United States District Court, D. Oregon
ERIC COOPER, individually and on behalf of all similarly situated, Plaintiff,
APPLIED INTEGRATED TECHNOLOGIES, INC., a foreign corporation, Defendant.
A. Schuck Stephanie J. Brown Karen A. Moore SCHUCK LAW, LLC
Attorneys for Plaintiff
Upchurch Fredrickson Mark A. Crabtree JACKSON LEWIS PC
Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Eric Cooper brings this putative class action for failure to
timely pay final wages as required by Or. Rev. Stat.
(“ORS”) § 652.140 against Defendant Applied
Integrated Technologies, Inc. Defendant removed this case to
federal court on the ground that it is preempted by §
301 of the Labor Management Relations Act
(“LMRA”). Plaintiff now moves to remand this case
to state court for lack of subject matter jurisdiction, and
Defendant moves to dismiss this claim under Fed.R.Civ.P.
12(b)(6). The Court denies Plaintiff's Motion to Remand
and grants Defendant's Motion to Dismiss.
2015, Plaintiff was hired by Defendant to fulfill its
obligations under a contract to supply the federal government
with security officers. Notice of Removal Ex. 1
(“Compl.”) at ¶¶ 10, 16, ECF 1-1.
Plaintiff was subject to a Collective Bargaining Agreement
(“CBA”). Compl. ¶ 12. The CBA contains
provisions governing sick pay, vacation pay, and undisputed
errors in payment. Redman Decl. Ex. A §§ 7.4, 8.5,
10.1, 10.4, ECF 7-1. Section 8.5 provides that up to eighty
hours of sick leave may carry over into the following year,
but otherwise “all unused hours will be paid at 100% of
the earned amount within 30 days after the end of the
government contract year.” Id. at § 8.5.
Similarly, “at the time of termination of employment,
” Defendant is to pay employees unpaid vacation hours
that have vested but have not been used. Id. at
§ 10.4. Section 7.4 of the CBA also provides:
In case of an undisputed error on the part of the Company as
to an employee's pay, proper adjustment will be made
within one (1) week for undisputed errors over $50 after the
Company is provided a payroll discrepancy form identifying
the error. All other such undisputed errors will be made on
the next paycheck. Employees shall notify the Company of all
errors on the part of the Company as to an employee's pay
as soon as the error is noticed by the Employee. It is
expressly agreed and understood that this Section 7.4 shall
apply, without limitation, to those instances where an
employee has separated from employment and believes that
his/her final pay was incorrect.
Id. at § 7.4. Any disagreements or disputes
raised by the employee that arise “during the term of
[the CBA] concerning the application, meaning or
interpretation of an express term of [the CBA] or the
employment relationship” are governed exclusively by
the grievance and arbitration procedures set forth in the
CBA. Id. at § 13.1.
April 30, 2018, Defendant terminated Plaintiff's
employment after it lost its federal contract. Compl.
¶¶ 17-19. Plaintiff alleges that more than 50 other
individuals were similarly terminated by Defendant. Compl.
¶¶ 21-22. Plaintiff alleges Defendant violated
state law when it made a late partial payment of final wages
and failed to pay Plaintiff accrued sick and vacation leave
until June 7, 2018, over a month after Plaintiff's
employment ended. Compl. ¶¶ 26-30. As a result of
this conduct, Plaintiff seeks statutory penalty wages of not
less than $6, 432.00 pursuant to ORS 652.150. Compl. ¶
Motion to Remand
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a);
Matheson v. Progressive Specialty Ins. Co., 319 F.3d
1089, 1090 (9th Cir. 2003) (“Any civil action may be
removed to federal district court so long as original
jurisdiction would lie in the court to which the case is
motion to remand is the proper procedure for challenging
removal.” Moore Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir.2009). Remand is
governed by 28 U.S.C. § 1447(c) which provides, in
pertinent part, that:
A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded. An order remanding
the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
28 U.S.C. § 1447(c). The removal statute is strictly
construed and any doubt about the right of removal is
resolved in favor of remand. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). The
presumption against removal jurisdiction means “the
defendant always has the burden of establishing that removal
is proper.” Id.