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Sweet v. United Parcel Service


June 15, 2009


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER DENYING MOTION TO REMAND [Motion filed on May 11, 2009]

This matter comes before the Court on Plaintiff Nancy Sweet's Motion to Remand this action to the Superior Court of the State of California. Plaintiff argues that Defendant's removal represents an impermissible successive removal which asks the Court to reconsider Judge Anderson's December 29, 2008 order remanding the action. After reviewing the materials submitted by the parties and considering the arguments therein, the Court denies the Motion to Remand for the reasons discussed below.


Plaintiff Nancy Sweet ("Plaintiff" or "Sweet") filed this action in California state court on October 14, 2008. See Lake Decl., Ex. F at 33 (hereinafter cited as "Compl."). The Complaint seeks damages and equitable relief for a number of state law wage and hour claims against Sweet's employer, United Parcel Service ("UPS" or "Defendant"). The Complaint alleges that Sweet "is a resident of Los Angeles County, State of California." Compl. ¶ 1. UPS was served with process in the action on November 4, 2008. Lake Decl., Ex. A at ¶ 2.

A. The Marlo Case

The Complaint states that Plaintiff "is a former class member of the case entitled: Michael Marlo v. UPS, Case No. CV03-4336 DDP." Compl. ¶ 11.*fn1 As both a class action and an individual action, Marlo has been vigorously litigated. Marlo was filed as a class action on behalf of a class composed of all UPS employees working in California in the capacity of Full-Time Preload Supervisors, Full-Time Package Center Supervisors, and Full-Time Hub Operations Supervisors. The Court certified the class on June 10, 2004. In the spring of 2008, in light of concerns about class-wide proof, predominance, and superiority, the Court considered briefing from the parties on whether the action could still be maintained as a class action. On May 19, 2008, the Court decertified the class because the individualized inquiry that was required by the UPS employment structure and the particular legal theories at issue made class treatment problematic as both a legal and a practical matter. From the time Marlo was filed until the Ninth Circuit declined to take interlocutory review of the Court's decertification order in Marlo, the statute of limitations on Plaintiff's individual claims was tolled because Plaintiff was represented in the Marlo litigation.

B. First Removal of This Action

On December 3, 2008, UPS filed removed the action on the basis of diversity jurisdiction. The First Notice of Removal alleged that "Plaintiff's Complaint alleges that Plaintiff was and is a citizen of the State of California." Lake Decl., Ex. A at ¶ 7 (citing Compl. ¶ 1). The First Notice of Removal further alleged that UPS was and is a citizen of the State of Ohio and the State of Georgia. Id. at ¶ 8. Additionally, the First Notice of Removal alleged that the amount in controversy was in excess of $75,000. Id. at ¶ 11(a)-(b). On removal, the case was assigned Case No. CV 08-7948 PA (AGRx) and to the Honorable Percy Anderson.

On December 29, 2008, Judge Anderson issued an in-chambers order remanding the action sua sponte.*fn2 Lake Decl., Ex. B. Relying in part on the Ninth Circuit's decision in Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001), Judge Anderson found that the Notice of Removal did not contain sufficient allegations concerning Plaintiff's citizenship. Lake Decl., Ex. B at 10. In particular, Judge Anderson noted that the Complaint alleged Plaintiff's residence, not her citizenship, and the Notice of Removal's reliance on that allegation was insufficient to plead citizenship. Id. For similar reasons, Judge Anderson suggested that the Complaint did not give notice of removability. Id. In sum, Judge Anderson held:

Because neither the "four corners" of the complaint nor the Notice of Removal contain sufficient allegations concerning Plaintiff's citizenship, Defendant has not met its burden to establish this Court's jurisdiction. Accordingly, the Court remands this action to Los Angeles Superior Court, Case Number BC399800, for lack of federal subject matter jurisdiction.

Id. (citations omitted).

C. Second Removal of This Action

Following remand, the parties engaged in discovery. UPS received Plaintiff's responses to UPS's special interrogatories on March 24, 2009 and took Plaintiff's deposition on March 24 and March 26, 2009. Lake Decl. ¶¶ 6-7. At her deposition, Plaintiff testified that she has lived in California her whole life, that currently lives in California, that she does not intend to leave California, and that she owns property in California. Id., Ex. B at 21:11-14, 22:1-6, 22:12-14.

Defendant filed its Second Notice of Removal on April 16, 2009, also on the basis of diversity jurisdiction. Lake Decl., Ex. F at 28. Defendant's Second Notice of Removal alleges that the successive petition is based on the new information obtained through discovery, including intent to remain, that was unavailable at the time of the First Notice of Removal. Id. at 26-28. The case was initially assigned to the Honorable A. Howard Matz; it was transferred to this Court when it was deemed related to Marlo v. UPS, Case No. CV 03-4336. See Doc. No. 12 (April 24, 2009).

Plaintiff filed this Motion to Remand on May 11, 2009. Plaintiff's motion seeks remand only on procedural grounds. In her Motion, Plaintiff argues that this case should be remanded because successive notices of removal are only allowed where the successive notice of removal is based on newly discovered facts not available at the time of the first removal, and Plaintiff's employment history with UPS and the litigation history of the Marlo action could were "available" to UPS at the time of the First Removal. Additionally, Plaintiff suggests that UPS seeks reconsideration of Judge Anderson's remand order.


"When a plaintiff moves to remand, the removing party has the burden of establishing by a preponderance of the evidence that removal was proper." Mattel, Inc. v. Bryant, 441 F. Supp. 2d 1081, 1089 (C.D. Cal. 2005). There are two basic components to a proper removal: an action must be removable to federal court, see 28 U.S.C. § 1441(a), and removal must be procedurally proper, see 28 U.S.C. § 1446. Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court . . . embracing the place where such action is pending." 28 U.S.C. § 1441(a). Section 1446 sets procedural requirements for removal. Pursuant to 28 U.S.C. § 1446(b), a defendant must file a notice of removal within thirty days of learning that an action is removable.

Where a court has previously remanded a removed action for a defendant's failure to meet its burden, successive notices of removal, though not necessarily barred, generally must be based on information not available at the prior removal. Mattel, 441 F. Supp. 2d at 1089 (citing 16 James Wm. Moore et al., Moore's Federal Practice § 107.30[4] (3d ed. 2004)); Barahona v. Orkin, 2008 WL 4724054 (C.D. Cal. October 21, 2008); see St. Paul & C. Ry. Co. v. McLean, 108 U.S. 212, 217 (1883)(failure to comply with procedural requirements can bar successive removal on same grounds). A successively-removing defendant may not seek reconsideration of the district court's prior remand order. 28 U.S.C. § 1447(d); Seedman v. U.S. Dist. Court for the C.D. Cal., 837 F.2d 413, 414 (9th Cir. 1988) (per curiam).


After consideration of the procedural history of this case and the applicable law, the Court finds that the successive removal was proper and denies the Motion to Remand.

A. Legal Standard: Section 1446(b), Harris, and Successive Removal

This motion raises two central issues: (1) the "four corners" rule that triggers 28 U.S.C. § 1446(b)'s thirty-day time period for removal and (2) the principle that, consistent with a public policy that "guards against premature and protective removals and minimizes the potential for a cottage industry of removal litigation," successive removals must be based on new information. Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005). Although Plaintiff's Motion more directly relies on the latter issue, the "four corners" rule bears on the issue of successive removal by informing the basis on which Defendant's first Notice of Removal should have been filed, and because Plaintiff challenges the evidence on which Defendant should have been required to rely.

Section 1446(b) addresses the time within which an action must be removed and when the clock begins to run. Pursuant to 28 U.S.C. § 1446(b), a defendant must file a notice of removal within thirty days from the date he first objectively learns that an action is removable. A defendant may learn that an action is removable in one of two ways: through the face of the initial pleadings or through the receipt "of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b).

In Harris v. Bankers Life & Casualty Co., the Ninth Circuit addressed when the thirty-day removal clock was triggered in situations where "it is unclear from the complaint whether the case is removable." 425 F.3d at 692-93. The court considered and rejected the proposition that a defendant has a duty to investigate -- in its own records or otherwise -- a basis for removal when the pleading does not disclose one on its face. It also rejected the suggestion that the defendant's subjective knowledge or a "clue" in the complaint might trigger the thirty-day clock. Rather, the court held that "notice of removability under § 1446(b) is determined through the four corners of the applicable pleadings." Id. at 694. Thus, "[i]f no ground for removal is evident in [the initial] pleading, the case is 'not removable' at that stage. In such a case, the notice of removal may be filed within thirty days after the defendant receives 'an amended pleading, motion, order or other paper' from which it can be ascertained from the face of the document that removal is proper." Id. In other words, to give notice of removability, a pleading or paper in the case must disclose a basis for removal within its four corners. See Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (using the term "notice of removability").

The Harris court opined that its bright-line rule addressed important policy goals served by the removal statutes. Echoing a concern articulated by other courts, the Harris court explained that it sought to avoid mini-trials on § 1446(b). 425 F.3d at 697. In particular, the court noted that "a bright-line approach" served the jurisdictional and procedural interests of bringing certainty and predictability to the process, avoiding gamesmanship in pleading, and "avoid[ing] the spectre of inevitable collateral litigation over whether the pleadings contained a sufficient 'clue,' whether defendant had subjective knowledge, or whether defendant conducted sufficient inquiry." Id.

Plaintiff's Motion more directly raises the issue of successive removal. Successive removals, though not favored, are available in some situations. Mattel, 441 F. Supp. 2d at 1089 (citing 16 James Wm. Moore et al., Moore's Federal Practice § 107.30[4] (3d ed. 2004)). Defendants are precluded from seeking a second removal on the same facts, but can do so when there is new evidence. For example, in S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 493-94 (5th Cir. 1996), the Fifth Circuit held that a successive removal was available because a deposition taken after the prior removal provided a new factual basis for the removal. Additionally, the successive removal was not untimely because notice of removability had not been triggered until the deposition. See also Mattel, 441 F. Supp. 2d at 1090.

B. Successive Removals in This Case

The Court finds that successive removal is appropriate here because the statement about residency did not provide notice of removability and because the successive removal was based on new information obtained in this case. Because the Court finds that the procedural aspects of removal have been satisfied and because the Court is otherwise satisfied that it has diversity jurisdiction, the Court denies the Motion to Remand.*fn3

In this case, Plaintiff's allegation regarding residency was not sufficient to trigger the thirty-day time period under § 1446(b) (though, in light of its first removal, the allegation undoubtedly gave UPS a "clue" as to diversity jurisdiction). An individual's citizenship for the purposes of diversity jurisdiction "is determined by her state of domicile, not her state of residence." Kanter, 265 F.3d at 857. "A person's domicile is her permanent home, where she resides with the intention to remain or where she intends to return. . . . A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of the state." Id. (citations omitted). Because the Complaint only alleged residence, its "four corners" did not disclose diversity of citizenship. In moving to remand, Plaintiff does not argue that the Complaint triggered the thirty-day time period, but rather that Defendant had evidence "available" to it sufficient to satisfy its burden regarding citizenship. Under Harris, however, UPS was not required to investigate the basis for diversity jurisdiction. Cf. Mattel, 441 F. Supp. 2d at 1089-90. Because notice of removability was triggered only by the Plaintiff's deposition, the second removal was timely filed.*fn4

Additionally, successive removal is appropriate here because Defendant's Second Notice of Removal was based on new information not previously available through this litigation. In particular, the information regarding intent to remain -- which is what was deemed lacking in the Complaint by Judge Anderson -- came directly from Plaintiff's deposition, taken in March 2009, after the prior remand. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 493-94 (5th Cir. 1996) (finding that successive removals on the same ground could be triggered by different factual support, such as a deposition, not previously available). Although Defendant arguably could have made a case for citizenship had it investigated its own files, holding that such information was available in a way that precludes successive removal would appear to undermine the "four corners" doctrine; rather, taking Harris's "four corners" rule and the principles of successive removal together suggests that requiring it to do so would be inappropriate. Barahona v. Orkin, 2008 WL 4724054 (C.D. Cal. October 21, 2008), considered evidence obtained from a particular case prior to the first removal, and therefore does not suggest a different result here. Additionally, documents received through the Marlo case, though arguably part of the same litigation for many practical purposes, are not technically documents received in this case. See Morsani v. Major League Baseball, 79 F. Supp. 2d 1331, 1333-34 (M.D. Fla. 1999)(discussing the "paper-in-the-case" rule). Finally, Plaintiff has not pointed to information in Defendant's files or in the Marlo case that would have established intent to remain: as Judge Anderson's order made clear, residence and/or location is not enough.

The Court recognizes that it granted Motions to Remand in nearly forty other cases successively removed by UPS. Those cases were determinatively distinct, however, for a number of reasons. First -- and critically -- the Court found that a document that fell under the "four corners" rule had triggered the first removal. Second, the Court noted that it could not review its prior remand order, even though its sua sponte remand was not the best approach. Third, the Court found that a later document in the case did not trigger a second thirty-day removal window because the later document merely provided more information on the original basis for removal. That is, the Court found that allowing a new removal period each time a defendant receives more specific details about a known basis for federal jurisdiction would be contrary to § 1446(b) and undermine the policies on which Harris rests (avoiding a "cottage industry of removal litigation"). The Court specifically noted that it would be faced with a different case "if the only question was whether the Case Management Statement provided the grounds for a successive removal" because the first notice of removal would not have been based on a "four corners" document.

E.g., Arpon Order at 17.

In this case, on the other hand, there was no document that satisfied the "four corners" rule as of the initial removal. Although the Court agrees with Plaintiff that Judge Anderson's December 29, 2008 order was issued on jurisdictional grounds, the Court does not read UPS to suggest that the Court reconsider that order in resolving this Motion, and the Court does not do so. Rather, Plaintiff's deposition provided the first information in this case as to plaintiff's intent to remain in California. It triggered the thirty-day time period for removal and, because it was based on new evidence, provided a basis for successive removal.


For the foregoing reasons, the Court denies the Motion to Remand.


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