Free Motion to Remand - District Court of California - California

Case 3:08-cv-00094-DMS-AJB
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Document 9

Filed 02/04/2008

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STEPHEN J. SCHULTZ, SBN 90187

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MARK T. BENNETT, SBN 89061 [email protected] JASON R, THORNTON, SBN 185637 [email protected] BERNARD F. KING, SBN 232518 [email protected]

MARKS, GOLIA & FINCH, LLP
ATTORNEYS AT LAW 3900 HARNEY STREET ­ FIRST FLOOR

SAN DIEGO, CALIFORNIA 92110-2825
TELEPHONE: (619) 293-7000 FACSIMILE: (619) 293-7362

MATTHEW B. BUTLER, SBN 201781

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[email protected]

NICHOLAS & BUTLER, LLP
225 BROADWAY, 19TH FLOOR

SAN DIEGO, CALIFORNIA 92101-5005
TELEPHONE: (619) 325-0492 FACSIMILE: (619) 325-0496

Attorneys for Plaintiff David Loera UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA DAVID LOERA, for himself and on behalf of all others similarly situated and the general public, Plaintiffs, v. AKAL SECURITY, INC., a corporation; and DOES 1 through 100, inclusive, Defendants. CASE NO: 08cv0094 DMS AJB (Removed from Superior Court of California, County of Imperial, Case No. ECU03022) NOTICE OF MOTION AND MOTION TO REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (28 U.S.C. § 1447(c)) Date: March 28, 2008 Time: 1:30 p.m. Courtroom: 10

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MARKS, GOLIA & FINCH, LLP 3900 Harney Street First Floor San Diego, CA 92110 (619) 293-7000

NOTICE OF MOTION AND MOTION TO REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (28 U.S.C. S 1447(C))
CASE NO: 08 CV 0094 DMS AJB

Case 3:08-cv-00094-DMS-AJB

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TO DEFENDANT AKAL SECURITY, INC., AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 28, 2008, in Courtroom 10 of the above captioned Court, located at 940 Front Street, San Diego, California, plaintiff David Loera, will move the Court for an order remanding this case to the Superior Court of California, County of Imperial, the Court from which it was improperly removed. Plaintiff further moves for an award of costs and fees in a sum to be proved which were incurred in connection with the removal of the action to this Court. Plaintiff submits a declaration, concurrently filed with this motion, detailing his fees and costs incurred thus far. Plaintiff is entitled to remand of this action because, as is more fully explained in the concurrently filed Memorandum of Points and Authorities, this Court lacks the required subject matter jurisdiction over this matter and defendant Akal Security, Inc.'s ("Akal's") notice of removal is procedurally defective. Removal was improper because:
1.

Akal improperly attempted to remove the case by removing as to

only one plaintiff;
2.

The complaint does not present a claim or right arising under the

Constitution, treaties or laws of the United States. This matter involves claims for violations of California's Labor Code and Business and Professions Code;
3.

Plaintiff's causes of action are not preempted by Section 301 of the

Labor Management Relations Act, 29 U.S.C. § 185, as they do not seek to
/ / / / / / / / / / 2

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MARKS, GOLIA & FINCH, LLP 3900 Harney Street First Floor San Diego, CA 92110 (619) 293-7000

NOTICE OF MOTION AND MOTION TO REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (28 U.S.C. S 1447(C))
CASE NO: 08 CV 0094 DMS AJB

Case 3:08-cv-00094-DMS-AJB

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enforce rights created under a collective-bargaining agreement and neither involve, nor are substantially dependent upon, an interpretation of a collective bargaining agreement;
4.

The notice of removal was untimely filed because Akal became

aware of the factual basis of its argument supporting federal jurisdiction more than 30 days before it filed its notice of removal; and
5.

Akal's notice of removal is procedurally defective.

A proposed order remanding the action is concurrently filed with this motion. Although the caption only references plaintiff David Loera, to the extent that this Court broadly construes Akal's notice of removal to include all of the plaintiffs named in the second amended complaint, those individuals join in this motion. This motion is based on this notice, the supporting memorandum of points and authorities, the declaration of Bernard F. King III and the documents attached thereto, all of the documents filed in this action, and on whatever argument the parties may offer at the hearing of this motion. DATED: February 4, 2008 MARKS, GOLIA & FINCH, LLP

By: /S/ Mark T. Bennett., Esq. ___ E-mail: [email protected] BERNARD F. KING III E-mail: [email protected] STEPHEN J. SCHULTZ E-mail: [email protected] JASON R. THORNTON E-mail: [email protected] Attorneys for Plaintiffs
974.002a/LEB17.am

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MARKS, GOLIA & FINCH, LLP 3900 Harney Street First Floor San Diego, CA 92110 (619) 293-7000

NOTICE OF MOTION AND MOTION TO REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (28 U.S.C. S 1447(C))
CASE NO: 08 CV 0094 DMS AJB

Case 3:08-cv-00094-DMS-AJB

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that this document has been filed electronically on this 4th day of February 2008 and is available for viewing and downloading to the ECF registered counsel of record: Via Electronic Service/ECF: Gary J. Lorch, Esq. [email protected] DATED: February 4, 2008 MARKS, GOLIA & FINCH, LLP By: /S/Mark T. Bennett, Esq. E-mail: [email protected] Attorneys for Plaintiffs

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MARKS, GOLIA & FINCH, LLP 3900 Harney Street First Floor San Diego, CA 92110 (619) 293-7000

NOTICE OF MOTION AND MOTION TO REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (28 U.S.C. S 1447(C))
CASE NO: 08 CV 0094 DMS AJB