Andrews v. Lawrence Livermore National Security, LLC. et al
Filing
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ORDER GRANTING PLAINTIFFS' 15 MOTION TO REMAND AND FOR ATTORNEYS' FEES. Signed by Judge Claudia Wilken on 8/31/2011. (ndr, COURT STAFF) (Filed on 8/31/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ELAINE ANDREWS, et al.,
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No. C 11-3930 CW
Plaintiffs,
ORDER GRANTING
PLAINTIFFS' MOTION
TO REMAND AND FOR
ATTORNEYS' FEES
(Docket No. 15)
v.
LAWRENCE LIVERMORE NATIONAL
SECURITY, LLC, et al.,
Defendants.
________________________________/
United States District Court
For the Northern District of California
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This dispute arises from Plaintiffs' terminations in the
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course of a May 2008 workforce reduction conducted by Defendant
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Lawrence Livermore National Security, LLC (LLNS), a contractor for
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the United States Department of Energy (DOE).1
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LLNS is charged
with managing and operating the federally-owned Lawrence Livermore
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National Laboratory, pursuant to a contract with the DOE National
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Nuclear Security Administration.
LLNS removed this action from
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Alameda County Superior Court on August 10, 2011, after it had
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been removed and remanded once before.
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order again remanding the case and requiring LLNS to pay the
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attorneys' fees and costs that Plaintiffs have incurred as a
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result of the removal.
Plaintiffs move for an
Plaintiffs' motion to remand is GRANTED.
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Plaintiffs originally named individual Defendants, George
Miller and Robert Perko, in addition to LLNS. However, on
November 5, 2009, the Court dismissed with prejudice all claims
against Miller and Perko, pursuant to the parties' stipulation.
LLNS is the sole remaining Defendant.
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Plaintiffs are also awarded fees, although the Court will
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determine the amount after the parties submit supplemental
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briefing.
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BACKGROUND
Plaintiffs filed their complaint in Alameda County Superior
Court on May 21, 2009, and on July 30, 2009, they filed their
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First Amended Complaint, asserting causes of action under state
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law for violations of the California Fair Employment and Housing
United States District Court
For the Northern District of California
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Act, breach of an implied contract and other claims.
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also alleged claims under federal law, including discrimination in
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violation of the Age Discrimination in Employment Act (ADEA) and a
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constitutional claim.
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Plaintiffs
A DOE contractor may conduct a layoff when the DOE has made a
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"determination that a change in the workforce . . . is necessary"
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and develops a plan for workforce restructuring in consultation
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with affected stakeholders.
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Act for Fiscal Year 1993, Pub. L. No. 102-484, Div. C, Title XXXI,
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§ 3161, 106 Stat. 2315 (1992) (originally codified at 42 U.S.C.
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§ 7274h, then transferred to 50 U.S.C. § 2704); 48 C.F.R.
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§ 970.2672-1.
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See National Defense Authorization
Federal regulations provide that "in instances
where the [DOE] has determined that a change in workforce at a
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[DOE] Nuclear Facility is necessary, DOE contractors . . . shall
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accomplish workforce restructuring or displacement . . . in a
manner consistent with any DOE work force restructuring plan in
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effect . . ."
48 C.F.R. § 970.2672-1.
The parties refer to the
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DOE's workforce restructuring plan as the "3161 Plan."
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Plaintiffs alleged that “LLNS is governed by the provisions
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of Section 3161(c) of the National Defense Authorization Act for
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Fiscal Year 1993, which requires it to take measures to minimize
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the impact of a reduction in force . . .” and that the “entire
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reduction in force is invalid, illegal and discriminatory, in
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violation of State and Federal law, Department of Energy and other
United States District Court
For the Northern District of California
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governmental policies and regulations and Defendants’ own policies
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and procedures.”
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FAC ¶¶ 2 and 5.
On September 3, 2009, Defendants LLNS, Miller and Perko filed
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the first notice of removal, on the basis of federal question
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jurisdiction.
On November 5, 2009, pursuant to the parties’
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stipulation, the Court remanded the action to state court.
The
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stipulation provided that Plaintiffs would dismiss with prejudice
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their claims under the ADEA and their constitutional claim, as
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well as their claims against Miller and Perko.
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Gary Gwilliam, Ex. U at 3.
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of the Plaintiffs, through their counsel, further agree that they
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will not assert any other claims that would fall within the
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Declaration of J.
The stipulation also stated that “each
jurisdiction of this Court, including but not limited to any
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claims based on any statute, constitutional provision, contract or
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on any other basis, against any Defendant named in this
litigation . . .”
Id.
In turn, LLNS agreed “not to remove this
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case unless Plaintiff [sic] asserts claims that fall within the
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jurisdiction of the federal courts.”
Id.
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On December 9, 2009, the parties filed a Joint Complex Case
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Management Statement in state court in which Plaintiffs asserted
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that “the entire layoff is illegal and must be set aside,
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regardless of the individual claims of discrimination that each
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Plaintiff can prove. . . [and] that [LLNS] failed to minimize the
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impact of the layoffs on its workforce, as required by Section
United States District Court
For the Northern District of California
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3161(c) of the National Defense Authorization Act of FY 1993.”
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Id., Ex. V at 8.
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On June 2, 2010, in connection with a motion to compel LLNS
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to produce additional documents, Plaintiffs argued that LLNS was
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required to analyze any proposed layoffs for possible disparate
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impact on protected classifications of employees.
Id., Ex. W at
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10.
According to Plaintiffs, the adverse impact analysis was
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required pursuant to the DOE's obligations under Executive Orders
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11246 and 12086.
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Id.
In February 2011, LLNS served special interrogatories on
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Plaintiffs.
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four days of mediation in June 2011.
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Before Plaintiffs responded, the parties scheduled
until after the mediation.
All discovery was stayed
The parties' efforts to resolve the
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lawsuit were unsuccessful, and discovery resumed.
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On August 3 and 5, 2011, Plaintiffs responded to LLNS'
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special interrogatories.
In doing so, Plaintiffs confirmed their
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contention that the reduction in force violated the 3161 Plan and
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DOE policies and regulations.
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identified the following provisions as the basis for their
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contention: (1) the 3161 Plan governing the layoff, (2) the DOE's
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"Planning Guidance for Workforce Restructuring," DOE Order O
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350.1, (3) the regulations governing DOE Management and Operating
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Id., Ex. Y at 8-9.
Plaintiffs
Contracts, 48 C.F.R. Part 970 et seq., and (4) Executive Order
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11246, as amended by Executive Order 12086 and 48 C.F.R. Part I et
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United States District Court
For the Northern District of California
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seq.
Id.
Also on August 3, 2011, LLNS filed in state court a Motion
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for Summary Adjudication Regarding Whether the Layoff was
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Necessitated by a Lack of Funds.
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the motion, LLNS argued that the DOE's finding that the layoff was
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necessary had been made in accordance with section 3161, and that
Id., Ex. AA.
In connection with
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Plaintiffs were precluded from challenging the DOE's determination
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that a layoff was necessary.
Id. at 10-12.
LLNS asserted that
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“whether a layoff is necessitated by a lack of funds is, as a
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matter of law, left to the DOE’s sole discretion.
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in contrast, is to participate in the 3161 process as required by
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DOE and to conduct a layoff consistent with the 3161 Plans.”2
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at 11.
LLNS’ function,
Id.
A hearing on the motion for summary adjudication was set
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for August 31, 2011.
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On August 10, 2011, LLNS removed the action to federal court
for a second time.
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According to LLNS, a General 3161 Plan and a Specific 3161
Plan were created.
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LEGAL STANDARD
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A defendant may remove a civil action filed in state court to
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federal district court so long as the district court could have
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exercised original jurisdiction over the matter.
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§ 1441(a).
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28 U.S.C.
Title 28 U.S.C. § 1447 provides that if at any time
before judgment it appears that the district court lacks subject
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matter jurisdiction over a case previously removed from state
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court, the case must be remanded.
28 U.S.C. § 1447(c).
On a
United States District Court
For the Northern District of California
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motion to remand, the scope of the removal statute must be
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strictly construed.
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(9th Cir. 1992).
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jurisdiction means that the defendant always has the burden of
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establishing that removal is proper.”
See Gaus v. Miles, Inc., 980 F.2d 564, 566
“The ‘strong presumption’ against removal
Id. (internal citation
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omitted).
Courts should resolve doubts as to removability in
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favor of remanding the case to state court.
See id.
Ordinarily,
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federal question jurisdiction is determined by examining the face
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of the plaintiff's properly pleaded complaint.
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v. Williams, 482 U.S. 386, 392 (1987).
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Caterpillar Inc.
Removal of an action to federal court must be timely.
Pursuant to 28 U.S.C. § 1446(b), notice of removal of a civil
action “shall be filed within thirty days after the receipt by the
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defendant, through service or otherwise, of a copy of the initial
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pleading setting forth the claim for relief upon which such action
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or proceeding is based.”
However, “[i]f the case stated by the
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initial pleading is not removable, a notice of removal may be
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filed within thirty days after receipt by the defendant, through
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service or otherwise, of a copy of an amended pleading, motion,
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order or other paper from which it may first be ascertained that
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the case is one which is or has become removable.”
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Id.
DISCUSSION
I. Motion for Remand
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At the outset, the parties dispute whether this Court has
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subject matter jurisdiction over this case, as required to justify
United States District Court
For the Northern District of California
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removal pursuant to 28 U.S.C. § 1441(a).
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dismissed their federal law causes of action.
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argues that Plaintiffs allege state law claims that give rise to
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federal jurisdiction.
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Plaintiffs have
However, LLNS
This Court has federal question jurisdiction under 28 U.S.C.
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§ 1331 over state law claims “that implicate significant federal
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issues.”
Grable & Sons Metal Prods., Inc. v. Darue Enginering &
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Mfg., 545 U.S. 308, 312 (2005).
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claim, the Supreme Court has explained that
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With respect to such a state law
federal jurisdiction demands not only a contested
federal issue, but a substantial one, indicating a
serious federal interest in claiming the advantages
thought to be inherent in a federal forum. But even
when the state action discloses a contested and
substantial federal question . . . the federal issue
will ultimately qualify for a federal forum only if
federal jurisdiction is consistent with congressional
judgment about the sound division of labor between state
and federal courts governing the application of § 1331.
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Id. at 313-14 (internal citations omitted).
The absence of a
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federal private right of action is “evidence relevant to, but not
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dispositive of, the ‘sensitive judgments about congressional
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intent’ that § 1331 requires.”
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Id. at 318.
LLNS contends that significant federal issues are implicated
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by Plaintiffs' intent to prove their state law claims for breach
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of contract and discrimination by showing that LLNS violated the
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federally-required 3161 Plan and certain federal regulations.
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These claims, however, do not involve a substantial federal
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question or require a resolution of a contested issue of federal
United States District Court
For the Northern District of California
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law.
According to Plaintiffs' theory, the 3161 Plan, once
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adopted, and DOE regulations served as implied-in-fact terms of
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the contract between LLNS, as employer, and Plaintiffs, as its
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employees.
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policies and practices may become implied-in-fact terms of the
Under California law, "the employer's personnel
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contract between employer and employee.
If that has occurred, the
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employer's failure to follow such policies when terminating an
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employee is a breach of the contract itself."
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Inc., 24 Cal. 4th 317, 352 (2000).
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was required to follow the 3161 Plan and DOE regulations.
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has failed to identify a substantial dispute between the parties
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as to the meaning of the plan or of federal regulations.
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Guz v. Bechtel Nat.
The parties agree that LLNS
LLNS
Instead,
the parties dispute whether LLNS failed to comply with the plan
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and, if so, whether its failure amounts to a breach of contract or
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provides evidence of discrimination.
Therefore, to resolve the
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breach of contract claim, the state court would need only to
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determine the requirements of the plan and DOE regulations and
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whether LLNS complied with them, applying contract principles
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under California law.
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whether any non-compliance by LLNS evidences discrimination.
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The court would also need to consider
The present action is distinguishable from Grable, 545 U.S.
at 312.
There, the Internal Revenue Service seized Grable's
private property to satisfy a tax delinquency and sold the
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property to the defendant.
Id. at 310-311.
Grable brought a
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quiet title action against the defendant in state court, claiming
United States District Court
For the Northern District of California
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that the defendant's title was invalid because the IRS failed to
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provide Grable adequate notice of the seizure under a provision of
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the Internal Revenue Code.
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action to federal court, claiming that the suit turned on the
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interpretation of a federal statute.
Id. at 311.
The defendant removed the
The Supreme Court found
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federal jurisdiction because the construction of a federal tax
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statute concerning adequate notice was required and the parties
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actually disagreed about the statute's meaning.
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The Court also noted that the federal government had a "direct
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interest in the availability of a federal forum to vindicate its
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own administrative action."
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Id. at 314-15.
Id. at 315.
Here, the federal government's interest in the mitigation of
adverse impacts associated with workforce reduction efforts by DOE
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contractors is narrower than its interest in Grable, where the
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interpretation of the notice provision implicated the government's
efforts to collect outstanding taxes.
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Furthermore, as noted
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earlier, LLNS has not identified a substantial dispute as to the
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meaning of the 3161 Plan or a particular federal regulation.
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The parties also agree that section 3161 does not confer a
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private right of action.
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under section 3161 indicates that Congress did not intend that
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The absence of a private right of action
non-compliance with this provision would give rise to federal
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jurisdiction.
Merrell Dow Pharmaceuticals Inc. v. Thompson, 478
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U.S. 804, 814 (1986) ("Given the significance of the assumed
United States District Court
For the Northern District of California
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congressional determination to preclude federal private remedies,
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the presence of the federal issue as an element of the state tort
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is not the kind of adjudication for which jurisdiction would serve
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congressional purposes and the federal system.").
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Indeed, this case is similar to Merrell Dow, 478 U.S. at 804,
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in which the Supreme Court found an absence of federal
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jurisdiction.
There the plaintiffs pursued a cause of action for
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negligence under state law.
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violation of the Federal Food, Drug, and Cosmetic Act.
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805-06.
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issue in a state cause of action does not automatically confer
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federal-question jurisdiction."
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An element of the claim was a
Id. at
The Court reasoned that "the mere presence of a federal
The federal issue in the tort
claim was not substantial enough to render it a claim arising
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under federal law.
Id. at 813-14.
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Likewise, the Court in Empire Healthchoice Assurance, Inc. v.
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McVeigh reasoned that a contract-derived claim did not warrant
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federal jurisdiction, even though a federal statute contemplated
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the contract at issue and the "United States no doubt 'has an
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overwhelming interest in attracting able workers to the federal
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workforce.'"
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explained that a contract authorized by federal statute "is not a
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prescription of federal law."
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547 U.S. 677, 696, 699-701 (2006).
The Court
Id. at 696.
Just as in Merrell Dow and Empire Healthchoice, the state law
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claims in the present case do not support federal jurisdiction
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because they do not implicate substantial federal concerns.
United States District Court
For the Northern District of California
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Accordingly, LLNS has failed to establish federal question
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jurisdiction in this action.
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Even if Plaintiffs' claims gave rise to federal jurisdiction,
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LLNS has waived its right to remove the case by taking action to
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adjudicate the matter in state court.
"A party, generally the
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defendant, may waive the right to remove to federal court where,
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after it is apparent that the case is removable, the defendant
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takes actions in state court that manifest his or her intent to
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have the matter adjudicated there, and to abandon his or her right
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to a federal forum."
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Developers, 43 F.3d 1230, 1240 (9th Cir. 1994).
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remand the case to state court in September, 2009, even though
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Resolution Trust Corp. v. Bayside
LLNS agreed to
Plaintiffs' first amended complaint made clear the federal
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elements of their state law claims.
These elements remained part
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of the action even after Plaintiffs agreed to dismiss their
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federal age discrimination and constitutional claims.
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permitted the case to remain in state court for nearly two years.
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LLNS then
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On August 3, 2011, LLNS sought summary adjudication in state court
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that the DOE had found that the layoff was necessary in accordance
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with section 3161 and that Plaintiffs were precluded from
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challenging the DOE's determination.
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litigate the merits of the claims, including the federal aspects
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of the claims.
In doing so, LLNS sought to
It still did not assert that the 3161 Plan was a
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basis for removing the action.
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LLNS responds that the removability of the claim did not
United States District Court
For the Northern District of California
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become apparent until after it filed its motion for summary
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adjudication.
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Plaintiffs' claim have been apparent throughout the litigation.
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The November 2009 stipulation could not have been reasonably
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understood as an agreement by Plaintiffs to forgo their state law
This argument fails because the federal aspects of
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breach of contract claim based on the theory that LLNS failed to
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comply with the 3161 Plan or other federal requirements.
The
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Joint Complex Case Management statement filed the following month
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and Plaintiffs' discovery motion filed in June 2010 made plain
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that Plaintiffs continued to pursue legal theories related to
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federal requirements.
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by actively litigating the case in state court after the first
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LLNS waived any right to remove the action
removal and remand, although the federal aspects of the case were
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apparent.
Plaintiffs' August 3 and 5, 2011 discovery responses
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did not reveal any new information rendering the case removable.
Furthermore, LLNS' notice of removal is untimely because it
occurred well after thirty days from the date that removability
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would have been ascertainable from the papers filed in this
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action.
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28 U.S.C. § 1446(b).
In sum, LLNS' second removal of this action was improper due
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to the absence of federal jurisdiction, LLNS' waiver of
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removability and the untimeliness of the notice of removal.
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Plaintiffs' motion to remand the action to Alameda County Superior
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Court is granted.
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United States District Court
For the Northern District of California
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II. Motion for Attorneys' Fees and Costs
On granting a motion to remand, the court may order the
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defendant to pay the plaintiff its “just costs and any actual
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expenses, including attorney fees, incurred as a result of the
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removal.”
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attorney's fees should not be awarded when the removing party has
28 U.S.C. § 1447(c).
“Absent unusual circumstances,
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an objectively reasonable basis for removal.”
Martin v. Franklin
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Capital Corp., 546 U.S. 132, 136 (2005).
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Here, Defendant's notice of removal lacked any objective
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basis.
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fees and costs incurred in connection with this improper removal
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is warranted.
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It is not a close call.
Therefore, an award of attorneys'
However, the party seeking an award of attorneys' fees bears
the burden of producing "satisfactory evidence--in addition to the
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attorney's own affidavits--that the requested rates are in line
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with those prevailing in the community for similar services by
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lawyers of reasonably comparable skill, experience and
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reputation."
Camacho v. Bridgeport Financial, Inc., 523 F.3d 973,
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980 (9th Cir. 2008).
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rate has been approved by two judges in the complex litigation
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departments of Alameda and Contra Costa counties, there is no
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further evidence to support his or his colleagues' rates.
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Furthermore, the number of hours must be reasonable.
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Although J. Gary Gwilliams attests that his
The number
of hours of service indicated in the fee request appears
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excessive.
Plaintiffs shall submit contemporaneous billing
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records and an explanation of the number of hours of service
United States District Court
For the Northern District of California
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required to complete a fifteen page motion and fourteen page reply
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brief.
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Accordingly, by September 6, 2011, Plaintiffs shall submit a
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supplemental brief, not to exceed three pages, and supporting
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documentation to address their fee and cost request.
LLNS may
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oppose the request in a brief, not to exceed three pages, which
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shall be submitted by September 13, 2011.
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decided on the papers.
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//
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//
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//
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//
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//
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//
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//
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//
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//
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The matter will be
CONCLUSION
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Plaintiffs' motion to remand the case to Alameda County
Superior Court is GRANTED.
The clerk shall remand the file.
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Plaintiffs' motion for attorneys' fees and costs is also
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GRANTED, although the Court will determine the amount of the award
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after the parties have filed their supplemental briefing.
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IT IS SO ORDERED.
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United States District Court
For the Northern District of California
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Dated: 8/31/2011
CLAUDIA WILKEN
United States District Judge
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