Howell et al v. Gate Gourmet, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 1:24-cv-00633-RMR-KAS
ASIA HOWELL and DEMARKIS MCCOLLISTER,
individually and on behalf of all others similarly situated,
Plaintiffs,
v.
GATE GOURMET, INC.,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE RECOMMENDATION
This 	matter is 	before the Court 	on 	the Recommendation of United States
Magistrate Judge Kathryn A. Starnella entered on October 29, 2024, ECF No. 32,
addressing Plaintiffs’ Motion to Remand, ECF No. 15. Magistrate Judge Starnella
recommends that Plaintiffs’ motion be granted and that the matter be remanded to the
District Court for Arapahoe County, Colorado, pursuant to 28 U.S.C. § 1447(c).
Defendant timely filed an objection to the Recommendation at ECF No. 34.
Plaintiffs filed a response at ECF No. 35. The Court has received and considered the
Recommendation, the Objection, the record, and the pleadings. For the reasons stated
below, the Court overrules Defendant’s objection and adopts the Recommendation.
I. 	LEGAL STANDARD
The Court is required to make a de novo determination of those portions of a
magistrate judge’s recommendation to which a specific, timely objection has been made,
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and it may accept, reject, or modify any or all of the magistrate judge’s findings or
recommendations. 	28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination 	of 	those 	portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations to which objection is made.”); Fed. R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.”).
“[A] party’s objections to the magistrate judge’s report and recommendation must
be both timely and specific to preserve an issue for de novo review by the district court or
for appellate review.” United States v. One Parcel of Real Property, 73 F.3d 1057, 1060
(10th Cir. 1996). In the absence of a proper objection, the district court may review a
magistrate judge’s recommendation under any standard it deems appropriate. See
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely
objection, the district court may review a magistrate’s report under any standard it deems
appropriate.”); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear
that Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings.”). When no proper objection is filed, “the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”1 Fed.
R. Civ. P. 72(b) advisory committee’s note to 1993 amendment.
1 This standard of review is something less than a “clearly erroneous or contrary to law” standard of review,
Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b). See, e.g., Nat.
Jewish Health v. WebMD Health Servs. Grp., Inc., 305 F.R.D. 247, 249 n.1 (D. Colo. 2014) (Daniel, J.).
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II. 	ANALYSIS
The parties do not object to the factual or procedural background discussed in the
Recommendation. Accordingly, the Court adopts and incorporates the factual and
procedural background included within the Recommendation as if set forth herein.
Defendant objects solely to the Magistrate Judge’s conclusion that the Railway
Labor Act (“RLA”) does not completely preempt Plaintiffs’ state law claims for (1) failure
to provide compensated rest periods in violation of the Colorado Wage Act, C.R.S § 8-4-
101 et seq. and 7 C.C.R. 1103-1 and (2) failure to provide compensated rest periods in
violation of the Colorado Minimum Wages of Workers Act, C.R.S. § 8-6-101 and 7 C.C.R.
1103-1:8. Magistrate Judge Starnella recommends that this case be remanded, finding
that “the [RLA] does not completely preempt a state-law claim concerning rates of pay,
rules, or working conditions” and “[w]ithout complete preemption, federal question
jurisdiction does not exist, and removal cannot occur.” ECF No. 32 at 15. Defendant
argues that the Magistrate Judge erred in in her Recommendation because Supreme
Court and Tenth Circuit law supports a finding that the RLA completely preempts
Plaintiffs’ claims. ECF No. 34 at 3. Upon de novo review, the Court agrees with the
Magistrate Judge’s Recommendation.
A. 	Preemption
Defendant removed this case on the basis that the Court has federal question
jurisdiction because the RLA completely preempts Plaintiff’s state law claims. ECF No. 1.
A district court may exercise federal question jurisdiction over any action “arising under”
federal law. 28 U.S.C. § 1331. A case arises under federal law when the complaint
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“establishes either that federal law creates the cause of action or that the plaintiff’s right
to relief necessarily depends on resolution of a substantial question of federal law.”
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 27-28
(1983). Pursuant to the “well-pleaded complaint” rule, “federal jurisdiction can only exist
where a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.” Colorado ex rel. Salazar v. Ace Cash Exp., Inc., 188 F. Supp. 2d 1282, 1283–
84 (D. Colo. 2002) (citing Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1302 (10th
Cir.2000)). If the plaintiff’s complaint demonstrates that the case “ ‘arises under’ federal
law,” the defendant may remove the case to federal court. Franchise Tax Bd., 463 U.S.
at 10.
“Federal pre-emption is ordinarily a federal defense to the plaintiff’s suit.” Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Accordingly, federal preemption2 typically
“does not appear on the face of a well-pleaded complaint,” and would not “authorize
removal to federal court.” Id. Complete preemption, however, may justify removal. Id. at
63–64. Complete preemption is an independent corollary or exception to the well-pleaded
complaint rule. Caterpillar, 482 U.S. at 393; Devon Energy Production Co. v. Mosaic
Potash Carlsband, Inc., 693 F.3d 1195, 1204 (10th Cir. 2012); Schmeling v. NORDAM,
97 F.3d 1336, 1339 (10th Cir. 1996). The complete preemption doctrine applies when
2 Federal or “ordinary” preemption “occurs when there is the defense of ‘express preemption,’ ‘conflict
preemption,’ or ‘field preemption’ to state law claims.” Meade v. Avant of Colorado, LLC, 307 F. Supp. 3d
1134, 1140 (D. Colo. 2018). Express preemption is limited to those situations where a federal statute
expressly preempts state law. Arizona v. United States, 567 U.S. 387, 132 S.Ct. 2492, 183 L.Ed.2d 351
(2012). Conflict preemption contemplates those situations where it is impossible to comply with both federal
and state law, and state law creates an obstacle to the congressional intention in enacting a federal statute.
Id. Field preemption occurs where a pervasive framework leaves no room for the state to act, or where the
federal interest is so dominant that it precludes enforcement of state law on the same subject. Id.
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“the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state
common-law complaint into one stating a federal claim for purposes of the well-pleaded
complaint rule.’ ” Caterpillar, 482 U.S. at 393 (quoting Metro. Life, 481 U.S. at 65). “When
the federal statute completely preempts the state-law cause of action, a claim which
comes within the scope of that cause of action, even if pleaded in terms of state law, is in
reality based on federal law,” and the claim is removable. Beneficial Nat. Bank v.
Anderson, 539 U.S. 1, 8 (2003). [T]he ‘complete preemption’ doctrine should be applied
sparingly, and the case should be remanded [to state court] absent clear congressional
intent to create removal jurisdiction.” Ace Cash, 188 F. Supp. 2d at 1284 (citing
Schmeling, 97 F.3d at 1342); see also Anderson v. Lehman Bros. Bank, 528 F. App’x
793, 795 (10th Cir. 2013) (“There is a presumption against removal jurisdiction ... and the
party seeking removal has the burden of proof to establish jurisdiction.” (citations
omitted)). “The circumstances are so rare in fact that the Supreme Court has recognized
complete preemption in only three areas: § 301 of the Labor Management Relations Act
of 1947 (“LMRA”), § 502 of the Employee Retirement Income Security Act of 1974
(“ERISA”), and actions for usury against national banks under the National Bank Act.”
Devon, 693 F.3d at 1204-05.
The Tenth Circuit has held that a claim of complete preemption requires a two-part
analysis in which the Court asks: whether “the federal question at issue preempts the
state law relied on by the plaintiff”; and “whether Congress intended to allow removal in
such a case, as manifested by the provision of a federal cause of action.” Dutcher v.
Matheson, 733 F.3d 980, 985–86 (10th Cir. 2013) (quoting Devon, 693 F.3d at 1205).
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Generally, the Court will address the second prong of the analysis first because “[t]he
existence of a potential federal cause of action is critical; complete preemption is not the
same as preemption.” Id. at 986; accord Schmeling v. NORDAM, 97 F.3d 1336, 1343
(10th Cir. 1995) (interests of “comity and prudence” dictate that courts addressing remand
should avoid needlessly addressing the first question, which will frequently require a
discussion of the merits of the preemption defense). “That is, a state cause of action may
not be viable because it is preempted by federal law—but only if federal law provides its
own cause of action does the case raise a federal question that can be heard in federal
court.” Id.
B. 	Application to Plaintiffs’ Claims
In its objection, Defendant reiterates its argument that the RLA completely
preempts Plaintiffs’ claims because, under the Lingle standard (used for determining
preemption under § 301 of the LMRA and the RLA), state claims are preempted by the
RLA whenever the claim’s resolution calls for the application or interpretation of a
collective bargaining agreement. See ECF No. 34 at 3 (citing Hawaiian Airlines, Inc. v.
Norris, 512 U.S. 246, 263 (1994)). According to Defendant, Plaintiffs’ state law claims
require interpretation of a collective bargaining agreement and are therefore completely
preempted. In support of this argument, Defendant cites Tenth Circuit cases finding
preemption under the RLA. But Defendant’s argument misses the mark—although
Hawaiian Airlines illustrates that Defendant may have a viable preemption defense to
Plaintiffs’ state law claims, it does not establish that complete preemption exists as is
required to remove this action to federal court. See Beneficial Nat. Bank, 463 U.S. at 2,
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123 S. Ct. at 1059 (“Potential defenses, including a federal statute’s pre-emptive effect .
. . do not provide a basis for removal.”). Thus, while Defendant’s argument answers the
question as to the first prong of the complete preemption analysis, the second prong is
dispositive here. That is because unlike the LMRA, the RLA does not provide the
“exclusive cause of action for the claim asserted.” Beneficial Nat. Bank, 539 U.S. at 8.
As explained above, the second prong of the complete preemption analysis asks
whether Congress intended to allow removal in such a case, as manifested by the
provision of a federal cause of action. To answer that question, the Magistrate Judge
properly turned to the Supreme Court case which clarified the state of the complete
preemption doctrine—Beneficial Nat. Bank, 539 U.S. 1. In Beneficial Nat. Bank (decided
after 	Hawaiian 	Airlines), 	the 	Supreme 	Court 	clarified 	that 	it 	had 	found 	complete
preemption only under the LMRA and ERISA, not the RLA. Id. at 8 (“In the two categories
of cases where this Court has found complete pre-emption—certain causes of action
under the LMRA and ERISA—the federal statutes at issue provided the exclusive cause
of action for the claim asserted and also set forth procedures and remedies governing
that cause of action.”). It seems apparent that if Hawaiian Airlines had established that §
184 of the RLA, like § 301 of the LMRA, completely preempts state law causes of action
within its scope, the Supreme Court in Beneficial Nat’l Bank would have discussed three,
not two, categories of cases involving complete preemption. But it did not. Instead, it
emphasized a key aspect of § 301 of the LMRA: it not only preempts state law, “but also
authoriz[es] removal of actions that s[eek] relief only under state law.” Id. at 6-7 (citing
Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)). Thus,
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Beneficial Nat. Bank established that to determine whether a federal statute completely
preempts a state law claim, the Court must ask whether the federal statute provides “the
exclusive cause of action” for the asserted state law claim. Id. at 9. If so, the asserted
state-law claim “is in reality based on federal law ... [and] is then removable under 28
U.S.C. § 1441(b), which authorizes any claim that ‘arises under’ federal law to be removed
to federal court.” Id. at 8.
Here, the RLA does not provide the exclusive cause of action for Plaintiffs’ state
law claims. Defendant contends Plaintiffs’ claims are in reality “minor disputes” under the
RLA. See 45 U.S.C. § 151a (“Minor disputes” are those that “gro[w] out of grievances or
out of the interpretation or application of agreements covering rates of pay, rules, or
working conditions.”). But even if that is true, the RLA does not provide for minor disputes
to be filed in the first instance in federal court. Instead, primary jurisdiction over minor
disputes under the RLA exists solely in the adjustment boards established pursuant to 45
U.S.C. § 184. See Consol. Rail Corp., 491 U.S. at 304, 109 S.Ct. 2477 (“The Board (as
we shall refer to any adjustment board under the RLA) has exclusive jurisdiction over
minor 	disputes.”). 	Permitting 	removal 	would 	therefore 	lead 	to 	an 	absurd 	result—
Defendant could remove the case to federal court, but then seek dismissal because
adjustment boards, not federal courts, have primary jurisdiction over claims arising under
the RLA. The same is not true for the LMRA, which allows disputes to be removed to
federal court and adjudicated on the merits under that statute. See Avco, 390 U.S. at
560–62, 88 S.Ct. 1235. Accordingly, the Court concludes that complete preemption does
not exist under the RLA. And although this question has not been squarely answered by
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the Tenth Circuit, multiple circuits have come to the same conclusion. See Krakowski v.
Allied Pilots Ass’n, 973 F.3d 833, 836 (8th Cir. 2020); Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1245 (9th Cir. 2009); Wray v. United Air Lines, Inc., 184 F. App’x
120, 121 (2d Cir. 2006); Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 277 (2d Cir. 2005);
Roddy v. Grand Trunk W. R.R., 395 F.3d 318, 326 (6th Cir. 2005). Accordingly, the Court
agrees with the Magistrate Judge that “[i]n the absence of Tenth Circuit authority, the
weight of authority from other circuits teaches that the [RLA] does not completely preempt
a state-law claim concerning rates of pay, rules, or working conditions. Without complete
preemption, federal question jurisdiction does not exist, and removal cannot occur.” ECF
No. 32 at 15. Defendant’s objection is overruled, and this case is remanded pursuant to
28 U.S.C. § 1447(c).
III. 	CONCLUSION
For the reasons set forth above, the Court ORDERS:
1. 	Defendant’s Objection to the Recommendation, ECF No. 34, is OVERRULED;
2. 	The Recommendation, ECF No. 32, is ACCEPTED AND ADOPTED;
3. 	Plaintiffs’ Motion to Remand to the District Court for Arapahoe County,
Colorado, ECF No. 15, is GRANTED;
4. 	Defendant’s Moton to Dismiss, ECF No. 11, is DENIED AS MOOT;3
5. 	Pursuant to 28 U.S.C. § 1447(c), this matter is REMANDED to the District Court
for Arapahoe County, Colorado, due to lack of subject matter jurisdiction.
3 Because the Court finds that it lacks subject matter jurisdiction over Plaintiffs’ Complaint, ECF No. 6, it
cannot act upon the Motion to Dismiss, ECF No. 11. See, e.g., Basso v. Utah Power & Light Co., 495 F.2d
906, 909 (10th Cir. 1974) (“A court lacking jurisdiction cannot render judgment but must dismiss the cause
at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.”).
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DATED: February 26, 2025
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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