Ramirez v. Anvil Builders, Inc.

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FERNANDO RAMIREZ, Case No. 23-cv-04598-HSG 8 Plaintiff, ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT 9 v. AND REMANDING CASE 10 ANVIL BUILDERS, INC., Re: Dkt. Nos. 6, 19 11 Defendant. 12 13 Before the Court are Defendant’s petition to compel arbitration, Dkt. No. 6, and 14 Defendant’s motion for partial summary judgment, Dkt. No. 19. The Court finds both matters 15 appropriate for disposition without oral argument and the matters are deemed submitted. See Civil 16 L.R. 7-1(b). The Court GRANTS the motion for partial summary judgment and REMANDS the 17 case to Alameda County Superior Court. 18 I. BACKGROUND 19 Plaintiff Fernando Ramirez worked as a laborer for Defendant Anvil Builders, Inc. 20 between July 2021 and June 2022. Dkt. No. 1-1, Ex. A (“Compl.”) ¶ 15. Plaintiff alleges that 21 during this period, Defendant did not pay him for his compensable “off the clock” work, including 22 time he spent traveling in a company truck to and from his jobsite and loading and unloading job 23 equipment. Id. ¶ 19. Plaintiff also alleges that Defendant failed to provide timely, compliant meal 24 and rest breaks. Id. ¶ 20. 25 In 2023, Plaintiff filed an action against Defendant in Alameda County Superior Court 26 alleging violations of the California Labor Code and California Unfair Competition Law (“UCL”). 27 Compl. at 1. Defendant removed the case to this Court based on federal question jurisdiction, 1 preempted some of Plaintiff’s claims. See Dkt. No. 1-1 at 4.1 Defendant then petitioned to 2 compel arbitration of Plaintiff’s claims for failure to pay minimum wages, failure to provide 3 accurate itemized wage statements, failure to pay wages when due, and his derivative UCL claim. 4 Dkt. No. 6 at 3. Shortly after, Defendant also filed a motion for partial summary judgment on 5 Plaintiff’s three remaining causes of action not subject to the petition to compel arbitration: failure 6 to pay overtime wages, failure to provide meal and rest periods, and derivative UCL claims. 7 Dkt. No. 19. Plaintiff opposes the petition to compel arbitration on the ground that the Court does 8 not have jurisdiction to hear the motion. See Dkt. No. 17 at 4. Plaintiff also opposes the motion 9 for partial summary judgment. Dkt. No. 20. 10 II. DISCUSSION 11 A. Federal Question Jurisdiction 12 As an initial matter, the Court must address the threshold issue of whether this Court’s 13 jurisdiction over Plaintiff’s claims is proper. Defendant removed Plaintiff’s case on the basis that 14 LMRA preemption gives the Court original jurisdiction over Plaintiff’s preempted claims, and 15 contends that the Court can assert supplemental jurisdiction over the other claims. See Dkt. No. 1- 16 1 at 4. In his opposition to the petition to compel arbitration, Plaintiff argues that the Court does 17 not have jurisdiction to hear the motion because Plaintiff’s claims are all statutory claims under 18 the California Labor Code, “none of which involves a federal question.” Dkt. No. 17 at 4. 19 Plaintiff appears only to contest the Court’s jurisdiction as to the arbitration motion rather than his 20 overall case. See Dkt. No. 17 at 18. But adopting Plaintiff’s argument in the context of the 21 arbitration petition would nonetheless require remand of the entire case, as the only basis 22 Defendant asserted for removal was federal question jurisdiction due to LMRA preemption. See 23 Dkt. 1-1, ¶¶ 4–8, 12–21. Accordingly, the Court will first address whether the LMRA preempts 24 some of Plaintiff’s claims and thus provides a basis for jurisdiction in this Court. 25 i. LMRA preemption standard 26 “Except as otherwise expressly provided by Act of Congress, any civil action brought in a 27 1 State court of which the district courts of the United States have original jurisdiction, may be 2 removed” to federal court. 28 U.S.C. § 1441(a). Under § 301 of the LMRA, “[s]uits for violation 3 of contracts between an employer and a labor organization . . . may be brought in any district court 4 of the United States.” 29 U.S.C. § 185(a). As explained by the Ninth Circuit, the Supreme Court 5 has interpreted the LMRA to authorize federal courts “to create a uniform body of federal 6 common law to adjudicate disputes that arise out of labor contracts.” Curtis v. Irwin Indus., Inc., 7 913 F.3d 1146, 1155 (9th Cir. 2019) (citations omitted). “A state rule that purports to define the 8 meaning or scope of a term in a contract suit therefore is pre-empted by federal labor law.” Id. at 9 1152 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985)). Although federal 10 preemption is a defense that does not generally authorize removal to federal court, the Supreme 11 Court has held that § 301 has such “extraordinary pre-emptive power” that it “converts an ordinary 12 state common law complaint into one stating a federal claim for purposes of the well-pleaded 13 complaint rule.” Metro. Life Ins. v. Taylor, 481 U.S. 58, 65 (1987). 14 However, § 301 “cannot be read broadly to pre-empt nonnegotiable rights conferred on 15 individual employees as a matter of state law.” Curtis, 913 F.3d at 1152 (quoting Livadas v. 16 Bradshaw, 512 U.S. 107, 123 (1994)). Further, “not every dispute concerning employment, or 17 tangentially involving a provision of a collective-bargaining agreement, is preempted by § 301 or 18 other provisions of federal labor law.” McCray v. Marriott Hotel Servs., Inc., 902 F.3d 1005, 19 1009 (9th Cir. 2018) (quoting Lueck, 471 U.S. at 211). Claims that have no relationship to a 20 collective-bargaining agreement “beyond the fact that they are asserted by an individual covered 21 by such an agreement are simply not pre-empted by § 301.” Id. (citation and quotations omitted). 22 The Ninth Circuit has employed a two-step test to ensure that § 301 preemption “extends 23 only as far as necessary to protect the role of labor arbitration in resolving CBA disputes.” Curtis, 24 913 F.3d at 1153 (citation and quotations omitted). First, the court asks whether the asserted cause 25 of action involves a “right [that] exists solely as a result of the CBA.” Burnside v. Kiewit Pac. 26 Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). “If the right exists solely as a result of the CBA, then 27 the claim is preempted, and our analysis ends there.” Id. (citing Lueck, 471 U.S. at 210). If not, 1 dependent on analysis of [the CBA],’ which turns on whether the claim cannot be resolved by 2 simply ‘look[ing] to’ versus ‘interpreting’ the CBA.” Curtis, 913 F.3d at 1153 (citations and 3 quotations omitted and alterations in original). “Interpretation” is construed narrowly in this 4 context. Id. If claims are dependent on interpretation of the CBA, then the claim is preempted by 5 § 301; if not, the claim may proceed under state law. Burnside, 491 F.3d at 1059–60. 6 ii. Analysis 7 Defendant argues that the LMRA preempts Plaintiff’s claims for failure to pay overtime 8 under California Labor Code Section 510 and failure to provide meal breaks and rest periods 9 under Labor Code Sections 226.7 and 512 and Industrial Welfare Commission Wage Order 16. 10 Dkt. No. 1-1 at 3 ¶ 13. Starting at the first step of the Burnside analysis, Defendant asserts that 11 these claims exist solely as a result of a collective bargaining agreement (“CBA”) and are 12 therefore preempted. Id. at 5 ¶ 17. 13 At the outset, the Court finds that Plaintiff is subject to the terms of a CBA. Defendant 14 was a signatory to the 2018-2023 Laborers Master Agreement between United Contractors and the 15 Northern California District Council of Laborers. See Dkt. No. 6-3, Ex. A. This CBA covers 16 Defendant as a signatory employer, and also covers “any employee who performs work falling in 17 the presently recognized jurisdiction” of the local Northern California laborers’ unions. See Dkt. 18 No. 6-3, Ex. A (“CBA”) §§ 1.A(1)(b), (3). According to his complaint, this would include 19 Plaintiff. See Compl. ¶ 2 (“At all relevant times herein, Plaintiff was employed with Defendant 20 Anvil Builders Inc. as a non-exempt laborer and was paid on an hourly basis.”).2 21 Plaintiff appears to concede that he was subject to the CBA. In his opposition to 22 Defendant’s petition to compel arbitration, Plaintiff only argues that “none of [his] claims involve 23 any rights existing from the CBA and none of the claims [are] dependent on analysis of the CBA.” 24 Dkt. No. 17 at 4. Similarly, in his opposition to Defendant’s motion for partial summary 25 judgment, Plaintiff does not dispute that the CBA applies to him, but contests whether its terms 26 2 Defendant submits a request for judicial notice of Plaintiff’s complaint and Defendant’s answer, 27 Dkt. No. 6-1, Exs. A–B. But the Court does not need to take judicial notice of pleadings filed in 1 exempt his claims from coverage under the state statutes. See generally Dkt. No. 20. The Court 2 therefore finds that the CBA is valid and applicable to Plaintiff, and turns to the question of 3 whether Plaintiff’s overtime, meal break, and rest period claims involve a “right [that] exists solely 4 as a result of the CBA.” Burnside, F.3d 1053 at 1059. 5 Beginning with Plaintiff’s Section 510 overtime claim, the Ninth Circuit held in Curtis v. 6 Irwin Industries, Inc. that the LMRA preempts such a claim if the CBA meets the requirements of 7 California Labor Code Section 514. Curtis, 913 F.3d at 1155. Section 514 states that Section 510 8 does “not apply to an employee covered by a valid collective bargaining agreement if the 9 agreement expressly provides for the wages, hours of work, and working conditions of the 10 employees, and if the agreement provides premium wage rates for all overtime hours worked and a 11 regular hourly rate of pay for those employees of not less than 30 percent more than the state 12 minimum wage.” Cal. Labor Code § 514. If a plaintiff is exempt from Section 510 by virtue of a 13 CBA that meets these requirements, then the plaintiff’s Section 510 claim for overtime is 14 “controlled” by the CBA and therefore preempted by § 301 of the LMRA. Curtis, 913 F.3d at 15 1155. 16 Having reviewed the CBA and Defendant’s declarations, the Court finds that the CBA 17 satisfies the requirements of Section 514. First, the CBA provides for wages, hours of work, and 18 working conditions. See CBA §§ 3 (specifying the conditions of employment, including hiring, 19 releasing, quitting, discharge, and discipline), 6 (setting out meal and rest periods), 13A-C (health 20 and safety conditions), 20(A) (specifying work days, work weeks, and overtime rates). The CBA 21 also provides for premium rates for overtime work. See id. §§ 20A(4) (providing that “[o]ne and 22 [one-half] (1 ½) times the regular straight time hourly rate shall be paid for all work on Saturdays 23 (except on make-up day) and before a shift begins and after it ends and “[d]ouble the hourly 24 straight-time rate shall be paid for all work on Sundays and holidays”), 20A(2)(c) (providing that 25 employees working a 4 x 10 workweek shall be paid at the applicable overtime rate for all work 26 “before a shift begins, after ten hours, and on Saturdays, Sundays and holidays” and for all hours 27 “in excess of forty (40) hours in any one (1) week”). Finally, the CBA provides a regular hourly 1 51 (setting hourly wage rates no lower than $22.23); Cal. Labor Code § 1182.12 (setting a 2 minimum wage of $10 per hour on or after January 1, 2016, and scheduled annual increases up to 3 $15 per hour on or after January 1, 2023). 4 In his opposition to the petition to compel arbitration, Plaintiff vaguely asserts that “none 5 of [his] claims involve any rights existing from the CBA and none of the claims [are] dependent 6 on analysis of the CBA.” Dkt. No. 17 at 4.3 But Plaintiff does not address Section 514 and the 7 directly applicable holding of Curtis, which controls his overtime claim. Accordingly, given that 8 Defendant has submitted adequate evidence of a qualifying CBA governing Plaintiff’s 9 employment, the Court finds that Plaintiff’s claim for unpaid overtime pursuant to Section 510 is 10 preempted under the first prong of Burnside. Thus, the Court has jurisdiction over the overtime 11 claim and would have supplemental jurisdictional over Plaintiff’s other claims, all of which derive 12 from a “common nucleus of operative fact.” Kuba v. 1-A Agr. Ass’n, 387 F.3d 850, 855 (9th Cir. 13 2004) (“Nonfederal claims are part of the same ‘case’ as federal claims when they derive from a 14 common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try 15 them in one judicial proceeding.”) (citation and quotations omitted). 16 Having found that jurisdiction is proper, the Court next addresses Defendant’s motion for 17 partial summary judgment, then Defendant’s petition to compel arbitration. 18 B. Motion for Partial Summary Judgment 19 Defendant seeks partial summary judgment on Plaintiff’s overtime, meal break, rest period 20 claims, and derivative UCL claim, on the basis that Plaintiff is exempt under all of the predicate 21 statutes underlying his claims, such that each claim fails as a matter of law. Dkt. No. 19 at 5. 22 Again, the Court will start with the Section 510 overtime claim. 23 i. Summary Judgment Standard 24 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 25 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 26 27 3 To the extent Plaintiff’s opposition to the motion for partial summary judgment raises arguments 1 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 2 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence in 3 the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. 4 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from 5 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. 6 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence 7 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), 8 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). 9 If, however, a moving party carries its burden of production, the nonmoving party must 10 produce evidence to support its claim or defense.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 11 210 F.3d 1099, 1103 (9th Cir. 2000). In doing so, the nonmoving party “must do more than 12 simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. 13 Indus. Co., 475 U.S. at 586. A nonmoving party must also “identify with reasonable particularity 14 the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 15 1996). If a nonmoving party fails to produce evidence that supports its claim or defense, courts 16 enter summary judgment in favor of the movant. Celotex Corp. v. Catrett, 477 U.S. 317, 323 17 (1986). 18 ii. Analysis 19 a. Overtime claim 20 Defendant argues that the Court should grant summary judgment in its favor on Plaintiff’s 21 overtime claim because Plaintiff is exempt under Section 510. Dkt. No. 19 at 11. As discussed 22 above in the context of LMRA preemption, the Court has found that Defendant has submitted 23 adequate evidence to establish that the CBA satisfies the requirements of Section 514 and 24 therefore exempts Plaintiff from coverage under Section 510. In his opposition to summary 25 judgment, Plaintiff maintains that the CBA fails to meet the requirements of Section 514 because 26 it does not provide premium wages for all overtime hours worked. See Dkt. No. 20 at 2. In 27 addition, Plaintiff argues that his overtime claim is “entirely predicated on his ‘off the clock’ travel 1 the CBA is “silent on the payment of wages” and the applicable rates for such “off the clock” 2 hours worked by laborers on a regular five-day workweek schedule. Id. at 3. According to 3 Plaintiff, this makes his overtime claim “independent of the collective bargaining agreement” and 4 thus not preempted by Section 510. See id. 5 First, Plaintiff’s description of the CBA’s overtime provisions is incorrect. The CBA 6 provides that, for laborers working a regular workweek, “[o]ne and [one-half] (1 ½) times the 7 regular straight time hourly rate shall be paid for all work on Saturdays (except on Saturdays) and 8 before a shift begins and after it ends.” See CBA § 20A(4) (emphasis added). The Court 9 acknowledges that the agreement includes this provision in a section titled “Weekends and 10 Holidays,” but its only plausible meaning is that it applies more broadly. Because the CBA 11 specifically provides that premium rates are paid for “all work on Saturdays” (meaning regardless 12 of work start and stop times), the phrase “before a shift begins and after it ends” must refer to the 13 premium rates that will be paid for overtime hours worked before and after a shift on any regular 14 workday (i.e., days other than Saturday). The CBA does provide premium wages for all overtime 15 hours. 16 Second, the fact that the CBA does not expressly define “off the clock” work as subject to 17 premium overtime pay does not mean that it fails to satisfy the requirements of Section 514. 18 Plaintiff fails to identify any authority mandating the inclusion of such language. Even so, as 19 Defendant points out, because the CBA provides that premium rates shall be paid for all hours 20 worked “before a shift begins and after it ends,” if an employee’s “off the clock” time is 21 compensable, it is “necessarily [] included” the CBA’s calculation of hours worked for the 22 purposes of the employee’s entitlement to overtime. See Dkt. No. 23 at 6. Moreover, Curtis 23 clarified that when employers and employees have negotiated a valid CBA, courts “look to the 24 CBA to determine the definition of ‘overtime’” rather than state law. See 913 F.3d at 1155 25 (discussing Vranish v. Exxon Mobil Corp., 223 Cal. App. 4th 103, 113 (2014)); see also Parker v. 26 Cherne Contracting Corp., No. 18-CV-01912-HSG, 2019 WL 359989, at *3 (N.D. Cal. Jan. 29, 27 2019) (rejecting similar argument that Section 514 did not apply “because the complaint allege[d] 1 clock work). As such, the Court finds that Section 514 exempts Plaintiff from coverage under 2 Section 510, and his overtime claim under that statute therefore fails as a matter of law. 3 b. Meal and rest period claims 4 Defendant next argues Plaintiff is similarly exempt under the state statutes that give rise to 5 his meal break and rest period claims. The Court agrees. 6 Plaintiff brings his meal break claims under California Labor Code Sections 512(e) and 7 226.7. But Section 512(e) does not apply to an individual “employed in a construction 8 occupation” if: (1) the employee is covered by a valid CBA, and 2) the CBA “expressly provides 9 for the wages, hours of work, and working conditions of employees, and expressly provides for 10 meal periods for those employees, final and binding arbitration of disputes concerning application 11 of its meal period provisions, premium wage rates for all overtime hours worked, and a regular 12 hourly rate of pay of not less than 30 percent more than the state minimum wage rate.” See Cal. 13 Labor Code § 512(e)-(f). Additionally, section 226.7 does not apply to “an employee who is 14 exempt from meal . . . period requirements pursuant to other state laws.” See id. § 226.7(e). Both 15 exemptions clearly apply here. There is no dispute that Plaintiff was “employed in a construction 16 occupation” as Defendant’s employee. Further, Defendant has established that the CBA is valid, 17 and expressly provides for the wages, hours of work, and working conditions of employees; 18 premium wage rates for all overtime hours worked; and a regular hourly rate of pay of not less 19 than 30 percent more than the state minimum wage rate. See supra discussion at p. 5. Finally, the 20 CBA expressly provides for meal periods and final and binding arbitration of meal period-related 21 disputes. See CBA § 6A-D. 22 Plaintiff is similarly exempt from coverage under the state rest period statutes, Wage Order 23 16 and Section 226.7. Section 11 of Wage Order 16 exempts “any employee covered by a valid 24 collective bargaining agreement if the collective bargaining agreement provides equivalent 25 protection.” 8 Cal. Code Regs. § 11160(11)(E). Further, an employee exempt from the rest period 26 provisions of Wage Order 16 is also exempt from those of Section 226.7. See Cal. Labor Code § 27 226.7(e). Here, the protections of the CBA appear equivalent to those outlined in Wage Order 16. 1 net rest time for every four (4) hours worked, or major fraction thereof”) with CBA § 6B 2 (authorizing employees to take a ten-minute rest period for each 4-hour segment of shift). 3 In his opposition to summary judgment on the meal and rest period claims, Plaintiff asserts 4 a similar version of the argument he raised in defending his overtime claim: because the CBA 5 “does not provide premium wages for ‘off the clock’ travel time outside of [Plaintiff’s] shift,” it 6 fails to provide premium wages for all hours worked and cannot qualify for any of the relevant 7 exemptions as a result. See Dkt. No. 20 at 4. This argument fails in this context for the same 8 reasons already discussed. See supra discussion at p. 7–8. On the rest period claim, Plaintiff 9 further argues that the CBA does not meet Wage Order 16’s requirement of equivalent protection 10 because it calculates rest period times based on “each 4-hour segment of their assigned work 11 shift,” see CBA § 6B, and therefore “does not account for employees’ nonproductive travel time 12 before and after their assigned shift.” See Dkt. No. 20 at 7. The Court does not find this parsing 13 of words persuasive. The CBA defines a “shift” as eight or ten “consecutive hours” worked, 14 meaning that compensable off-the-clock work would be included in the calculation of total hours 15 worked for rest periods. See CBA §§ 20A.2, 2(c). And to the extent the word “shift” creates any 16 ambiguity, the CBA clarifies that its rest period requirements “will be interpreted consistently with 17 the rest period requirements of IWC Order 16.” Id. § 6B. 18 Finally, the portion of Plaintiff’s UCL claim that is derivative of the claims discussed 19 above also fails as a matter of law. See Estrada v. Kaiser Foundation Hospitals, 678 Fed. Appx. 20 494, 497 (9th Cir. 2017) (finding that where a cause of action derives from a preempted claim, the 21 derivative cause of action also fails). 22 The Court thus GRANTS Defendant’s motion for partial summary judgment on Plaintiff’s 23 Section 510 overtime and meal and rest period claims, and the portion of his UCL claim that is 24 derivative of those claims. 25 C. Petition to Compel Arbitration 26 Defendant seeks to compel arbitration of Plaintiff’s remaining claims: failure to pay 27 minimum wages; failure to provide accurate itemized wage statements; failure to pay wages when 1 that because the Court has supplemental jurisdiction over these claims, “it can and must rule” on 2 the petition to compel arbitration. Dkt. No. 18 at 2. 3 The Court disagrees that it “must rule” on a petition directed to non-preempted state law 4 claims. A district court may decline to exercise supplemental jurisdiction once it has dismissed 5 the claims over which it has original jurisdiction, as is the case here. 28 U.S.C. § 1367(c). 6 Another judge in this district recently addressed this unique procedural posture and a virtually 7 identical set of issues in Brumble v. Andrew M. Jordan, Inc., No. 23-CV-01336-RS, 2023 WL 8 4053418 (N.D. Cal. June 16, 2023). In that case, the court declined to exercise supplemental 9 jurisdiction to rule on the petition to compel arbitration, noting that by seeking summary judgment 10 on the preempted claims and arbitration of the remaining claims, the defendant had already 11 precluded a single adjudication of claims arising from the same set of facts, which was “[t]he very 12 basis on which [the defendant] argue[d] [the] court should exercise supplemental jurisdiction.” 13 See Brumble, 2023 WL 4053418, at *4. In addition, the court reasoned that “the determination 14 that certain claims [were] preempted ha[d] not required substantive analysis of the underlying 15 facts or remaining claims such that there would be any judicial efficiencies in exercising 16 supplemental jurisdiction were arbitration not ordered.” See id. Thus, the question of whether the 17 plaintiff’s state law claims were subject to arbitration was “more appropriately addressed by the 18 state courts.” See id. The Court finds the reasoning of Brumble persuasive. Accordingly, the 19 Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims 20 and remands the case to state court. See Slidewaters LLC v. Washington State Dep’t of Lab. & 21 Indus., 4 F.4th 747, 761–62 (9th Cir. 2021) (affirming district court’s order remanding case after 22 declining to exercise supplemental jurisdiction under § 1367(c) over remaining state law claims). 23 // 24 25 // 26 27 // 1 Wl. CONCLUSION 2 The Court GRANTS Defendant’s motion for summary judgment in its favor as to 3 || Plaintiffs overtime, meal period, and rest period claims, as well as the portion of Plaintiff's unfair 4 || competition claim arising from those claims, Dkt. No. 19. This case is hereby REMANDED to 5 || Alameda County Superior Court. The Clerk is further directed to terminate without prejudice 6 || Defendant’s petition to compel arbitration, Dkt. No. 6, and to close the file. 7 IT IS SO ORDERED. 8 || Dated: 9/23/2024 9 ° Aaya S. GILLIAM, JR. / 10 United States District Judge 11 a 12 13 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28