Smith et al v. Dreyer's Grand Ice Cream, Inc. et al

Filing 25

ORDER by Judge Samuel Conti granting 7 Motion to Remand (sclc1, COURT STAFF) (Filed on 2/14/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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CHARLES SMITH, CRAIG ANDRADE,
DARRYL SHAW, and GARY
ELIZARREY, on behalf of
themselves and others similarly
situated,

) Case No. 11-5233 SC
)
) ORDER GRANTING PLAINTIFFS'
) MOTION TO REMAND
)
)
Plaintiffs,
)
)
v.
)
)
DREYER'S GRAND ICE CREAM, INC., )
dba NESTLE DREYER'S ICE CREAM
)
COMPANY, and DOES 1 THROUGH 50, )
inclusive
)
)
Defendants.
)
)
I.

INTRODUCTION
Plaintiffs Charles Smith, Craig Andrade, Darryl Shaw, And Gary

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Elizarrey (collectively, "Plaintiffs") brought this putative class

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action in Alameda County Superior Court alleging that Defendants

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Dreyer's Grand Ice Cream, Inc., dba Nestle Dreyer's Ice Cream

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Company ("Defendant"), and Does 1 through 50 failed to pay wages

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and provide meal periods as required by California law.

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Ex. 1 ("Compl.").

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federal court.

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Court is Plaintiffs' Motion to Remand this action back to state

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court.

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17 ("Opp'n"), 20 ("Reply").

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the Court finds the motion suitable for determination without oral

ECF No. 2

Defendant subsequently removed the action to

ECF No. 1 ("Not. of Removal.").

ECF No. 7 ("Mot.").

Now before the

The Motion is fully briefed.

ECF Nos.

Pursuant to Civil Local Rule 7-1(b),

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argument.

For the following reasons, the Court GRANTS Plaintiffs'

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Motion and REMANDS this action to the Superior Court of the State

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of California in and for the County of Alameda.

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II.

BACKGROUND
Defendant is a Delaware Corporation which delivers Nestle and

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Dreyer's ice cream products nationwide, including in the state of

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California.

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or route drivers for Defendant at its Hayward, California location.

Compl. ¶ 4.

Plaintiffs are current or former delivery

United States District Court

For the Northern District of California

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Id. ¶ 3.

Plaintiffs are all California residents.

Id.

Plaintiffs

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allege that Defendant: (1) fails to provide Plaintiffs with meal

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breaks as required by California law; (2) automatically deducts

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thirty minutes from Plaintiffs' hours worked every day, denying

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Plaintiffs wages for all hours worked; and (3) fails to provide

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Plaintiffs with a second meal period when they work more than 10

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hours per day.

Id. ¶¶ 8-12.

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On September 8, 2011, Plaintiffs filed this putative class

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action in Alameda County Superior Court on behalf of themselves and

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all other current and former delivery drivers employed by Defendant

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in the state of California.

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alleges seven statutory causes of action arising under California

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law: (1) failure to provide meal periods in violation of California

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Labor Code § 226.7; (2) & (3) failure to pay earned wages in

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violation of California Labor Code §§ 204, 216; (4) failure to pay

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minimum wage in violation of California Labor Code § 1194; (5)

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penalty for failure to provide accurate wage statements in

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violation of California Labor Code § 226; (6) penalty for failure

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to pay unpaid wages to severed employees in violation of California

Id. ¶ 13.

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Plaintiffs' Complaint

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Labor Code §§ 201, 202 and 203; and (7) unfair competition and

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unfair business practices in violation of California Labor Code §

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17200.

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of action.

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Id. ¶¶ 20-61.

Plaintiffs do not assert any federal causes

On October 26, 2011, Defendant removed this action to federal

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court pursuant to 28 U.S.C. §§ 1331 and 1441, claiming that the

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Court could assert federal question jurisdiction.

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Defendant argued that Plaintiffs' claims are preempted by Section

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301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. §

Specifically,

United States District Court

For the Northern District of California

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185, because they require substantial interpretation of six

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provisions of a collective bargaining agreement ("CBA") governing

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the terms and conditions of Plaintiffs' employment.

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Removal at 7.

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or how Plaintiffs' claims will require interpretation of the CBA.

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Plaintiffs subsequently moved to remand and sought attorney's fees

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for the cost incurred as a result of the removal.

Not. of

Defendants' Notice of Removal does not explain why

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III. LEGAL STANDARD
A complaint originally filed in state court may be removed to

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federal court within thirty days of service on the defendant.

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U.S.C. §§ 1441(a), 1446(b).

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bears the burden of showing that a federal court would have

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jurisdiction from the outset; in other words, that removal was

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proper.

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Courts "strictly construe the removal statute against removal

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jurisdiction,” and “[f]ederal jurisdiction must be rejected if

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there is any doubt as to the right of removal in the first

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instance."

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On a motion to remand, a defendant

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

Id., see also Plute v. Roadway Package Sys., Inc., 141

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F. Supp. 2d 1005, 1008 (N.D. Cal. 2001)("any doubt is resolved in

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favor of remand").

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is determined on the basis of the complaint at time of removal, not

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as subsequently amended.

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Secs. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998).

A district court's subject matter jurisdiction

Sparta Surgical Corp. v. Nat'l Ass'n of

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IV.

DISCUSSION

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A.

Preemption Under Section 301 of the LMRA

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Plaintiffs' Motion turns on whether the LMRA preempts

United States District Court

For the Northern District of California

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Plaintiffs' state law claims.

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federal jurisdiction over "[s]uits for violation of contracts

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between an employer and a labor organization representing employees

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in an industry affecting commerce[.]"

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Supreme Court has expanded the preemptive scope of Section 301 to

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cases for which resolution "is substantially dependent upon

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analysis of the terms of [a CBA.]"

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471 U.S. 202, 220 (1985).

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Section 301 of the LMRA vests

29 U.S.C. § 185(a).

The

Allis-Chambers Corp. v. Lueck,

However, "mere consultation of the CBA's terms, or a

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speculative reliance on the CBA will not suffice to preempt a state

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law claim."

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2002).

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interpreting the agreement itself, the claim is 'independent' of

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the agreement for § 301 pre-emption purposes."

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Freightways, Inc., 255 F.3d 683, 690 (9th Cir. 2001).

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Circuit has "stressed that, in the context of § 301 complete

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preemption, the term 'interpret' is defined narrowly - it means

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something more than 'consider,' 'refer to,' or 'apply.'"

Humble v. Boeing Co., 305 F.3d 1004, 1008 (9th Cir.

"[A]s long as the state-law claim can be resolved without

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Cramer v. Consol.
The Ninth

Balcorta

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v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir.

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2000).

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Section 301 is not intended to trump substantive labor laws

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enacted by state legislatures.

Humble, 305 F.3d at 1007.

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Accordingly, a claim brought on the basis of a state law right that

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is independent of the rights provided for under a CBA is not

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preempted, even if the grievance arises under the same set of facts

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that could be pursued under the CBA.

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107, 123-24 (1994).

Livadas v. Bradshaw, 512 U.S.

"When the meaning of the [CBA] terms is not

United States District Court

For the Northern District of California

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the subject of dispute, the bare fact that a [CBA] will be

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consulted in the course of state law litigation plainly does not

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require the claim to be [preempted]."

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Id. at 124.

The Ninth Circuit has applied these principles in

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circumstances similar to the one at the bar.

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Corporation, 410 F.3d 1071 (9th Cir. 2005), as in the instant

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action, a group of employees challenged their employer's meal

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period policy under the California Labor Code.

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rejected the employer's preemption arguments, concluding that

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"[b]ecause the employees have based their meal period claim on the

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protection afforded them by California state law, without any

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reference to expectations or duties created by their [CBA], the

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claim is not subject to preemption[.]"

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(internal quotations and citations omitted).

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In Valles v. Ivy Hill

The Ninth Circuit

Valles, 410 F.3d at 1082

Defendants' preemption arguments fare no better than those
asserted in Valles.

The Court addresses each below.

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B.

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In their third cause of action for violation of California

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Plaintiffs' Overtime Claim

Labor Code § 204, Plaintiffs assert that Defendants failed to pay

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them premium pay for overtime work as a result of the fact that

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Plaintiffs were denied their first and second meal periods.

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¶ 33.

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claim for breach of a CBA since the CBA, not state law, governs

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Plaintiffs' overtime claims.

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points to California Labor Code § 514, which provides that

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California Labor Code § 510, which establishes a right to overtime

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pay, does not apply to an employee covered by a valid collective

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bargaining agreement.

Compl.

Defendant argues that this constitutes an artfully pled

Opp'n at 5-7.

Defendant specifically

United States District Court

For the Northern District of California

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The Ninth Circuit rejected arguments identical to the ones

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raised by Defendant in Gregory v. SCIE, LLC, 317 F.3d 1050 (9th

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Cir. 2003).

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plaintiff's overtime claims were not preempted by the LMRA, even

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though he was covered by a CBA.

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Circuit explained:

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In Gregory, the Ninth Circuit found that the

317 F.3d at 1053.

The Ninth

Even assuming the CBA provides premium wage rates for
over-time, the question here is the same as that raised
by [California Labor Code] Section 510: whether when
overtime is paid under the CBA it is paid for all
overtime hours worked, as required by California law.
This is a question of interpretation of state law, not of
the CBA, that we leave to the state court.

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Id.

A number of district courts have adopted the Ninth Circuit's

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reasoning in Gregory in similar contexts.

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Poultry Farms, 798 F. Supp. 2d 1156, 1162-1163 (E.D. Cal. 2011);

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Andino v. Kaiser Found. Hosps., No. C 11-04152 CW, 2011 U.S. Dist.

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LEXIS 135411, 8-9 (N.D. Cal. Nov. 23, 2011).

See Avalos v. Foster

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Accordingly, the Court finds that resolution of Plaintiffs'

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third cause of action would not require an interpretation of the

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CBA and, as such, would not trigger LMRA preemption.

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C.

Plaintiffs' Meal Period Claims

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Additionally, Defendant argues that Plaintiffs' meal period

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claims cannot be adjudicated without interpreting a number of

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distinct provisions in the CBA.

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Plaintiffs' meal period claims cannot be adjudicated without

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interpreting CBA provisions that guarantee drivers 40 hours of work

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per week and a full day's pay whenever a driver works any part of a

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day.

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provisions, a driver may be paid for all hours worked, even if a

Oppn'n at 7.

Defendant first argues that

Defendant reasons that, under these CBA

Id. at 10.

United States District Court

For the Northern District of California

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30-minute meal period was not taken but was deducted.

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Defendant argues that, in this situation, Plaintiffs are really

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alleging a violation of the CBA because there would be no state law

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violation.

Id.

The Court disagrees.

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First, the Complaint does not seek

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damages for instances in which an employee received premium pay for

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time not worked, it only seeks damages for violations of the

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California Labor Code.

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guaranteed pay provisions in the CBA are ambiguous or would require

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interpretation by the Court.

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provisions to calculate damages, but such considerations are

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insufficient to support removal.

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("the mere need to 'look to' the [CBA] for damages computation is

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no reason to hold the state-law claim defeated by § 301").

Second, Defendant does not explain how the

A court may need to refer to these

See Livadas, 512 U.S. at 125

Defendant also argues that Plaintiffs' claim for missed second

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meal periods will require an interpretation of Section 9 of the

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CBA.

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establish a work week consisting of four (4) ten (10) hour days"

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and that the Employer "will not employ an employee for a work

Opp'n at 8.

Section 9 provides that the "Employer may

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period of more than (10) hours per day without providing the

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employee with a second meal period of no less than thirty (30)

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minutes, except that if the total hours worked are no more than

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twelve (12) hours, the second (2nd) meal period may be waived by

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mutual consent[.]"

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Id.

Defendant's argument is unavailing.

Defendant once again

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fails to identify any ambiguity in the CBA which would require

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interpretation by the Court.

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violation of Section 9 in their Complaint.

Further, Plaintiffs do not allege a
Plaintiffs allege that

United States District Court

For the Northern District of California

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Defendant violated Section 11 of California Wage Order No. 9-2001,

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which prohibits employers from requiring employees to work for a

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period of "more than ten (10) hours per day without providing the

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employee with a second meal period of not less than 30 minutes[.]"

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Compl. ¶ 22.

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2001 and the CBA overlap does not warrant removal.

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512 U.S. at 123 ("[I]t is the legal character of a claim, as

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'independent' of rights under the [CBA] (and not whether a

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grievance arising from 'precisely the same set of facts' could be

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pursued) that decides whether a state cause of action may [be

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preempted]." (internal citations omitted)).

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D.

The fact that the requirements of Wage Order No. 9See Livadas,

Plaintiffs' Allegations Regarding Scheduling and Routing
Results

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Defendant contends Section 2 of the CBA, which provides that

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Defendant retains the right to direct and schedule the workforce,

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must be interpreted to adjudicate Plaintiffs' allegation that

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Defendant underestimates the travel and delivery time of each route

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and fails to schedule time for meal and rest breaks.

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Specifically, Defendant argues that the Court will need to

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Opp'n at 9.

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interpret Section 2 to determine whether Defendant's scheduling

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methodology complies with the terms of the CBA.

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borders on the frivolous.

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claims since a management rights clause cannot possibly exempt an

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employer from complying with mandatory state laws.

Further,

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Defendant's argument distorts Plaintiffs' claims.

Plaintiffs

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allege that Defendant's scheduling practices resulted in a

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violation of the California Labor Code, not a violation of the CBA.

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E.

Id.

This argument

Section 2 has no bearing on Plaintiffs'

Defendant's Affirmative Defense

United States District Court

For the Northern District of California

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Finally, Defendant argues that the Court will need to

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interpret the CBA in order to adjudicate Defendant's affirmative

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defense to Plaintiffs' fifth and sixth causes of action, which are

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brought under California Labor Code Sections 226 and 203,

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respectively.

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damages for "knowing and intentional" violations of Section 226,

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Cal. Labor Code § 226(e), and for "willful[]" violations of Section

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203, id. § 203(a).

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Sections 226 and 203 were made in good faith and were based on

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Defendant's reasonable interpretation of the CBA.

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Accordingly, Defendant reasons that the Court's adjudication of

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Defendant's response to Plaintiffs' fifth and sixth causes of

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action will require an analysis of the CBA.

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Opp'n at 11.

Employees are entitled to recover

Defendant asserts that any violations of

The Court disagrees.

Opp'n at 11-12.

Id.

First, Defendant fails to identify what

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provisions of the CBA the Court would need to interpret in order to

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assess Defendant's affirmative defense.

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liability under Section 226 and 203 would turn on an analysis of

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Defendant's state of mind, not an interpretation of the CBA.

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Third, as the Supreme Court and Ninth Circuit have repeatedly held,

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Second, Defendant's

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LMRA preemption is not warranted merely because a Defendant refers

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to a CBA in mounting a defense.

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482 U.S. 386, 398-399 (1987); Detabali v. St. Luke's Hosp., 482

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F.3d 1199, 1203 (9th Cir.

See Caterpillar, Inc. v. Williams,

2007); Cramer, 255 F.3d at 691.

For these reasons, and the reasons set forth in Sections IV.A-

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D above, the Court finds that Plaintiffs' claims do not require an

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interpretation of the CBA and, as such, Defendant's removal of this

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action to federal court was improper.

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REMANDS this action to Alameda Superior Court.

Accordingly, the Court

United States District Court

For the Northern District of California

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F.

Attorney's Fees

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Under 28 U.S.C. § 1447(c), when a federal court remands a

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case, "it may require payment of just costs and any actual

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expenses, including attorney fees, incurred as a result of

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removal."

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attorney's fees under § 1447(c) where the removing party "lacked an

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objectively reasonable basis for seeking removal."

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Franklin Capital Corp., 546 U.S. 132, 141 (2005).

"Absent unusual circumstances," courts may award

Martin v.

The Court finds that an award of attorney's fees would be

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inappropriate in the instant action.

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in support of removal are flawed in several respects, the Court

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does not find that they lack an objectively reasonable basis.

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Further, the arguments advanced in Defendant's opposition papers

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are consistent with its position in the Notice of Removal,

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suggesting that Defendant researched the issue before following

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through with removal.

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///

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///

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///

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While Defendant's arguments

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V.

CONCLUSION
For the foregoing reasons, Plaintiffs Charles Smith, Craig

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Andrade, Darryl Shaw, and Gary Elizarrey's motion to remand is

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GRANTED.

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the State of California in and for the County of Alameda.

The Court REMANDS this action to the Superior Court of

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IT IS SO ORDERED.

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Dated:

February 14, 2012

United States District Court

For the Northern District of California

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UNITED STATES DISTRICT JUDGE

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