The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT (Doc. Nos. 5 and 9)
Presently before the Court is Plaintiff Vivian Longmire's ("Plaintiff") motion to remand, (Doc. No. 9), and Defendants HMS Host USA, Inc., Host International, Inc., and Robin Long (collectively, "Defendants"), motion to dismiss, (Doc. No. 5). In accordance with Civil Local Rule 7.1.d.1, the Court finds both motions suitable for determination on the papers and without oral argument. Accordingly, the motion hearing scheduled for November 30, 2012, with respect to the motion to remand, and the motion hearing scheduled for January 18, 2012, with respect to the motion to dismiss, are hereby vacated. For the reasons set below, the Court GRANTS Plaintiff's motion to remand and remands this action to San Diego Superior Court. (Doc. No. 9.) Therefore, the Court DENIES AS MOOT Defendants' motion to dismiss. (Doc. No. 5.)
On August 9, 2012, Plaintiff brought this representative action on behalf of herself and other current and former employees, alleging violations of the California Labor Code.*fn1 The basis of Plain-tiff's Class Action Complaint ("Complaint") in San Diego Superior Court concern the following allegations. (See Compl., Ex. 1, ¶ 31.) Plaintiff was employed as a non-exempt hourly Customer Service Representative at Defendants' San Diego, California airport location from January 2011 to December 2011. (See Id., Ex. 1, ¶ 31.) During this time, Plaintiff's alleges Defendants (1) willfully failed to pay Plaintiff and other class members their earned wages-including missed meal and rest period premiums-in violation of California Labor Code §§ 201, 202 (Wages not timely paid upon termination) (Compl., ¶ 49, 50); (2) intentionally failed to provide employees with complete and accurate wage statements, in violation of California Labor Code § 226(a) (Non-compliant wage statements) (Compl., ¶ 55); (3) violated numerous provisions of California Labor Code §§ 2698, et seq. ("PAGA") (Compl., ¶ 68); and (4) violated California Business & Professions Code §§ 17200, et seq. ("UCL") by engaging in unlawful, unfair, and/or fraudulent conduct (Compl., ¶ 73).
Plaintiff's Complaint seeks to represent a class of "[a]ll non-exempt or hourly paid employees, excluding supervisors, who worked for Defendants at their San Diego, California airport location within four years prior to the filing of this complaint until the date of certification." (Compl., ¶ 18.) Plaintiff also seeks to represent a subclass of "[a]ll non-exempt or hourly paid employees, excluding supervisors, who worked for Defendants at their San Diego, California airport location within one year prior to the filing of this complaint until the date of certification." (Compl., ¶ 19.)
On September 11, 2012, Defendants removed the action to this Court, alleging diversity jurisdiction under 28 U.S.C. § 1332(a), or alternatively, that the court had subject matter jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). (Doc. No. 1.) Subsequently, on September 18, 2012, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) under the "first-to-file" rule, and failure to state a claim under Rule 8. (Doc. No. 5.) Plaintiff filed an opposition to Defendants' motion on October 9, 2012, (Doc. No. 8), and on October 23, 2012, Defendants filed a reply, (Doc. No. 12).
While the motion to dismiss was pending, Plaintiff filed a motion to
remand. (Doc. No. 9.) Plaintiff alleged Defendants failed to establish
complete diversity, or alternatively, that Defendants failed to
satisfy their burden to prove jurisdiction under CAFA was proper, thus
depriving the court of subject matter jurisdiction.*fn2
(Id.) On November 1, 2012, Defendants filed an opposition,
(Doc. No. 15), and on November 15, 2012, Plaintiff filed a reply,
(Doc. No. 17). Both motions are currently pending before the Court.
The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove an action when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a) and (b);28 U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in federal court can be removed. 28 U.S.C. § 1441(a). See also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir.1988). "[J]urisdiction in a diversity case is determined at the time of removal." Am. Dental Indus., Inc. v. EAX Worldwide, Inc., 228 F. Supp. 2d 1155, 1157 (D. Or. 2002) (citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct. 586, 82 L. Ed. 845 (1938) ("The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction . . . Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction")).
As amended by CAFA, 28 U.S.C. § 1332(d) also vests district courts with "original jurisdiction of any civil action in which, inter alia, the amount in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs," and in which the aggregate number of proposed plaintiffs is 100 or greater, and any member of the plaintiff class is a citizen of a state different from any defendant.
28 U.S.C. § 1332(d). The Ninth Circuit has recently affirmed that "under CAFA the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdiction." Lowdermilk v. U.S. Bank Ass'n, 479 F.3d 994, 997 (9th Cir. 2007) (citing Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006) (per curiam)); see also Serrano v. 180 Connect, Inc., 478 F.3d 1018, 2007 WL 601984 (9th Cir. 2007) (holding that the proponent of federal jurisdiction bears the burden of proving jurisdiction).
The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction," and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. Federman--Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988).