Alfredo Rita et al v. Cypress Security, LLC, a California limited liability company d/b/a Cypress Private Security

Filing 13

ORDER TO SHOW CAUSE AND ORDER SETTING HEARING DATE AS TO REMAND - Plaintiffs' response supporting or opposing removal due by 4/1/2016. Hearing set for 4/13/2016 02:00 PM. Signed by Judge William H. Orrick on 03/22/2016. (jmdS, COURT STAFF) (Filed on 3/22/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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ALFREDO RITA, et al.,
Plaintiffs,
v.
CYPRESS SECURITY, LLC, A
CALIFORNIA LIMITED LIABILITY
COMPANY D/B/A CYPRESS PRIVATE
SECURITY,

Case No. 16-cv-00614-WHO
ORDER TO SHOW CAUSE AND
ORDER SETTING HEARING DATE AS
TO REMAND
Re: Dkt. No. 1

Defendant.
On February 5, 2016, defendant Cypress Security LLC d/b/a Cypress Private Security

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removed this action to federal court on the basis of federal question jurisdiction pursuant to 28

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U.S.C. §§ 1331, 1441(a). Cypress argues that counts 1-5 of the plaintiffs’ complaint are

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preempted by section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185,

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and that the court has supplemental jurisdiction over the remaining counts under 28 U.S.C. §§

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13367, 1441(c). Dkt. No. 1 (“Removal Notice”).

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Federal courts “have an independent obligation to determine whether subject-matter

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jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp.,

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546 U.S. 500, 514 (2006). “If at any time [after removal] and before final judgment it appears that

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the district courts lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. §

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1447(c). This Court questions whether subject matter jurisdiction exists here. In Caterpillar, Inc.

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v. Williams, the Supreme Court stated that § 301 preemption applies only to “claims founded

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directly on rights created by collective-bargaining agreements, and claims substantially dependent

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on analysis of a collective-bargaining agreement.” 482 U.S. 386, 394 (1987) (internal quotation

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marks and citations omitted); see also Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d

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1102, 1106 (9th Cir. 2000) (“[I]t is settled law that a case may not be removed to federal court on

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the basis of a federal defense, including a defense of preemption, even if the defense is anticipated

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

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question truly at issue.”) (internal quotation marks and citations omitted).

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In Burnside v. Kiewit Pacific Corp., the Ninth Circuit established a two-step analysis to
determine whether section 301 preempts a plaintiff’s claim. 491 F.3d 1053, 1060 (9th Cir.2007).

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A court must first “determine whether a particular right inheres in state law or, is instead grounded

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in a CBA.” Id. “If, however, the right exists independently of the CBA, [the court] must still

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consider whether it is nevertheless substantially dependent on analysis of a collective-bargaining

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agreement.” Id. at 1059 (internal quotation marks and citations omitted). “If the claim requires

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interpretation of the CBA, the claim is preempted; if the claim merely requires ‘looking to’ the

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United States District Court
Northern District of California

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CBA, it is not preempted. Although the ‘look to’/ ‘interpret’ distinction is often difficult to draw,

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when the meaning of the contract terms is not the subject of dispute, the bare fact that a collective-

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bargaining agreement will be consulted in the course of state-law litigation plainly does not

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require that the claim be extinguished.” Densmore v. Mission Linen Supply, No. 115-cv-01873-

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LJO-SKO, 2016 WL 696503, at *4 (E.D. Cal. Feb. 22, 2016).

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Here, the removal notice does not contain sufficient allegations to establish the

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applicability of the LMRA to this case. Cypress recognizes that the plaintiffs’ complaint does not

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reference their membership in a union or the existence of a collective bargaining agreement

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(“CBA”). Removal Notice ¶ 12. Nevertheless, Cypress asserts rather conclusorily that the

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remedies plaintiffs seek “arise under the LMRA § 301” and “require interpretation of the CBA.”

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Id. ¶¶ 15, 17. On this record, Cypress has not sufficiently alleged facts showing the need to

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interpret the CBA to resolve the claims in this case.

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To determine whether the Court has subject matter jurisdiction, Cypress must show cause

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by March 28, 2016 in a memorandum of no more than ten pages that explains why removal is

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proper. I am especially interested in the ways in which this case differs meaningfully from similar

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cases in this Circuit that have held that the LMRA did not preempt plaintiffs’ state law wage and

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hour claims and that removal, therefore, was improper. See, e.g., Asseko v. Guardsmark LLC, No.

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07-cv-4367-BZ, 2007 WL 4287551 (N.D. Cal. Dec. 6, 2007); Densmore, 2016 WL 696503;
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Cosmo Lopez v. Sysco Corp., No. 15-cv-4420-JSW, Dkt. No. 25 (N.D. Cal. Jan. 25, 2016);

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Vasserman v. Henry Mayo Newhall Mem’l Hosp., 65 F. Supp. 3d 932 (C.D. Cal. 2014). The

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memorandum shall address the Court’s concerns and identify the facts demonstrating that the

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CBA will need to be interpreted to resolve the claims in this case. Plaintiffs may file a response

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supporting or opposing removal by April 1, 2016 in a memorandum of no more than ten pages.

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The Court will request a reply brief if needed.

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The Court will hear this issue on April 13, 2016 at 2:00 p.m. in Courtroom 2, 17th Floor.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: March 22, 2016
______________________________________
WILLIAM H. ORRICK
United States District Judge

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