Rangel et al v. Patrick Cudahy LLC

Filing 15

ORDER signed by Judge Rudolph T. Randa on 12/5/2014. 8 Plaintiff's MOTION to Remand DENIED; 12 Defendant's MOTION for Leave to File Third Declaration of Lisa Swaney GRANTED. Within 60 days of the date of this Order plaintiffs must file motion to remand or statement indicating they will not pursuing remand. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARTHA RANGEL, MARIA
GUADALUPE MOLINA, ROXANA
HERRARA, and ALICIA BEDOLLA,
on behalf of themselves and similarly
situated employees,
Plaintiffs,
-vs-

Case No. 14-C-799

PATRICK CUDAHY, LLC,
Defendant.
DECISION AND ORDER

This is a class action for unpaid wages pursuant to Wisconsin’s wage
payment and overtime laws. The named plaintiffs seek to represent a class
consisting of all current and former hourly production employees required
to don and doff personal protection equipment (“PPE”) at the Patrick
Cudahy processing plant in Cudahy, Wisconsin within two years preceding
the filing of this action. Cudahy removed from Milwaukee County Circuit
Court, and the plaintiffs move to remand.
Cudahy’s first ground for removal is that the plaintiffs’ state law
claims are completely preempted by Section 301 of the Labor Management
Relations Act. Normally, the Court looks to the well-pleaded allegations of

the complaint to determine if it presents a federal question (thus making
removal appropriate, 28 U.S.C. § 1441), but complete preemption is an
exception to the well-pleaded complaint rule, and Section 301 of the LMRA
has complete preemption force. See Atchley v. Heritage Cable Vision
Assocs., 101 F.3d 495, 498 (7th Cir. 1996) (“even if a plaintiff makes no
mention of § 301 in a complaint, § 301 nevertheless may displace entirely a
state cause of action, allowing removal by the defendant…”).
The preemptive force of § 301 is “so powerful as to displace entirely
any state cause of action for violation of contracts between an employer
and a labor organization.” Franchise Tax Bd. of Cal. v. Constr. Laborers
Vacation Trust for S. Cal., 463 U.S. 1, 23 (1983). A claim which is
“sufficiently dependent on an interpretation of the [collective-bargaining
agreement]” is preempted, Baker v. Kingsley, 387 F.3d 649, 657 (7th Cir.
2004), but a “question of state law, entirely independent of any
understanding embodied in the collective-bargaining agreement” can go
forward as a state-law claim. Livadas v. Bradshaw, 512 U.S. 107, 125
(1994). Plaintiffs’ claim does not depend upon an interpretation of the CBA.
Instead, plaintiffs’ claim presents a question of state law — that is,
whether time spent donning and doffing PPE constitutes “preparatory and
concluding” activities that are an “integral part of a principal activity.”
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Weissman v. Tyson Prepared Foods, Inc., 838 N.W.2d 502, 503 (Wis. Ct.
App. 2013) (quoting Wis. Admin. Code DWD § 272.12(2)(e)). Put another
way, although the number of hours worked by the plaintiffs is in dispute,
that is a dispute over the meaning of state law, not the collective
bargaining agreement. Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d
860, 871 (W.D. Wis. 2007); see also In re Bentz Metal Prods. Co., Inc., 253
F. 3d 283, 285 (7th Cir. 2001) (“a state law claim is not preempted if it does
not require interpretation of the CBA even if it may require reference to
the [agreement]”).
Cudahy also removed pursuant to the Class Action Fairness Act
(“CAFA”). 28 U.S.C. § 1332(d); 28 U.S.C. § 1453. CAFA gives district courts
original jurisdiction over any civil action involving a proposed class of at
least 100 members “in which the matter in controversy exceeds the sum or
value of $5,000,000, exclusive of interest and costs, and is a class action in
which…any member of a class of plaintiffs is a citizen of a State different
from any defendant,” so long as the primary defendants are not “States,
State officials, or other governmental entities against whom the district
court may be foreclosed from ordering relief.” §§ 1332(d)(2)(A), 1332(d)(5).
Plaintiffs do not challenge the first two requirements, and the Court agrees
that they are satisfied for jurisdictional purposes. Plaintiffs allege that
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there are 1,000 members of the putative class seeking overtime
compensation. Plaintiffs do not allege how much time they are seeking
compensation for, but Cudahy posits that it is reasonable to assume that
plaintiffs seek at least 20 additional minutes of compensation each day.
Using an average overtime rate over a two-year period brings the claim to
just under four million dollars; plaintiffs’ claim for a 50% civil penalty
pushes the claim over the requisite jurisdictional amount. Wis. Stat. §
109.11(2). This is a “good faith estimate” that is “plausible and adequately
supported by the evidence.” Blomberg v. Service Corp. Int’l, 639 F.3d 761,
763 (7th Cir. 2011).
Plaintiffs

do

challenge

whether

CAFA’s

“minimal

diversity”

requirement has been satisfied. For CAFA purposes, Cudahy is a citizen of
Delaware and Wisconsin. Declaration of Lisa Swaney, ¶ 4; § 1332(d)(10). In
her initial declaration, Swaney stated that there are “multiple former
employees who, according to their addresses on record with the Company,
are in states other than Wisconsin and Delaware, including Arizona,
Florida, Michigan, Mississippi, and Pennsylvania, as well as Puerto Rico.”
Id., ¶ 5. Swaney later clarified that those employees were employed within
the two year period prior to the filing of this lawsuit. Second Declaration of
Lisa Swaney, ¶ 7. Finally, Swaney explained that all references to
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“employees” in her prior declarations included only hourly employees.
Third Declaration of Lisa Swaney, ¶ 5. Collectively, these declarations
establish that at least one member of the putative class is not a citizen of
either Wisconsin or Delaware.
Plaintiffs further argue that the “local controversy” and “home state”
exceptions deprive the Court of jurisdiction. The local controversy
exception applies to a class action in which “greater than two-thirds of the
members of all proposed plaintiff classes in the aggregate are citizens of
the State in which the action was originally filed.” § 1332(d)(4)(A)(i)(I).
Similarly, under the home state exception, district courts must decline
jurisdiction over a class action in which “two-thirds or more of the members
of all proposed plaintiff classes in the aggregate, and the primary
defendants, are citizens of the State in which the action was originally
filed.” § 1332(d)(4)(B).
Post-removal, plaintiffs amended their complaint to confine the class
to current and former hourly employees who are citizens of the State of
Wisconsin. In re Sprint Nextel Corp., 593 F.3d 669, 676 (7th Cir. 2010)
(explaining that the plaintiffs could have avoided CAFA removal by
defining their class to include only citizens from a particular state).
However, the “well-established general rule is that jurisdiction is
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determined at the time of removal, and nothing filed after removal affects
jurisdiction.” In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 380-81
(7th Cir. 2010). Therefore, plaintiffs’ amendment cannot defeat removal,
and the Court’s analysis is confined to “the complaint as it existed at the
time the petition for removal was filed.” Gossmeyer v. McDonald, 128 F.3d
481, 487 (7th Cir. 1997).
Plaintiffs bear the burden of demonstrating that the local
controversy and/or home state exceptions deprive the Court of jurisdiction.
Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 679-81 (7th Cir.
2006). Plaintiffs assert that it is “self-evident” that at least two-thirds of its
class members are Wisconsin citizens, but the plaintiffs cannot defeat
CAFA jurisdiction based upon “guesswork,” even “[s]ensible guesswork.”
Sprint, 593 F.3d at 674. Plaintiffs argue that the Court should allow
discovery on this issue because Cudahy has sole and exclusive possession of
the relevant information. In Hart, the Seventh Circuit explained that in a
CAFA case, defendants and plaintiffs both “have the right, through
appropriate discovery, to explore the facts relevant to the court’s
jurisdiction as the case progresses.” 457 F.3d at 682. Therefore, the Court
will deny the motion to remand without prejudice and direct the plaintiffs
to conduct discovery into the issue on an expedited basis. See, e.g.,
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Schwartz v. Comcast Corp., No. Civ.A 05-2340, 2005 WL 1799414, at *7
(E.D. Pa. July 28, 2005) (allowing limited discovery on the local controversy
and home state exceptions because the defendant “has control over the
information that would establish the citizenship of the various members of
[plaintiff’s] proposed class”).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1. Defendant’s motion for leave to file the Third Declaration of Lisa
Swaney [ECF No. 12] is GRANTED;
2. Plaintiffs’ motion to remand [ECF No. 8] is DENIED; and
3. Within sixty (60) days of the date of this Order, plaintiffs must
file a motion to remand or a statement indicating that they will
not be pursuing remand.
Dated at Milwaukee, Wisconsin, this 5th day of December, 2014.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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