Andrews v. Lawrence Livermore National Security, LLC. et al, No. 4:2011cv03930 - Document 33 (N.D. Cal. 2011)
Court Description: 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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Andrews v. Lawrence Livermore National Security, LLC. et al Doc. 33 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 ELAINE ANDREWS, et al., 5 6 7 8 9 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 10 11 This dispute arises from Plaintiffs' terminations in the 12 course of a May 2008 workforce reduction conducted by Defendant 13 Lawrence Livermore National Security, LLC (LLNS), a contractor for 14 the United States Department of Energy (DOE).1 15 LLNS is charged with managing and operating the federally-owned Lawrence Livermore 16 National Laboratory, pursuant to a contract with the DOE National 17 18 19 Nuclear Security Administration. LLNS removed this action from Alameda County Superior Court on August 10, 2011, after it had 20 been removed and remanded once before. Plaintiffs move for an 21 order again remanding the case and requiring LLNS to pay the 22 attorneys' fees and costs that Plaintiffs have incurred as a 23 result of the removal. Plaintiffs' motion to remand is GRANTED. 24 25 26 27 28 1 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. Dockets.Justia.com 1 Plaintiffs are also awarded fees, although the Court will 2 determine the amount after the parties submit supplemental 3 briefing. 4 5 6 BACKGROUND Plaintiffs filed their complaint in Alameda County Superior Court on May 21, 2009, and on July 30, 2009, they filed their 7 First Amended Complaint, asserting causes of action under state 8 9 law for violations of the California Fair Employment and Housing United States District Court For the Northern District of California 10 Act, breach of an implied contract and other claims. 11 also alleged claims under federal law, including discrimination in 12 violation of the Age Discrimination in Employment Act (ADEA) and a 13 constitutional claim. 14 Plaintiffs A DOE contractor may conduct a layoff when the DOE has made a 15 "determination that a change in the workforce . . . is necessary" 16 and develops a plan for workforce restructuring in consultation 17 18 with affected stakeholders. See National Defense Authorization 19 Act for Fiscal Year 1993, Pub. L. No. 102-484, Div. C, Title XXXI, 20 § 3161, 106 Stat. 2315 (1992) (originally codified at 42 U.S.C. 21 § 7274h, then transferred to 50 U.S.C. § 2704); 48 C.F.R. 22 § 970.2672-1. 23 Federal regulations provide that "in instances where the [DOE] has determined that a change in workforce at a 24 [DOE] Nuclear Facility is necessary, DOE contractors . . . shall 25 26 27 accomplish workforce restructuring or displacement . . . in a manner consistent with any DOE work force restructuring plan in 28 2 1 2 effect . . ." 48 C.F.R. § 970.2672-1. The parties refer to the DOE's workforce restructuring plan as the "3161 Plan." 3 Plaintiffs alleged that “LLNS is governed by the provisions 4 of Section 3161(c) of the National Defense Authorization Act for 5 Fiscal Year 1993, which requires it to take measures to minimize 6 the impact of a reduction in force . . .” and that the “entire 7 reduction in force is invalid, illegal and discriminatory, in 8 9 violation of State and Federal law, Department of Energy and other United States District Court For the Northern District of California 10 governmental policies and regulations and Defendants’ own policies 11 and procedures.” 12 13 14 FAC ¶¶ 2 and 5. On September 3, 2009, Defendants LLNS, Miller and Perko filed the first notice of removal, on the basis of federal question jurisdiction. On November 5, 2009, pursuant to the parties’ 15 stipulation, the Court remanded the action to state court. The 16 stipulation provided that Plaintiffs would dismiss with prejudice 17 18 their claims under the ADEA and their constitutional claim, as 19 well as their claims against Miller and Perko. 20 Gary Gwilliam, Ex. U at 3. 21 of the Plaintiffs, through their counsel, further agree that they 22 will not assert any other claims that would fall within the 23 Declaration of J. The stipulation also stated that “each jurisdiction of this Court, including but not limited to any 24 claims based on any statute, constitutional provision, contract or 25 26 27 on any other basis, against any Defendant named in this litigation . . .” Id. In turn, LLNS agreed “not to remove this 28 3 1 2 case unless Plaintiff [sic] asserts claims that fall within the jurisdiction of the federal courts.” Id. 3 On December 9, 2009, the parties filed a Joint Complex Case 4 Management Statement in state court in which Plaintiffs asserted 5 that “the entire layoff is illegal and must be set aside, 6 regardless of the individual claims of discrimination that each 7 Plaintiff can prove. . . [and] that [LLNS] failed to minimize the 8 9 impact of the layoffs on its workforce, as required by Section United States District Court For the Northern District of California 10 3161(c) of the National Defense Authorization Act of FY 1993.” 11 Id., Ex. V at 8. 12 On June 2, 2010, in connection with a motion to compel LLNS 13 to produce additional documents, Plaintiffs argued that LLNS was 14 required to analyze any proposed layoffs for possible disparate 15 impact on protected classifications of employees. Id., Ex. W at 16 10. According to Plaintiffs, the adverse impact analysis was 17 18 19 20 required pursuant to the DOE's obligations under Executive Orders 11246 and 12086. Id. In February 2011, LLNS served special interrogatories on 21 Plaintiffs. 22 four days of mediation in June 2011. 23 Before Plaintiffs responded, the parties scheduled until after the mediation. All discovery was stayed The parties' efforts to resolve the 24 lawsuit were unsuccessful, and discovery resumed. 25 26 On August 3 and 5, 2011, Plaintiffs responded to LLNS' 27 special interrogatories. In doing so, Plaintiffs confirmed their 28 contention that the reduction in force violated the 3161 Plan and 4 1 DOE policies and regulations. Id., Ex. Y at 8-9. Plaintiffs 2 identified the following provisions as the basis for their 3 contention: (1) the 3161 Plan governing the layoff, (2) the DOE's 4 "Planning Guidance for Workforce Restructuring," DOE Order O 5 350.1, (3) the regulations governing DOE Management and Operating 6 Contracts, 48 C.F.R. Part 970 et seq., and (4) Executive Order 7 11246, as amended by Executive Order 12086 and 48 C.F.R. Part I et 8 9 United States District Court For the Northern District of California 10 seq. Id. Also on August 3, 2011, LLNS filed in state court a Motion 11 for Summary Adjudication Regarding Whether the Layoff was 12 Necessitated by a Lack of Funds. 13 the motion, LLNS argued that the DOE's finding that the layoff was 14 Id., Ex. AA. In connection with necessary had been made in accordance with section 3161, and that 15 Plaintiffs were precluded from challenging the DOE's determination 16 that a layoff was necessary. Id. at 10-12. LLNS asserted that 17 18 “whether a layoff is necessitated by a lack of funds is, as a 19 matter of law, left to the DOE’s sole discretion. 20 in contrast, is to participate in the 3161 process as required by 21 DOE and to conduct a layoff consistent with the 3161 Plans.”2 22 at 11. LLNS’ function, Id. A hearing on the motion for summary adjudication was set 23 for August 31, 2011. 24 25 26 27 28 On August 10, 2011, LLNS removed the action to federal court for a second time. 2 According to LLNS, a General 3161 Plan and a Specific 3161 Plan were created. 5 LEGAL STANDARD 1 2 A defendant may remove a civil action filed in state court to 3 federal district court so long as the district court could have 4 exercised original jurisdiction over the matter. 5 § 1441(a). 6 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 7 matter jurisdiction over a case previously removed from state 8 9 court, the case must be remanded. 28 U.S.C. § 1447(c). On a United States District Court For the Northern District of California 10 motion to remand, the scope of the removal statute must be 11 strictly construed. 12 (9th Cir. 1992). 13 jurisdiction means that the defendant always has the burden of 14 See Gaus v. Miles, Inc., 980 F.2d 564, 566 “The ‘strong presumption’ against removal establishing that removal is proper.” Id. (internal citation 15 omitted). Courts should resolve doubts as to removability in 16 favor of remanding the case to state court. See id. Ordinarily, 17 18 federal question jurisdiction is determined by examining the face 19 of the plaintiff's properly pleaded complaint. 20 v. Williams, 482 U.S. 386, 392 (1987). 21 22 23 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 24 defendant, through service or otherwise, of a copy of the initial 25 26 pleading setting forth the claim for relief upon which such action 27 or proceeding is based.” However, “[i]f the case stated by the 28 initial pleading is not removable, a notice of removal may be 6 1 filed within thirty days after receipt by the defendant, through 2 service or otherwise, of a copy of an amended pleading, motion, 3 order or other paper from which it may first be ascertained that 4 the case is one which is or has become removable.” 5 6 Id. DISCUSSION I. Motion for Remand 7 At the outset, the parties dispute whether this Court has 8 9 subject matter jurisdiction over this case, as required to justify United States District Court For the Northern District of California 10 removal pursuant to 28 U.S.C. § 1441(a). 11 dismissed their federal law causes of action. 12 argues that Plaintiffs allege state law claims that give rise to 13 federal jurisdiction. 14 Plaintiffs have However, LLNS This Court has federal question jurisdiction under 28 U.S.C. 15 § 1331 over state law claims “that implicate significant federal 16 issues.” Grable & Sons Metal Prods., Inc. v. Darue Enginering & 17 18 19 20 21 22 23 24 Mfg., 545 U.S. 308, 312 (2005). With respect to such a state law claim, the Supreme Court has explained that 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. 25 Id. at 313-14 (internal citations omitted). The absence of a 26 27 federal private right of action is “evidence relevant to, but not 28 7 1 2 dispositive of, the ‘sensitive judgments about congressional intent’ that § 1331 requires.” 3 Id. at 318. LLNS contends that significant federal issues are implicated 4 by Plaintiffs' intent to prove their state law claims for breach 5 of contract and discrimination by showing that LLNS violated the 6 federally-required 3161 Plan and certain federal regulations. 7 These claims, however, do not involve a substantial federal 8 9 question or require a resolution of a contested issue of federal United States District Court For the Northern District of California 10 law. 11 adopted, and DOE regulations served as implied-in-fact terms of 12 the contract between LLNS, as employer, and Plaintiffs, as its 13 employees. 14 According to Plaintiffs' theory, the 3161 Plan, once Under California law, "the employer's personnel policies and practices may become implied-in-fact terms of the 15 contract between employer and employee. If that has occurred, the 16 employer's failure to follow such policies when terminating an 17 18 employee is a breach of the contract itself." Guz v. Bechtel Nat. 19 Inc., 24 Cal. 4th 317, 352 (2000). 20 was required to follow the 3161 Plan and DOE regulations. 21 has failed to identify a substantial dispute between the parties 22 as to the meaning of the plan or of federal regulations. 23 The parties agree that LLNS LLNS Instead, the parties dispute whether LLNS failed to comply with the plan 24 and, if so, whether its failure amounts to a breach of contract or 25 26 provides evidence of discrimination. Therefore, to resolve the 27 breach of contract claim, the state court would need only to 28 determine the requirements of the plan and DOE regulations and 8 1 whether LLNS complied with them, applying contract principles 2 under California law. 3 whether any non-compliance by LLNS evidences discrimination. 4 5 6 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 7 property to the defendant. Id. at 310-311. Grable brought a 8 9 quiet title action against the defendant in state court, claiming United States District Court For the Northern District of California 10 that the defendant's title was invalid because the IRS failed to 11 provide Grable adequate notice of the seizure under a provision of 12 the Internal Revenue Code. 13 action to federal court, claiming that the suit turned on the 14 Id. at 311. interpretation of a federal statute. The defendant removed the The Supreme Court found 15 federal jurisdiction because the construction of a federal tax 16 statute concerning adequate notice was required and the parties 17 18 actually disagreed about the statute's meaning. Id. at 314-15. 19 The Court also noted that the federal government had a "direct 20 interest in the availability of a federal forum to vindicate its 21 own administrative action." 22 23 Id. at 315. Here, the federal government's interest in the mitigation of adverse impacts associated with workforce reduction efforts by DOE 24 contractors is narrower than its interest in Grable, where the 25 26 27 interpretation of the notice provision implicated the government's efforts to collect outstanding taxes. 28 9 Furthermore, as noted 1 2 3 earlier, LLNS has not identified a substantial dispute as to the meaning of the 3161 Plan or a particular federal regulation. The parties also agree that section 3161 does not confer a 4 private right of action. 5 under section 3161 indicates that Congress did not intend that 6 The absence of a private right of action non-compliance with this provision would give rise to federal 7 jurisdiction. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 8 9 U.S. 804, 814 (1986) ("Given the significance of the assumed United States District Court For the Northern District of California 10 congressional determination to preclude federal private remedies, 11 the presence of the federal issue as an element of the state tort 12 is not the kind of adjudication for which jurisdiction would serve 13 congressional purposes and the federal system."). 14 Indeed, this case is similar to Merrell Dow, 478 U.S. at 804, 15 in which the Supreme Court found an absence of federal 16 jurisdiction. There the plaintiffs pursued a cause of action for 17 18 negligence under state law. An element of the claim was a Id. at 19 violation of the Federal Food, Drug, and Cosmetic Act. 20 805-06. 21 issue in a state cause of action does not automatically confer 22 federal-question jurisdiction." 23 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 24 under federal law. Id. at 813-14. 25 26 Likewise, the Court in Empire Healthchoice Assurance, Inc. v. 27 McVeigh reasoned that a contract-derived claim did not warrant 28 federal jurisdiction, even though a federal statute contemplated 10 1 the contract at issue and the "United States no doubt 'has an 2 overwhelming interest in attracting able workers to the federal 3 workforce.'" 4 explained that a contract authorized by federal statute "is not a 5 prescription of federal law." 6 547 U.S. 677, 696, 699-701 (2006). The Court Id. at 696. Just as in Merrell Dow and Empire Healthchoice, the state law 7 claims in the present case do not support federal jurisdiction 8 9 because they do not implicate substantial federal concerns. United States District Court For the Northern District of California 10 Accordingly, LLNS has failed to establish federal question 11 jurisdiction in this action. 12 13 14 Even if Plaintiffs' claims gave rise to federal jurisdiction, LLNS has waived its right to remove the case by taking action to adjudicate the matter in state court. "A party, generally the 15 defendant, may waive the right to remove to federal court where, 16 after it is apparent that the case is removable, the defendant 17 18 takes actions in state court that manifest his or her intent to 19 have the matter adjudicated there, and to abandon his or her right 20 to a federal forum." 21 Developers, 43 F.3d 1230, 1240 (9th Cir. 1994). 22 remand the case to state court in September, 2009, even though 23 Resolution Trust Corp. v. Bayside LLNS agreed to Plaintiffs' first amended complaint made clear the federal 24 elements of their state law claims. These elements remained part 25 26 of the action even after Plaintiffs agreed to dismiss their 27 federal age discrimination and constitutional claims. 28 permitted the case to remain in state court for nearly two years. 11 LLNS then 1 On August 3, 2011, LLNS sought summary adjudication in state court 2 that the DOE had found that the layoff was necessary in accordance 3 with section 3161 and that Plaintiffs were precluded from 4 challenging the DOE's determination. 5 litigate the merits of the claims, including the federal aspects 6 of the claims. In doing so, LLNS sought to It still did not assert that the 3161 Plan was a 7 basis for removing the action. 8 9 LLNS responds that the removability of the claim did not United States District Court For the Northern District of California 10 become apparent until after it filed its motion for summary 11 adjudication. 12 Plaintiffs' claim have been apparent throughout the litigation. 13 The November 2009 stipulation could not have been reasonably 14 This argument fails because the federal aspects of understood as an agreement by Plaintiffs to forgo their state law 15 breach of contract claim based on the theory that LLNS failed to 16 comply with the 3161 Plan or other federal requirements. The 17 18 Joint Complex Case Management statement filed the following month 19 and Plaintiffs' discovery motion filed in June 2010 made plain 20 that Plaintiffs continued to pursue legal theories related to 21 federal requirements. 22 by actively litigating the case in state court after the first 23 LLNS waived any right to remove the action removal and remand, although the federal aspects of the case were 24 apparent. Plaintiffs' August 3 and 5, 2011 discovery responses 25 26 27 28 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 12 1 2 3 would have been ascertainable from the papers filed in this action. 28 U.S.C. § 1446(b). In sum, LLNS' second removal of this action was improper due 4 to the absence of federal jurisdiction, LLNS' waiver of 5 removability and the untimeliness of the notice of removal. 6 Plaintiffs' motion to remand the action to Alameda County Superior 7 Court is granted. 8 9 United States District Court For the Northern District of California 10 II. Motion for Attorneys' Fees and Costs On granting a motion to remand, the court may order the 11 defendant to pay the plaintiff its “just costs and any actual 12 expenses, including attorney fees, incurred as a result of the 13 removal.” 14 28 U.S.C. § 1447(c). “Absent unusual circumstances, attorney's fees should not be awarded when the removing party has 15 an objectively reasonable basis for removal.” Martin v. Franklin 16 Capital Corp., 546 U.S. 132, 136 (2005). 17 18 Here, Defendant's notice of removal lacked any objective 19 basis. 20 fees and costs incurred in connection with this improper removal 21 is warranted. 22 23 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 24 attorney's own affidavits--that the requested rates are in line 25 26 with those prevailing in the community for similar services by 27 lawyers of reasonably comparable skill, experience and 28 reputation." Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 13 1 980 (9th Cir. 2008). Although J. Gary Gwilliams attests that his 2 rate has been approved by two judges in the complex litigation 3 departments of Alameda and Contra Costa counties, there is no 4 further evidence to support his or his colleagues' rates. 5 Furthermore, the number of hours must be reasonable. 6 The number of hours of service indicated in the fee request appears 7 excessive. Plaintiffs shall submit contemporaneous billing 8 9 records and an explanation of the number of hours of service United States District Court For the Northern District of California 10 required to complete a fifteen page motion and fourteen page reply 11 brief. 12 13 14 Accordingly, by September 6, 2011, Plaintiffs shall submit a supplemental brief, not to exceed three pages, and supporting documentation to address their fee and cost request. LLNS may 15 oppose the request in a brief, not to exceed three pages, which 16 shall be submitted by September 13, 2011. 17 18 decided on the papers. 19 // 20 // 21 // 22 // 23 // 24 // 25 26 // 27 // 28 // 14 The matter will be CONCLUSION 1 2 3 Plaintiffs' motion to remand the case to Alameda County Superior Court is GRANTED. The clerk shall remand the file. 4 Plaintiffs' motion for attorneys' fees and costs is also 5 GRANTED, although the Court will determine the amount of the award 6 after the parties have filed their supplemental briefing. 7 8 IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 Dated: 8/31/2011 CLAUDIA WILKEN United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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