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Kevin Williams v. Robert Hilarides

June 19, 2012

KEVIN WILLIAMS,
PLAINTIFF,
v.
ROBERT HILARIDES,
DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO REMAND (Document 6)

On March 28, 2012, Plaintiff Kevin Williams ("Plaintiff") filed the instant Motion to Remand this action. The matter was heard on May 11, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1 Brian Whelan appeared on behalf of Plaintiff. Patrick Moody appeared on behalf of Defendant Robert Hilarides, dba Hilarides Dairy, dba Hilarides Transportation and dba Sierra Cattle Company ("Defendant").

BACKGROUND

Plaintiff filed his Complaint for unpaid wages in Tulare County Superior Court on May 6, 2011. Pursuant to the parties' stipulation, Plaintiff filed a First Amended Complaint ("FAC") in Tulare County on February 17, 2012. Defendant removed the action to this Court on February 27, 2012, pursuant to this Court's federal question jurisdiction. 28 U.S.C. § 1441.

On March 28, 2012, Plaintiff filed the instant Motion to Remand based on an untimely Notice of Removal. Defendant filed an opposition on April 27, 2012, and Plaintiff filed his reply on May 4, 2012.

DISCUSSION

A. Legal Standard

By statute "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 of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The party seeking to invoke federal jurisdiction bears the burden of establishing jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).

Generally, if the initial pleading is removable on its face, the notice of removal must be filed within 30 days after receipt by the defendant. 28 U.S.C. § 1446(b). Where the initial pleading does not indicate that the case is removable, section 1446(b)(3) provides that "a notice of removal may be filed within thirty days after receipt by the 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."

B. Analysis

There is no dispute that the original Complaint filed in Tulare County did not allege claims under federal law, nor is there a dispute that the FAC filed in Tulare County alleged violations under the Fair Labor Standards Act. 21 U.S.C. §§ 201, 207.

Rather, Plaintiff's motion is based on his argument that the Notice of Removal was untimely. Plaintiff contends that an interrogatory response served on September 16, 2011, which identified federal claims, was an "other paper" and began the thirty day removal period.

The discovery response to Number 14.1 stated:

Plaintiff contends that Defendant violated Bus. and Prof. Code § 17200, based on non-payment of wages and violation of the Labor Code § 226.7, 29 U.S.C.A. §§ 201, 207, Wage Order No. 9-2001 and Labor Code ...


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