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.
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.
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 ...