Su v. Hume et al

Filing 25

ORDER signed by Judge John A. Mendez on 4/1/2015 ORDERING that the Court DENIES Defendant's request for an order to show cause re: contempt against Plaintiff and her counsel. The Court REMANDS to the Superior Court of Fresno County, pursuant to 28 U.S.C. § 1447(c), this action. The Court DIRECTS the clerk to take necessary action to remand this action to the Superior Court of Fresno County. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JULIE SU, California State Labor
Commissioner, Division of Labor
Standards Enforcement, Department of
Industrial Relations, State of California, on
behalf of the People of the State of
California,
Plaintiffs,

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1:14-cv-01917-JAM-GSA

ORDER REMANDING CASE TO
FRESNO COUNTY SUPERIOR COURT
(ECF No. 8)

v.
ECO INTEGRATED DEVELOPMENT,
INC., a suspended California corporation;
DAVID HUME, an individual; NANCY
THOMAS, an individual; and DOES 1-10,
Defendants.

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INTRODUCTION
Pro se defendant David Hume ("Defendant”) removed this case from the Superior Court of

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Fresno County on December 3, 2014, asserting that this Court has federal question jurisdiction under

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28 U.S.C. § 1331. Notice of Removal, ECF No. 1. Plaintiff Julie Su (“Plaintiff”) moved to remand the

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initial Complaint, which asserts a single cause of action for damages under California Labor Code §

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98.6 (precluding employers from discriminating or retaliating against employees for, among other

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things, seeking relief for unpaid wages from the Labor Commissioner). Defendant contends that: (1)

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the Complaint alleges a failure to pay employee wages, which implies a failure to withhold federal

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income taxes, thus introducing a federal question; and (2) the Complaint implicates employee

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benefits, thus touching on ERISA and raising a federal question. Notice of Removal 2. Defendant has

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also filed a 45 page cross-complaint and 162 page first amended cross-complaint alleging numerous

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constitutional and statutory violations by Plaintiff (the “Cross-Complaints”). ECF No. 11.

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With respect to this motion to remand, Defendant has filed two separate opposition briefs, the

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first of which asserts that the Cross-Complaints create federal question jurisdiction. ECF No. 17. In

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the second opposition brief, he claims that: (1) Plaintiff’s Complaint references unpaid wages and is

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thus governed exclusively by the federal Fair Labor Standards Act (the “FLSA”); and (2) federal

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district courts have considered cases involving the issue of back pay under the FLSA—in particular,

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in the case Hess v. Madera Honda Suzuki, No. 1:10-cv-01821-AWI-BAM, 2012 WL 4052002 (E.D.

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Cal. Sept. 14, 2012). ECF No. 23. Finally, he asks the Court to issue an order to show cause re:

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contempt against Plaintiff, claiming that Plaintiff has made “willful and intentionally false and

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fraudulent statements” in her motion to remand. Specifically, he claims that Plaintiff’s counsel, Doris

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Ng, is not authorized to practice before any federal court and contests the underlying facts of the

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Complaint, saying that “Julie Su, Doris Ng and the other Cross-Defendants, who were part of the

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‘Lesbian Female Anti-Gay Anti-Male Network’ operating secretly ‘sub rosa’ within the Labor

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Department” have been conspiring against him. Id. at 8.

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Plaintiff responds that: (1) Defendant cannot rely on defenses or cross-complaints to create

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federal jurisdiction; (2) the Complaint only alleges a single state cause of action; and (3) Hess is

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distinguishable because the Plaintiff there alleged federal causes of action. ECF Nos. 8, 18, 24.

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DISCUSSION

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A. Legal Standard

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A defendant may remove an action to federal court where that action “falls within the original

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‘federal question’ jurisdiction of the United States district courts.” Franchise Tax Bd. v. Constr.

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Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8 (1983), citing 28 U.S.C. § 1331. Determination of

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federal question jurisdiction “is governed by the ‘well-pleaded complaint rule,’ which provides that

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federal jurisdiction exists only when a federal question is presented on the face of plaintiff’s properly

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pleaded complaint.” California v. United States, 215 F.3d 1005, 1014 (9th Cir. 2000), quoting Audette

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v. Int’l Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1111 (9th Cir. 1999). It is not

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enough to “show that a federal question lurks somewhere inside the parties’ controversy.” Vaden v.

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Discover Bank, 556 U.S. 49, 70 (2009). Rather, courts must determine federal jurisdiction based

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solely on what “necessarily appears in the plaintiff’s statement of his own claim in the bill or

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declaration, unaided by anything in anticipation of avoidance of defenses which it is thought the

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defendant may interpose.” California, 215 F.3d at 1014. A defendant’s answer or counterclaim, for

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example, cannot create federal question jurisdiction where that question is not “presented on the face

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of the plaintiff’s properly pleaded complaint.” Holmes Group, Inc. v. Vornado Air Circulation Sys.,

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Inc., 535 U.S. 826, 831 (2002).

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The removal statute, 28 U.S.C. § 1441, must be “strictly construed against removal

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jurisdiction.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir.

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2009). The defendant “bears the burden of establishing that removal is proper.” Id. As a result, any

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ambiguities should be resolved “in favor of remand to state court.” Hunter v. Philip Morris USA, 582

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F.3d 1039, 1042 (9th Cir. 2009). Any defects in the Court’s subject matter jurisdiction require

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remand; the duty to remand under 28 U.S.C. § 1447(c) is “mandatory, not discretionary.” Bruns v.

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NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997).

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B. Defendant Fails to Demonstrate Federal Question Jurisdiction

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The record indicates that Defendant is named in a state court complaint seeking damages

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arising under the California Labor Code. The Complaint contains no reference, express or otherwise,

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to any federal statute, regulation, or other federal law. ECF No. 1. Defendant cannot create federal

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jurisdiction through the mere invocation of a federal statute in his notice of removal or via a cross-

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complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987) (“it is now settled law that a case

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may not be removed to federal court on the basis of a federal defense…even if the defense is

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anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the

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only question truly at issue”); Holmes Group, Inc. 535 U.S. at 831.

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Defendant asserts that Plaintiff’s claim is properly governed by the FLSA because it

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references “unpaid wages.” ECF No. 23. But the California Labor Code also contains the term

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“unpaid wages”; the mere fact that a complaint references wages or backpay does not convert that

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complaint into a complaint under the FLSA. Balcorta v. Twentieth Century Fox Film Corp., 208 F.3d

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1102, 1111 (9th Cir. 2000) (remand proper for claim under California Labor Code § 201.5, which

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states that terminated employees are “entitled to receive payment of the wages earned and unpaid at

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the time of the termination by the next regular payday”). The same can be said of Defendant’s

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argument that unpaid wages implicate federal tax laws. Nor can the invocation of ERISA in the notice

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of removal create a federal question. Ethridge v. Harbor House Rest., 861 F.2d 1389, 1405 (9th Cir.

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1988) (“Ethridge’s claim for tortious discharge is not preempted by ERISA simply because Ethridge

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sought to recover lost salary and benefits . . . ERISA-preemption did not provide a basis for the

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exercise of removal jurisdiction over the 1987 complaint”). Defendant also argues that in Hess v.

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Madera Honda Suzuki, No. 1:10-cv-01821-AWI-BAM, 2012 WL 4052002 (E.D. Cal. Sept. 14,

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2012), the court considered a wage and hour claim involving California Labor Code statutes. As

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Plaintiff correctly argues, however, the plaintiff in Hess expressly included an FLSA claim in her

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complaint, distinguishing Hess from the current case.

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Finally, the Court finds no justification for an order to show cause re: contempt on the part of

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Plaintiff. Plaintiff does not appear to have engaged in any conduct that could possibly violate Federal

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Rule of Civil Procedure 11—her motion to remand and reply briefing are models of restraint in

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comparison to the allegations leveled by Defendant throughout his voluminous pleadings. Cooter &

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Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (“the central purpose of Rule 11 is to deter baseless

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filings in district court”).

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ORDER
Defendant's papers fail to establish this Court’s subject matter jurisdiction to support removal
of the action. As such, it is ORDERED that:
1. The Court DENIES Defendant’s request for an order to show cause re: contempt
against Plaintiff and her counsel;

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2. The Court REMANDS to the Superior Court of Fresno County, pursuant to 28 U.S.C.
§ 1447(c), this action; and
3. The Court DIRECTS the clerk to take necessary action to remand this action to the
Superior Court of Fresno County.
Dated: April 1, 2015

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