Shrivastava v. Fry's Electronics, Inc.

Filing 35

Order by Hon. Lucy H. Koh denying 34 Motion for Leave to File Motion for Reconsideration.(lhklc3, COURT STAFF) (Filed on 3/7/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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SURENDRA K. SHRIVASTAVA,
Plaintiff,
v.
FRY’S ELECTRONICS, INC.,
Defendant.

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Case No.: 11-CV-01833-LHK
ORDER DENYING MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION OF REMAND
ORDER
(re: dkt. #34)

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This is an action arising from the alleged failure of Defendant Fry’s Electronics, Inc.
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(“Defendant”) to pay all earned and unused vacation at employment termination to Plaintiff
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Surendra K. Shrivastava (“Plaintiff”). On January 19, 2011, Plaintiff filed a class action complaint
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in Santa Clara County Superior Court alleging two state law causes of action. Defendant removed
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this action on April 15, 2011, arguing that this Court has federal jurisdiction because Plaintiff’s
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state law claims are completely preempted by the Employment Retirement Income Security Act of
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1974 (“ERISA”), 29 U.S.C. § 1001 et seq. See ECF No. 1 ¶ 3. On August 29, 2011, the Court
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issued an Order Remanding Case for Lack of Federal Jurisdiction (the “Order”). ECF No. 33.
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Before the Court is Defendant’s motion for leave to file a motion for reconsideration of the Order,
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which Defendant brings on the ground that the Court failed to consider a material fact in
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Case No.: 11-CV-01833-LHK
ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

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Defendant’s Notice of Removal of Action. See ECF No. 34. For the following reasons, the Court

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DENIES the motion.

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The Court is without jurisdiction to review its own order remanding a removed case to state

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court for lack of federal subject matter jurisdiction. See 28 U.S.C. § 1447(d); Kircher v. Putnam

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Funds Trust, 547 U.S. 633, 642 (2006) (“[R]eview [of an order remanding for lack of jurisdiction]

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is unavailable no matter how plain the legal error in ordering the remand.”); Hansen v. Blue Cross

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of Cal., 891 F.2d 1384, 1387 (9th Cir. 1989) (“Section 1447(d) precludes review of a district

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court’s jurisdictional decision even if it was clearly wrong.”). Section 1447(d) states, in relevant

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part, that “[a]n order remanding a case to the State court from which it was removed is not

United States District Court
For the Northern District of California

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reviewable on appeal or otherwise.” 1 “This language has been universally construed to preclude

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not only appellate review but also reconsideration by the district court.” Seedman v. U.S. Dist.

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Court for the Cent. Dist. of Cal., 837 F.2d 413, 414 (9th Cir. 1988) (per curiam); see also First

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Union Nat’l Bank of Fla. v. Hall, 123 F.3d 1374, 1377 (11th Cir. 1997) (“[N]onreviewability

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[under § 1447(d)] extends to the power of a district court to reconsider its own remand order.”

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(citation omitted)); In re Lowe, 102 F.3d 731, 734 (4th Cir. 1996) (“Indisputably, ‘otherwise’ in §

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1447(d) includes reconsideration by the district court.” (citation omitted)); In re La Providencia

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Dev. Corp., 406 F.2d 251, 252-53 (1st Cir. 1969) (“[N]othing could be more inclusive than the

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phrase ‘on appeal or otherwise.’ The district court has one shot, right or wrong.” (footnote

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omitted)); Stark-Romero v. Nat’l R.R. Passenger Co., 763 F. Supp. 2d 1231, 1252-53 (D. N.M.

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2011) (collecting cases); Maggio Enters. v. Hartford Cas. Ins. Co., 132 F. Supp. 2d 930, 931 (D.

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Colo. 2001) (explaining that “[b]ecause a remand order deprives the district court of jurisdiction,

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the district court may not vacate or reconsider its order of remand” (citations omitted)).

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Here, the Court’s remand order was solely on jurisdictional grounds. Cf. Thermtron Prods.,

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Inc. v. Hermansdorfer, 423 U.S. 336, 349-52 (1976) (holding that the nonreviewability rule of §

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1447(d) applies only to remands based on a defect in removal procedure or lack of subject matter

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Section 1447(d) provides two exceptions to this rule not applicable here. The first exception is
for actions brought against federal officers or agencies removed pursuant to 28 U.S.C. § 1442, and
the second exception is for civil rights cases removed pursuant to 28 U.S.C. § 1443. See 28 U.S.C.
§ 1447(d).
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Case No.: 11-CV-01833-LHK
ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

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jurisdiction); Hansen, 891 F.2d at 1387 (explaining that § 1447(d) does not bar review of remand

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orders based on non-jurisdictional grounds). The Ninth Circuit has squarely held that § 1447(d)

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precludes review of a district court’s remand based on a finding that ERISA does not completely

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preempt a plaintiff’s state law claims. Lyons v. Alaska Teamsters Employer Serv. Corp., 188 F.3d

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1170, 1171 (9th Cir. 1999). Such was the basis of the Court’s remand order at issue here. See

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Order at 4. Although the Court’s jurisdictional determination was premised, in part, on the

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allegations in Plaintiff’s complaint that Defendant paid vacation and holiday benefits out of its

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general assets and not out of the Voluntary Employees’ Beneficiaries Association Trust (“VEBA”)

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Plan at issue, the Court did not actually make a substantive finding of fact on the merits of this

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For the Northern District of California

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issue. Moreover, the Court’s legal conclusion “was not apart from the question of subject matter

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jurisdiction, but rather was related to it.” Hansen, 891 F.2d at 1388 (citing Glasser v.

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Amalgamated Workers Union Local 88, 806 F.2d 1539 (11th Cir. 1986) (per curiam)); see

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Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276 (9th Cir. 1984)

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(holding that the remand order was reviewable because the district court “reached a substantive

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decision on the merits apart from any jurisdictional decision”). “In an ERISA case, in which the

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ground for removal is complete preemption, determining jurisdiction will necessarily involve

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analyzing whether there is preemption of the plaintiff’s claims.” Lyons, 188 F.3d at 1172; see

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Hansen, 891 F.2d at 1388. To the extent the Court’s remand order assessed whether Plaintiff’s

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state law claims are completely preempted by ERISA, such analysis was undertaken solely to

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determine whether jurisdiction could be established. Section 1447(d) therefore precludes

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reconsideration of the Order. Accordingly, Defendant’s motion for leave to file a motion for

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reconsideration is DENIED.

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The Court observes, finally, that “state courts have concurrent jurisdiction over suits to

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enforce benefit rights or to recover benefits,” Hansen, 891 F.2d at 1387 n.2, and therefore the

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Court’s jurisdictional determination does not deprive the parties of an opportunity to litigate this

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case. Furthermore, as noted in the remand order, Defendant remains free to assert a defense of

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conflict preemption in state court. See Lyons, 188 F.3d at 1172 & n.1 (explaining that “the

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preemption determination made for purposes of determining jurisdiction” is separate and distinct
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Case No.: 11-CV-01833-LHK
ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

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from the question of “whether the defendant can actually establish a substantive preemption

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defense” on the merits).

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IT IS SO ORDERED.

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Dated: March 7, 2012

_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 11-CV-01833-LHK
ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION