1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ) 12 ) Case No.: SACV 23-02441-CJC (ADSx) COLDEN KIMBER, on behalf of the ) 13 State of California, as a private attorney ) general, ) 14 ) ORDER DENYING PLAINTIFF’S ) MOTION TO REMAND [Dkt. 12] 15 ) Plaintiff, ) 16 ) v. ) 17 )
) 18 THE SPORTS BASEMENT, INC. and ) DOES 1 through 50, inclusive, ) 19 ) ) 20 ) Defendants. ) 21 ) 22 23 I. INTRODUCTION 24 25 Plaintiff Colden Kimber, on behalf of the people of the State of California and as 26 an aggrieved employee acting as a private attorney general under California’s Labor 27 Code Private Attorney General Act of 2004 (“PAGA”), brings this action against 1 penalties for himself and on behalf of all current and former aggrieved employees that 2 worked for Defendant. (See Dkt. 1-1 [Compl.].) Plaintiff originally brought this action 3 in Orange County Superior Court, but Defendant subsequently removed the action, 4 invoking the Court’s federal question jurisdiction. (See Dkt. 1 [Notice of Removal, 5 hereinafter “Notice”].) Now before the Court is Plaintiff’s motion to remand for lack of 6 subject matter jurisdiction. (See Dkt. 12 [Memorandum of Points and Authorities in 7 Support, hereinafter “Mot.”].) For the following reasons, Plaintiff’s motion is DENIED.1 8 9 II. BACKGROUND 10 11 Defendant is an outdoor gear and apparel store in California. (Compl. ¶ 5.) At all 12 relevant times, Defendant has had its headquarters and principal place of business in the 13 Presidio of San Francisco. (Dkt. 13 [Opposition to Plaintiff’s Motion to Remand, 14 hereinafter “Opp.”] at 12.) Its headquarters in the Presidio employed non-exempt 15 employees. (Id.) 16 17 Plaintiff alleges that Defendant employed him from October 25, 2021 to June 20, 18 2023 as a non-exempt employee. (Compl. ¶ 6.) During this period, Plaintiff claims that 19 Defendant, on a companywide basis, failed to comply with California’s labor laws. For 20 instance, Plaintiff asserts that Defendant had a “policy and practice not to pay . . . for all 21 time worked.” (Id. ¶ 11.) The policies and practices underlying Plaintiff’s claim include, 22 among other things, working while clocked out during what were supposed to be off-duty 23 meal breaks, a uniform practice of rounding actual time worked always to Defendant’s 24 benefit, and requiring as a condition of employment off-the-clock work for mandatory 25 temperature checks and symptom questionnaires for COVID-19 screening prior to 26
27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 clocking into Defendant’s timekeeping system for the workday. (Id.) Plaintiff also takes 2 issue with Defendant’s “non-discretionary incentive program.” (Id. ¶ 13.) Allegedly, 3 Defendant “failed to include the incentive compensation as part of the employees’ 4 ‘regular rate of pay’ for purposes of calculating overtime pay and meal and rest break 5 premium pay.” (Id.) Management described the incentive program to potential and new 6 employees as part of their compensation package. (Id.) Plaintiff also alleges Defendant 7 failed to provide its employees with complete and accurate wage statements. (Id. ¶¶ 17– 8 18.) In short, Plaintiff asserts that, companywide as a matter of policy and practice, 9 Defendant consistently violated a wide variety of California labor laws. 10 11 III. LEGAL STANDARD 12 13 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 14 authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 15 (citation omitted). A federal district court has jurisdiction over a civil action removed 16 from state court only if the action could have been brought in the federal court originally. 17 See 28 U.S.C. § 1441(a). Federal courts have original jurisdiction of all civil actions 18 arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Thus, 19 for an action to be removed based on federal question jurisdiction, the complaint must 20 establish either that federal law creates the cause of action or that the plaintiff’s right to 21 relief necessarily depends on the resolution of substantial questions of federal law. See 22 Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 23 U.S. 1, 10-13 (1983). “The ‘strong presumption’ against removal jurisdiction means that 24 the defendant always has the burden of establishing that removal is proper.” Gaus, 980 25 F.2d at 566. “Federal jurisdiction must be rejected if there is any doubt as to the right of 26 removal in the first instance.” Id. “[T]he subject matter jurisdiction of the district court 27 is not a waivable matter and may be raised at anytime by one of the parties, by motion or 1 in the responsive pleadings, or sua sponte by the trial or reviewing court.” Emrich v. 2 Touche Ross & Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988). 3 4 A removing defendant must file with the federal district court “a notice of removal 5 . . . containing a short and plain statement of the grounds for removal.” 28 U.S.C. 6 § 1446(a). In other words, “the defendant must state the basis for removal jurisdiction in 7 the [notice of] removal.” O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 8 1988). Though the notice “cannot be amended to add a separate basis for removal 9 jurisdiction after the thirty day period” to remove under 28 U.S.C. § 1446(b) elapses, id., 10 it can be amended outside that window “to correct a ‘defective allegation of 11 jurisdiction.’” ARCO Envt. Remediation, L.L.C. v. Dep’t of Health & Envt. Quality, 213 12 F.3d 1108, 1117 (9th Cir. 2000) (quoting 28 U.S.C. § 1653). Still, a court may deny 13 leave to amend a pleading if “it is clear . . . that [it] could not be saved by amendment,” 14 Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6 (9th Cir. 2002), or “if there is strong 15 evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated 16 failure to cure deficiencies by amendments previously allowed, undue prejudice to the 17 opposing party by virtue of allowance of the amendment, [or] futility of amendment, 18 etc.’” Sonoma Cnty. Ass’n of Retired Empls. v. Sonoma County, 708 F.3d 1109, 1117 19 (9th Cir. 2013) (alteration in original) (quoting Foman v. Davis, 371 U.S. 178, 182 20 (1962)). 21 22 IV. DISCUSSION 23 24 Defendant asserts that this Court has federal question jurisdiction over this matter 25 because Plaintiff’s allegations against Defendant arise from Defendant’s alleged conduct 26 within a federal enclave. (Notice ¶ 9.) “Federal law governs on a federal enclave, along 27 with state laws, not inconsistent with federal policy, enacted before the federal enclave 1 “assimilated state law is distinctly federal in nature, and its application establishes the 2 basis for federal question jurisdiction.” Swords to Plowshares v. Kemp, 423 F. Supp. 2d 3 1031, 1038 (N.D. Cal. 2005).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ) 12 ) Case No.: SACV 23-02441-CJC (ADSx) COLDEN KIMBER, on behalf of the ) 13 State of California, as a private attorney ) general, ) 14 ) ORDER DENYING PLAINTIFF’S ) MOTION TO REMAND [Dkt. 12] 15 ) Plaintiff, ) 16 ) v. ) 17 )
) 18 THE SPORTS BASEMENT, INC. and ) DOES 1 through 50, inclusive, ) 19 ) ) 20 ) Defendants. ) 21 ) 22 23 I. INTRODUCTION 24 25 Plaintiff Colden Kimber, on behalf of the people of the State of California and as 26 an aggrieved employee acting as a private attorney general under California’s Labor 27 Code Private Attorney General Act of 2004 (“PAGA”), brings this action against 1 penalties for himself and on behalf of all current and former aggrieved employees that 2 worked for Defendant. (See Dkt. 1-1 [Compl.].) Plaintiff originally brought this action 3 in Orange County Superior Court, but Defendant subsequently removed the action, 4 invoking the Court’s federal question jurisdiction. (See Dkt. 1 [Notice of Removal, 5 hereinafter “Notice”].) Now before the Court is Plaintiff’s motion to remand for lack of 6 subject matter jurisdiction. (See Dkt. 12 [Memorandum of Points and Authorities in 7 Support, hereinafter “Mot.”].) For the following reasons, Plaintiff’s motion is DENIED.1 8 9 II. BACKGROUND 10 11 Defendant is an outdoor gear and apparel store in California. (Compl. ¶ 5.) At all 12 relevant times, Defendant has had its headquarters and principal place of business in the 13 Presidio of San Francisco. (Dkt. 13 [Opposition to Plaintiff’s Motion to Remand, 14 hereinafter “Opp.”] at 12.) Its headquarters in the Presidio employed non-exempt 15 employees. (Id.) 16 17 Plaintiff alleges that Defendant employed him from October 25, 2021 to June 20, 18 2023 as a non-exempt employee. (Compl. ¶ 6.) During this period, Plaintiff claims that 19 Defendant, on a companywide basis, failed to comply with California’s labor laws. For 20 instance, Plaintiff asserts that Defendant had a “policy and practice not to pay . . . for all 21 time worked.” (Id. ¶ 11.) The policies and practices underlying Plaintiff’s claim include, 22 among other things, working while clocked out during what were supposed to be off-duty 23 meal breaks, a uniform practice of rounding actual time worked always to Defendant’s 24 benefit, and requiring as a condition of employment off-the-clock work for mandatory 25 temperature checks and symptom questionnaires for COVID-19 screening prior to 26
27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 clocking into Defendant’s timekeeping system for the workday. (Id.) Plaintiff also takes 2 issue with Defendant’s “non-discretionary incentive program.” (Id. ¶ 13.) Allegedly, 3 Defendant “failed to include the incentive compensation as part of the employees’ 4 ‘regular rate of pay’ for purposes of calculating overtime pay and meal and rest break 5 premium pay.” (Id.) Management described the incentive program to potential and new 6 employees as part of their compensation package. (Id.) Plaintiff also alleges Defendant 7 failed to provide its employees with complete and accurate wage statements. (Id. ¶¶ 17– 8 18.) In short, Plaintiff asserts that, companywide as a matter of policy and practice, 9 Defendant consistently violated a wide variety of California labor laws. 10 11 III. LEGAL STANDARD 12 13 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 14 authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 15 (citation omitted). A federal district court has jurisdiction over a civil action removed 16 from state court only if the action could have been brought in the federal court originally. 17 See 28 U.S.C. § 1441(a). Federal courts have original jurisdiction of all civil actions 18 arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Thus, 19 for an action to be removed based on federal question jurisdiction, the complaint must 20 establish either that federal law creates the cause of action or that the plaintiff’s right to 21 relief necessarily depends on the resolution of substantial questions of federal law. See 22 Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 23 U.S. 1, 10-13 (1983). “The ‘strong presumption’ against removal jurisdiction means that 24 the defendant always has the burden of establishing that removal is proper.” Gaus, 980 25 F.2d at 566. “Federal jurisdiction must be rejected if there is any doubt as to the right of 26 removal in the first instance.” Id. “[T]he subject matter jurisdiction of the district court 27 is not a waivable matter and may be raised at anytime by one of the parties, by motion or 1 in the responsive pleadings, or sua sponte by the trial or reviewing court.” Emrich v. 2 Touche Ross & Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988). 3 4 A removing defendant must file with the federal district court “a notice of removal 5 . . . containing a short and plain statement of the grounds for removal.” 28 U.S.C. 6 § 1446(a). In other words, “the defendant must state the basis for removal jurisdiction in 7 the [notice of] removal.” O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 8 1988). Though the notice “cannot be amended to add a separate basis for removal 9 jurisdiction after the thirty day period” to remove under 28 U.S.C. § 1446(b) elapses, id., 10 it can be amended outside that window “to correct a ‘defective allegation of 11 jurisdiction.’” ARCO Envt. Remediation, L.L.C. v. Dep’t of Health & Envt. Quality, 213 12 F.3d 1108, 1117 (9th Cir. 2000) (quoting 28 U.S.C. § 1653). Still, a court may deny 13 leave to amend a pleading if “it is clear . . . that [it] could not be saved by amendment,” 14 Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6 (9th Cir. 2002), or “if there is strong 15 evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated 16 failure to cure deficiencies by amendments previously allowed, undue prejudice to the 17 opposing party by virtue of allowance of the amendment, [or] futility of amendment, 18 etc.’” Sonoma Cnty. Ass’n of Retired Empls. v. Sonoma County, 708 F.3d 1109, 1117 19 (9th Cir. 2013) (alteration in original) (quoting Foman v. Davis, 371 U.S. 178, 182 20 (1962)). 21 22 IV. DISCUSSION 23 24 Defendant asserts that this Court has federal question jurisdiction over this matter 25 because Plaintiff’s allegations against Defendant arise from Defendant’s alleged conduct 26 within a federal enclave. (Notice ¶ 9.) “Federal law governs on a federal enclave, along 27 with state laws, not inconsistent with federal policy, enacted before the federal enclave 1 “assimilated state law is distinctly federal in nature, and its application establishes the 2 basis for federal question jurisdiction.” Swords to Plowshares v. Kemp, 423 F. Supp. 2d 3 1031, 1038 (N.D. Cal. 2005). 4 5 Since 2003, Defendant’s flagship store, its corporate headquarters and principal 6 place of business, has been in the Presidio of San Francisco, a federal enclave located 7 within the State of California. (Id. ¶ 10); see Totah, 2011 WL 1324471, at *2 (“The 8 United States acquired exclusive jurisdiction over the Presidio in 1897, establishing it as 9 a federal enclave.”). And since 2003, Defendant’s flagship store in the Presidio has 10 continuously employed non-exempt employees who are impacted by Defendant’s 11 policies and practices at issue in this case. (Notice ¶ 11.) Plaintiff does not dispute that 12 the Presidio is a federal enclave or that Defendant employed non-exempt employees on 13 behalf of which Plaintiff pursues this case. (See Mot. at 4–5 [conceding the existence of 14 the Presidio location]; Dkt. 14 [Reply in Support of Motion to Remand, hereinafter 15 “Reply”] at 3 [conceding some number of aggrieved employees worked at the Presidio].) 16 17 Instead, Plaintiff argues this Court lacks jurisdiction because Defendant “failed to 18 demonstrate Presidio is the locus, or majority location, of Plaintiff’s claims.” (Mot at 5.) 19 Some courts have held that federal enclave doctrine applies only when the locus in which 20 the claim arose is the federal enclave itself—that is to say, when “the majority of the 21 pertinent events took place on a federal enclave.” See Jamil v. Workforce Res., LLC, 22 2018 WL 2298119, at *4 (S.D. Cal. May 21, 2018) (collecting cases). Plaintiff claims 23 that because “it is estimated that only 1/12th of the aggrieved employees worked at the 24 Presidio during the relevant time period,” then, mathematically, the Presidio is not the 25 “locus” of Plaintiff’s case. (Reply at 3–4.) 26 27 This framing ignores the representative nature of the case Plaintiff seeks to pursue. 1 F.4th 1219, 1226 (9th Cir. 2022). The relevant question, even under Plaintiff’s framing 2 of the locus test, is where each aggrieved employee worked the most. For the aggrieved 3 employees working at the Presidio location, the majority, if not all, of their work took 4 place in the Presidio—a federal enclave. Therefore, federal law governs the violations 5 regarding the aggrieved employees who worked at Defendant’s flagship store in the 6 Presidio. Notably, after Defendant removed this case based on the Presidio’s status as a 7 federal enclave, Plaintiff expressly stated that he continues to assert claims for employees 8 who worked at the flagship store. (Opp. at 13); see Jimenez v. CRC Prop. Mgmt. W. Inc., 9 2021 WL 4312622, at *3 (S.D. Cal. Sept. 21, 2021) (denying motion to remand PAGA 10 case when “Plaintiff makes no concession to amend the Complaint to exclude claims 11 arising from work performed on the federal enclave”). 12 13 Because the Court has federal question jurisdiction over the claims involving 14 Defendant’s flagship store, it may exercise supplemental jurisdiction over the remainder 15 of the claims stemming from aggrieved employees who worked at Defendant’s stores in 16 other locations in California. In an action over which a district court possesses original 17 jurisdiction, that court “shall have supplemental jurisdiction over all other claims that are 18 so related to claims in the action within such original jurisdiction that they form part of 19 the same case or controversy under Article III of the United States Constitution.” 28 20 U.S.C. § 1367(a). Plaintiff alleges that the purported labor law violations occurred at all 21 of Defendant’s stores and that those violations are based on companywide policies and 22 practices. There is no real question that the violations that allegedly took place in the 23 Presidio are part of the same case or controversy as violations that allegedly took place 24 elsewhere. Therefore, the Court exercises supplemental jurisdiction over Plaintiff’s 25 claims based on aggrieved employees that worked at Defendant’s non-Presidio locations. 26 See Jimenez, 2021 WL 4312622, at *8 (holding in a PAGA case that “this Court has 27 original jurisdiction over claims arising from events that took place on Pacific Beacon 1 supplemental jurisdiction over claims arising from events that took place at non- 2 enclave locations”). 3 CONCLUSION 5 6 For the foregoing reasons, Plaintiff's motion to remand is DENIED. 7 8 9 DATED: _ February 22, 2024 Ko. ft 10 —_f- C77 CORMAC J. CARMEY 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28