Deion Walker v. United Parcel Service, Inc. et al

Filing 27

MINUTES (IN CHAMBERS)The Court GRANTS Plaintiffs motion to remand #20 and DENIES Defendants motion to dismiss as moot by Judge Philip S. Gutierrez: For the foregoing reasons, the Court GRANTS Plaintiffs motion to remand and DENIES Defendants motion to dismiss as moot. IT IS SO ORDERED. (See minutes for further details) Remanded to 20STCV16019. MD JS-6. Case Terminated. (yl)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL
Case No.

CV 20-6498 PSG (AFMx)

Title

Deion Walker v. United Parcel Service, Inc., et al.

Present: The Honorable

Date

October 13, 2020

Philip S. Gutierrez, United States District Judge

Wendy Hernandez

Not Reported

Deputy Clerk

Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present

Not Present

Proceedings (In Chambers):

The Court GRANTS Plaintiff’s motion to remand and DENIES
Defendant’s motion to dismiss as moot

Before the Court are two motions: (1) a motion to remand filed by Plaintiff Deion Walker
(“Plaintiff”), see Dkt. # 20 (“Plaintiff’s MTR”); and (2) a motion to dismiss filed by Defendant
United Parcel Service, Inc. (“Defendant”), see Dkt. # 11 (“Defendant’s MTD”). Plaintiff and
Defendant opposed each other’s motions, see Dkts. # 23 (“Plaintiff’s Opp. to MTD”), # 24
(“Defendant’s Opp. to MTR”), and replied to each other’s oppositions, see Dkts. # 25
(“Plaintiff’s MTR Reply”), # 26 (“Defendant’s MTD Reply”).
The Court finds the matter appropriate for decision without oral argument. See Fed. R.
Civ. P. 78; L.R. 7-15. After considering the moving, opposing, and reply papers, the Court
GRANTS Plaintiff’s motion to remand and DENIES Defendant’s motion to dismiss as moot.
I.

Background

In this representative action, Plaintiff claims that Defendant failed to pay him, and other
aggrieved employees, reporting time wages.
Plaintiff worked for Defendant from November 11, 2019, to January 10, 2020, as a nonexempt, hourly package loader and unloader at UPS hubs and terminals in Los Angeles. See
First Amended Complaint, Dkt. # 1-2 (“FAC”), ¶ 8. Plaintiff claims that, as many as three times
per week, after “clocking in” to Defendant’s timekeeping system, Defendant dismissed him from
his shift without paying him reporting time wages. Id. ¶ 9, 18. For example, on instances where
Defendant scheduled Plaintiff to work from 11:00 p.m. to 4:00 a.m., many times, Defendant
would tell Plaintiff to clock out and go home after roughly a half-hour without paying him
reporting time wages. Id. ¶ 19.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 20-6498 PSG (AFMx)

Date

Title

October 13, 2020

Deion Walker v. United Parcel Service, Inc., et al.

As a result of Defendant’s practice, on April 27, 2020, Plaintiff filed suit in the Los
Angeles County Superior Court. See Notice of Removal, Dkt. # 1 (“NOR”), ¶ 1. On May 27,
2020, Plaintiff filed the operative First Amended Complaint (“FAC”). See generally FAC.
After requesting dismissal of the FAC’s fifth cause of action on June 4, 2020, Plaintiff served
Defendant with the FAC on June 22, 2020. NOR ¶¶ 3–4.
The FAC currently seeks Private Attorneys General Act (“PAGA”) civil penalties
pursuant to four causes of action:
First Cause of Action: failure to pay reporting time wages in violation of
California Labor Code §§ 218 and 2699(f)(2), and § 5 of IWC Wage Order 92001. See FAC ¶¶ 21–27.
Second Cause of Action: failure to provide accurate itemized wage statements in
violation of Cal. Lab. Code §§ 226.3, 1198, 1199, and 2699(f)(2), and § 7 of IWC
Wage Order 9-2001. See FAC ¶¶ 28–36.
Third Cause of Action: failure to timely pay all wages due upon separation of
employment in violation of Cal. Lab. Code §§ 210, 256, and 2699(f)(2). See FAC
¶¶ 37–45.
Fourth Cause of Action: failure to maintain accurate records in violation of Cal.
Lab. Code §§ 558, 558.1, 1198(c), 1197.1, and 2699(f)(2). FAC ¶¶ 46–57.
Defendant removed the suit to this Court on June 26, 2020. See generally NOR.
Defendant asserted that Plaintiff’s claims arise from, or are completely derivative to, an
employment right created entirely by two collective bargaining agreements that governed
Plaintiff’s employment (“CBAs”). See NOR ¶¶ 9–20. Therefore, Defendant contended that the
Court has federal question jurisdiction over this case because the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185, preempts Plaintiff’s state law claims. See id.
Defendant now moves to dismiss the FAC, arguing that Plaintiff “has not exhausted the
required grievance and arbitration procedures” to which he is bound under the CBAs. See
Defendant’s MTD 2:9–18. Conversely, Plaintiff moves to remand the case to the Superior
Court, arguing that his claims arise from minimum labor standards established under California
law rather than from the CBAs, and that, therefore, this Court lacks federal question jurisdiction.
See Plaintiff’s MTR 20:10–13.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 20-6498 PSG (AFMx)

Date

Title

October 13, 2020

Deion Walker v. United Parcel Service, Inc., et al.

The Court agrees with Plaintiff, and therefore GRANTS Plaintiff’s motion to remand and
DENIES Defendant’s motion to dismiss as moot.
II.

Legal Standard

“Federal courts are courts of limited jurisdiction, possessing only that power authorized
by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (internal quotation
marks omitted). Under 28 U.S.C. § 1441, a defendant may remove a civil action from state
court to federal district court only if the federal court has subject matter jurisdiction over the
case. See City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997) (“The propriety of
removal thus depends on whether the case originally could have been filed in federal court.”).
The case shall be remanded to state court if at any time before final judgment it appears a
removing court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Int’l Primate Prot.
League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 87 (1991). Courts strictly construe the
removal statute against removal jurisdiction. See Provincial Gov’t of Marinduque v. Placer
Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009); Luther v. Countrywide Home Loans Servicing,
LP, 533 F.3d 1031, 1034 (9th Cir. 2008). “A defendant seeking removal has the burden to
establish that removal is proper and any doubt is resolved against removability.” Luther, 533
F.3d at 1034; see also Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.
2009) (“[A]ny doubt about the right of removal requires resolution in favor of remand.”).
III.

Discussion

“[N]ot every dispute concerning employment, or tangentially involving a provision of a
collective-bargaining agreement, is preempted by § 301 [of the LMRA] or other provisions of
the federal labor law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). “Claims
bearing no relationship to a collective-bargaining agreement beyond the fact that they are
asserted by an individual covered by such an agreement are simply not pre-empted by § 301.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 393–94 (1987).
The Ninth Circuit uses a two-part test to determine when § 301 preempts state law
claims.
First, “if the right exists solely as a result of the CBA, then the claim is preempted, and
the analysis ends there.” McCray v. Marriott Hotel Servs., Inc., 902 F.3d 1005, 1010 (9th Cir.
2018) (quoting Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032 (9th Cir.
2016)).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 20-6498 PSG (AFMx)

Date

Title

October 13, 2020

Deion Walker v. United Parcel Service, Inc., et al.

Second, if the right exists independently of the CBA and does not “substantially depend”
on analyzing the CBA, then the claim is not preempted. Id.
Under the second part of this test, “the Supreme Court has distinguished between claims
that require interpretation or construction of a labor agreement and those that require a court
simply to ‘look at’ the agreement.” Balcorta v. Tewntieth Century-Fox Film Corp., 208 F.3d
1102, 1108 (9th Cir. 2000) (citing Livadas v. Bradshaw, 512 U.S. 107, 123–26 (1994)). The
Ninth Circuit has “stressed that, in the context of § 301 complete preemption, the term
‘interpret’ is defined narrowly—it means something more than ‘consider,’ ‘refer to,’ or ‘apply.’”
Id. (quoting Associated Builders & Contractors, Inc. v. Local 302 Int’l Bhd. Of Elec. Workers,
109 F.3d 1353, 1356 (9th Cir. 1997), rev’d on other grounds on reh’g, No. 95-16202, 1997 WL
236296, at *1 (9th Cir. Mar. 27, 1997)).
The Court now turns to the two-part test.
A.

Part One: Whether the Right Exists Solely Because of the CBAs

The first part of the preemption test requires the Court to determine “if the right exists
solely as a result of the CBA.” See Kobold, 832 F.3d at 1032. If it does, “then the claim is
preempted, and the analysis ends there.” Id.
The parties dispute whether Plaintiff’s right to reporting time pay arises from § 5 of IWC
Wage Order 9-2001 or the CBAs that governed his employment.1
IWC Wage Order 9-2001, § 5, provides:
1

Plaintiff contends that § 5 of IWC Wage Order 9-2001 has the effect of law and is incorporated
into various sections of the California Labor Code. See Plaintiff’s MTR 13:13–14:19.
Therefore, because an employee can recover PAGA civil penalties for violations of those
sections of the Code under the default PAGA penalty provision—i.e., Cal. Lab. Code §
2699(f)(2)—Plaintiff argues that he can also recover for violations of the Wage Order under §
2699(f)(2). See Plaintiff’s MTR 14:19–15:5.
Defendant conceded this point by failing to respond to it in its opposition. See Tapia v. Wells
Fargo Bank, N.A., No. CV 15-03922 DDP (AJWX), 2015 WL 4650066, at *2 (C.D. Cal. Aug.
4, 2015) (arguments to which no response is supplied are deemed conceded); Silva v. U.S.
Bancorp, No. 5:10-cv-01854-JHN-PJWx, 2011 WL 7096576, at *3 (C.D. Cal. Oct. 6, 2011)
(same).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 20-6498 PSG (AFMx)

Date

Title

October 13, 2020

Deion Walker v. United Parcel Service, Inc., et al.

Each workday an employee is required to report to work and does report, but is not put to
work or is furnished less than half said employee’s usual or scheduled day’s work, the
employee shall be paid for half the usual or scheduled day’s work, but in no event for less
than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay,
which shall not be less than the minimum wage.
Plaintiff argues that his right to reporting time pay is created by this provision—not the CBAs.
See Plaintiff’s MTR 15:8–16:11, 17:2–4, 18:3–4.
Defendant’s counterarguments all boil down to a single assertion: because the CBAs
define Plaintiff’s “usual or scheduled day’s work” as three and one-half consecutive hours of
work, Plaintiff’s right to reporting time pay arises solely from the CBAs. See Defendant’s Opp.
to MTR 10:4–5. Therefore, Defendant argues that § 301 preempts Plaintiff’s claim. Id.
14:13–16.
The Court is unconvinced by Defendant’s repeated protestations that the CBAs somehow
created Plaintiff’s right to reporting time pay. Under the Wage Order, (1) if an employee reports
to work, but (a) is not put to work or (b) is given less than half of his usual or scheduled day’s
work, then (2) he is entitled to a minimum of two hours of reporting time pay. See IWC Wage
Order 9-2001, § 5. Defendant appears to acknowledge that this right applies regardless of
whether a CBA exists, yet Defendant argues this is irrelevant. See Defendant’s Opp. to MTR
14:6–12. On the contrary, this is not only relevant, but also dispositive. Because an employee
who is not covered by a CBA still has the right to reporting pay under § 5, the CBAs in this case
could not have created Plaintiff’s right. Instead, the terms of the CBAs merely define the phrase
“usual or scheduled day’s work” for the purposes of Plaintiff’s § 5 claim; the CBAs do not
create Plaintiff’s right merely because they make proving his claim easy. Therefore, because the
right does not exist solely because of the CBAs, the Court now turns to part two of the
preemption test.
B.

Part Two: Whether the Right Substantially Depends on Analyzing the CBAs

Under the second part of the preemption test, the Court must determine whether the right
“substantially depends” on analyzing the CBAs. See McCray, 902 F.3d at 1010. If it does not,
then the LMRA does not preempt the claim. Id.
Neither party contests that the meaning of the terms of the CBAs are plain, unambiguous,
and easily applied to this dispute, and such an argument would be frivolous—the Court would

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 20-6498 PSG (AFMx)

Date

Title

October 13, 2020

Deion Walker v. United Parcel Service, Inc., et al.

be hard-pressed to find an easier “analysis” of a CBA than determining whether thirty minutes is
less than half of three and one-half hours. Therefore, Plaintiff’s right to reporting time wages
does not “substantially depend” on analyzing the CBAs—it merely requires the Court to “look
at,” “refer to,” or “apply” the CBAs’ terms. See Balcorta, 208 F.3d at 1108.
C.

Preemption Outcome

In sum, (1) Plaintiff’s right arises independently of the CBAs because the right would
exist even if no CBA governed his employment, and (2) his claim only requires the Court to
apply simple, unambiguous terms of the CBAs to the dispute. Therefore, the LMRA does not
preempt Plaintiff’s claims. See McCray, 902 F.3d at 1010. Accordingly, this Court lacks
subject matter jurisdiction over this action, and it GRANTS Plaintiff’s motion to remand.2 As a
result, Defendant’s motion to dismiss is DENIED as moot.
IV.

Conclusion

For the foregoing reasons, the Court GRANTS Plaintiff’s motion to remand and
DENIES Defendant’s motion to dismiss as moot.
IT IS SO ORDERED.

2

Plaintiff separately argues that the court need not even reach a preemption analysis “because
‘reporting time pay’ is part of California’s minimal labor protections, [and] the existence of [the]
CBA[s] cannot override or abrogate the forum state’s minimum wage, hour and working
condition standards.” Plaintiff’s MTR 7:15–17, 12:13–14. Plaintiff contends that, “[u]nlike
certain overtime and meal period claims, there is no exception to Section 5 of the IWC Wage
Order to allow a CBA to undercut a minimum legal wage and hour standard under California
law and as a result, there is no federal question jurisdiction for this action.” Id. 7:17–21. The
Court declines to consider this argument, which appears to be an issue of first impression,
because remand is appropriate under the traditional two-part test.
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