Bennett v. Skanska USA Inc.

Filing 14

ORDER GRANTING STIPULATION FOR DISMISSAL OF LABOR CODE SECTION 226 CLAIMS AND REMAND OF REMAINING CLAIMS TO STATE COURT. Signed by Judge Nathanael Cousins on 8/5/2015. (lmh, COURT STAFF) (Filed on 8/5/2015)

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Oswald Cousins, CA Bar No. 172239
[e-mail]
NIXON PEABODY LLP
One Embarcadero Center, 18th Floor
San Francisco, California 94111-3600
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
Skanska Shimmick Herzog, a Joint Venture

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Case No. 15-CV-02382-NC

MUSU BENNETT,
Plaintiff,

STIPULATION AND ORDER FOR
DISMISSAL OF LABOR CODE
SECTION 226 CLAIMS AND
REMAND OF REMAINING CLAIMS
TO STATE COURT

vs.

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SKANSKA SHIMMICK HERZOG, A
JOINT VENTURE and Does 1-10,
inclusive

Date Removal Filed: May 28, 2015

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Defendants.

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Counsel for Plaintiff, Musu Bennett (“Plaintiff”), and Defendant Skanska

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Shimmick Herzog, a Joint Venture (“SSHJV”), jointly submit the following

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Stipulation and [Proposed] Order:
RECITALS

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Whereas:

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1.

This lawsuit was initially filed against Skanska USA, Inc. in the Superior

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Court of California, Santa Clara County. On or around May 28, 2015, Skanska USA,

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Inc. removed this matter based on diversity jurisdiction on the grounds that Skanska

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USA, Inc. is a citizen of New York and on federal question jurisdiction based on the
STIPULATION AND ORDER DISMISSING
CERTAIN CLAIMS AND FOR REMAND

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argument that Plaintiff’s Labor Code Section 226(a) claims, as pled, are preempted by

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Section 301 of the Labor Management Relations Act, 29 U.S.C. §185(a).

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2.

On June 18, 2015, the Parties filed a Stipulation and Order to dismiss

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Skanska USA, Inc. (Skanska USA Inc.) as a party and to substitute Skanska Shimmick

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Herzog, a Joint Venture (“SSHJV”) as the defendant in this matter. SSHJV is not a

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diverse citizen for the purposes of this lawsuit.

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3.

An earlier filed class action and representative lawsuit entitled Guadalupe

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Gomez v. Skanska Shimmick Herzog, a Joint Venture that alleges, among other claims,

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Labor Code Section 226 violations that are same as or substantially similar to those

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alleged in this case is pending before the Honorable Edward J. Davila in the District

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Court, Northern District of California, Case No. 5:15-cv-01796.

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4.

Ms. Bennett received only one paycheck from SSHJV. The maximum

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penalty under Labor Code 226(e) for an allegedly defective wage statement is $50.00

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per pay period. SSHJV tendered a check for $50.00 to Plaintiff on May 18, 2015 as

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payment in full for the alleged penalty. SSHJV denies that it violated Labor Code

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Section 226 and does not concede any violation, it
STIPULATION

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Based on these recitals, the Parties through their counsel stipulate as follows:

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1.

Plaintiff’s First Cause of Action (Labor Code 226) and any other claims

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or causes of action that are based on alleged violations of Labor Code Section 226,

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including that portion of Plaintiff’s Fourth Cause of Action under the Private Attorney

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General Act that is based on alleged violations of Labor Code Section 226 and

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Plaintiff’s prayer for damages, penalties and attorneys’ fees under Labor Code

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Sections 226 and 226.3 may be dismissed with prejudice with both sides bearing their

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own costs and fees.

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2.

Based on the substitution of SSHJV for Skanska USA, Inc. and the

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dismissal of the Labor Code Section 226 claims this Court lacks jurisdiction over the

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remaining causes of action and, therefore, Plaintiff’s remaining claims should be
STIPULATION AND ORDER DISMISSING
CERTAIN CLAIMS AND FOR REMAND

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remanded to the Superior Court, County of Santa Clara and the case in this Court

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should be closed.

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DATED: August 4, 2015

NIXON PEABODY LLP

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By:

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DATED: August 4, 2015

/s/ Oswald Cousins_____________
Oswald Cousins
Attorneys for Defendant
SKANSKA SHIMMICK HERZOG, a
JOINT VENTURE

POLARIS LAW GROUP

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By:________________________________
William L. Marder
Attorneys for Plaintiff
MUSU BENNETT

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ORDER DISMISSING LABOR CODE 226 CLAIMS AND REMANDING TO STATE

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COURT

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Pursuant to the Parties’ Stipulation and for good cause, the Court orders as

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follows:

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(1)

Plaintiff’s First Cause of Action (Labor Code Section 226 and any other claims

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or causes of action that are based on alleged violations of Labor Code Section

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226, including that portion of Plaintiff’s Fourth Cause of Action under the

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Private Attorney General Act that is based on alleged violations of Labor Code

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Section 226 and Plaintiff’s prayer for damages, penalties and attorneys’ fees

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under Labor Code Sections 226 and 226.3 are dismissed with prejudice with

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both sides bearing their own costs and fees.

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///

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///

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///
STIPULATION AND ORDER DISMISSING
CERTAIN CLAIMS AND FOR REMAND

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(2)

Plaintiff’s remaining claims are hereby remanded to the Superior Court of

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California, Santa Clara County, and the clerk is instructed to close the case in

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this Court.

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NO

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thanael
Judge Na

ER

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STIPULATION AND ORDER DISMISSING
CERTAIN CLAIMS AND FOR REMAND
4816-7579-3190.2

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M. Cousin

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DATED: August_5_, 2015

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S DISTRICT
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__________________________________
United States MagistrateD
E Judge
Nathaneal M. GRANT
Cousins

UNIT
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IT IS SO ORDERED.

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