United States District Court, D. Oregon, Portland Division
LARRY BARR, ANTHONY BARTON, STEPHEN BUSCH, BRIAN CARLSON, PETER DENNIS, DAN DORR, CLARK GOBLE, WARREN MARTIN, BILLY PIERCE, JESSE ROBINSON, DAVID SHATTO, and DOUGLAS TOELKES, Plaintiffs,
ROSS ISLAND SAND & GRAVEL CO., an Oregon corporation, Defendant.
OPINION AND ORDER
MICHAEL W. MOSMAN, Chief United States District Judge
mater comes before the Court on Plaintiffs' Motion to
Remand to State Court . For the reasons that follow, the
Court DENIES Plaintiffs' Motion.
current or former truck drivers employed by Defendant Ross
Island Sand and Gravel Company (“RISG”), bring
this action against Defendant in which they allege RISG
failed to remit withholdings from Plaintiffs' paychecks
to the Oregon Teamsters Employers Trust Fund
(“OTETF”) for the purpose of paying
Plaintiffs' health insurance premiums. Plaintiffs allege
they lost their health insurance as a result of
Defendant's failure to send the withholdings to the
the terms of a collective bargaining agreement
(“CBA”) negotiated between Defendant and
Plaintiffs' union, the General Teamsters Local Union No.
162 (“the Teamsters”), Defendant and its
employees were both to contribute to the costs of the
employees' health insurance benefits. Under the CBA
Defendant was to pay 90% of the cost of benefits while
withholding the other 10% from the employees' paychecks.
Defendant was required to remit both the deducted employee
contributions and Defendant's contributions to the OTETF,
which managed the health insurance plan. After Defendant
allegedly failed to remit the withholdings, the Teamsters
filed grievances against Defendant on behalf of Plaintiffs
that were settled after this litigation began. Plaintiffs,
nonetheless, maintained this litigation on the basis that
they were not yet fully compensated for their economic
damages, noneconomic damages, potential punitive damages, and
attorney fees and costs.
originally instituted this litigation against Defendant in
Multnomah County Circuit Court in 2012 (hereinafter referred
to as “the 2012 action”). In the 2012 action,
Plaintiffs brought three claims against Defendant on the same
factual premise: (1) a claim under Oregon Revised Statute
§ 652.610(3) for failure to timely remit the
withholdings; (2) a claim for common-law money had and
received; and (3) a claim for breach of fiduciary duty.
See Barr et al. v. Ross Island Sand & Gravel
removed the 2012 action to this Court. Plaintiffs filed a
Motion to Remand  that Defendant opposed on the basis
that Plaintiffs' claims were preempted by the Labor
Management Relations Act (“LMRA”) and the
Employee Retirement Income Security Act
(“ERISA”). The Court found Plaintiffs' claims
were preempted by LMRA, but not by ERISA and, therefore,
denied Plaintiffs' Motion.
5, 2013, the Court granted summary judgment to Defendant.
Plaintiffs appealed, in particular contending the Court erred
when it denied Plaintiffs' Motion to Remand. In a
published decision on three consolidated cases including the
2012 action, the Ninth Circuit reversed and remanded.
Kobold v. Good Samaritan Reg'l Med. Ctr., 832
F.3d 1024 (9th Cir. 2016). The Ninth Circuit held Claims One
(§ 652.610) and Three (breach of fiduciary duty) were
not preempted by LMRA, but that Claim Two (money had and
received) was preempted and the Ninth Circuit affirmed the
Court's grant of summary judgment to Defendant on that
claim. Id. at 1037-42. The Ninth Circuit, therefore,
remanded to this Court to determine whether this Court should
retain supplemental jurisdiction over Claims One and Three
notwithstanding the grant of summary judgment to Defendant on
Claim Two. After oral argument on remand, the Court concluded
it would not exercise supplemental jurisdiction over the
remaining claims and, therefore, on April 21, 2017, the Court
remanded the case back to Multnomah County Circuit Court.
remand, however, Plaintiffs moved to amend their Complaint in
the Multnomah County Circuit Court. That court granted
Plaintiffs' Motion. Plaintiffs' First Amended
Complaint (which is attached as Exhibit 3 to the Declaration
of Benjamin Rosenthal ) retains the claims under Oregon
Revised Statute § 652.610 (Claim One) and breach of
fiduciary duty (Claim Two), but also adds claims for
common-law conversion (Claim Three) and intentional
interference with contractual relationship (Claim
Four). In response to Plaintiffs' amendment
of their Complaint, Defendant again removed the case to this
Court. Plaintiffs, in turn, filed their Motion to Remand to
State Court .
move to again remand this action to the Multnomah County
Circuit Court on the basis that they only raise state-law
causes of action in their First Amended Complaint and,
therefore, there is not any basis for subject-matter
jurisdiction in this Court. Plaintiffs also seek an award of
attorneys' fees and costs associated with this most
recent removal pursuant to 28 U.S.C. § 1447(c) on the
basis that Defendant's removal of this action lacks any
objectively reasonable basis.
on the other hand, contends removal is appropriate because
Plaintiffs' new claims are completely preempted by LMRA
and ERISA and, therefore, this Court has subject-matter
jurisdiction over this matter.
Complete Preemption Doctrine
a general rule, absent diversity jurisdiction, a case will
not be removable if the complaint does not affirmatively
allege a federal claim.” Beneficial Nat'l Bank
v. Anderson, 539 U.S. 1, 6 (2003); see also Retail
Prop. Tr. v. United Bhd. of Carpenters & Joiners of
Am., 768 F.3d 938, 947 (9th Cir. 2014). “The
well-pleaded complaint rule means that ‘a case may not
be removed to federal court on the basis of a federal
defense, including the defense of pre-emption, even if the
defense is anticipated in the plaintiff's complaint, and
even if both parties concede that the federal defense is the
only question truly at issue.'” Retail Prop.
Tr., 768 F.3d at 947 (emphasis omitted) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 393
Supreme Court has recognized, however, an ‘independent
corollary to the well-pleaded complaint rule known as the
complete pre-emption doctrine.'” Id.
(quoting Caterpillar, 482 U.S. at 393). Under the
complete preemption doctrine, “some federal statutes .
. . have such ‘extraordinary pre-emptive power'
that they ‘convert[ ] an ordinary state common law
complaint into one stating a federal claim for purposes of
the well-pleaded complaint rule.'” Id.
(alteration in original) (quoting Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 65 (1987)). Complete preemption,
therefore, is “'really a jurisdictional rather than
a preemption doctrine, [as it] confers exclusive federal
jurisdiction in certain instances where Congress intended the
scope of a federal law to be so broad as to entirely replace
any state-law claim.'” Marin Gen. Hosp. v.
Modesto & Empire Traction Co., 581 F.3d 941, 945
(9th Cir. 2009) (alteration in original) (quoting
Franciscan Skemp Healthcare, Inc. v. Cent. States Joint
Bd. Health & Welfare Trust Fund, 538 F.3d 594, 596
(7th Cir. 2008)).
contends Plaintiff's new claims for conversion and
intentional interference with contractual relationship are
preempted by LMRA.
noted, the Ninth Circuit extensively discussed complete
preemption under LMRA in Kobold. The Ninth Circuit
explained LMRA “should be ‘understood . . . as a
congressional mandate to the federal courts to fashion a body
of federal common law to be used to address disputes arising
out of labor contracts.'” Kobold, 832 F.3d
at 1032 (quoting Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 209 (1985)). “‘The
Court subsequently held that this federal common law preempts
the use of state contract law in CBA interpretation and
enforcement.'” Id. (quoting Cramer v.
Consol. Freightways, Inc., 255 F.3d 683, 689 (9th Cir.
2001) (en banc)). “In addition to promoting the
development of a uniform federal labor law, § 301
preemption doctrine is designed ‘in large part to
assure that agreements to arbitrate grievances would be
enforced, regardless of the vagaries of state law and
lingering hostility toward extrajudicial dispute
resolution.'” Id. (quoting Livadas v.
Bradshaw, 512 U.S. 107, 122 (1994)). “Critically,
‘not every dispute concerning employment, or
tangentially involving a provision of a collective-bargaining
agreement, is pre-empted by § 301.'”
Id. (quoting Lueck, 471 U.S. at 211).
Ninth Circuit, therefore, set out a two-prong test for
determining when claims are preempted by LMRA in Burnside
v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir.
2007). “First, a court must determine ‘whether
the asserted cause of action involves a right conferred upon
an employee by virtue of state law, not by a CBA. If the
right exists solely as a result of the CBA, then the claim is
preempted, and [the] analysis ends there.'”
Kobold, 832 F.3d at 1032 (alteration in original)
(quoting Burnside, 491 F.3d at 1059). “To
determine whether a right is independent of a CBA . . . a
court must focus its inquiry on ‘the legal character of
a claim, as “independent” of rights under the
collective-bargaining agreement [ ]and not whether a
grievance arising from “precisely the same set of
facts” could be pursued.'” Id. at
1033 (quoting Livadas ...