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Pereira v. Gate Gourmet

April 30, 2009

MIRNA E. PEREIRA, INDIVIDUALLY AND ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED, PLAINTIFF,
v.
GATE GOURMET, INC. DEFENDANT.



The opinion of the court was delivered by: Margaret M. Morrow, United States District Judge

ORDER REMANDING ACTION TO LOS ANGELES SUPERIOR COURT FOR LACK OF SUBJECT MATTER JURISDICTION

I. FACTUAL BACKGROUND

Mirna Pereira filed this putative class action in Los Angeles Superior Court on October 8, 2008.*fn1 The complaint pleads two causes of action: (1) failure to pay wages in a timely fashion following termination in violation of California Labor Code §§ 201 and 202 and (2) unfair competition in violation of California Business and Professions Code § 17200. Defendant Gate Gourmet, Inc., removed the action to federal court on November 12, 2008,*fn2 invoking diversity jurisdiction under 28 U.S.C. §§ 1332, 1441, 1446, and 1453.*fn3

On December 8, 2008, the court issued an order to show cause why the action should not be remanded to state court for lack of subject matter jurisdiction, citing deficiencies in Gate Gourmet's notice of removal regarding the alleged amount in controversy ("December 2008 OSC").*fn4 Gate Gourmet filed a brief on December 15, 2008.*fn5 Pereira responded on December 22, 2008.*fn6

On January 26, 2009, the court issued a second order to show cause why the action should not be remanded to state court for lack of subject matter jurisdiction, citing deficiencies in Gate Gourmet's response to the first order to show cause ("January 2009 OSC").*fn7 Gate Gourmet filed a brief on February 4, 2009.*fn8 Pereira responded on February 11, 2009.*fn9

II. DISCUSSION

A. Legal Standard Governing Removal Jurisdiction Under the Class Action Fairness Act

The December 2008 OSC set forth the legal standard governing removal jurisdiction under the Class Action Fairness Act ("CAFA"); that discussion is incorporated in this order by reference. In the December order, the court explained that the Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction," and thus that "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988), Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985), and Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1992)). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990) and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)). CAFA does not disturb the traditional rule that the burden of establishing that removal is

proper is on the proponent of federal jurisdiction. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006) ("We . . . hold that under CAFA the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdiction").

Where, as here, a complaint does not specify the amount in controversy, the removing defendant must prove, by a preponderance of the evidence, that the jurisdictional amount is met. See, e.g., Korn v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199, 1205 (E.D. Cal. 2008) ("In addition to the contents of the removal petition, the court considers 'summary-judgment-type evidence relevant to the amount in controversy at the time of removal,' such as affidavits or declarations. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (internal quotations omitted). . .").*fn10

B. Whether Defendant Has Established That Removal is Proper

1. Defendant's Notice of Removal

Under California Labor Code § 203, when an employee is discharged or resigns, an employer who fails to timely pay wages owed to that individual is liable for a penalty amounting to one day of pay for each day the wages are late, up to a maximum of 30 days. See CAL. LAB.

CODE ยง 203 ("If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days"). The complaint alleges violations of Labor ...


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