1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NESTOR GIOVANNI RODRIGUEZ Case No. 23-cv-05304-PCP ESCALANTE, 8 Plaintiff, ORDER DENYING MOTION TO 9 REMAND v. 10 Re: Dkt. No. 13 MICHAEL FLORES, 11 Defendant.

12 13 Plaintiff Nestor Giovanni Rodriguez Escalante filed this lawsuit against defendant Michael 14 Flores in September 2023 alleging harassment and requesting a temporary restraining order 15 (TRO). After the state court granted Escalante’s requested TRO, Flores removed the case to 16 federal court, contending that Escalante’s claim is preempted by federal labor law. Escalante now 17 asks this Court to remand the lawsuit to state court for lack of subject matter jurisdiction. 18 The facts and procedural history in this case are nearly identical to those in the related case 19 Mitchell v. Flores. After participating in a three-day strike protesting his employer Premier’s 20 purported unfair labor practices in May 2023, Flores was fired in August 2023. Since his firing, 21 Flores has been engaged in ambulatory situs picketing against Premier, which involves 22 participating in a moving picket line at sites where Premier conducts regular business. Robert 23 Mitchell, an Operations Manager at Premier, then filed a lawsuit against Flores in California state 24 court alleging harassment and requesting a TRO. The state court granted the requested TRO, after 25 which Flores removed the case to federal court and Mitchell then moved to remand. In Mitchell, 26 the Court denied plaintiff Robert Mitchell’s motion to remand because Flores produced evidence 27 supporting this Court’s exercise of federal question jurisdiction and the factual disputes relating to 1 Here, Escalante filed a similar lawsuit against Flores in California state court alleging 2 || harassment. Dkt. No. 1-1. Like the allegations in Mitchell, Escalante alleges that Flores threatened 3 || his safety by calling him a “b*tch” and by warning Escalante that he should “be careful.” Jd. at 13. 4 || Escalante also alleges that Flores harassed him for being Mexican, stalked Escalante by chasing 5 || him with a police siren, and flashed hand signs at Escalante that insinuated violence. Jd. at □□□□□□ 6 || But as in Mitchell, Flores denies these allegations and responds that he was only engaged in 7 picketing activities protected by the NLRA. /d. at 49; Dkt. No. 12, at 5 (suggesting that Flores has 8 “never harassed, intimidated, molested, attacked, struck, threatened, assaulted, hit, abused, 9 || destroyed the personal property of, or disturbed the peace” of Escalante). Flores also contends that 10 || the TRO against him, which requires him to stay 300 yards away from Escalante, effectively 11 prohibits Flores from engaging in lawful picketing activity at Premier workplaces and ambulatory 12 situses. Dkt. No. 12, at 5. Flores thus argues that Escalante’s state law claim for civil harassment is 5 13 completely preempted by the NLRA, providing this Court with jurisdiction under

1331.

; San Diego Building Trades Council v. Garmon,

(1959). In 3 15 || response, Escalante counters: “I have not stopped Mr. Flores from any picketing activity[.] I have a 16 || only asked him to stop harassing me and to respect me.” Dkt. No. 13, at 7. 3 17 For the same reasons articulated in Mitchell, the Court finds that it has subject matter S 18 || jurisdiction here because there is a factual dispute concerning NLRA preemption that is both 19 || material to the Court’s jurisdiction and intertwined with the merits of the case. See DeFiore v. 20 SOC LLC,

, 553 (9th Cir. 2023); see also Leite v. Crane Co.,

, 1122 n.3 21 (9th Cir. 2014) (noting that where a factual dispute concerning jurisdiction is “intertwined with an 22 || element of the merits of the plaintiff’s claim,” a court must leave its resolution “to the trier of 23 fact”). Escalante’s motion to remand is therefore similarly denied. 24 IT IS SO ORDERED. 25 Dated: June 20, 2024 26

P. Casey Pitts 28 United States District Judge