Bravo v. On Delivery Services, LLC et al

Filing 105

ORDER by Judge Edward M. Chen granting 91 Plaintiff's Motion to Remand. (emclc2, COURT STAFF) (Filed on 2/8/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALFREDO BRAVO,
Plaintiff,

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ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

v.

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ON DELIVERY SERVICES, LLC, et al.,

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United States District Court
Northern District of California

Case No. 18-cv-01913-EMC

Defendants.

Docket No. 91

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Currently pending before the Court is Plaintiff Alfredo Bravo’s motion to remand. Having

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reviewed the parties’ briefs, as well as all evidence of record, the Court finds the matter suitable

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for resolution on the papers, and the hearing on the motion is therefore VACATED. For the

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reasons discussed below, Mr. Bravo’s motion to remand is GRANTED.

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As an initial matter, the Court notes that, originally, Mr. Bravo filed suit in state court.

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The suit was removed to federal court because, although most of the wage-and-hour claims

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asserted were based on state law, there were also two claims brought pursuant to the federal Fair

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Labor Standards Act (“FLSA”). Subsequently, one of the defendants sued filed a motion to

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dismiss which the Court granted but with leave to amend. See Docket No. 27 (order). After Mr.

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Bravo filed a first amended complaint, that pleading was challenged by the same defendant as well

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as a group of other defendants, but those motions were never adjudicated because the claims

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against these defendants were settled. In the meantime, Mr. Bravo filed a second amended

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complaint, adding a new defendant to the case – Masco Cabinetry LLC – as well as one additional

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FLSA claim, and Masco moved to dismiss. The Court granted the motion but gave Mr. Bravo

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leave to amend. The Court instructed Mr. Bravo that he needed to plead nonconclusory factual

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allegations specific to Masco to support the joint employer theory, under both the FLSA and

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California law, and to support the client employer theory, under California law only. See Docket

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No. 88 (minutes). Mr. Bravo filed his third amended complaint and, in that complaint, dropped all

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FLSA claims, thus leaving only claims pursuant to state law. Mr. Bravo then filed the currently

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pending motion to remand.

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To the extent Mr. Bravo suggests that a remand is required because the Court no longer has
subject matter jurisdiction, the Court does not agree. The Court clearly had subject matter

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jurisdiction at the time of removal – i.e., federal question jurisdiction based on the FLSA claims.

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See Allen v. FDIC, 710 F.3d 978, 984 (9th Cir. 2013) (stating that “federal jurisdiction is

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determined at the time of removal, not after a case has been removed”). Just because Mr. Bravo

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has chosen to drop his FLSA claims does not mean that the Court is thereby deprived of subject

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United States District Court
Northern District of California

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matter jurisdiction. See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1046 n.3 (9th

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Cir. 2000) (stating that “jurisdiction must be analyzed on the basis of the pleading filed at the time

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of removal without reference to subsequent amendments”); Sparta Surgical Corp. v. NASD, 159

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F.3d 1209, 1213 (9th Cir. 1998) (stating that “‘jurisdiction must be analyzed on the basis of the

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pleadings filed at the time of removal without reference to subsequent amendments’” and,

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therefore, “a plaintiff may not compel remand by amending a complaint to eliminate the federal

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question upon which removal was based”), overruled in part on other grounds by Merrill Lynch,

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Pierce, Fenner & Smith, Inc. v. Manning, 136 S. Ct. 1562 (2016).

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That being said, now that Mr. Bravo no longer asserts a federal claim, the issue is fairly

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raised of whether this Court should retain supplemental jurisdiction over his state law claims.

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Title 28 U.S.C. § 1367(c) provides that

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[t]he district courts may decline to exercise supplemental
jurisdiction over a claim . . . if –

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(1)

the claim raises a novel or complex issue of State law,

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(2)

the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,

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the district court has dismissed all claims over which it has
original jurisdiction, or

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in exceptional circumstances, there are other compelling

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reasons for declining jurisdiction.

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28 U.S.C. § 1367(c). In the instant case, both subsections (c)(1) and (c)(3) are implicated.1

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Because there is a factual predicate for declining supplemental jurisdiction under § 1367(c), the

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Court must consider whether declining supplemental jurisdiction would “comport[] with the

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underlying objective of ‘most sensibly accommodating’ the values of ‘economy, convenience,

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fairness, and comity.’” Executive Software N. Am. v. United States Dist. Court, 24 F.3d 1545,

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1557 (9th Cir. 1994), overruled on other grounds, Cal. Dep’t of Water Res. v. Powerex Corp., 533

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F.3d 1087, 1093 (9th Cir. 2008)).
Masco argues that these considerations weigh in favor of retaining supplemental

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jurisdiction. For example, Masco contends that the Court should retain supplemental jurisdiction

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United States District Court
Northern District of California

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because the case has been pending before the Court for approximately ten months and the case has

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been actively litigated as evidenced by the motions to dismiss and the Court’s rulings thereon.

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Masco also asserts that retention of jurisdiction is appropriate because Mr. Bravo is engaging in

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forum shopping – i.e., trying to avoid this Court’s unfavorable rulings and a likely unfavorable

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ruling once the Court considers Masco’s recently filed motion to dismiss.
The Court is not unsympathetic to Masco’s arguments. Nevertheless, it is not persuaded

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for several reasons. First, the Court has not committed significant judicial resources as it has only

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ruled on two motions to dismiss, and the case is still early in its inception, with the pleadings yet

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to be resolved. Second, although Mr. Bravo did include FLSA claims in the various iterations of

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his complaint, they were not the driving force of the litigation and, in this regard, it is not overly

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damning that Mr. Bravo chose to drop the claims. Furthermore, while the Court cannot

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conclusively say that its rulings had no impact on Mr. Bravo’s decision-making, it is likely that

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legitimate considerations also factored into that decision-making – e.g., a recognition that “joint

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employer” under California law is more expansive than that under federal law and that California

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law has a “client employer” theory that does not appear to be available under federal law.

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Subsection (c)(1) is implicated because of Mr. Bravo’s client employer theory. There is limited
authority on client employer liability pursuant to California Labor Code § 2810.3. Furthermore,
Mr. Bravo’s client employer theory is unique in that it involves two levels of alleged employers
(i.e., Masco hiring XPO and then XPO hiring On Delivery and/or Frisco Bay).
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Accordingly, the Court, in the exercise of its discretion, the Court grants Mr. Bravo’s

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motion to remand the case back to the Alameda County Superior Court. See, e.g., Horne v. Wells

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Fargo Bank, N.A., 969 F. Supp. 2d 1203, 1210 (C.D. Cal. 2013) (declining supplemental

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jurisdiction and remanding to state court).

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In light of this ruling, the Court does not address the merits of Masco’s motion to dismiss,

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filed on January 29, 2019. See Docket No. 94 (motion to dismiss). In addition, Masco’s request

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that the motion to remand be heard on the same day as the motion to dismiss is moot. See Docket

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No. 101 (ex parte application to continue hearing).

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This order disposes of Docket No. 91.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: February 8, 2019

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______________________________________
EDWARD M. CHEN
United States District Judge

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