United Steel, Paper & Forestry v. Shell Oil Company ( 2008 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STEEL, PAPER & FORESTRY,         
    RUBBER MANUFACTURING ENERGY,
    ALLIED INDUSTRIAL & SERVICE
    WORKERS INTERNATIONAL UNION,
    AFL-CIO, CLC, on behalf of
    members employed by defendants;
    RICHARD FLOYD, individually and
    on behalf of all similarly situated
    current and former employees;
    EDUARDO CARBEJAL, individually
    and on behalf of all similarly
    No. 08-56672
    
    situated current and former
    employees,                                       D.C. No.
    Plaintiffs-Appellees,       2:08-03693-RGK-E
    v.
    SHELL OIL COMPANY; EQUILON
    ENTERPRISES LLC, DBA SHELL OIL
    PRODUCTS US,
    Defendants-Appellants,
    and
    TESORO REFINING AND MARKETING
    COMPANY,
    Defendant.
    
    16131
    16132             UNITED STEEL v. SHELL OIL CO.
    UNITED STEEL, PAPER & FORESTRY,           
    RUBBER MANUFACTURING ENERGY,
    ALLIED INDUSTRIAL & SERVICE
    WORKERS INTERNATIONAL UNION,
    AFL-CIO, CLC, on behalf of
    members employed by defendants;
    RICHARD FLOYD, individually and
    on behalf of all similarly situated
    current and former employees;
    EDUARDO CARBEJAL, individually                    No. 08-56673
    and on behalf of all similarly
    D.C. No.
    
    situated current and former
    employees,                                       2:08-cv-03693-
    Plaintiffs-Appellees,                RGK-E
    v.                                OPINION
    SHELL OIL COMPANY; EQUILON
    ENTERPRISES LLC, DBA SHELL OIL
    PRODUCTS US,
    Defendants,
    and
    TESORO REFINING AND MARKETING
    COMPANY,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Central District of California
    R. Gary Klausner, District Judge, Presiding
    Submitted November 17, 2008*
    Pasadena, California
    *The panel unanimously finds this case suitable for decision without
    oral argument. See Fed. R. App. P. 34(a)(2).
    UNITED STEEL v. SHELL OIL CO.                16133
    Filed December 9, 2008
    Before: Myron H. Bright,** Stephen S. Trott, and
    Michael Daly Hawkins, Circuit Judges.
    Opinion by Judge Trott
    **The Honorable Myron H. Bright, Senior United States Circuit Judge
    for the Eighth Circuit, sitting by designation.
    16134          UNITED STEEL v. SHELL OIL CO.
    COUNSEL
    Deanna L. Ballesteros, Epstein Becker & Green, P.C., Los
    Angeles, California, for appellants Shell Oil Company and
    Equilon Enterprises LLC dba Shell Oil Products US.
    UNITED STEEL v. SHELL OIL CO.                  16135
    Timothy M. Rusche, Los Angeles, California, Seyfarth Shaw
    LLP, for appellant Tesoro Marketing and Refining Company.
    Robert A. Cantore, Gilbert & Sackman, Los Angeles, Califor-
    nia, for the appellees.
    OPINION
    TROTT, Circuit Judge:
    United Steel, Paper & Forestry, Rubber Manufacturing,
    Energy, Allied Industrial & Service Workers International
    Union, AFL-CIO, CLC, as well as Richard Floyd and
    Eduardo Carbejal, individually and on behalf of similarly situ-
    ated current and former employees (collectively United Steel
    Workers), filed a class action against Shell Oil Company,
    Equilon Enterprises, LLC, and Tesoro Refining and Market-
    ing Company in California state court. Shell Oil and Equilon
    (collectively Shell) filed a notice of removal to the federal dis-
    trict court, and then Tesoro filed a separate notice of removal.
    Both notices of removal relied, in part, on the Class Action
    Fairness Act of 2005 (CAFA), 
    28 U.S.C. §§ 1332
    (d), 1453, as
    a basis of jurisdiction. After opening two separate cases, the
    district court first remanded Shell’s case on the ground that
    Tesoro failed to consent to removal within thirty days of ser-
    vice on the first-served defendant, and then remanded
    Tesoro’s case for the same reason.
    Shell and Tesoro filed separate petitions for permission to
    appeal, which this Court granted. We have jurisdiction pursu-
    ant to 
    28 U.S.C. § 1453
    (c), and we reverse the district court’s
    orders remanding the case to state court. Under § 1453(b) of
    CAFA, Shell’s timely notice of removal effected removal of
    the entire action, including the claims against Tesoro.1
    1
    We deny United Steel Workers’s request for sanctions on appeal
    against Shell and Tesoro because the record does not support a finding of
    bad faith, and United Steel Workers did not file a separate motion for
    sanctions.
    16136           UNITED STEEL v. SHELL OIL CO.
    I
    BACKGROUND
    On April 25, 2008, United Steel Workers filed a single
    complaint in California state court against Shell Oil, Equilon,
    and Tesoro. The complaint alleged violations of California
    Labor Code §§ 201, 201.7, 202, 203, 216, 226, 226.6, 226.7,
    512, 1194, and 1199, and California Business and Professions
    Code §§ 17200-17209, for failure to provide meal periods,
    permit rest periods, provide proper wage statements, and pay
    wages timely upon termination. Royal Dutch Shell plc is the
    parent company of both Shell Oil and Equilon (collectively
    Shell). United Steel Workers effected service of the complaint
    on Shell on May 6, 2008, and on Tesoro on May 7, 2008.
    On June 5, 2008, the thirtieth day after service on Shell,
    Shell filed a notice of removal, asserting federal question
    jurisdiction, 
    28 U.S.C. § 1331
    , as well as jurisdiction under
    CAFA, 
    28 U.S.C. §§ 1332
    (d), 1453. The case (No. CV 08-
    03693) was assigned to the Honorable R. Gary Klausner. The
    next day, June 6, 2008, Tesoro filed a separate notice of
    removal, asserting jurisdiction on the same grounds as Shell.
    Tesoro’s case, however, received a different case number
    (No. CV 08-03720) and was assigned to a different district
    judge, the Honorable Ronald S.W. Lew. Tesoro’s case was
    subsequently reassigned to the Honorable Manuel L. Real.
    In Shell’s removal case, Judge Klausner ordered Shell to
    show cause why the case should not be remanded for several
    defects in Shell’s notice of removal, including the failure to
    join Tesoro. Shell filed motions in support of removal, argu-
    ing, in part, that CAFA permits one defendant to remove the
    entire case without the consent of all defendants. On June 27,
    2008, Judge Klausner issued an order remanding Shell’s case
    to state court because Tesoro had not joined in Shell’s notice
    of removal within thirty days of the first-served defendant,
    Shell.
    UNITED STEEL v. SHELL OIL CO.            16137
    Meanwhile, in Tesoro’s separate removal case before Judge
    Real, United Steel Workers filed a notice regarding the related
    case before Judge Klausner on June 19, 2008. On July 8,
    2008, Judge Real issued an order transferring Tesoro’s case
    to Judge Klausner. On July 11, 2008, Judge Klausner issued
    an order remanding Tesoro’s case to state court for the same
    reasons set forth in the order remanding Shell’s case.
    Shell and Tesoro (collectively the defendants) separately
    petitioned for permission to appeal the remand orders. On
    October 9, 2008, this Court issued an order, sua sponte, grant-
    ing the defendants’s petitions, consolidating their appeals, and
    indicating that this Court shall complete all action on the
    appeals, including rendering judgment, within 60 days.
    II
    DISCUSSION
    A.     Standard of Review
    We review a district court’s remand order de novo. Abrego
    Abrego v. The Dow Chemical Co., 
    443 F.3d 676
    , 679 (9th Cir.
    2006).
    B.     Analysis
    1.    Removal in a Multi-Defendant Action Under CAFA
    The defendants assert the district court erred because
    CAFA entitles one defendant to remove the entire action, and
    therefore that Shell’s removal covered the entire action. The
    defendants assert, alternatively, the district court erred by sua
    sponte remanding for procedural defects in the notices of
    removal, and by doing so without providing Tesoro an oppor-
    tunity to respond to the show cause order. United Steel Work-
    ers concedes that Shell properly filed a notice of removal
    under CAFA, and the district court therefore erred in remand-
    16138           UNITED STEEL v. SHELL OIL CO.
    ing Shell’s case (No. CV 08-03693). United Steel Workers
    asserts, however, that the district court did not err by remand-
    ing Tesoro’s case (No. CV 08-03720) because Tesoro filed its
    notice of removal over thirty days after service on Shell, the
    first-served defendant.
    [1] Under 
    28 U.S.C. § 1441
    , defendants may remove a civil
    action brought in a state court to federal district court if the
    federal district courts have original jurisdiction. See Abrego
    Abrego, 
    443 F.3d at 679-80
    . Section 1446 provides:
    The notice of removal of a civil action or proceeding
    shall be filed within thirty days after the receipt by
    the defendant, through service or otherwise, of a
    copy of the initial pleading setting forth the claim for
    relief upon which such action or proceeding is based,
    or within thirty days after the service of summons
    upon the defendant if such initial pleading has then
    been filed in court and is not required to be served
    on the defendant, whichever period is shorter.
    
    28 U.S.C. § 1446
    (b). In cases with multiple defendants, there
    is a split in authority — unresolved in this Circuit — on
    whether the thirty-day period to file, or join in, a notice of
    removal begins to run on the day of service on the first-served
    or last-served defendant. See United Computer Systems, Inc.
    v. AT & T Corp., 
    298 F.3d 756
    , 763 n.4 (9th Cir. 2002)
    (declining to adopt the first-served rule or the last-served
    rule). The judge-created rule of unanimity, however, has tra-
    ditionally required that all defendants consent to, or join in,
    removal. See Abrego Abrego, 
    443 F.3d at 681
    .
    [2] CAFA amended, in part, 
    28 U.S.C. § 1332
     and added
    § 1453, thereby vesting district courts with original jurisdic-
    tion over class actions that meet certain requirements, includ-
    ing minimal diversity and an amount in controversy of
    $5,000,000. See Abrego Abrego, 
    443 F.3d at 680
    . Relevant
    here, CAFA added § 1453(b), which provides:
    UNITED STEEL v. SHELL OIL CO.              16139
    In general. — A class action may be removed to a
    district court of the United States in accordance with
    section 1446 (except that the 1-year limitation under
    section 1446(b) shall not apply), without regard to
    whether any defendant is a citizen of the State in
    which the action is brought, except that such action
    may be removed by any defendant without the con-
    sent of all defendants.
    
    28 U.S.C. § 1453
    (b) (emphasis added). We have previously
    held that this provision “overrides the judge-created require-
    ment that each defendant consent to removal . . . .” Abrego
    Abrego, 
    443 F.3d at 681
    .
    [3] The Eleventh Circuit has further elaborated, in a case
    with multiple defendants, that § 1453(b) entitles one defen-
    dant to remove the entire action. See Lowery v. Alabama
    Power Co., 
    483 F.3d 1184
    , 1196 (11th Cir. 2007). There,
    plaintiffs initiated a class action in state court against multiple
    defendants prior to CAFA’s effective date, but amended their
    complaint to include additional defendants after CAFA’s
    effective date. 
    Id. at 1194
    . One of the post-CAFA defendants
    filed a notice of removal, in which nearly all other defendants
    later joined. 
    Id.
     Holding under CAFA that “one defendant
    may remove the entire action, including claims against all
    defendants,” 
    id. at 1196
    , the Lowery court noted, because one
    defendant “could procedurally remove the action as a whole,
    including all defendants, we need not concern ourselves with
    the circumstances pertinent to each named defendant,” 
    id.
     at
    1194 n.25. We agree.
    [4] Here, it is undisputed that United Steel Workers’s class
    action is removable under CAFA, and it is undisputed that
    Shell timely filed its notice of removal. Because the case is
    governed by CAFA and the rule of unanimity is inapplicable,
    Shell removed the action as a whole, including claims against
    Tesoro. Indeed, Tesoro could not have prevented removal
    even if it wished to do so, and it certainly could not defeat
    16140               UNITED STEEL v. SHELL OIL CO.
    Shell’s removal of the entire case by filing a separate, but
    untimely, notice of removal. We need not concern ourselves,
    therefore, with the circumstances surrounding Tesoro’s notice
    of removal. See Lowery at 1194 n.25.2
    2.    Request for Sanctions on Appeal
    United Steel Workers seeks sanctions against the defen-
    dants for causing needless delay and additional litigation
    expenses. According to United Steel Workers, the defendants
    caused needless delay by failing to coordinate their notices of
    removal and failing to present to the district court the argu-
    ments upon which they rely on appeal.
    [5] Imposing sanctions under the Court’s inherent powers
    requires a finding of bad faith, which may be demonstrated by
    actions delaying or disrupting the litigation. Primus Automo-
    tive Financial Services, Inc. v. Batarse, 
    115 F.3d 644
    , 648-49
    (9th Cir. 1997). Here, there is no basis, however, to find that
    the defendants intentionally delayed or disrupted the litiga-
    tion. Contrary to United Steel Workers’s assertions, the defen-
    dants each relied upon CAFA in their respective notices of
    removal. Indeed, in Shell’s second response to the district
    2
    Subsequent to Lowery, the Eleventh Circuit rejected use of the first-
    served rule and adopted the last-served rule. See Bailey v. Janssen Phar-
    maceutica, Inc., 
    536 F.3d 1202
    , 1205 (11th Cir. 2008). We express no
    opinion on the merits of the first-served rule, as a general matter or in
    cases removable under CAFA, because the district court had jurisdiction
    over the entire action even if the first-served rule applied. Shell filed a
    notice of removal on the thirtieth day after service on the first-served
    defendant (itself). Although Tesoro’s notice of removal would have been
    untimely under the first-served rule, the timeliness of its notice was irrele-
    vant once Shell removed the entire case. Nor need we address the alterna-
    tive assertion that the district court improperly remanded the case sua
    sponte, thereby depriving Tesoro of an opportunity to oppose remand. See
    Kelton Arms Condominium Owners Ass’n, Inc. v. Homestead Ins. Co., 
    346 F.3d 1190
    , 1193 (9th Cir. 2003) (district courts have no authority to
    remand a case removed from state court sua sponte for procedural
    defects).
    UNITED STEEL v. SHELL OIL CO.            16141
    court’s show cause order, Shell argued — consistent with its
    argument on appeal — that joinder of all defendants was not
    required for removal and that the entire case had already been
    properly removed.
    [6] Furthermore, while this court has discretion to impose
    sanctions for bringing a frivolous appeal under Federal Rule
    of Appellate Procedure 38, “such a request must be made in
    a separate motion . . . .” In re Ybarra, 
    424 F.3d 1018
    , 1027
    n.11 (9th Cir. 2005). United Steel Workers did not file a sepa-
    rate motion or even cite Rule 38. United Steel Workers’s
    request for sanctions on appeal is denied.
    III
    CONCLUSION
    Under CAFA, Shell’s timely notice of removal effected
    removal of the entire action, including claims against Tesoro.
    We therefore reverse the orders of the district court remand-
    ing the claims against Shell and Tesoro to state court. Addi-
    tionally, we deny United Steel Workers’s request for
    sanctions against Shell and Tesoro.
    REVERSED AND REMANDED.