Ger v. Safeway, Inc

Filing 16

Order by Hon. Lucy H. Koh granting 9 Motion to Remand.(lhklc3, COURT STAFF) (Filed on 1/9/2013) (Additional attachment(s) added on 1/9/2013: # 1 Certificate/Proof of Service) (mpb, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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YUNG HSING GER,
Plaintiff,

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v.

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SAFEWAY, INC.,
Defendant.

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Case No.: 12-CV-04612-LHK
ORDER REMANDING CASE

Before the Court is a Motion to Remand for lack of subject matter jurisdiction filed pro se

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by Yung Hsing Ger (“Plaintiff”). ECF No. 9 (“Mot.”). Defendant Safeway, Inc. (“Safeway”) filed

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a timely opposition. See ECF No. 11 (“Opp’n”). Plaintiff did not file a reply. Having reviewed

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the parties’ submissions and the relevant law, the Court concludes that it lacks jurisdiction over this

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matter, and therefore GRANTS Plaintiff’s Motion to Remand.

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I.

BACKGROUND
Plaintiff filed a complaint alleging workplace discrimination and harassment against

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Defendant in the California Superior Court for the County of Santa Clara. ECF No. 1, Ex. A

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(“Compl.”). Plaintiff alleges wrongful termination from her job as a food clerk because of being

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53 years old, blind in one eye, and Chinese. Id. On September 4, 2012, Safeway removed this

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action to federal court, asserting federal question jurisdiction. See ECF No. 1 (“Notice of

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ORDER REMANDING CASE

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Removal”) at 2. The case was reassigned to the undersigned judge on September 12, 2012. ECF

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No. 7.

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II.

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LEGAL STANDARDS AND DISCUSSION
A suit may be removed from state court to federal court only if the federal court would have

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had original subject matter jurisdiction over the claims. 28 U.S.C. § 1441(a). There are two bases

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for federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331, and

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(2) diversity jurisdiction under 28 U.S.C. § 1332. If it appears at any time before final judgment

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that the federal court lacks subject matter jurisdiction, the federal court must remand the action to

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state court. 28 U.S.C. § 1447(c). “The removal statute is strictly construed against removal

United States District Court
For the Northern District of California

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jurisdiction.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir.

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2009). Consequently, “[t]he defendant bears the burden of establishing that removal is proper,” id.,

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and “any doubt about the right of removal requires resolution in favor of remand,” Moore-Thomas

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v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d

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564, 566 (9th Cir. 1992)).

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A. Federal Question Jurisdiction
Federal courts have original jurisdiction over civil actions “arising under the Constitution,

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laws, or treaties of the United States.” 28 U.S.C. § 1331. Removal pursuant to Section 1331 is

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governed by the “well-pleaded complaint rule,” which provides that federal question jurisdiction

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exists only when “a federal question is presented on the face of plaintiff’s properly pleaded

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complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Taylor v. Anderson,

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234 U.S. 74, 75-76 (1914) (stating that federal question jurisdiction “must be determined from

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what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration,

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unaided by anything alleged in anticipation or avoidance of defenses which it is thought the

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defendant may interpose.”).

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“A resulting corollary to the well-pleaded complaint rule, known as the complete

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preemption doctrine, provides that Congress may so completely preempt a particular area that any

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civil complaint raising this select group of claims is necessarily federal in character.” Moore-

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Thomas, 553 F.3d at 1243 (internal quotation marks and citations omitted). “[I]f a federal cause of
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ORDER REMANDING CASE

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action completely preempts a state cause of action[,] any complaint that comes within the scope of

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the federal cause of action necessarily ‘arises under’ federal law.” Id. at 1243–44 (citing

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Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24 (1983)).

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Finally, “[e]ven where . . . state law creates the cause of action, and no federal law

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completely preempts it, federal jurisdiction may still lie if ‘it appears that some substantial,

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disputed question of federal law is a necessary element of one of the well-pleaded state claims.”

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Rains v. Criterion Systems, Inc., 80 F.3d 339, 345 (9th Cir. 1996) (quoting Franchise Tax Bd., 463

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U.S. at 13).

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United States District Court
For the Northern District of California

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B. Plaintiffs’ Complaint
Defendant construes Plaintiff’s complaint to allege a violation of Title VII of the Civil

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Rights Act, and on this basis asserts that this Court has federal question jurisdiction. See Opp’n at

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3. The Court disagrees.

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First, the face of Plaintiff’s complaint does not present a federal question. See Caterpillar,

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Inc., 482 U.S. at 392. In fact, Plaintiff’s complaint does not specifically assert any particular

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statutory entitlement for the relief she seeks. See Compl. 1–3. Plaintiff’s complaint certainly does

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not mention Title VII of the Civil Rights Act. Rather, Plaintiff merely alleges wrongful

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termination from her job as a food clerk because of being 53 years old, blind in one eye, and

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Chinese. See Compl. at 2-3. While Plaintiff’s claims might constitute a claim under Title VII, they

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also might constitute a claim under California’s Fair Employment and Housing Act (FEHA), which

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makes it “unlawful” for an employer to terminate a person from employment “because of [her] . . .

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national origin, ancestry, physical disability, mental disability, medical condition, . . . [or] age. . . .”

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Cal. Gov. Code § 12940(a). Therefore, the face of Plaintiff’s complaint does not clearly present a

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federal question.

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Second, “that the same facts could have been the basis for a Title VII claim does not make

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[Plaintiff’s] wrongful termination claim into a federal cause of action.” Rains, 80 F.3d at 344. Nor

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does the fact that Plaintiff “secured a ‘Right to Sue’ letter from the EEOC, a federal agency,” as

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noted by Safeway, see Opp’n at 3, transform Plaintiff’s complaint into one raising a federal

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question. Under the well-pleaded complaint rule, a plaintiff is the master of her own complaint;
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ORDER REMANDING CASE

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“she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, Inc., 482 U.S.

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at 392; see also Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, n. 6 (1986)

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(“Jurisdiction may not be sustained on a theory that the plaintiff has not advanced”); Great North

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R. Co. v. Alexander, 246 U.S. 276, 282 (1918) (“[T]he plaintiff may by the allegations of his

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complaint determine the status with respect to removability of a case”). When a complaint does

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“not set forth the statutory basis for a particular claim . . . defendants are obligated to ascertain,

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through discovery or otherwise, whether plaintiff intends to proceed under the alternative federal

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statute and if so, may then remove.” Schwarzer, Tashima, & Wagstaffe, Cal. Prac. Guide: Fed.

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Civ. Proc. Before Trial § 2:2565 (Rutter Group 2012). Defendants do not appear to have made

United States District Court
For the Northern District of California

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such an inquiry in this case. Nonetheless, in Plaintiff’s Motion to Remand, Plaintiff states

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explicitly that she “wishe[s] to proceed according to state law.” Mot. at 3. Therefore, Safeway

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need search no further to ascertain Plaintiff’s intentions.

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As Defendant concedes, “[h]ad plaintiff only plead state law causes of action, this matter

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would be properly heard by the state court.” Mot. at 3. Given that “pro se pleadings are held to a

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less stringent standard than those drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972),

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the Court sees no reason to punish Plaintiff simply because she did not clearly disavow her

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intention to bring a Title VII claim in her complaint.

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Of course, “a plaintiff may not avoid federal jurisdiction by ‘omitting from the complaint

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federal law essential to h[er] claim, or by casting in state law terms a claim that can be made only

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under federal law.’” Rains, 80 F.3d at 344 (quoting Olguin v. Inspiration Consol. Copper Co., 740

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F.2d 1468, 1472 (9th Cir. 1984). However, Plaintiff’s complaint is not necessarily federal in

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character because Title VII “does not preempt the state law claim for wrongful termination.”

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Rains, 80 F.3d at 345. Furthermore, “Title VII is not a ‘necessary element’ of [Plaintiff’s] state

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law claims because state law independently espouses the same public policy established by Title

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VII.” Rains, 80 F.3d at 345; see also id. at 346 (“When a claim can be supported by alternative and

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independent theories—one of which is a state law theory and one of which is a federal law

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theory—federal question jurisdiction does not attach because federal law is not a necessary element

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of the claim.”).
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12-CV-04612-LHK
ORDER REMANDING CASE

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Therefore, given that nothing in Plaintiff’s complaint clearly states a federal claim, Plaintiff

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has made clear that she wishes to proceed in state court rather than federal court, and Title VII

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neither preempts California law nor constitutes an essential element of Plaintiff’s claim, Safeway

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has failed to establish that removal is proper. See Moore-Thomas, 553 F.3d at 1244 (“any doubt

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about the right of removal requires resolution in favor of remand”) (citing Gaus v. Miles, Inc., 980

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F.2d 564, 566 (9th Cir. 1992)). As the Ninth Circuit noted in Rains, a case also involving an

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employee who brought a California state court action for wrongful termination that was remanded

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after Defendants-Appellees sought to remove it to federal court, “[t]o conclude otherwise would

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make it difficult, if not impossible, to bring an action for wrongful termination in violation of

United States District Court
For the Northern District of California

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public policy in California state courts without being subject to removal to federal court whenever

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a state policy is similar to a federal policy.” Rains, 80 F.3d at 347.

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C. CONCLUSION
Safeway has not carried its burden of establishing federal jurisdiction. Accordingly,

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Plaintiff’s Motion to Remand this matter to the Superior Court for the County of Monterey is

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GRANTED.

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IT IS SO ORDERED.

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Dated: January 9, 2013

_________________________________
LUCY H. KOH
United States District Judge

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ORDER REMANDING CASE