Opinion
Oswald Cousins, NIXON PEABODY LLP, San Francisco, California, Attorneys for Defendant Skanska Shimmick Herzog, a Joint Venture.
POLARIS LAW GROUP, William L. Marder, Attorneys for Plaintiff, MUSU BENNETT.
STIPULATION AND ORDER FOR DISMISSAL OF LABOR CODE SECTION 226 CLAIMS AND REMAND OF REMAINING CLAIMS TO STATE COURT
NATHANAEL M. COUSINS, Magistrate Judge.
Counsel for Plaintiff, Musu Bennett ("Plaintiff"), and Defendant Skanska Shimmick Herzog, a Joint Venture ("SSHJV"), jointly submit the following Stipulation and [Proposed] Order:
RECITALS
Whereas:
1. This lawsuit was initially filed against Skanska USA, Inc. in the Superior Court of California, Santa Clara County. On or around May 28, 2015, Skanska USA, Inc. removed this matter based on diversity jurisdiction on the grounds that Skanska USA, Inc. is a citizen of New York and on federal question jurisdiction based on the argument that Plaintiff's Labor Code Section 226(a) claims, as pled, are preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. §185(a).
2. On June 18, 2015, the Parties filed a Stipulation and Order to dismiss Skanska USA, Inc. (Skanska USA Inc.) as a party and to substitute Skanska Shimmick Herzog, a Joint Venture ("SSHJV") as the defendant in this matter. SSHJV is not a diverse citizen for the purposes of this lawsuit.
3. An earlier filed class action and representative lawsuit entitled Guadalupe Gomez v. Skanska Shimmick Herzog, a Joint Venture that alleges, among other claims, Labor Code Section 226 violations that are same as or substantially similar to those alleged in this case is pending before the Honorable Edward J. Davila in the District Court, Northern District of California, Case No. 5:15-cv-01796.
4. Ms. Bennett received only one paycheck from SSHJV. The maximum penalty under Labor Code 226(e) for an allegedly defective wage statement is $50.00 per pay period. SSHJV tendered a check for $50.00 to Plaintiff on May 18, 2015 as payment in full for the alleged penalty. SSHJV denies that it violated Labor Code Section 226 and does not concede any violation, it
STIPULATION
Based on these recitals, the Parties through their counsel stipulate as follows:
1. Plaintiff's First Cause of Action (Labor Code 226) and any other claims or causes of action that are based on alleged violations of Labor Code Section 226, including that portion of Plaintiff's Fourth Cause of Action under the Private Attorney General Act that is based on alleged violations of Labor Code Section 226 and Plaintiff's prayer for damages, penalties and attorneys' fees under Labor Code Sections 226 and 226.3 may be dismissed with prejudice with both sides bearing their own costs and fees.
2. Based on the substitution of SSHJV for Skanska USA, Inc. and the dismissal of the Labor Code Section 226 claims this Court lacks jurisdiction over the remaining causes of action and, therefore, Plaintiff's remaining claims should be remanded to the Superior Court, County of Santa Clara and the case in this Court should be closed.
ORDER DISMISSING LABOR CODE 226 CLAIMS AND REMANDING TO STATE COURT
Pursuant to the Parties' Stipulation and for good cause, the Court orders as follows:
(1) Plaintiff's First Cause of Action (Labor Code Section 226 and any other claims or causes of action that are based on alleged violations of Labor Code Section 226, including that portion of Plaintiff's Fourth Cause of Action under the Private Attorney General Act that is based on alleged violations of Labor Code Section 226 and Plaintiff's prayer for damages, penalties and attorneys' fees under Labor Code Sections 226 and 226.3 are dismissed with prejudice with both sides bearing their own costs and fees.
(2) Plaintiff's remaining claims are hereby remanded to the Superior Court of California, Santa Clara County, and the clerk is instructed to close the case in this Court.
IT IS SO ORDERED.