Rosset v. Hunter Eng'g Co.
| Decision Date | 17 July 2014 |
| Docket Number | No. C 14-01701 LB,C 14-01701 LB |
| Parties | JAY ROSSET, et al., Plaintiffs, v. HUNTER ENGINEERING CO., et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
[Re: ECF Nos. 10, 16]
In this action, Plaintiffs Jay Rosset, Thomas White, and Joe Niccum have sued Hunter Engineering Company ("Hunter") and Bill Keyes for claims arising under California state law. Defendants removed the action. Now, Mr. Keyes moves to dismiss Plaintiffs' claims against him, and Plaintiffs move to remand the action and for leave to file an amended complaint. Upon consideration of the papers submitted, the arguments of counsel at the July 10, 2014 hearing, and the applicable authority, the court rules as follows with respect to Plaintiffs' motion to remand and directs the parties to provide further briefing regarding Defendants' assertion of ERISA complete preemption as a ground for removal.
The relevant facts are taken from Plaintiffs' First Amended Complaint, Defendants' Notice ofRemoval and Supplement and Amendment to the Notice of Removal, and the declarations submitted along with the parties' papers in support of and in opposition to Plaintiffs' motion to remand.
Hunter "is an international company that manufactures and sells car and truck servicing equipment such as vehicle lifts, wheel alignment systems, break testing equipment, and the like." FAC ¶ 14, ECF No. 1-1.1 It is a corporation organized under the laws of Missouri, where it has its principal place of business. Id. ¶ 8. It also has offices in Alameda County, California. Id. Mr. Keyes "is a Regional Manager working for Hunter in California." Id. ¶ 15. He is a California citizen who resides in or around Alameda County. Id. ¶ 9.
Mr. Rosset worked for Hunter in California "as a so-called 'independent contractor' Sales Representative for 15 years, from on or about February 2, 1998, until he was terminated by Hunter effective on or about March 22, 2013." Id. ¶ 16. Mr. White worked for Hunter in California "as a so-called 'independent contractor' Sales Representative for 22 years, from on or about August 1, 1991, until he was terminated by Hunter effective on or about August 15, 2013." Id. ¶ 17. And Mr. Niccum worked for Hunter in California "as a so-called 'independent contractor' Sales Representative for approximately 18 years, from 1993 to 1996, and then from about February 1998, until about December 2011, when he transferred to a Hunter location in Arizona on or about January 2012. " . Id.
Mr. Keyes was "at certain times" Mr. Rosset's and Mr. White's supervisor. Id. ¶ 15.
Plaintiffs allege that "while Hunter classifies all its Sales Representatives and Service Representatives in California as 'independent contractors,' they are in fact employees because Hunter strictly controls the manner and means by which they carry out their duties." Id. ¶ 20. Plaintiffs maintain that Hunter's Sales Representatives and Service Representatives in California "should therefore be treated as employees with respect to wages, expense reimbursements, fringe benefits, payroll taxes, anti-discrimination laws, and other purposes." Id.
Plaintiffs filed their original Complaint in Alameda County Superior Court on December 20, 2013. Sidebotham Decl. ¶ 2, ECF No. 16-1 at 2. Shortly thereafter, Plaintiffs' counsel wascontacted by Stephen Garlock, counsel for Defendants. Supplemental Sidebotham Decl. ¶ 2, ECF No. 24-1 at 2.
Plaintiffs filed the operative First Amended Complaint in Alameda County Superior Court on February 7, 2014. They bring the following nine claims. Claim One is brought against Hunter as an "Individual, Class, and PAGA Representative Claim" by Mr. Rosset and Mr. White, and against Mr. Keyes as an "Individual Claim" by Mr. Rosset and Mr. White, and is for "Willful Misclassification" under California Labor Code §§ 226.8 and 2698 et seq. Id. ¶¶ 42-49. Claim Two is brought against Hunter as an "Individual, Class, and PAGA Representative Claim" by Mr. Rosset and Mr. White, and is for "Failure to Reimburse Expenses" under California Labor Code §§ 2698 et seq. and 2802. Id. ¶¶ 50-56. Claim Three is brought against Hunter as an "Individual, Class, and PAGA Representative Claim" by Mr. Rosset and Mr. White, and against Mr. Keyes as an "Individual Claim" by Mr. Rosset and Mr. White, and is for "Unlawful Purchase Requirements" under California Labor Code §§ 450 and 2698 et seq. Id. ¶¶ 57-64. Claim Four is brought against Hunter as an "Individual, Class, and PAGA Representative Claim" by Mr. Rosset and Mr. White, and against Mr. Keyes as an "Individual Claim" by Mr. Rosset and Mr. White, and is for "Unlawful Deductions from Wages" under California Labor Code §§ 221 and 2698 et seq. Id. ¶¶ 65-72. Claim Five is brought against Hunter as an "Individual, Class, and PAGA Representative Claim" by Mr. Rosset and Mr. White, and is for "Failure to Pay Wages and Fringe Benefits" under California Labor Code §§ 201-204 and 2698 et seq. Id. ¶¶ 73-85. Claim Six is brought against Hunter as an "Individual Claim" by Mr. Rosset and Mr. White, and is for "Age Discrimination in Employment" under California Government Code § 12900 et seq. Id. ¶¶ 86-95. Claim Seven is brought against Hunter as an "Individual Claim" by Mr. Rosset and Mr. White, and is for "Wrongful Termination in Violation of Public Policy." Id. ¶¶ 96-103. Claim Eight is brought against Hunter as an "Individual, Class, and UCL Representative Claim" by Mr. Rosset, Mr. White, and Mr. Niccum, and is for "Unfair Competition" under California Business and Professions Code § 17200 et seq. Id. ¶¶ 104-110. Claim Nine is brought against Hunter as an "Individual and Class Claim" by Mr. Rosset, Mr. White, and Mr. Niccum, and is for "Declaratory and Injunctive Relief" under California Code of Civil Procedure §§ 526, 1060, and 3422. Id. ¶¶ 111-116. Thus, all Claims One through Nine all arebrought against Hunter, and Claims One, Three, and Four are brought against Mr. Keyes as well.
On February 14, 2014, Eric Sidebotham, counsel for Plaintiffs, emailed Mr. Garlock to discuss whether Mr. Garlock was or would be authorized to accept service of the First Amended Complaint and summons on behalf of Hunter and Mr. Keyes. Supplemental Sidebotham Decl. ¶ 3, ECF No. 24-1 at 2. Mr. Sidebotham stated in the email: "I am going to send you (next week) the papers in this case, along with a notice of acknowledgment and receipt regarding the possibility of you accepting service on both the corporate and individual defendants." Id., Ex. E, ECF No. 24-2. Mr. Sidebotham attached to his email a copy of the First Amended Complaint. Id. ¶ 3, ECF No. 24-1 at 2. Mr. Garlock replied that same day and stated that he and his partner "will be in touch after we receive the paperwork you are sending next week." Id. ¶ 3, ECF No. 24-1; id., Ex. E, ECF No. 24-3.
On February 24, 2014, Mr. Sidebotham emailed Mr. Garlock again and attached copies of the First Amended Complaint and the summons. Id. ¶ 4, ECF No. 24-1 at 2. In the email, Mr. Sidebotham stated: Id., Ex F, ECF No. 24-4.
On February 28, 2014, Mr. Garlock replied to Mr. Sidebotham and stated: Id. ¶ 5, ECF No. 24-1 at 2; id., Ex. G, ECF No. 24-5. Mr. Sidebotham replied that same day and stated: Williams Decl. ¶ 4, ECF No. 21-1 at 2; id., Ex. B, ECF No. 21-3. Defendants' counsel received the revised acknowledgements of receipt for Hunter and Mr. Keyes, and other documents, on March 6, 2014. Id. ¶ 5, ECF No. 21-1 at 2.
On March 14, 2014, Defendants' other counsel, R. Nelson Williams, executed the Notice and Acknowledgment of Receipt on behalf of Hunter and returned it to Mr. Sidebotham by email. Id. ¶ 6, ECF No. 21-1 at 2; id., Ex. D, ECF No. 21-5. That same day, Mr. Sidebotham replied by email to Mr. Williams and stated that he believed, based on his communications with Mr. Garlock, thatDefendants' counsel also had agreed to accept service on behalf of Mr. Keyes. Id. ¶ 7, ECF No. 21-1 at 2.
On March 18, 2014, Mr. Williams called Mr. Sidebotham and confirmed that Defendants' counsel would accept service on behalf of Mr. Keyes. Id. That same day, Mr. Williams executed the Notice and Acknowledgment of Receipt on behalf of Mr. Keyes and returned it to Mr. Sidebotham by email. Id. ¶ 8, ECF No. 21-1 at 2; id., Ex. F, ECF No. 21-7.
Defendants jointly filed a Notice of Removal on April 11, 2014. Notice of Removal, ECF No. 1. In it, Defendants asserted that the ground for removal was the court's diversity jurisdiction. See id. at 2-10. Specifically, Defendants asserted that the amount of controversy requirement is met, see id. at 6-10, and that there is complete diversity among the parties because Mr. Keyes was "fraudulently joined" as a Defendant to this action, see id. at 4-6. Defendants asserted that Mr. Keyes was fraudulently joined because Plaintiffs' three claims against him fail and must be dismissed with prejudice. See id. Without Mr. Keyes, complete diversity exists because Mr. Rosset and Mr. White are citizens and residents of California, Mr. Niccum is a citizen and resident of Arizona, and Hunter is a Missouri corporation that has its principal...
To continue reading
Request your trial