Free Reply to Response to Motion - District Court of California - California

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

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STEPHEN J. SCHULTZ, SBN 90187

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

[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) REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. § 1447(c)) Date: March 28, 2008 Time: 1:30 p.m. Courtroom: 10
/ / / / / / / / / / 1 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S 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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I REMOVAL WAS IMPROPER BECAUSE PLAINTIFF'S CAUSES OF ACTION DO NOT REQUIRE INTERPRETATION OF A CBA In determining whether an action is removable under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 ("Section 301"), The plaintiff's claim is the touchstone for [the] analysis; the need to interpret the CBA must inhere in the nature of the plaintiff's claim. If the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001)(en banc), cert denied , 534 U.S. 1078 (2002). Despite these clear principles, Akal does not, and cannot, point to a single provision of a collective-bargaining agreement (CBA) that requires interpretation. This case must be remanded. Akal's failure to articulate any reasonably objective basis for removal requires an award of attorney's fees. A. Plaintiff's Claims For Wage And Hour Violations Do Not Require Any Interpretation Of A Collective-Bargaining Agreement

Plaintiff's claims are based on California statutory wage and hour law. Proof of the elements of those claims does not require the interpretation of a CBA. In order to prevail on his claims for unpaid overtime, Plaintiff need only prove that he worked more than eight hours in a day and did not receive premium pay at the rate of one-and-one-half-times his straight time hourly rate for each hour worked in excess of eight hours. Proof of a violation and damages require only the employee's hourly wage rate, which can be gleaned from his pay records, and the amount of hours worked that were not compensated at the premium rate. The Ninth Circuit has held that wage and hour claims such as
2 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. S 1447(C)) CASE NO: 08 CV 0094 DMS AJB

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these do not require an interpretation of a CBA and are not removable. See Gregory v. SCIE, LLC, 317 F.3d 1050, 1053-54 (9th Cir. 2003). Akal may try to raise the CBA in mounting its defense. However, under the well pleaded complaint rule, raising Section 301 preemption as a defense does not make the action removable. See Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987); Cramer, 255 F.3d at 692. Accordingly, Akal's attempt to invoke federal jurisdiction by alleging the collective bargaining agreement as a defense to Plaintiff's statutory claims is insufficient to defeat remand. Beals v. Kiewit Pac. Co., Inc., 114 F.3d 892, 894 (9th Cir. 1997), and Antol v. Esposto, 100 F.3d 1111, 1117 (3d Cir. 1996), which are cited by Akal, are inapplicable to Plaintiff's statutory claims for overtime because both of those cases involved breach of contract claims. The decision in Beals is further distinguishable from this case because the action there was originally filed in federal court and did not involve the issue of whether the existence of the CBA could provide grounds for removal of an action to federal court. Beals, 114 F.3d at 894. B. Plaintiff's Claims That Arise Under California Statutes Are Not Claims For Breach Of A CBA

Plaintiff, not Akal, is the master of the complaint and the law does not permit Akal to rewrite Plaintiff's complaint to provide Akal with a basis for removal. Akal's argument for Section 301 preemption employs the following tortured reasoning: (1) the El Centro Facility is on federal land (no evidence has been presented as to federal ownership of the facility); (2) state law does not apply to federal land (Akal fails to cite any supporting authority for this proposition); (3) Plaintiff does not assert a claim under federal law for unpaid
3 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. S 1447(C)) CASE NO: 08 CV 0094 DMS AJB

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overtime (this is true); (4) therefore, Plaintiff must be asserting a cause of action for breach of a CBA. Notwithstanding the fact that the first two claims are unsupported by the record or law, the conclusion that Plaintiff's "overtime claims are necessarily based on a contract theory" is a non sequitur and mischaracterizes Plaintiff's claims. The complaint asserts only a California statutory cause of action for overtime. Specifically, Plaintiff's cause of action for unpaid overtime alleges: California Law requires an employer to pay each employee premium pay at a rate of one and a half time the employee's regular hourly wage for each hour (or fraction thereof) that an employee works in excess of eight hours in a workday. ... In violation of California Labor Code, Akal did not pay, and Subclass I plaintiffs and Subclass I members did not receive the full amount of overtime premium pay for their work on these days. Plaintiff's Second Amended Complaint, ¶ 44, 46. There is no mention of a CBA anywhere in Plaintiff's complaint, nor is there any mention of or allegation of any breach by Akal of a CBA. Akal's characterization of Plaintiff's overtime claim as a contract cause of action is disingenuous and objectively groundless. C. Federal Ownership Of The El Centro Facility Is Irrelevant To Plaintiff's Motion To Remand

Akal's conclusion that state law does not apply to the El Centro Facility is, unsupported by the record, an incorrect statement of the law, and irrelevant to the issue of removal. The record contains no evidence that the property in question is actually owned by the federal government. Notwithstanding the absence of any evidence regarding ownership of the facility, federal government ownership of property does not necessarily make state law inapplicable to activities on that property. See U.S. v. Gardner, 107 F.3d 1314, 1320, (9th Cir. 1997) (stating
4 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. S 1447(C)) CASE NO: 08 CV 0094 DMS AJB

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federal ownership of land did not divest state of ability to exercise its own sovereignty over that land); People v. Crusilla, 91 Cal.Rptr.2d 415, 421 (Cal.Ct.App. 1999)(noting federal ownership of property does not remove property from jurisdiction of state). In any event, since the inapplicability of state law is raised as a defense to Plaintiff's claims, under the well pleaded complaint rule, Akal's defense does not make the action removable. See Caterpillar, 482 U.S. at 398-99; Cramer, 255 F.3d at 692. III AKAL ONLY REMOVED THE ACTION AS TO LOERA Akal impermissibly removed only part of the action. Despite Akal's claim that its generic reference to "the state court action" was effective to remove the entire case, Akal's own pleadings indicate that it only removed the action as to Loera. Akal consistently refers to Plaintiff in the singular form and fails to mention any of the additional eight named plaintiffs. Indeed, when asked whether it would answer the claims of the other plaintiffs, Akal acknowledged that it only answered as to Loera and subsequently filed an amended answer for the additional plaintiffs. See Akal's Amended Answer to Plaintiff's Second Amended Complaint, attached to the Declaration of Bernard King, as Exhibit "8." Akal does not now get to go back and change its decision. As Akal failed to remove the entire action in the first instance, this Court must remand the action. See Morschauser v. Am. News. Co., 158 F.Supp. 517, 520 (D.C.N.Y. 1958).
/ / / / / / / / / / / / / / / / / / / / 5 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. S 1447(C)) CASE NO: 08 CV 0094 DMS AJB

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IV AKAL'S REMOVAL PETITION WAS UNTIMELY Akal's delay is inexcusable. Akal's removal was untimely because Akal knew of the facts supporting its current theory of removal early on in the action. 1 Akal argues that Plaintiff's claims for overtime are essentially contractual claims because state law does not apply to the operations at the El Centro Facility. Akal was aware these claims arose out of operations at the El Centro Facility by nature of Plaintiff's first complaint filed on April 27, 2006. Akal's attempt to distinguish Eyak Native Village v. Exxon Corp., 25 F.3d 777 (9th Cir. 1994), cert. denied, 513 U.S. 943 (1994), rehearing denied, 513 U.S. 1036 (1994), from the present case is unavailing. In Eyak, the Court addressed the timeliness of different removals by two separate parties. Id. In evaluating the first party's petition, the court determined that removal was triggered by a reply brief because that brief created an independent action in equity. Id. at 779. However, as to the second party, the Ninth Circuit held that removal was untimely because "it [was] clear that [the defendant] was aware of the nature of the plaintiffs' claims and their possible connection to [a federal question] long before the removal notices were filed." Id. at 783. In its opposition, Akal ignores this second aspect of Eyak and implicitly concedes early awareness of its theory for removal. The Ninth Circuit's holding in Eyak as to the second party supports the conclusion that Akal's removal was
/ / / / / / / / / / Akal refers to the alleged inapplicability of California overtime provisions twice in its July 26, 2006 answer. (Akal's Answer to Plaintiff's First Amended Complaint, previously attached to Plaintiff's Motion to Remand as Exhibit "2", ¶¶ 6, 18.) 6 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. S 1447(C)) CASE NO: 08 CV 0094 DMS AJB
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untimely because its answer showed that it knew of the facts supporting its theory of removal as early as July 2006. See Plaintiff's Memorandum in Support of Motion to Remand, p. 15-16. V ATTORNEYS' FEES As a result of removal Plaintiff has been forced to expend additional and needless attorney's fees, and resolution of the action in the proper forum has been delayed. This additional delay is especially concerning considering that this action has been pending in State Court for over 22 months. See previously filed, Declaration of Bernie King in Support of Motion to Remand, ¶ 3. Plaintiff does not dispute that it is within the discretion of this Court to award Plaintiff attorneys fees and costs on its motions to remand. However, a court should award fees, where the lack of an objectively reasonable basis for removal indicates that removal was sought, at least in part, to prolong litigation and increase costs for the party opposing removal. See Martin v. Franklin Capital Corp., 546 U.S. 132, 140-141 (2005). Akal has failed to articulate any objectively reasonable basis supporting the removal. Numerous Supreme Court and Ninth Circuit cases articulate the well-pleaded complaint rule and the rules governing preemption under Section 301. Akal's notice of removal ignored that precedent. Akal's opposition to Plaintiff's motion for remand continues to ignore that precedent. Yet, astonishingly, Akal claims that its petition for removal was objectively reasonable. This assertion is perplexing considering Akal's theory for removal inexplicably ignores the principles repeatedly articulated by the Supreme Court and Ninth Circuit.
7 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. S 1447(C)) CASE NO: 08 CV 0094 DMS AJB

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Since there was no reasonably objective bases for removal, Plaintiff should be awarded his attorney's fees. In its Opposition, Akal does not dispute the reasonableness of the amount claimed or time spent by Plaintiff's counsel as a consequence of Akal's removal of the action. As indicated in Plaintiff's motion to remand as of January 31, 2008, Plaintiff incurred attorney's fees of $8,739.00. King Dec. on Reply, ¶ 6. Since filing his motion to remand on February 4, 2008. Plaintiff has incurred additional attorneys fees of $8,047.50. King Dec. on Reply, ¶ 6. Accordingly, the total amount of attorney's fees incurred thus far, is $16,786.50. King Dec. on Reply, ¶¶ 6, 9. VI CONCLUSION Plaintiff respectfully requests his motion to remand and motion for attorneys fees and costs be granted with as little delay as possible so Plaintiffs may continue to pursue this action in state court, thereby minimizing the prejudicial effect of Akal's efforts to delay this action. DATED: March 20, 2008 MARKS, GOLIA & FINCH, LLP

By: /S/Bernard F. King, Esq.___ E-mail: [email protected] MARK T. BENNETT E-mail: [email protected] STEPHEN J. SCHULTZ E-mail: [email protected] JASON R. THORNTON E-mail: [email protected] Attorneys for Plaintiffs

974.002a/LEB29.am

8 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S 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 20th day of March 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: March 20, 2008 MARKS, GOLIA & FINCH, LLP By: /S/Bernard F. King, Esq. E-mail: [email protected] Attorneys for Plaintiffs

9 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF LOERA'S MOTION TO REMAND AND REQUEST FOR ATTORNEY'S FEES AND COSTS (28 U.S.C. S 1447(C)) CASE NO: 08 CV 0094 DMS AJB