IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KERI GRABLE, individually and

on behalf of all similarly

situated,

Plaintiff,

v.

SAFEWAY INC., a foreign

corporation,

Defendant.

3:15-CV-00886-BR

 

OPINION AND ORDER 

DAVID ARTHUR SCHUCK

STEPHANIE J. BROWN

Schuck Law, LLC

10013 N.E. Hazel Dell Avenue

Suite 178

Vancouver, WA 98685

(360) 566-9243 

Attorneys for Plaintiff

ROMÁN D. HERNANDEZ

RICHARD G. PRICE

K&L Gates, LLP

One S.W. Columbia Street

Suite 1900

Portland, OR 97258

(503) 228-3200 

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 1 of 19
BROWN, Judge.

This matter comes before the Court on Plaintiff Keri

Grabel’s Motion (#6) to Remand. For the reasons that follow, the

Court GRANTS Plaintiff’s Motion.

BACKGROUND

The following facts are taken from the Complaint.

At some point Defendant Safeway Inc. hired Plaintiff as an

at-will employee. On March 1, 2015, Defendant terminated

Plaintiff’s employment. Defendant did not pay Plaintiff her

final wages on the following business day and instead paid her

final wages on her next regularly scheduled payday, which was not

the business day immediately following her termination.

On April 17, 2015, Plaintiff filed a putative class action

against Defendant in Multnomah County Circuit Court in which

Plaintiff asserted Defendant violated Oregon Revised Statute 

§ 652.140 when it failed to pay Plaintiff and similarly situated

individuals by the end of the first business day after their

termination. In her complaint Plaintiff defined the class as

“[i]ndividuals who were terminated by Defendant in Oregon, within

the three (3) year period preceding the commencement of this

action.” Compl. at ¶ 4.

2 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 2 of 19
On May 22, 2015,1 Defendant removed the matter to this Court

alleging jurisdiction pursuant to the Class Action Fairness Act

(CAFA), 28 U.S.C. § 1332(d)(2). 

On June 16, 2015, Plaintiff filed a Motion to Remand on the

ground that Defendant has not established this matter satisfies

the requirements of CAFA.

The Court took the matter under advisement on July 23, 2015.

STANDARDS

An action filed in state court may be removed to

federal court if the federal court would have had original

subject-matter jurisdiction over the action. 28 U.S.C. 

§ 1441(a). CAFA provides federal courts with original

jurisdiction over class-action lawsuits when 

the aggregate number of members of all proposed

plaintiff classes is 100 or more persons . . . . 

If these prerequisites are met, CAFA vests federal

courts with original diversity jurisdiction over a

class action if: (1) the aggregate amount in

controversy exceeds $5,000,000, and (2) any class

member is a citizen of a state different from any

defendant. Under CAFA, complete diversity is not

required; minimal diversity suffices.

Bridewell-Sledge v. Blue Cross of Ca., Nos. 15–56039, 15–56038,

2015 WL 4939641, at *4 (9th Cir. Aug. 20, 2015)(quotations

omitted)(citing 28 U.S.C. § 1332(d)(2)).

1

 Plaintiff served Defendant with a copy of the complaint on

April 23, 2015, therefore, Defendant’s removal was timely.

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Ordinarily the district court is required to "strictly

construe [a] removal statute against removal jurisdiction" and to

reject jurisdiction "if there is any doubt as to the right of

removal in the first instance." Gaus v. Miles, Inc., 980 F.2d

564, 566 (9th Cir. 1992). “‘[N]o antiremoval presumption attends

cases invoking CAFA, [however,] which Congress enacted to

facilitate adjudication of certain class actions in federal

court.’” Bridewell-Sledge, 2015 WL 4939641, at *5 (quoting Dart

Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554

(2014)). “To the contrary, ‘CAFA should be read with a strong

preference that interstate class actions should be heard in a

federal court if properly removed by any defendant.’” Id.

(quoting Dart Cherokee, 135 S. Ct. at 554).

DISCUSSION

As noted, Plaintiff moves to remand this matter to state

court on the ground that Defendant has not satisfied the

requirements for removal pursuant to CAFA. Specifically,

Plaintiff asserts Defendant has not established by a

preponderance of the evidence that CAFA’s $5,000,000 amount-incontroversy requirement has been met. Defendant, however,

asserts it has satisfied that requirement. 

In the alternative, Defendant contends certain of the

putative class members’ claims would be preempted by § 301 of the

4 - OPINION AND ORDER

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Labor Management Relations Act and, therefore, the Court has

federal-question jurisdiction.

I. Removal Pursuant to CAFA

The Ninth Circuit recently has “adhered to the rule that the

defendant seeking removal bears the burden of proof to establish

by a preponderance of the evidence that the amount-in-controversy

requirement is satisfied.” LaCross v. Knight Transp. Inc., 775

F.3d 1200, 1202 (9th Cir. 2015). 

As the Supreme Court has held, a removing party

must initially file a notice of removal that

includes “a plausible allegation that the amount

in controversy exceeds the jurisdictional

threshold.” Dart Cherokee Basin Operating Co. v.

Owens, 135 S. Ct. 547, 554 (2014). When, as here,

“a defendant's assertion of the amount in

controversy is challenged . . . both sides submit

proof and the court decides, by a preponderance of

the evidence, whether the amount-in-controversy

requirement has been satisfied.” Id. at 554. As

we further held in Ibarra [v. Manheim Investments,

Inc., 775 F.3d 1193 (9th Cir. 2015)], when the

defendant relies on a chain of reasoning that

includes assumptions to satisfy its burden of

proof, the chain of reasoning and its underlying

assumptions must be reasonable ones. Ibarra, 775

F.3d. at 1199.

Id.

Plaintiff states in the caption of her Complaint that her

claims are “in excess of $1,000,000 but less than $5,000,000” and

alleges in paragraph 2 that the “aggregate total of the claims

pled, including attorney fees, are less than five million

dollars.” Nevertheless, in its Notice of Removal Defendant

asserts the amount in controversy exceeds five million dollars. 

5 - OPINION AND ORDER

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Specifically, Defendant notes 

in calendar year 2012, 3,987 Safeway employees who

worked in Oregon were terminated or resigned; in

calendar year 2013, 4,406 Safeway employees who

worked in Oregon were terminated or resigned; in

calendar year 2014, 4,978 Safeway employees who

worked in Oregon were terminated or resigned; and,

as of April 22, 2015, 1,387 Safeway employees who

worked in Oregon were terminated or resigned.

Decl. of Michael Zagerman at ¶ 5 (emphasis added). According to

Defendant, therefore, the potential putative class could number

as many as 14,758 individuals. Defendant also notes it pays its

employees “in different ways and at a number of different hourly

rates.” For the purpose of calculating the potential damages of

the putative class, Defendant states it used Oregon’s minimum

wages for 2012-2015.2

 Finally, Defendant notes the penalty

provision of Oregon’s wage-and-hour laws, Oregon Revised Statute

§ 652.150, allows for up to 30 days of penalty wages. Plaintiff,

however, only claims between three and ten days of penalty wages

in paragraph 24 of her Complaint, and, therefore, Defendant used

ten days of penalty wages in calculating the amount in

controversy. Using Defendant’s calculations, the amount in

controversy could potentially be $10,611,908, which is well

beyond the $5,000,000 jurisdictional threshold in CAFA.

Plaintiff asserts in her Motion to Remand that Defendant’s

2 Oregon’s minimum wage was $8.80 per hour in 2012, $8.95

per hour in 2013, $9.10 per hour in 2014, and $9.25 per hour in

2015. Def.’s Notice of Removal at 7-8.

6 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 6 of 19
calculations rely on unreasonable assumptions, and, therefore,

Defendant has not established by a preponderance of the evidence

that it can satisfy CAFA’s amount-in-controversy requirement. 

Specifically, Plaintiff points to three errors by Defendant: 

(1) Defendant includes data for employees who were terminated or

who resigned outside of the class period, (2) Defendant relies on

the number of employees who were terminated or who resigned, and 

(3) presuming ten days of penalty wages is legally improper. 

A. Evidentiary Objection

Michael Zagerman testifies he is the HRIS Business

Applications Manager for Defendant, that he reviewed the relevant

records kept by Defendant in the ordinary course of business, and

that he has personal knowledge of the facts in his Declaration. 

Zagerman Decl. at ¶¶ 1-3. As noted, Zagerman also testifies in

summary as to the number of employees who resigned or who were

terminated by Safeway in 2012-2015 and as to the average hourly

wage paid to those employees. Zagerman Decl. at ¶¶ 3-4. In her

Reply Plaintiff asserts Zagerman’s Declaration is inadmissible as

to his summary of the number of employees who resigned or who

were terminated by Safeway in 2012-2015 and as to the average

hourly wage paid to those employees on the ground that Zagerman’s

Declaration violates the Federal Rules of Evidence 1002 and 602

and is also hearsay. Courts, however, have held 

[u]nlike evidence presented at a summary judgment

stage, evidence presented in support of class

7 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 7 of 19
certification need not be admissible at trial. 

See Dominguez v. Schwarzenegger, 270 F.R.D. 477,

483 n.5 (N.D. Cal. 2010). Defendants' objections

shall be considered in weighing the probative

nature of the evidence. 

Curtis v. Extra Space Storage, Inc., No. C 13-00319 WHA, 2013 WL

6073448, at *5 (N.D. Cal. Nov. 18, 2013). In Curtis the

defendants objected to summaries of tenant files submitted by the

plaintiff’s counsel in support of the plaintiff’s motion for

class certification. The court considered the defendant’s

objections when weighing the plaintiff’s evidence, but the court

did not strike the summaries. See also Hanon v. Dataproducts

Corp., 976 F.2d 497, 509 (9th Cir. 1992)(district court may

consider evidence that supports or does not support class

certification, but a district court may certify a class without

supporting evidence); Braun v. Safeco Ins. Co. of Am., No. CV

13–00607 BRO (PLAx), 2014 WL 9883831, at *3 (C.D. Cal. Nov. 7,

2014)(“The court may consider evidence that may not be admissible

at trial. As a result, the Court need not resolve every

evidentiary issue raised by Defendants. To the extent the Court

considers evidence in support of Plaintiffs' motion to which

Defendants object, the Court overrules the objection.”); Blair v.

CBE Group, Inc., No. 13cv134–MMA (WVG), 2015 WL 5086375, at *4

(S.D. Cal. Aug. 26, 2015)(“At the class certification stage, the

court makes no findings of fact and announces no ultimate

conclusions on Plaintiffs' claims. Therefore, the Court may

8 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 8 of 19
consider inadmissible evidence at the class certification stage. 

The court need not address the ultimate admissibility of the

parties' proffered exhibits, documents and testimony at this

stage, and may consider them where necessary for resolution of

the [Motion for Class Certification].”); Mazza v. Am. Honda Motor

Co., 254 F.R.D. 610, 616 (C.D. Cal. 2008)(citing Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 187 (1974)), vacated on other

grounds by Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581 (9th

Cir. 2012). 

The Court, therefore, in the exercise of its discretion,

considers Defendant’s proffered evidence as appropriate.

B. Period Encompassed in the Class as Set Out in

Plaintiff’s Complaint

As noted, Plaintiff defines the class in her Complaint

as employees who were terminated by Defendant in Oregon “within

the three year period preceding commencement of this action.” 

Compl. at ¶ 25. According to Plaintiff, therefore, the period at

issue for the class is April 17, 2012, through April 17, 2015. 

Defendant, however, includes in its calculations employees who

were terminated or who resigned before April 17, 2012, and

employees who were terminated or who resigned after April 17,

2015.

Defendant concedes Plaintiff’s argument in its Response

to Plaintiff’s Motion. Defendant, therefore, recalculates the

possible damages based on 2,970 employees who resigned or who

9 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 9 of 19
were terminated in 2012 and 1,338 employees who were terminated

or who resigned in 2015 for a total possible amount in

controversy of $9,859,680, which still exceeds the $5,000,000

CAFA jurisdictional threshold.

C. Nature of Employees’ Separation from Employment

As noted, Defendant asserts 13,692 employees were

terminated or resigned from Safeway in the class period. 

Defendant alleges it properly included employees who resigned in

its class calculations because Plaintiff has not specifically

defined the term “terminated” in the Complaint; Plaintiff has not

specifically alleged only a violation of Oregon Revised Statute 

§ 652.140(1); and Oregon Revised Statute § 652.140 expressly

covers discharges, mutual agreements, and “quits” as three forms

of termination. According to Defendant, therefore, the putative

class as alleged by Plaintiff could include employees who were

terminated or who resigned. 

Plaintiff asserts, however, that Defendant has

impermissibly included employees who resigned because Plaintiff

defines the class in her Complaint as containing only individuals

who were terminated by Defendant. Plaintiff contends her

Complaint, when viewed as a whole, makes clear that the class at

issue is comprised only of those employees who were fired. For

example, Plaintiff describes the nature of the action as one to

recover penalty wages for “all former employees of Safeway, Inc.

10 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 10 of 19
(‘Defendant’) who were terminated by Defendant.” Compl. at ¶ 1

(emphasis added). Plaintiff also defines the class as

individuals “who were terminated by Defendant in Oregon.” Compl.

at ¶ 25 (emphasis added). The phrase “by Defendant” throughout

the Complaint clearly indicates Defendant is the entity

performing the act of terminating the putative plaintiffs; i.e.,

an individual who quit or resigned cannot be described as someone

who has had his employment ended by Defendant because the

individual himself performs the act of quitting or resigning.

The Complaint also contains other allegations that make

clear the putative class is comprised only of those individuals

who were fired by Defendant rather than employees who resigned or

quit. For example, Plaintiff alleges:

When Defendant terminates an employee, it

regularly pays the employee’s final wages on the

next regularly scheduled payday.

When Defendant terminated other employees,

Defendant had a practice of paying final wages on

payday.

The conduct at issue in this case affected all

individuals Defendant terminate from its

employment. Common questions include:

* * *

(c) Whether Defendant terminated Plaintiff

and similarly situated individuals.

* * *

(e) Whether Defendant maintained records of

dates it terminated employees.

11 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 11 of 19
* * *

Defendant knew similarly situated individuals’

employment had ended because it had fired each of

them.

Compl. at ¶¶ 17, 21, 27(c), 27(e), 46 (emphasis added). 

According to Plaintiff, therefore, Defendant’s use of employees

who resigned in its calculation of the number of possible class

members is unreasonable.

Defendant did not provide the Court with any

information from which the Court could determine how many of its

13,692 former employees resigned and how many were terminated. 

Thus, the Court does not have any reasonable basis from which to

infer the number of possible class members or, as a result, the

amount of damages at issue. The Court, therefore, concludes

Defendant has not shown by a preponderance of the evidence that

the amount in controversy meets the $5,000,000 CAFA

jurisdictional threshold. 

Accordingly, the Court concludes Defendant has not

established that this Court has jurisdiction pursuant to CAFA.

II. Removal Pursuant to the LMRA

In the alternative, Defendant contends removal was proper,

and this Court has jurisdiction because Plaintiff's state-law

claim is completely preempted by § 301 of the LMRA.

A. Removal Standard 

In the context of removal on the ground of complete

12 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 12 of 19
preemption (unlike in the context of removal under CAFA) the

Ninth Circuit applies “a ‘strong presumption against removal

jurisdiction [which] means that the defendant always has the

burden of establishing that removal is proper.’” Geographic

Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d

1102, 1107 (9th Cir. 2010)(quoting Gaus, 980 F.2d at 566). Thus,

“[f]ederal jurisdiction must be rejected if there is any doubt as

to the right of removal in the first instance.” Id. (quotation

omitted). A party seeking removal bears the burden of

establishing by a preponderance of the evidence that all removal

requirements are met. Serrano v. 180 Connect, Inc., 478 F.3d

1018, 1021 (9th Cir. 2007). See also Valdez v. Allstate Ins.

Co., 372 F.3d 1115, 1117 (9th Cir. 2004).

B. Preemption under § 301 of the LMRA

Section 301 of the LMRA provides:

Suits for violation of contracts between an

employer and a labor organization

representing employees in an industry

affecting commerce . . . may be brought in

any district court of the United States

having jurisdiction of the parties, without

respect of the amount in controversy or

without regard to the citizenship of the

parties.

29 U.S.C. § 185(a). The Supreme Court has interpreted § 301 to

authorize the federal courts to develop a federal common law for

the interpretation of Collective Bargaining Agreements (CBAs). 

Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689 (2001)

13 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 13 of 19
(citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451

(1957)). Federal common law preempts the use of state contract

law in interpreting and enforcing CBAs. Id. (citing Local 174,

Teamsters of Am. v. Lucas Flour Co., 369 U.S. 95, 103-04 (1962)). 

In 1985 the Supreme Court "expanded application of § 301

preemption beyond cases specifically alleging contract violation

to those whose resolution 'is substantially dependent upon

analysis of the terms of an agreement made between the parties in

a labor contract.'" Id. (quoting Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 220 (1985)).

In Caterpillar, Inc. v. Williams the Supreme Court noted

"the pre-emptive 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." 482 U.S. 386, 394

(1987). The Court, however, pointed out that "§ 301 preempts

only 'claims founded directly on rights created by collectivebargaining agreements, and also claims substantially dependent on

analysis of a collective-bargaining agreement.'" Id. (quoting

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1,

23 (1983)).

In Livadas v. Bradshaw the Supreme Court noted "it is

the legal character of a claim, as 'independent' of rights under

the collective-bargaining agreement . . . that decides whether a

state cause of action [is preempted]." 512 U.S. 107, 122-24

14 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 14 of 19
(1994)(internal citations and quotations omitted). In summary,

[i]f the plaintiff's claim cannot be resolved

without interpreting the applicable CBA . . . it

is preempted. See also Hechler, 481 U.S. at

861-62, 107 S. Ct. 2161. Alternatively, if the

claim may be litigated without reference to the

rights and duties established in a CBA . . . it is

not preempted. See also Livadas, 512 U.S. at

124-25, 114 S. Ct. 2068. The plaintiff's claim is

the touchstone for this analysis; the need to

interpret the CBA must inhere in the nature of the

plaintiff's claim. If the claim is plainly based

on state law, § 301 preemption is not mandated

simply because the defendant refers to the CBA in

mounting a defense. See Caterpillar, 482 U.S. at

398-99, 107 S. Ct. 2425.

Cramer, 255 F.3d at 691.

This is true even in some instances in which the

plaintiffs have not alleged a breach of contract

in their complaint, if the plaintiffs' claim is

either grounded in the provisions of the labor

contract or requires interpretation of it. See

Lueck, 471 U.S. at 210, 105 S. Ct. 1904 ("If the

policies that animate [section] 301 are to be

given their proper range, . . . the preemptive

effect of [section] 301 must extend beyond suits

alleging contract violations."). Otherwise,

parties would be able "to evade the requirements

of section 301 by relabeling their contract claims

as claims for tortious breach of contract" or some

other state cause of action, and thus "elevate

form over substance." Id. at 211, 105 S. Ct.

1904.

Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1060 (9th Cir.

2007).

C. Analysis

Defendant asserts removal of this matter was proper

under § 301 of the LMRA because the appropriate timing of payment

of final wages to some potential class members may depend on

15 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 15 of 19
provisions of various CBAs that Defendant entered into with

various unions. For example, Defendant points out that its CBA

with the Bakery, Confectionery, Tobacco Workers and Grain Millers

International Union, AFL-CIO, Local No. 114, of Portland, Oregon,

governs Defendant’s employment relationship with the unionized

employees who form part of that bargaining unit. Article 5.5 of

that CBA provides:

Payment of Wages upon Termination of Employment.

Upon termination for any reason (including but not

limited to discharge, retirement, or voluntary

quit with or without prior notice) the Employer

shall have until the next regularly scheduled pay

day for the pay period in which the day the

employee’s termination falls, to pay the employee

all wages earned and unpaid at the time of the

employee’s termination.

Decl. of Annemarie Kiddle, Ex. 1 at 3. Defendant contends it has

“dozens” of CBAs governing its relationship with various

employees, some of whom may be included in the putative class. 

Defendant asserts many of these CBAs may include schedules for

the payment of final wages that differ from the timing mandated

by Oregon Revised Statute § 652.140. According to Defendant,

therefore, the Court would have to interpret these various CBAs

to determine whether some class members’ final wages on

termination were, in fact, timely paid. Thus, whether

Plaintiff’s claim is preempted by § 301 could depend on the

meaning of a CBA for some class members.

Plaintiff, however, points out that in her Complaint

16 - OPINION AND ORDER

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she alleges: (1) she was an at-will employee not subject to a

“contract,” (2) all members of the putative class are “similarly

situated” to Plaintiff, and (3) putative class members’ claims

are “based upon the same legal and remedial theories . . . and

involve similar factual circumstances” as Plaintiff’s claim. 

Compl. at ¶¶ 12-13, 25, 28(c). According to Plaintiff,

therefore, the class as defined in her Complaint does not include

union members subject to a CBA, and resolution of the putative

class members’ claims would not depend on or require

interpretation of any CBA. Thus, Plaintiff contends her claim is

not preempted by the LMRA, and, therefore, this Court does not

have jurisdiction on the basis of LMRA preemption.

Although Plaintiff perhaps could have been more clear

in setting out the parameters of the putative class to exclude

with particularity former employees who are subject to a CBA,

courts under similar circumstances have held they “must defer to

Plaintiff's interpretation” of the allegations of the Complaint

when faced with ambiguity. Polkey v. Waste Mgmt. of Wa., Inc.,

No. C09–0447–JCC, 2009 WL 1936257, at *3 (W.D. Wash. July 6,

2009). See also Lippitt v. Raymond James Fin. Servs., Inc., 340

F.3d 1033, 1041 (9th Cir. 2003)(deferring to the plaintiff's

interpretation of a complaint that was “the opposite of a model

of clarity” because the complaint “c[ould] be read in the way

[that the plaintiff] assert[ed]”); E. States Health & Welfare

17 - OPINION AND ORDER

Case 3:15-cv-00886-BR Document 13 Filed 10/05/15 Page 17 of 19
Fund v. Philip Morris, Inc., 11 F. Supp. 2d 384, 393 (S.D.N.Y.

1998)(“[T]he principle that the plaintiff is master of the

complaint also counsels in favor of construction in accordance

with the representations of the plaintiffs.”); Atanasio v. Bhd.

of Locomotive Eng'rs & Trainmen, 424 F. Supp. 2d 476, 485

(E.D.N.Y. 2006)(“As master of the complaint, which is ambiguous

as to whether he is seeking relief under state or federal law,

[the plaintiff's] motion to remand clearly demonstrates his

desire to rely exclusively on rights conferred by state law. 

Therefore, [federal labor laws] cannot be the basis for a

removal.”). Moreover, “‘[f]ederal courts have repeatedly held

that vague, ambiguous, or passing references to federal law in a

complaint are not sufficient to support removal based on federal

question jurisdiction.’” Polkey, 2009 WL 1936257, at *3 (quoting

Shelley's Total Body Works v. City of Auburn, No. C07–0126–MJP,

2007 WL 765205, at *2 (W.D. Wash. Mar. 9, 2007)). See also 

Hardin v. Morgan Bldgs. & Spas, Inc., No. SA–07–CA–388, 2007 WL

2021775, at *2 (W.D. Tex. June 26, 2007)(“Because . . .

ambiguities with respect to removal should be construed in favor

of remand, the unclear phrasing of plaintiff's statement weighs

in favor of remanding this case to state court.” (quotation

omitted)).

The Court finds Defendant has not satisfied its burden

to establish that removal is proper because Defendant has not

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established that Plaintiff’s claim or the claims of the putative

class as defined by Plaintiff depend on or require interpretation

of any CBA. The Court, therefore, concludes on this record that

Defendant has not established this matter is preempted by the

LMRA and that this Court has jurisdiction.

Accordingly, the Court grants Plaintiff’s Motion to

Remand. 

CONCLUSION

For these reasons, the Court GRANTS Plaintiff’s Motion (#6)

to Remand and remands this matter to Multnomah County Circuit

Court.

IT IS SO ORDERED.

DATED this 5th day of October, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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