Present: The Honorable GARY ALLEN FEESS
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None
Proceedings: (In Chambers)
ORDER RE: MOTION TO REMAND
Three years ago this class action lawsuit, which identified all hourly employees of Defendants American Medical Response, Inc., American Medical Response Ambulance Service, Inc., American Medical Response of Inland Empire, American Medical Response of Southern California, and American Medical Response West (collectively, "AMR" or "Defendants") as putative class members, was filed by Plaintiff Vaughn Banta ("Banta") in the Los Angeles County Superior Court. (Kun Decl., Ex. A [6/23/2008 Banta Compl. ¶ 7].) Although Defendants presumably know how many hourly workers they employ and how much those workers are paid, they contend that it took them three years and a discovery response before they could ascertain that the case was removable. More particularly, they assert that it took that long to determine that the amount in controversy exceeded the $5 million threshold under the Class Action Fairness Act ("CAFA").*fn1 Accordingly, Defendants recently removed pursuant to the second paragraph of 28 U.S.C. § 1446(b). (Docket No. 1, Not. ¶¶ 44-45.)
The long delay in bringing this lawsuit to federal court raises an apparently unresolved issue regarding the interplay between the first and second paragraphs of 28 U.S.C. § 1446(b) in respect to allegations relating to the amount in controversy. The first paragraph provides that the case must be removed "within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading. . . ." 28 U.S.C. § 1446(b). The second paragraph provides that "[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by defendant, through service or otherwise, 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. . . ." Id. (emphasis added). Defendants contend that the complaint was silent regarding the amount in controversy, that they were under no obligation to conduct any investigation to determine whether the case was removable, and that their three year delay was justified and in accord with controlling case law. In short, they contend that a complaint that is indefinite on its face as to the amount in controversy is not removable to federal court. In support, they rely on Harris v. Bankers Life and Cas. Co., 425 F.3d 689 (9th Cir. 2005) and several district court decisions that have followed its lead.
Defendants' position ignores an important element of removal jurisprudence. Case law recognizes that, even where a pleading is indefinite on its face, a defendant may possess sufficient information allowing it to ascertain that the amount in controversy exceeds the jurisdiction minimum, may remove the action to federal court on that basis, and, if challenged, may present evidence to prove up the existence of removal jurisdiction. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 758-60 (11th Cir. 2010) (CAFA removal); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376-77 (9th Cir. 1997); Sanchez v. Monumental Life Ins. , 102 F.3d 398, 403-04 (9th Cir. 1996); White v. J.C. Penney Life Ins. Co., 861 F. Supp. 25, 26 (S.D. W. Va. 1994). The rule articulated in these cases serves the purpose of assuring an "early resolution of the court system in which the case will be heard." Pretka, 608 F.3d at 759 (quoting 14C Charles Allen Wright, et al., Federal Practice and Procedure § 3731, at 482-85). Such a rule contemplates the elimination of gamesmanship in the ultimate choice of forum.*fn2
As discussed in more detail below, the Court concludes that where a defendant in the exercise of diligence could readily ascertain, on the basis of information within its (often sole) possession, that the amount in controversy exceeds the jurisdictional minimum, it must remove the action to federal court upon receipt of the complaint even though the complaint may be indefinite on its face as to the amount in controversy. The motion to remand is GRANTED.
The Court discusses its reasoning in greater detail below and explains why it concludes that Harris is not controlling under the circumstances of this case.
FILING OF THE PRESENT ACTION
Banta first filed this putative class action in the Los Angeles County Superior Court against AMR on June 23, 2008. (Kun Decl., Ex. A [6/23/2008 Banta Compl.].) On behalf of all California hourly employees, the complaint states claims for: (1) failure to pay overtime; (2) failure to provide meal breaks or premium compensation for missed meal breaks; (3) failure to provide rest breaks or premium compensation for missed rest breaks; and (4) failure to provide accurate itemized wage statements for the preceding four years. (Id.) As is common with wage and hour class actions, the complaint did not allege the amount in controversy in this lawsuit. ) Substantially the same claims were set forth in Banta's First Amended Complaint ("FAC"), which was filed on August 7, 2008. (Id., Ex. B [FAC].) Like the original complaint, the FAC did not state an amount in controversy. (Id.)
FILING OF THE BARTONI COMPLAINT
Before Banta brought his lawsuit, Laura Bartoni ("Bartoni"), purportedly acting on behalf of a class of persons employed by AMR as dispatchers, filed a putative class action complaint in the Alameda County Superior Court alleging violations of the Labor Code arising out of (1) failure to pay overtime wages; (2) failure to provide meal and rest periods; (3) unpaid wages and waiting time penalties; and (4) violation of California's ...