Jonathan Beasley et al v. Cognizant Technology Solutions US Corporation et al

MEMORANDUM in Opposition to MOTION to Remand Case to Los Angeles Superior Court 18

C.D. Cal.July 1, 2011

COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11- CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES MORGAN, LEWIS & BOCKIUS LLP Barbara A. Fitzgerald, Bar No. 151038 bfitzgerald@morganlewis.com Salvatore Picariello, Bar No. 190442 spicariello@morganlewis.com 300 South Grand Avenue Twenty -Second Floor Los Angeles, CA 90071-3132 Tel: 213.612.2500 Fax: 213.612.2501 Attorneys for Defendant COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION, erroneously identified as COGNIZANT TECHNOLOGY SOLUTIONS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JONATHAN BEASLEY; IRINA MASHAROVA; ANNA RSHTOUNI; MARCELO PINEDA; CHARLES PRICE; YURI GRISHKO; TSUNG- HSIEN SHEN; TIM LUK; DAVID DE HILSTER; LILY BUMATAY; PARTHA CHOUNDRY; TIM BGUYEN; JAMES NGUYEN; EDWARD DUONG; ISMAIL GUZEY; STEVE MO; BONITA SHOK; and KAREN KU, Plaintiffs, vs. COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION (erroneously identified as COGNIZANT TECHNOLOGY SOLUTIONS, a California business, form unknown); MOLINA HEALTHCARE, INC., a California business, form unknown; AMIR DESAI, an individual and managing agent for MOLINA HEALTHCARE, INC.; and DOES 1 to 50, inclusive, Defendants. Case No. 2:11-CV-04974-JFW (MRW) COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION'S OPPOSITION TO PLAINTIFFS' MOTION TO REMAND TO LOS ANGELES SUPERIOR COURT Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 1 of 22 Page ID #:498 TABLE OF CONTENTS i COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11- CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES I. INTRODUCTION AND SUMMARY OF ARGUMENT ............................. 1 II. BACKGROUND FACTS ............................................................................... 4 III. LEGAL DISCUSSION ................................................................................... 5 A. Standards For Removal ......................................................................... 5 B. Grable And Its Progeny Reaffirmed The Validity Of Federal- Question Jurisdiction Over State-Law Causes of Action ..................... 6 C. Because Plaintiffs’ Right To Relief (If Any) Necessarily Depends Upon The Resolution Of Substantial and Contested Questions Of Federal Immigration Law, Removal To This Court Was Proper ............................................................................................ 9 IV. CONCLUSION ............................................................................................. 15 Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 2 of 22 Page ID #:499 ii COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11- CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES TABLE OF AUTHORITIES Page(s) CASES ARCO Envtl. Remediation, L.L.C. v. Dept. of Health & Envtl. Quality, 213 F.3d 1108 (9th Cir. 2000) .......................................................................... 5, 6 Avila-Gonzalez v. Barajas, 2006 WL 643297 (M.D. Fla. Mar. 2, 2006) ................................................ passim Becnel v. KPMG LLP, 387 F.Supp.2d 984 (W.D. Ark. 2005) ........................................................ 2, 8, 11 Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ............................................................................................. 5 Colbert v. Union Pac. R.R. Co., 485 F.Supp.2d 1236 (D. Kan. 2007) .................................................................. 10 County of Santa Clara v. Astra USA, Inc., 401 F.Supp.2d 1022 (N.D. Cal. 2005) .................................................................. 8 Davis v. Brouse McDowell, L.P.A., 596 F.3d 1355 (Fed. Cir. 2010) ...................................................................... 8, 10 Eastman v. Marine Mech. Corp., 438 F.3d 544 (6th Cir. 2006) .............................................................................. 10 Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006) ........................................................................................... 10 Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983) ................................................................................................. 5 Grable & Sons Metal Prods., Inc., 545 U.S. 308, 312 (2005) ............................................................................ passim Hines v. Davidowitz, 312 U.S. 52 (1941) ...................................................................................... 11, 12 Martin v. Franklin Cap. Corp., 546 U.S. 132 (2005) ........................................................................................... 14 Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 3 of 22 Page ID #:500 iii COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Mathews v. Diaz, 426 U.S. 67 (1976) ................................................................................... 3, 11, 12 Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986) ........................................................................................... 14 Mikulski v. Centerior Energy Corp., 501 F.3d 555 (6th Cir. 2007) .............................................................................. 13 Mitchell v. Bank of America, 2010 WL 3340486 (M.D. Fla. Aug. 25, 2010) ........................................... 2, 8, 11 Municipality of San Juan v. Corporaciớn Para El Fomento Econớmico De La Ciudad Capital, 415 F.3d 145 (1st Cir. 2005) ................................................................................ 8 Nat’l Credit Reporting Assn., Inc. v. Experian Info. Solutions, 2004 WL 1888769 (N.D. Cal. July 21, 2004) ...................................................... 6 Nicodemus v. Union Pacific Corp., 440 F.3d 1227 (10th Cir. 2006) ...................................................................... 8, 14 Pacific Gas & Elec. Co. v. Arizona Elec. Power Cooperative, Inc., 479 F.Supp.2d 1113 (E.D. Cal. 2007) ................................................................ 14 Pennsylvania v. Eli Lilly & Co., Inc., 511 F.Supp.2d 576 (E.D. Pa. 2007) .................................................................... 10 Plyer v. Doe, 457 U.S. 202 (1982) ........................................................................................... 12 Rhode Island Fishermen’s Alliance, Inc. v. Rhode Island Dept. of Envtl. Mgmt., 585 F.3d 42 (1st Cir. 2009) .............................................................................. 2, 8 Singh v. Duane Morris LLP, 538 F.3d 334 (5th Cir. 2008) .............................................................................. 13 Sudomir v. McMahon, 767 F.2d 1456 (9th Cir. 1985) ........................................................................ 3, 11 Utah v. Eli Lily & Co., 509 F.Supp.2d 1016 (D. Utah 2007) .................................................................. 13 Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 4 of 22 Page ID #:501 iv COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Washington Cons. Group v. Raytheon Tech. Servs. Co., LLC, 760 F.Supp.2d 94 (D.D.C. 2011) ....................................................................... 12 Wexler v. United Air Lines, Inc., 496 F.Supp.2d 150 (D.D.C. 2007) ..................................................................... 10 Wolf v. Bankers Life & Cas. Co., 519 F.Supp.2d 674 (W.D. Mich. 2007) .............................................................. 11 STATUTES 8 U.S.C. § 1182 .................................................................................................. 12, 13 8 U.S.C. § 1184 .................................................................................................... 3, 14 18 U.S.C. § 1001 .................................................................................................... 1, 9 18 U.S.C. § 1546 .................................................................................................... 1, 9 26 U.S.C. § 6335 ................................................................................................ 6, 7, 8 28 U.S.C. § 1441(a) ................................................................................................... 5 California Civil Code § 51 ......................................................................................... 4 California Business & Professions Code § 17200 ..................................................... 4 OTHER AUTHORITIES 20 C.F.R. § 655.710 ................................................................................................. 13 20 C.F.R. § 655.737 ................................................................................................... 9 20 C.F.R. § 655.800 ................................................................................................. 13 66 Fed. Reg. 29656 (May 31, 2001) ........................................................................ 13 Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 5 of 22 Page ID #:502 1 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11- CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Defendant Cognizant Technology Solutions U.S. Corporation, erroneously identified as Cognizant Technology Solutions (“Cognizant”), respectfully submits the following Opposition to Plaintiffs’ Motion to Remand to Los Angeles Superior Court (the “Motion”). I. INTRODUCTION AND SUMMARY OF ARGUMENT The Supreme Court has “recognized for nearly 100 years that in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues.” Grable & Sons Metal Prods., Inc., 545 U.S. 308, 312 (2005). This basis for jurisdiction arises when a state-law claim “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Id. at 314. All of these factors favor the exercise of federal-question jurisdiction in this action. While Plaintiffs attempt to minimize its centrality to their claims, the fact remains that the linchpin to Plaintiffs’ claims against Cognizant is the (false) contention that Cognizant made sworn misrepresentations in H-1B Labor Conditions Applications (“LCAs”) and that the United States Department of Labor (“DOL”) relied in approving Cognizant’s application for 40 H-1B visa holders from India to work at defendant Molina Healthcare, Inc. (“Molina”). (See, e.g., Compl. ¶¶ 40-44, 51-52, 77, 84, 90, 100-101, 108-109, 117-118 & Exh. 4). If Plaintiffs’ allegations are correct (and they are not), then Cognizant’s submission of false LCAs to this federal agency constitutes a violation of federal law. Indeed, the LCAs attached as Exhibit 4 to Plaintiffs’ Complaint (which, in truth, are not forms relevant to the H-1B workers placed with Molina) provide that “[m]aking fraudulent representations on this Form can lead to civil or criminal action under 18 U.S.C. § 1001, 18 U.S.C. § 1546, or other provisions of law.” (Compl., Exh. 4, § K). To make this showing, Plaintiffs will be required to navigate through the thicket of federal immigration law to ascertain Cognizant’s disclosure obligations, Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 6 of 22 Page ID #:503 2 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES the applicability and scope of any exemptions that may affect these disclosure requirements, Cognizant’s compliance with these statutes and regulations, and the legal effect of Cognizant’s LCA attestations to the DOL. In short, the lawfulness of Cognizant’s conduct must be determined by federal law. These disputed federal issues are essential to the resolution of Plaintiffs’ claims against Cognizant. Without the DOL’s approval of the LCAs, the H-1B visa holders would not have been placed at the affected Molina site, these workers supposedly would not have displaced Plaintiffs, the alleged wrongful terminations would not have occurred, and the alleged conspiracy would have died in its infancy. (See Compl. ¶ 43). As they themselves have pleaded, unless Plaintiffs actually prove that Cognizant violated federal law, they cannot prevail upon any of their claims against Cognizant. In other words, the entirety of Plaintiffs’ claims against Cognizant rises and falls on their proving a violation of federal law. Because Plaintiffs’ right to relief (if any) necessarily depends upon the resolution of substantial and contested questions of federal immigration law, the first Grable requirement is satisfied. See Avila-Gonzalez v. Barajas, 2006 WL 643297, at *1 (M.D. Fla. Mar. 2, 2006) (exercising federal-question jurisdiction over guest workers’ state-law contract claims that turned on interpretation of terms dictated by federal immigration law); see also Rhode Island Fishermen’s Alliance, Inc. v. Rhode Island Dept. of Envtl. Mgmt., 585 F.3d 42, 49 (1st Cir. 2009) (state- law claim challenging regulatory restrictions invoked federal-question jurisdiction because plaintiffs’ asserted right to relief under state law required a showing that retroactive control dates imposed by state agency were not compulsory under federal law); Mitchell v. Bank of America, 2010 WL 3340486, at *3 (M.D. Fla. Aug. 25, 2010) (upholding federal-question jurisdiction where plaintiffs’ right to relief depended on defendants’ violation of the Fair Debt Collection Practices Act); Becnel v. KPMG LLP, 387 F.Supp.2d 984, 986 (W.D. Ark. 2005) (upholding federal-question removal where resolution of plaintiffs’ tort claims depended on Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 7 of 22 Page ID #:504 3 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES showing that the tax shelters on which defendant opined violated federal tax law). The second Grable requirement is also satisfied because the federal interest in regulating immigration is unquestionably substantial. Avila-Gonzalez, 2006 WL 643297, at *1 (“Federal question jurisdiction is appropriate because of the substantial federal interest in immigration matters and in seeing that businesses honor the obligations they assume in order to obtain governmental approval of their activities, as the Defendant did to obtain temporary labor certificates for importation of H-2A workers.”). “For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.” Mathews v. Diaz, 426 U.S. 67, 81 (1976); see also Sudomir v. McMahon, 767 F.2d 1456, 1464 (9th Cir. 1985) (“federal authority in the areas of immigration and naturalization is plenary”). Finally, the third Grable requirement is met here because the exercise of federal jurisdiction will not “disturb[] any congressionally approved balance of federal and state judicial responsibilities.” Grable, 545 U.S. at 314. Congress certainly has not allocated any authority to state courts to regulate immigration or to interpret and apply immigration law. Moreover, there is no chance that the exercise over jurisdiction here would open a floodgate of state-law litigation matters in the federal courts. Here, as in Avila-Gonzalez, 2006 WL 643297, at *1, there are a limited number of workers admitted each year pursuant to the regulations at issue. See 8 U.S.C. § 1184(g)(1)(A)(vii) (total number of aliens who may be issued visas or otherwise provided nonimmigrant status may not exceed 65,000 per year after 2004). Thus, federal-question jurisdiction in this matter would not open the judicial flood gates. For these and other reasons set forth below, the Court should deny Plaintiffs’ Motion to Remand. Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 8 of 22 Page ID #:505 4 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES II. BACKGROUND FACTS Plaintiffs filed their Complaint in the Los Angeles Superior Court asserting claims against Cognizant under the following laundry list of theories: (1) national origin discrimination in violation of Section 8 of the California Constitution and Civil Code § 51 (i.e., the Unruh Act); (2) intentional infliction of emotional distress; (3) wrongful termination in violation of public policy; (4) negligence; (5) tortious interference with a contract; and (6) violation of the Unfair Business Practices Act (Business & Professions Code §§ 17200).1 Each of these claims hinges on the allegation that, in furtherance of a conspiracy with defendants Molina and Amir Desai (Molina’s former CIO), Cognizant made false, sworn statements in H-1B LCAs, upon which the DOL relied in approving Cognizant’s application for 40 H-1B visa holders from India to work at Molina.2 (See, e.g., Compl. ¶¶ 40-44, 51-52, 77, 84, 90, 100-101, 108-109, 117-118 & Exh. 4). More specifically, Plaintiffs (wrongly) charge that Cognizant made false attestations to the DOL regarding the effort it had made to locate qualified American workers to perform the jobs in question, the adverse impact that hiring the H-1B workers would have on Molina’s employees, and the rate of pay for the H-1B workers. (Compl. ¶¶ 42- 43). After Cognizant allegedly succeeded in perpetrating this fraud, Molina (allegedly at the urging of Desai) replaced Plaintiffs and similarly situated employees with the H-1B workers. (Compl. ¶¶ 29, 37-43). While complete apocrypha, Plaintiffs allege that this conspiracy has resulted in the bilking of federal and state taxing authorities. (Compl. ¶ 29). 1 Plaintiffs also assert five additional state-law claims against Molina and other defendants. All of Plaintiffs’ claims against Cognizant are the subject of a pending motion to dismiss (Dkt. # 9-1) on the ground, inter alia, that they are preempted by federal immigration law. 2 Molina provides healthcare for financially vulnerable individuals and families under Medicare, Medicaid and other related programs. Cognizant is a provider of business process outsourcing services across various industries. Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 9 of 22 Page ID #:506 5 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES III. LEGAL DISCUSSION A. Standards For Removal A defendant may remove any action in which a United States District Court has original jurisdiction. 28 U.S.C. § 1441(a). “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Id. § 1331. Thus, “[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” Id. § 1441(b). Cognizant removed based on the existence of a federal question. While the “‘well-pleaded complaint rule,’ . . . provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint,” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987), the artful- pleading doctrine provides that “a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 22 (1983). Therefore, under the artful-pleading doctrine, a state-law complaint may state a federal claim for the purposes of removal in certain circumstances. Caterpillar, 482 U.S. at 393 (citation omitted). The circumstances sufficient for removal under the artful-pleading doctrine include: “(1) where federal law completely preempts state law; (2) where the claim is necessarily federal in character; or (3) where the right to relief depends on the resolution of a substantial, disputed federal question.” ARCO Envtl. Remediation, L.L.C. v. Dept. of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000) (citations omitted). If one of these circumstances exists, a federal court may allow removal even if a federal question does not appear on the face of the complaint. Id. In the present action, the third prong of the artful-pleading doctrine is applicable, as Plaintiffs’ right to relief depends upon the resolution of a substantial, Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 10 of 22 Page ID #:507 6 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES disputed federal question. See id. A plaintiff’s right to relief depends on the resolution of a substantial, disputed federal question if the state law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing the balance of state and federal systems. Grable, 545 U.S. at 314 (citations omitted). “A claim raises a substantial federal question when its resolution requires reference to or interpretation of federal law.” Nat’l Credit Reporting Assn., Inc. v. Experian Info. Solutions, 2004 WL 1888769, at *2 (N.D. Cal. July 21, 2004) (citing Hendricks v. Dynegy Power Mktg., Inc., 160 F.Supp.2d 1155, 1162 (S.D. Cal. 2001). A federal cause of action is not a necessary condition for federal question jurisdiction if the underlying predicate of a state claim is federal law. Grable, 545 U.S. at 317-318. That is our case here. B. Grable And Its Progeny Reaffirmed The Validity Of Federal- Question Jurisdiction Over State-Law Causes of Action The Supreme Court’s decision in Grable is highly instructive in this matter. In that case, the IRS seized Michigan property belonging to the petitioner in order to satisfy a federal tax delinquency. 545 U.S. at 310. After seizing the property, the IRS sold it to the defendant. Id. Although the petitioner received actual notice of the sale by certified mail, the IRS had failed to notify the petitioner by personal service, as required by 26 U.S.C. § 6335. Id. at 310-311. Five years later, Grable brought a quiet title action in state court, claiming that the defendant’s record title was invalid because the IRS had failed to notify Grable of its seizure of the property in the exact manner required by the federal statute. Id. at 311. The defendant removed the case to federal court as presenting a federal question, because the claim of title depended on the interpretation of the notice statute in the federal tax law. Id. The district court declined to remand the action after finding that the claim posed a “significant question of federal law,” and the Court of Appeals for the Sixth Circuit affirmed. Id. The Supreme Court affirmed, explaining: Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 11 of 22 Page ID #:508 7 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES This Court [has] recognized for nearly 100 years that in certain cases federal question jurisdiction will lie over state law claims that implicate significant federal issues. The doctrine captures the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude and hope of uniformity that a federal forum offers on federal issues. Id. at 312. In analyzing the contours of this doctrine, the Grable Court reasoned that federal jurisdiction must attach when a “state law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Id. at 314. Applying this standard to the facts before it, the Grable court held that the petitioner’s quiet title claim under Michigan law embodied sufficient federal issues to invoke federal-question jurisdiction. First, the Court noted that the outcome- determinative issue in the case was whether the IRS violated federal tax law when it failed to make proper service under the federal tax code. Id. at 315. Second, the Court observed that the meaning of the federal tax provision is an “important issue of federal law that sensibly belongs in federal court.” Id. In reaching this conclusion, the Court highlighted the federal government’s strong interest in the prompt and certain collection of delinquent taxes, the ability of the IRS to lawfully seize property and satisfy claims from tax delinquents, and the availability of a federal forum to vindicate its own administrative actions. Id. Finally, because only the “rare state quiet title action involves contested issues of federal law,” the Grable Court concluded that asserting federal jurisdiction in that case would not “materially affect” the “normal currents of litigation or the federal-state division of labor.” Id. Based upon these factors, the Court unanimously concluded that a federal forum was appropriate for petitioner’s state-law claim, notwithstanding the Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 12 of 22 Page ID #:509 8 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES absence (as in this case) of a parallel federal private right of action. Id. at 311-312 & n.2. Subsequent to Grable, federal courts throughout the country have, where appropriate, recognized federal question or removal jurisdiction over state-law claims. See, e.g., Rhode Island Fishermen’s Alliance, Inc., 585 F.3d at 49 (state- law claim challenging regulatory restrictions invoked federal-question jurisdiction because plaintiffs’ asserted right to relief under state law required a showing that retroactive control dates imposed by state agency were not compulsory under federal law); Nicodemus v. Union Pacific Corp., 440 F.3d 1227, 1234-35 (10th Cir. 2006) (state-law claims for trespass, unjust enrichment, and slander of title, based upon railroad’s licensing of right to install cable on railroad’s right-of-way, invoked federal-question jurisdiction, where rights-of-way were granted under federal land grants); Municipality of San Juan v. Corporaciớn Para El Fomento Econớmico De La Ciudad Capital, 415 F.3d 145, 148 n.6 (1st Cir. 2005) (federal jurisdiction proper where propriety of defendant’s conduct turned on its adherence to intricate federal regulatory requirements); Mitchell, 2010 WL 3340486, at *3 (upholding federal-question jurisdiction where plaintiffs’ right to relief depended on defendants’ alleged violation of the Fair Debt Collection Practices Act); Avila- Gonzalez, 2006 WL 643297, at *1 (exercising federal-question jurisdiction over guest workers’ state-law contract claims because they turned on interpretation of terms dictated federal immigration law); County of Santa Clara v. Astra USA, Inc., 401 F.Supp.2d 1022, 1026-27 (N.D. Cal. 2005) (federal-question jurisdiction over plaintiff’s state-law causes of action because the defendants’ alleged false billing turned on federal price limits); Becnel, 387 F.Supp.2d at 986 (upholding federal- question removal where resolution of plaintiffs’ tort claims depended on showing that the tax shelters on which defendant opined violated federal tax law); cf. Davis v. Brouse McDowell, L.P.A., 596 F.3d 1355, 1361-62 (Fed. Cir. 2010) (state-law claim for legal malpractice based upon counsel’s alleged negligent preparation and Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 13 of 22 Page ID #:510 9 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES filing of U.S. patent applications arose under federal patent law and invoked federal-question jurisdiction). C. Because Plaintiffs’ Right To Relief (If Any) Necessarily Depends Upon The Resolution Of Substantial and Contested Questions Of Federal Immigration Law, Removal To This Court Was Proper Plaintiffs’ protestations to the contrary notwithstanding, their Complaint against Cognizant hinges on federal law. Plaintiffs spell out the attestations that an employer must allegedly make to the DOL in an H-1B LCA. Specifically, Plaintiffs contend that to obtain an H-1B visa, an applicant/employer must submit a signed, sworn declaration affirming the following: (a) that it has made a diligent search for American and/or green card holders to fill a job opening, but that it could not find any qualified U.S. workers willing to perform the job; (b) that the H-1B applicant is both a college graduate and competent to perform the job duties for which he seeks employment; (c) that no current U.S. employee will be adversely affected by the hiring of the H-1B applicant within the hiring company; and (d) that the H-1B applicant will be paid the higher of the prevailing wage rate in the area or the same wages and benefits as others in the job description. (Compl. ¶ 40). Plaintiffs then contend that Cognizant made the foregoing attestations to the DOL, and that Cognizant’s sworn attestations were knowingly false. (Compl. ¶ 42). To establish any of their claims against Cognizant, Plaintiffs will be required to show that Cognizant violated federal law by submitting false LCAs to the DOL. Indeed, Exhibit 4 to Plaintiffs’ Complaint makes clear that “[m]aking fraudulent representations on this Form can lead to civil or criminal action under 18 U.S.C. § 1001, 18 U.S.C. § 1546, or other provisions of law.” (Compl., Exh. 4, § K). To prove that Cognizant did not comply with its disclosure requirements under federal law, Plaintiffs will be required to point to the applicable federal statutes and regulations governing such disclosures, as well as the applicability and scope of any exemptions that may affect these disclosure requirements (e.g., 20 C.F.R. § 655.737 (attestation obligations regarding displacement not applicable where, as here, the H- Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 14 of 22 Page ID #:511 10 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES 1B nonimmigrants received wages of at least $60,000)), Cognizant’s compliance with these statutes and regulations, and the legal effect of Cognizant’s LCA attestations to the DOL. The parties are hotly contesting all of these issues,3 In addition, Cognizant’s alleged false attestations form the basis of each of Plaintiffs’ state-law claims against Cognizant. (See, e.g., Compl. ¶¶ 40-44, 51-52, 77, 84, 90, 100-101, 108-109, 117-118 & Exh. 4). Plaintiffs also allege that, but for the DOL’s approval of the LCAs, the H-1B visa holders would not have been placed at the affected Molina site, these workers would not have displaced Plaintiffs, and the alleged wrongful terminations would not have occurred. (See Compl. ¶ 43). Thus, these disputed federal issues are essential to the resolution of Plaintiffs’ claims against Cognizant. Accordingly, Plaintiffs’ right to relief (if any) necessarily depends upon the resolution of substantial and contested questions of federal immigration law, and the first Grable requirement is satisfied. See, e.g., Avila-Gonzalez, 2006 WL 643297, at *1 (exercising federal-question jurisdiction over guest workers’ state- law contract claims because they turned on interpretation of terms dictated federal immigration law); cf. Davis, 596 F.3d at 1361-62 (state-law claim for legal 3 Thus, Plaintiffs’ reliance on decisions finding a lack of federal-question jurisdiction on the grounds that the defendants had failed to identify contested substantial federal issues is unavailing in this action. See, e.g., Eastman v. Marine Mech. Corp., 438 F.3d 544, 552-553 (6th Cir. 2006) (remanding action because, inter alia, the meaning of federal statute was not in dispute); Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006) (federal-question jurisdiction lacking because plaintiff’s subrogation claims did not implicate a substantial federal issue); Wexler v. United Air Lines, Inc., 496 F.Supp.2d 150, 153 (D.D.C. 2007) (remanding action where federal regulations were neither necessarily raised nor actually disputed by plaintiff ); Pennsylvania v. Eli Lilly & Co., Inc., 511 F.Supp.2d 576, 580 (E.D. Pa. 2007) (remanding action because, inter alia, complaint did not raise disputed issue of federal law); Colbert v. Union Pac. R.R. Co., 485 F.Supp.2d 1236, 1245-46 (D. Kan. 2007) (remanding action where defendants failed to identify the federal law that was essential to plaintiff’s claims). Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 15 of 22 Page ID #:512 11 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES malpractice based upon counsel’s alleged negligent preparation and filing of U.S. patent applications arose under federal patent law and invoked federal-question jurisdiction); Mitchell, 2010 WL 3340486, at *3 (upholding federal-question jurisdiction where plaintiffs’ right to relief depending on defendants’ alleged violation of the Fair Debt Collection Practices Act); Becnel, 387 F.Supp.2d at 986 (upholding federal-question removal where resolution of plaintiffs’ tort claims depended on showing that the tax shelters on which defendant opined violated federal tax law). Plaintiffs’ argument that their causes of action can stand upon alternative state-law theories and, therefore, the claims do not necessarily depend on federal law does not withstand scrutiny. It is well-settled – as set forth in more detail in Cognizant’s pending Motion to Dismiss (Dkt. # 9-1) – that immigration regulation is constitutionally left to the province of the federal government. Hines v. Davidowitz, 312 U.S. 52, 62 (1941) (“that the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by [the Supreme] Court”); Mathews, 426 U.S. at 84 (“it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens”); Sudomir, 767 F.2d at 1464 (“federal authority in the areas of immigration and naturalization is plenary”). As such, Plaintiffs’ reference to cases where the cause of action is underpinned by both federal and state law alleged wrongs are readily distinguishable. There is simply no authority that would allow Plaintiffs to enforce federal immigration under the guise of California state law. See, e.g., Wolf v. Bankers Life & Cas. Co., 519 F.Supp.2d 674, 688-90 (W.D. Mich. 2007) (remanding action because plaintiffs could still prevail on their negligence per se claim under state law even if court found no duty under federal statute to notify law Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 16 of 22 Page ID #:513 12 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES enforcement about former employee); Washington Cons. Group v. Raytheon Tech. Servs. Co., LLC, 760 F.Supp.2d 94, 104 (D.D.C. 2011) (remanding action because plaintiff’s tortious interference and unfair competition claims did not necessarily depend on whether defendants violated federal conflict-of-interest statutes and regulations). The second Grable requirement is also satisfied. Again, the federal interest in regulating immigration is unquestionably substantial. See Avila-Gonzalez, 2006 WL 643297, at *1 (“Federal question jurisdiction is appropriate because of the substantial federal interest in immigration matters and in seeing that businesses honor the obligations they assume in order to obtain governmental approval of their activities, as the Defendant did to obtain temporary labor certificates for importation of H-2A workers.”)4 “It is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.” Mathews, 426 U.S. at 84; see also Hines, 312 U.S. at 62 (federal supremacy in field of immigration is made clear by the Constitution); Plyer v. Doe, 457 U.S. 202, 225 (1982) (“[t]he States enjoy no power with respect to the classification of aliens”). In addition, Congress has directed the Secretary of Labor to establish a process for the receipt, investigation, and disposition of complaints regarding an H- 1B petitioner’s failure to meet a condition specified in an application or a petitioner’s misrepresentation of material facts in an application. 8 U.S.C. 4 Plaintiffs’ attempt to distinguish Avila-Gonzalez on procedural grounds is unavailing. In that case, the court first determined if it had subject-matter jurisdiction over the plaintiffs’ state-law claims before granting a default judgment. The court held that federal-question jurisdiction existed because all three Grable requirements had been met. Plaintiffs’ attempt to distinguish Avila-Gonzalez from this action on factual grounds is equally unavailing. Like the plaintiffs’ claims in Avila-Gonzalez, Plaintiffs’ claims in this action rise and fall on their proving a violation of federal law. Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 17 of 22 Page ID #:514 13 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES §1182(n)(2)(A). The Secretary of Labor has, in turn, delegated all such investigative and enforcement functions to the Administrator, Wage and Hour Division, Employment Standards Administration (“ESA”). 20 C.F.R. § 655.800(a). The enforcement of LCAs for employment of nonimmigrant professionals has been delegated to the Assistant Secretary for Employment Standards. 66 Fed. Reg. 29656 (May 31, 2001). Generally, complaints concerning misrepresentations in the LCA or failure of the employer to meet a condition specified in the application must be filed with the Administrator, Wage and Hour Division of ESA. 20 C.F.R. § 655.710(a). The Administrator will investigate where appropriate, and after an opportunity for a hearing, assess appropriate sanctions and penalties. Id. By contrast, complaints arising under 8 U.S.C. § 1182(n)(1)(G)(i)(II), alleging failure of the employer to offer employment to an equally or better qualified U.S. worker, or an employer’s misrepresentation regarding such offer(s) of employment, may be filed with the Department of Justice. 20 C.F.R. § 655.710(b). The Department of Justice will investigate where appropriate and will take such further action as may be appropriate under that Department’s regulations and procedures. Id. As for the authorities cited in Plaintiffs’ moving papers that found federal interests to be lacking, a close examination of those cases reveals that the federal interests that were at issue are not nearly as significant as the federal interest in regulating immigration. See Singh v. Duane Morris LLP, 538 F.3d 334, (5th Cir. 2008) (whether plaintiff had sufficient evidence that his trademark had acquired secondary meaning did not involve important issue of federal law); Mikulski v. Centerior Energy Corp., 501 F.3d 555, 570-571 (6th Cir. 2007) (concluding that the interpretation of federal law governing the effective date of an accounting provision that instructs companies on how to adjust their earnings and profits calculations to account for certain construction project interest expenses was not a substantial federal issue); Utah v. Eli Lily & Co., 509 F.Supp.2d 1016, (D. Utah 2007) (state’s interest in obtaining reimbursements for Medicaid payments was not tantamount to Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 18 of 22 Page ID #:515 14 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES the federal government’s interest in federal rights-of-way at issue in Nicodemus, supra, 440 F.3d at 1236-37); Pacific Gas & Elec. Co. v. Arizona Elec. Power Cooperative, Inc., 479 F.Supp.2d 1113, 1123 (E.D. Cal. 2007) (federal interests did not warrant federal-question jurisdiction because the federal tariffs that had been incorporated by reference into the contracts at issue were interpreted and governed by California law rather than by federal law). Finally, the third Grable requirement is met here because the exercise of federal jurisdiction will not “disturb[] any congressionally approved balance of federal and state judicial responsibilities.” Grable, 545 U.S. at 314. Pursuant to 8 U.S.C. § 1184(g)(1)(A)(vii), the total number of aliens who may be issued visas or otherwise provided nonimmigrant status may not exceed 65,000 per year after 2004. Therefore, federal-question jurisdiction in this matter would not open the judicial flood gates. Given the lack of a threat of inundating the federal courts, the absence of a private federal cause of action does undermine this conclusion. Grable, 545 U.S. at 318-321 (distinguishing Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986)). For these and other reasons set forth below, Plaintiffs’ Motion to Remand should be denied and removal should be upheld.5 5 The Court should deny Plaintiffs’ request for attorneys’ fees. Cognizant’s removal of this action was proper. Moreover, if the Court considers Plaintiffs’ request at this time, it should deny it because Cognizant had an objectively reasonable basis for seeking removal. See Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005) (attorneys’ fees generally unavailable if objectively reasonable basis exists for removal). Further, Plaintiffs should be required to submit a proper bill of costs and fees, together with attestations from competent professionals verifying the appropriateness of counsels’ rates per hour. The Court should also direct Plaintiffs’ counsel to explain who may ever have paid the rates that each Plaintiffs’ counsel now claim and why someone allegedly with a rate of $750/hour is doing legal research and why it would have taken 40+ hours at such a rate. Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 19 of 22 Page ID #:516 15 COGNIZANT'S OPPOSITION TO PLAINTIFF'S MOTION TO REMAND 2:11-CV-04974-JFW (MRW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES IV. CONCLUSION Plaintiffs have acknowledged that, unless they actually prove that Cognizant violated federal law, they cannot prevail upon any of their claims against Cognizant. The parties dispute not only whether Cognizant made false statements in violation of federal law, but also the nature and scope of Cognizant’s disclosure obligations, the applicability and scope of any exemptions that may affect these disclosure requirements, and the legal effect of Cognizant’s LCA attestations to the DOL. These disputes concern an area of substantial federal interest (i.e., immigration). Further, the exercise of federal jurisdiction will not disturb any congressionally approved balance of federal and state judicial responsibilities. Accordingly, Cognizant’s removal of this action was proper, and this Court should deny Plaintiffs’ Motion to Remand. Dated: July 1, 2011 MORGAN, LEWIS & BOCKIUS LLP By /S/ Barbara A. Fitzgerald Barbara A. Fitzgerald Attorneys for Defendant COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION, erroneously identified as COGNIZANT TECHNOLOGY SOLUTIONS Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 20 of 22 Page ID #:517 Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 21 of 22 Page ID #:518 Case 2:11-cv-04974-JFW-MRW Document 30 Filed 07/01/11 Page 22 of 22 Page ID #:519