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Magali Gallegos, Individually, and On Behalf of Other Members of the v. Comerica Bank

July 27, 2011

MAGALI GALLEGOS, INDIVIDUALLY, AND ON BEHALF OF OTHER MEMBERS OF THE GENERAL PUBLIC SIMILARLY SITUATED, PLAINTIFF,
v.
COMERICA BANK, A TEXAS CORPORATION; COMERICA INCORPORATED, A DELAWARE CORPORATION; AND COMERICA MANAGEMENT COMPANY, INC., A MICHIGAN CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



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

E-Filed: 07.27.11

ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND

On February 18, 2011, Magali Gallegos filed this putative wage and hour class action in Los Angeles Superior Court against Comerica Bank, Comerica Incorporated, and Comerica Management Company, Inc. (collectively, "Comerica").*fn1 On March 7, 2011, defendants removed the action to federal court, invoking the court's diversity jurisdiction.*fn2 Gallegos has filed a motion to remand,*fn3 which defendants have opposed.*fn4

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint's Allegations

Gallegos was employed by defendants as an Assistant Banking Center Manager ("ABCM") from approximately September 2006 until approximately December 2010 at a Comerica banking center in Burbank, California.*fn5 Gallegos was classified as an "'exempt' employee, and paid [ ] on a salary basis, without any compensation for overtime hours worked, missed meal periods or rest breaks."*fn6

The complaint alleges that defendants own and operate approximately one-hundred Comerica banking centers in California.*fn7 The banking centers are allegedly "grouped into the following four distinct geographic districts: 'South Coast;' 'Greater Los Angeles;' 'San Francisco Bay Area;' and 'Northern California.' Each district has its own Regional Manager who is responsible for the operation of the banking centers in that district."*fn8 Gallegos seeks to represent a class of "[a]ll current and former California-based salaried 'Assistant Banking Center Managers' or persons who held similar job titles and/or performed similar job duties, who worked at a Comerica Banking Center located within Defendant's 'Greater Los Angeles District' at any time during the period from November 3, 2005 to final judgment."*fn9 All of the "Comerica Banking Centers that fall under [Comerica's] 'Greater Los Angeles District' are located within the County of Los Angeles."*fn10 Although Gallegos asserts that the "membership of the entire class is unknown to [her] at this time," she estimates that the class has approximately sixty members.*fn11

Gallegos alleges that defendants "willfully, knowingly, and intentionally failed" to compensate her and other class members as required by California law.*fn12 She also asserts that defendants "engaged in a uniform policy and systematic scheme of wage abuse against their 'Assistant Banking Center Managers'" which involved "misclassifying the[ ] position[s] as 'exempt' for purposes of the payment of overtime compensation. . . ."*fn13 Gallegos contends that defendants "knew or should have known that Plaintiff and the other class members were entitled to receive . . . they were not receiving. . . ,"*fn14 and that defendants "regularly and consistently" failed to pay overtime wages despite the fact that she "and . . . other class members were required to work more than eight (8) hours per day and/or forty (40) hours per week. . . ."*fn15

Gallegos also alleges that defendants "knew or should have known that [she] and . . . other class members were entitled to receive all" meal and rest "periods or payment of one additional hour of pay at [their] regular rate of pay when a" meal or rest "period was missed," and that class members "regularly and consistently" did not receive meal and rest periods or payment as required by the Industrial Welfare Commission Wage Orders.*fn16 Gallegos does not specifically allege how frequently she and other class members were denied the opportunity to take meal or rest periods.

Finally, Gallegos asserts that the wage statements class members received during their employment were not accurate,*fn17 and that defendants failed to pay all wages owed when class members finished their employment.*fn18 She does not specify how many class members left defendants' employ during the class period or how many were not paid wages due on termination.

Based on theses allegations, Gallegos asserts the following state law claims on her behalf and on behalf of the class: (1) failure to pay overtime wages in violation of California Labor Code §§ 510 and 1198 and (2) violations of California Business and Professions Code § 17200, et seq., including (a) failure to provide meal periods in violation of California Labor Code §§ 226.7 and 512(a); (b) failure to provide rest periods in violation of California Labor Code § 226.7; (c) failure to pay class members minimum wages in violation of California Labor Code §§ 1194, 1197, and 1197.1; (d) failure to timely pay wages upon termination in violation of California Labor Code §§ 201 and 202; (e) failure to timely pay wages during employment in violation of California Labor Code § 204; (f) failure to furnish accurate time records to class members in violation of California Labor Code § 226(a); (g) failure to keep complete and accurate payroll records in violation of California Labor Code § 1174(d); and (h) failure to reimburse necessary business-related expenses and costs in violation of California Labor Code §§ 2800 and 2802.*fn19

Gallegos' prayer for relief seeks (1) class members' unpaid overtime wages; (2) prejudgment interest on any unpaid minimum wages and overtime compensation from and after the date such amounts were due; (3) statutory wage penalties under California Labor Code § 1197.1; (4) liquidated damages pursuant to California Labor Code § 1194.2; (5) reasonable attorneys' fees and costs of suit pursuant to California Labor Code § 1194(a); (6) civil penalties under California Labor Code §§ 2699(a), (f), and (g), plus costs and attorneys' fees for violation of California Labor Code §§ 510, 1194, 1197, 1197.1, and 1198; (7) restitution of unpaid wages and other money wrongfully withheld from her and other class members, as well as prejudgment interest; (8) the appointment of a receiver to receive, manage, and distribute funds acquired by defendants as a result of their purported violations of California Business & Professions Code § 17200, et seq; and (9) reasonable attorneys' fees and costs under California Code of Civil Procedure § 1021.5.*fn20 While Gallegos alleges that her individual damages total less that $75,000,*fn21 she does not specify the total amount sought on behalf of the class.

B. Notice of Removal

On March 7, 2011, defendants answered Gallegos' complaint and removed the action to federal court, invoking the court's diversity jurisdiction under 28 U.S.C. § 1332(a).*fn22 Defendants contend there is complete diversity of citizenship between them and Gallegos, and that the amount in controversy exceeds $75,000.*fn23

In support of removal, defendants proffered the declaration of Catherine Moye, senior vice president in charge of administrative management for Comerica Management Company ("CMC").*fn24 Moye states that Comerica International is a Delaware corporation with its principal place of business in Texas,*fn25 that Comerica Bank, a subsidiary of Comerica International, is a Texas banking association that has its principal place of business in Texas,*fn26 and that CMC, also a subsidiary of Comerica Bank, is incorporated and has its principal place of business in Michigan.*fn27

Moye asserts that CMC employed Gallegos from September 6, 2006 to December 3, 2010 as an ABCM in California.*fn28 She represents that Gallegos was classified as "exempt" from overtime, "which meant, among other things, that she was not required to record her actual hours worked in the . . . time-keeping system utilized by Defendants, Ceridian." Moye also asserts that Gallegos was not required to record meal breaks if they were taken or record lack of meal or rest breaks that were not taken.*fn29 She states that from September 5, 2006 to April 3, 2008, Gallegos earned an annual salary of $50,000.08; that from April 4, 2008 to April 2, 2009, her annual salary was $51,500.08; that from April 3, 2009 to April 1, 2010, Gallegos was paid $52,401.18 annually; and that from April 2, 2010 to December 3, 2010, she earned $52,925.34 per year.*fn30

Moye states that Ceridian time records indicate that "(i) there were 177 workweeks during which . . . Gallegos worked 4 or more days; and (ii) there were 43 workweeks where [she] worked 3 or less days, or was on vacation or a leave of absence."*fn31 Moye represents that Gallegos "was paid every two weeks," and that company records "reflect that from February 18, 2010 through the end of her employment with Defendants on December 3, 2010, there were 21 pay periods which included a week in which Plaintiff worked at least 4 days in the week."*fn32

Defendants also proffer a declaration Gallegos submitted in Yiadira Cordova v. Comerica Bank, Comerica Incorporated, and Comerica Management Company, Inc., Case. No. 09-08905 MMM (PLAx), in support of their notice of removal.*fn33 In the declaration, Gallegos stated that as an ABCM, "approximately 10% of [her] time was spent performing 'managerial' tasks (i.e.[,] tasks different than those performed by hourly workers)."*fn34 She asserted that Comerica "knew 'Assistant Managers' were spending the vast majority of their time performing the same work and tasks as hourly employees, [yet] . . . never conveyed to [her] that this [wa]s not what Comerica expected."*fn35 Gallegos reported that as an ABCM, she was "usually scheduled to work Monday through Friday from 8:15 a.m. to 5:30 p.m. . . ," but "was usually unable to ...


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