                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          SEP 6 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JOHN BUSKER, on behalf of himself and            No.    17-55165
all others similarly situated and the general
public,                                          D.C. No.
                                                 2:15-cv-08194-ODW-AFM
                Plaintiff-Appellant,

 v.                                              MEMORANDUM*

WABTEC CORPORATION, a
Pennsylvania corporation; MARK
MARTIN, an individual; DOES, 1 through
100,

                Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                       Argued and Submitted August 8, 2018
                               Pasadena, California

Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,** District Judge.

      Plaintiff, John Busker, filed a putative class action in state court alleging



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
Wabtec Corporation and its employee, Mark Martin (collectively, “Wabtec”),

violated California’s prevailing wage law. Wabtec removed the action to federal

court under the Class Action Fairness Act (“CAFA”). Busker appeals the district

court’s denial of his motion to remand the case to state court and the district court’s

grant of summary judgment. We have appellate jurisdiction under 28 U.S.C.

§ 1291. We affirm the denial of the motion to remand, and we reject one of

Busker’s three theories in favor of coverage by the prevailing wage law.1

      1.     We review a decision denying a motion to remand de novo. ARCO

Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Montana, 213

F.3d 1108, 1111 (9th Cir. 2000). “The local controversy exception to CAFA

jurisdiction is a narrow exception,” and the plaintiff “bear[s] the burden of showing

its application.” Allen v. Boeing Co., 821 F.3d 1111, 1116 (9th Cir. 2016) (citing

Benko v. Quality Loan Serv. Corp., 789 F.3d 1111, 1116 (9th Cir. 2015)). But if

the exception applies, remand is mandatory. Id. (citing 28 U.S.C. § 1332(d)(4)).

      The local controversy exception has four elements. See 28 U.S.C.

§ 1332(d)(4)(A). The only element at issue here is the presence of a “significant”


      1
              Busker’s statutory theories present close questions on which the
language of the statute and California case law provide no definitive answer. In a
concurrently filed order, we certify to the Supreme Court of California a question
of state law addressing Busker’s two statutory theories. The answer to the certified
question is needed to resolve Busker’s challenges to the grant of summary
judgment.


                                          2
local defendant. To meet this element, Busker must show that at least one

defendant (1) is a citizen of California (2) “from whom significant relief is sought”

and (3) “whose alleged conduct forms a significant basis for the claims asserted” in

the complaint. 28 U.S.C. § 1332(d)(4)(A)(i)(II). To determine if the plaintiffs

seek “significant relief” from the local defendant, the Ninth Circuit “look[s] to the

remedies requested” in the complaint. Benko, 789 F.3d at 1119. “To determine if

the ‘basis for the claims’ against [the local defendant] is important or fairly large in

amount or quantity,” the court “compare[s] the allegations against [the local

defendant] to the allegations made against the other [d]efendants.” Id. at 1118.

      The only allegations in the complaint specifically about the sole local

defendant, Martin, are that he “was an employee, agent, and/or representative of”

Wabtec and that he, as a “project manager” of Wabtec, “on behalf of his employer

violated, or caused to be violated certain provisions of the Labor Code.” Busker

does not specifically allege Martin’s role in the conduct that is the basis of the

complaint.

      This case is qualitatively distinct from both Benko and Allen, the primary

cases Busker cites. In both Benko and Allen, the local defendants were alleged to

have acted independently from the other defendants as a principal wrongdoer. In

contrast, here, Martin’s sole alleged conduct was undertaken as an agent of

Wabtec, which is Busker’s employer and the real target of his action for unpaid



                                           3
wages. Martin’s liability could arise, if at all, only derivatively through his role as

an agent of Wabtec. We agree with Wabtec that Busker’s non-specific allegations

about Martin are insufficient to satisfy the local controversy exception.2

      2.     “We review de novo a district court’s grant of summary judgment.”

Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 447 (9th Cir. 2018). The

construction of a contract is a question of law we review de novo. Davis v. Yageo

Corp., 481 F.3d 661, 673 (9th Cir. 2007).

      Busker advances three independent arguments for why he is entitled to a

prevailing wage: (1) the “on-board work” performed by Wabtec employees

constitutes “construction” and “installation” as those terms are used in California

Labor Code § 1720(a)(1); (2) the on-board work is sufficiently related to the “field

installation work” performed on the wayside (which the parties agree is covered by

the prevailing wage law); and (3) Wabtec is contractually obligated to pay a

prevailing wage. We address here only Busker’s breach of contract theory.

      We agree with Busker that the district court erred in not addressing his

breach of contract theory, but we reject his breach of contract theory on its merits.

Although Busker raised this theory for the first time in his opposition to the


      2
             In Benko, we held that the district court erred in denying leave to
amend and disregarding the plaintiffs’ proposed amended complaint. Benko, 789
F.3d at 1117. But here, Busker did not proffer to the district court or state in his
appellate briefs what new allegations he could make that would satisfy the
requirements of the local controversy exception.

                                           4
summary judgment motion, his operative complaint may fairly be read as

containing the factual basis for a breach of contract claim. See Am. Timber &

Trading Co. v. First Nat’l Bank of Oregon, 690 F.2d 781, 786 (9th Cir. 1982) (“A

party need not plead specific legal theories in the complaint, so long as the other

side receives notice as to what is at issue in the case.”); cf. Pickern v. Pier 1

Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (affirming summary

judgment where the complaint did not give fair notice of the factual basis for a

claim raised for first time in opposition to summary judgment). But we see no

basis for holding that Wabtec had a contractual duty to pay a prevailing wage.

Busker’s case thus turns on the viability of his statutory theories (on which we

certified a question to the Supreme Court of California). See Tippett v. Terich, 37

Cal. App. 4th 1517, 1534 (1995), abrogated on other grounds by Cortez v.

Purolator Air Filtration Prods. Co., 23 Cal. 4th 163 (2000) (“[T]he absence of

specific contractual obligations on the part of the contractor indicates that the

employee has no common-law contract remedies and that he or she must then

proceed under a breach of statutory duty theory.”).

      The denial of Busker’s motion to remand the case to state court is

AFFIRMED.

      The foregoing disposition pertains only to the district court’s denial of

Busker’s motion to remand under CAFA and one of Busker’s theories for



                                            5
entitlement to a prevailing wage. As to Busker’s remaining arguments challenging

the grant of summary judgment, appellate proceedings are stayed pending final

action by the Supreme Court of California in response to this court’s order

certifying a question of state law to that court. This case is withdrawn from

submission. The panel retains jurisdiction over further proceedings.




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