Gil v. Outback, Inc.

• Court: District Court, E.D. California
• Decided: December 5, 2023
• Docket: 1:21-cv-01803
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Jessie Gil, et al., No. 1:21-cv-01803-NODJ-EPG 12 Plaintiffs, ORDER 13 v. Outback, Inc., et al., 1S Defendants. 16 17 Plaintiff Jessie Gil moves to remand this action to the Fresno County Superior Court. 18 | Defendant Outback, Inc. removed the case to this court asserting federal question jurisdiction, 19 | citing its plan to raise an affirmative defense based on preemption by the Motor Carrier Safety 20 | Act of 1984 (FMCSA) and the Fair Labor Standards Act (FLSA). Neither of these federal 21 | statutes completely preempts Mr. Gil’s claims, and affirmative defenses—even those based on 22 | preemption defenses—do not support this court’s jurisdiction, so the court grants the motion to 23 | remand.'

‘Tn the interests of justice and efficiency, and addressing the heavy civil caseloads in the Fresno courthouse, the undersigned resolves the pending motion to remand, ECF No. 6, without the case being reassigned.

1 I. BACKGROUND 2 Mr. Gil asserts several claims based on California labor law and workplace protections 3 related to minimum wages, meal and rest breaks, pay slips, and similar subjects. See Complaint 4 (“Compl.”) ¶¶ 1, 27–68, Not. Removal, Ex. A, ECF No. 1.2 Outback, a building materials 5 company, is his former employer. Compl. ¶ 15; Decl. Deni Armas ¶ 2, ECF No. 1–2. He and 6 other similarly situated employees drove ready-mix concrete to and from construction sites in 7 central California. Compl. ¶ 15. 8 Outback removed the case to this court in late 2022. See generally Not. Removal, ECF 9 No. 1. It relied on 28 U.S.C. § 1331, which gives federal courts original jurisdiction over “actions 10 arising under the Constitution, laws, or treaties of the United States,” citing the FMCSA and 11 FMLA and arguing those laws completely preempt Gil’s California-law claims. Not. Removal 12 ¶¶ 1–2. In support of the notice, Outback provided a declaration by Deni Armas, its payroll 13 coordinator and human resources manager, who asserts that Outback is registered as a federal 14 motor carrier with the Federal Motor Carrier Safety Administration -- and is subject to that 15 agency’s federal regulations for commercial drivers, which covers drivers such as Mr. Gil. Not. 16 Removal, Decl. Deni Armas ¶ 3, ECF No. 1–2; see generally Opp’n, Decl. Deni Armas ¶ 4–5, 17 ECF No. 11–2. Mr. Gil moves to remand the case to state court. He argues short-haul drivers 18 like himself are expressly excluded from the agency’s hours of service requirements for 19 commercial drivers. Mot. Remand 1:19–24, ECF No. 6–1. He also contends ordinary federal 20 preemption defenses are insufficient to support removal. Id. Outback opposes the motion, and 21 Mr. Gil has replied. Opp’n, ECF No. 11; Reply, ECF No. 12. The court took the matter under 22 submission without hearing oral arguments. Min. Order, ECF Nos. 8, 14. 23 Defendant has requested judicial notice of caselaw and the Department of 24 Transportation’s legal opinion. See Request for Judicial Notice (RJN), ECF No. 11–1. The court 25 considers the cases without taking judicial notice, but grants the request as to the federal agency’s 26 legal opinion because it is a matter of official public record “capable of accurate and ready

2 Citations to documents filed on the docket refer to CM/ECF pagination. 1 determination by resort to sources who accuracy cannot reasonably be questioned.” See Reyn’s 2 Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial 3 notice of court filings and other matters of public record.”). 4 II. LEGAL STANDARD 5 “On a plaintiff’s motion to remand, it is a defendant’s burden to establish jurisdiction by a 6 preponderance of the evidence.” Taylor v. United Road Servs., 313 F. Supp. 3d 1161, 1168 (E.D. 7 Cal. 2018) (citing Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88–89 8 (2014); Rodriguez v. AT&T Mobility Servs., LLC, 728 F.3d 975, 978 (9th Cir. 2013)). “The 9 removal statute is strictly construed, and any doubt about the right of removal requires resolution 10 in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 11 2009). Removal under § 1331 is governed by the “well-pleaded complaint rule,” which provides 12 that federal question jurisdiction exists only when “a federal question is presented on the face of 13 plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 14 “The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by 15 exclusive reliance on state law.” Id. Ordinary preemption defenses do not on their own support 16 removal jurisdiction if a plaintiff pleads solely state law claims. Metro. Life Ins. Co. v. Taylor, 17 481 U.S. 58, 63 (1987). 18 An exception to this rule, known as the complete preemption doctrine, permits removal 19 when “the preemptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state 20 common-law complaint into one stating a federal claim for purposes of the well-pleaded 21 complaint rule.’” Caterpillar., 482 U.S. at 393 (citing Metro. Life, 481 U.S. at 65); see also 22 Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003). The test for complete preemption is 23 demanding. See In re Miles, 430 F.3d 1083, 1088 (9th Cir. 2005). “[A] state claim may be 24 removed to federal court in only two circumstances—when Congress expressly so provides . . . or 25 when a federal statute wholly displaces the state-law cause of action through complete pre- 26 emption.” Beneficial Nat’l Bank, 539 U.S. at 8. “[T]here are only a ‘handful of “extraordinary” 27 situations where even a well-pleaded state law complaint will be deemed to arise under federal 28 law for jurisdictional purposes.’” Perez v. Sierra Mountain Express Inc., 2021 WL 100591, at *2 1 (E.D. Cal. Jan. 12, 2021) (quoting Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir. 2 1993)). The Supreme Court has identified only three statutes that qualify for complete 3 preemption: the Labor Management Relations Act, 29 U.S.C. § 186(a), see Avco Corp. v. Aero 4 Lodge No. 735, 390 U.S. 557 (1968), the Employee Retirement Income Security Act of 1974, 29 5 U.S.C. § 1001 et seq., see Metro. Life, 481 U.S. 58, and the National Bank Act, 12 U.S.C. §§ 85– 6 86, see generally Beneficial Nat’l Bank, 539 U.S. 1 (2003). 7 III. REMOVAL JURISDICTION 8 Outback argues the FMCSA and the FMLA both completely preempt Gil’s claims. The 9 court considers these arguments in turn. 10 A. The FMCSA Does Not Completely Preempt Mr. Gil’s Claims 11 To argue the FMCSA completely preempts Mr. Gil’s rest and meal break claims Outback 12 relies on the Ninth Circuit’s decision in International Brotherhood of Teamsters, Local 2785 v. 13 Federal Motor Carrier Safety Administration, 986 F.3d 841 (9th Cir. 2021), and a Central District 14 court decision interpreting that case, Razo v. CEMEX Construction Materials Pacific, LLC, 2021 15 WL 325638 (C.D. Cal. Feb. 1, 2021). See Opp’n Remand 5:16–21, ECF No. 11. 16 In Teamsters, the Ninth Circuit held that a 2018 order by the Federal Motor Carrier Safety 17 Administration was a lawful exercise of the agency’s power under the FMCSA. 986 F.3d at 846. 18 The Teamsters court “applied an ordinary conflict preemption analysis to reach its conclusion that 19 California’s meal and rest break rules were preempted,” without relying on the complete 20 preemption doctrine. Lindsey v. WC Logistics, Inc., 586 F. Supp. 3d 983, 990 (N.D. Cal. 2022) 21 (emphasis in original). The conflict preemption analysis “would have been wholly unnecessary if 22 the FMSCA completely preempted state law.” Id. (emphasis in original). For complete 23 preemption to apply, Congress must have intended that the subject statute—here, 49 U.S.C. 24 § 31141—provide the exclusive cause of action. Id. (citing Beneficial Nat’l Bank, 539 U.S. at 9.) 25 Congress did not have that intent when it passed the FMCSA. That statute expressly allows state 26 laws with the “same effect as” the federal regulations to be enforced, thus undermining any 27 argument that Congress intended to entirely displace state law causes of action. Id. Teamsters 28 therefore does not support Outback’s position. 1 As two other California district courts have explained, the district court in Razo reached 2 the incorrect opposite conclusion. “The court in Razo appears to have erred in concluding that the 3 regulation evinced complete preemption of state law . . . Complete preemption cannot be 4 achieved by regulation, as Razo suggests.” Id. (citing Dennis v. Hart, 724 F.3d 1249, 1254 (9th 5 Cir. 2013) (“Complete preemption is a limited doctrine that applies only where a federal statutory 6 scheme is so comprehensive that it entirely supplants state law causes of action.”)); see also 7 Harris v. Venture Transp., LLC, 2022 WL 2464860, at *2 (C.D. Cal. July 6, 2022) (reasoning 8 similarly). In addition, the district court in Razo did not distinguish between ordinary conflict 9 preemption and complete preemption, and it did not cite or apply the Supreme Court’s test for 10 complete preemption. See Lindsey, 586 F. Supp. 3d at 990. 11 Outback has not shown that Congress intended to completely preempt state law when it 12 passed the FMCSA, so this court may not assert exclusive jurisdiction over this case based on the 13 FMCSA. 14 B. The FLSA Does Not Completely Preempt Mr. Gil’s Claims 15 Outback contends the FLSA completely preempts state law under 29 U.S.C. § 216(b). 16 Though 29 U.S.C. § 216(b) provides that “[a]n action . . . may be maintained against any 17 employer (including a public agency) in any Federal or State court of competent jurisdiction,” the 18 United States Supreme Court has never held that the FLSA completely preempts state claims. It 19 has held only that a suit under the FLSA may be removed from state to federal court. Breuer v. 20 Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 700 (2003). Mr. Gil does not bring any claims 21 under the FLSA. Outback’s assertion that the FLSA is implicated by way of an exemption is not 22 a legally sufficient basis for federal question jurisdiction. See Ware v. Security Nat’l Servicing 23 Corp., 2005 WL 1489920, at *5 (E.D. Cal. June 17, 2005) (remanding because totality of 24 circumstances demonstrated plaintiff was neither asserting federal claim for relief under FLSA 25 nor seeking federal remedies). 26 Outback cites no case in which any court has held the FLSA completely preempts state 27 law, and the court is aware of none. To the contrary, district courts consistently have held the 28 FLSA does not completely preempt state laws. See, e.g., Cummings v. Cenergy Int’l Servs., LLC, 1 258 F. Supp. 3d 1097, 1107 (E.D. Cal. 2017); Hurt v. Del Papa Distrib. Co., L.P., 425 F. Supp. 2 2d 853, 857 (S.D. Tex. 2004). “This is not to say that [Mr. Gil’s] claims are not preempted by the 3 FLSA in the ordinary sense—ordinary preemption simply does not implicate the [c]ourt’s subject 4 matter jurisdiction.” Cummings, 258 F. Supp. 3d at 1108. 5 Outback has not shown removal is proper based on the FLSA. 6 IV. FEES AND COSTS 7 Mr. Gil requests an award of attorneys’ fees and costs under 28 U.S.C. § 1447(c). See 8 Mot. Remand at 11. The court declines to award fees and costs because it was not unreasonable 9 for Outback to remove this action and oppose Mr. Gil’s motion. District courts have reached 10 contrary conclusions about the FMCSA’s preemptive force, as explained above. See Grancare, 11 LLC v. Thrower by & through Mills, 889 F.3d 543, 552 (9th Cir. 2018) (“Absent unusual 12 circumstances, a court may award costs and attorney’s fees under § 1447(c) only where the 13 removing party lacked an objectively reasonable basis for seeking removal. . . . [T]he degree of 14 clarity in the relevant law at the time of removal is a relevant factor in determining whether a 15 defendant's decision to remove was reasonable.”). 16 V. CONCLUSION 17 The motion to remand is granted. The request for fees and costs is denied. 18 This order resolves ECF No. 6 and closes the case. 19 IT IS SO ORDERED. 20 DATED: December 4, 2023.