
27 15
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2 563 U.S. 333, 343-351 (2011); Kilgore v. KeyBank, Nat. Ass'n, 673 F.3d 947, 951 (9th Cir. 2012).
3
Accordingly, the Court also finds that Plaintiff's class claims should be dismissed with prejudice
4
as to Plaintiff and dismissed without prejudice as to the putative class members.
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ii. Plaintiff’s PAGA Claim
6
Staffmark also requests that the Court stay Plaintiff’s PAGA claim until the completion of
7
8 arbitration. See Mot. 24. Since the Court has dismissed Plaintiff’s arbitrable claims, and the state
9 law PAGA claim is all that remains of Plaintiff’s lawsuit, in the interest of judicial efficiency and
10 fairness the Court declines to extend supplemental jurisdiction over the PAGA claim and instead
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remands the PAGA claim to state court where it was originally filed.
12
The Court has original jurisdiction “of all civil actions arising under the Constitution, laws,
13
or treaties of the United States.” 28 U.S.C. § 1331. Where a party asserts that the Class Action
14
15 Fairness Act (“CAFA”) gives rise to subject matter jurisdiction for a PAGA claim, the
16 “[r]epresentative action under California’s [PAGA] [is] not a ‘class action’ within meaning of
17 Class Action Fairness Act (CAFA), as required to allow district court to exercise original
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jurisdiction over PAGA action.” Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1122-23
19
(9th Cir. 2014); see also id., 747 F.3d at 1119 (holding “CAFA provides no basis for federal
20
jurisdiction” over a PAGA action); Echevarria v. Aerotek, Inc., 814 Fed. Appx. 321, 322 (9th Cir.
21
2020) (affirming district court’s ruling that CAFA jurisdiction does not apply to Plaintiff’s
22
23 remaining PAGA claim once the class action claims were dismissed).
24 The Court can properly exercise supplemental jurisdiction “over all other claims that are so
25 related to claims in the action within such original jurisdiction that they form the same case or
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controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). The doctrine
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2 of supplemental jurisdiction “is a doctrine of discretion, not of plaintiff’s right.” United Mine
3
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); see also Action Embroidery Corp. v. Atl.
4
Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004) (“Like our sister circuits, we hold that the
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actual exercise of personal pendent jurisdiction in a particular case is within the discretion of the
6
district court.”).
7
8 Section 1367(c) outlines when it is appropriate for a federal court to decline to exercise
9 supplemental jurisdiction:
10 (1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district
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court has original jurisdiction,
12 (3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
13 jurisdiction.

14
28 U.S.C. § 1367(c).
15
This Court has a duty to exercise its discretion when “deciding whether to decline, or to
16
retain, supplemental jurisdiction over state law claims when any factor in subdivision (c) is
17
implicated.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997). Where subject
18
19 matter jurisdiction is based on federal question, the Ninth Circuit has held that “[i]n the usual case
20 in which all federal-law claims are eliminated before trial, the balance of factors to be considered
21 under the pendent jurisdiction doctrine – judicial economy, convenience, fairness, and comity –
22
will point toward declining to exercise jurisdiction over the remaining state-law claims.” Sanford
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v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (quoting Carnegie-Mellon Univ. v.
24
Cohill, 484 U.S. 343, 350 n. 7 (1988)). Applying these factors to the instant case, this Court finds
25
it appropriate to decline supplemental jurisdiction over the remaining PAGA claim.
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2 Declining supplemental jurisdiction would serve the interest of judicial economy, fairness,
3
and convenience. While both parties have invested resources into this litigation, this Court has not
4
yet considered the merits of the PAGA claim. See Echevarria, 2019 WL 2503377 (finding no
5
economy lost by remanding a PAGA claim to state court where the district court had not yet
6
considered the PAGA claim’s merits). Moreover, to date there has been no substantive motion
7
8 practice, and no trial date has been set. Accordingly, “the Court’s continued adjudication of the
9 PAGA claims would not serve judicial efficiency or economy.” Wellons v. PNS Stores, Inc., No.
10 18-CV-2913 TWR (DEB), 2020 WL 6203361, at *2 (S.D. Cal. Oct. 20, 2020). The state court will
11
provide an equally fair adjudication of the remaining PAGA claim. Id. at *3. This factor favors
12
declining supplemental jurisdiction over the PAGA claim.
13
Second, comity weighs in favor of declining supplemental jurisdiction. PAGA is founded
14
15 solely in state law, and the primary responsibility for developing and applying state law rests with
16 the California courts. See generally Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 429 (9th
17 Cir. 2015) (discussing history and purpose of PAGA); see also Rodriguez v. Emeritus Corp., No.
18
18-CV-00341-KJM-CKD, 2018 WL 4214922, at *6 (E.D. Cal. Sept. 5, 2018) (declining to
19
exercise supplemental jurisdiction over PAGA claim and remanding PAGA claim to state court
20
once all other claims were dismissed). State courts have an interest in adjudicating the PAGA
21
claim, especially where most of the alleged acts took place within California, and the parties are
22
23 either California residents or California businesses. This factor also favors declining supplemental
24 jurisdiction.
25 In lights of these factors, the Court declines supplemental jurisdiction over the remaining
26
PAGA claim under 28 U.S.C § 1367(c)(3) and remands the PAGA claim to state court where it
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1
2 was originally filed. See Hernandez, 2020 WL 6747381, at *5 (declining to exercise supplemental
3 Jurisdiction over plaintiff's PAGA claim after dismissing all other arbitrable claims in the action).
4
IV. CONCLUSION
5
6 For the foregoing reasons, the Court GRANTS Defendants’ Motions to Compel
7 Arbitration for Plaintiffs individual Claims One through Five against Staffmark and UPSMI, and
8 those claims are DISMISSED WITHOUT PREJUDICE. Plaintiff's class claims are DISMISSED
9 || WITH PREJUDICE as to Plaintiff and DISMISSED WITHOUT PREJUDICE as to the putative
10 |) class members. The PAGA claim is REMANDED to the Santa Clara County Superior Court. The
11
Clerk shall close the case.
a 12
IT IS SO ORDERED.

|| Dated: February 23, 2021
fem Low homer
15 FN
BETH LABSON FREEMAN
16 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10066850. Public record. Not legal advice.