United States District Court, S.D. California
Decided Date: September 15, 2014.
For Edwin Molina, Plaintiff: Drew R. Ferrandini, LEAD ATTORNEY, Los Angeles, CA; Joshua H. Haffner, LEAD ATTORNEY, Kabateck Brown Kellner LLP, Los Angeles, CA.
For Pacer Cartage, Inc., Defendant: Christopher C McNatt, Jr, LEAD ATTORNEY, Scopelitis Garvin Light Hanson & Feary LLP, Pasadena, CA; Angela S. Cash, PRO HAC VICE, Scopelitis, Garvin, Light, Hanson & Feary PC, Indianapolis, IN; James H Hanson, PRO HAC VICE, Scopelitis Garvin Light Hanson & Feary, Indianapolis, IN; Ryan W. Wright, PRO HAC VICE, Scopelitis, Garvin, Light, Hanson & Feary P.C., Indianapolis, IN.
ORDER GRANTING MOTION FOR LEAVE TO SUPPLEMENT BRIEFING; AND
ORDER DENYING MOTION FOR REMAND
HONORABLE LARRY ALAN BURNS, United States District Judge.
After Defendant Pacer Cartage removed this putative class action from state court, Plaintiff Manuela Mendoza moved to remand. Later, Edwin Molina was substituted in as named Plaintiff, and therefore replaces Mendoza as movant. Pacer later asked the Court to consider a supplemental response.
The unopposed motion for leave to file a supplemental response (Docket no. 13) is GRANTED. The Court will consider it along with the other briefing on the issue of remand. Removal
Under 28 U.S.C. § 1441(a), a case can be removed from state to federal court, provided it could originally have been brought in federal court. This statute is construed strictly against removal, 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); see also Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir.1988). The removing party bears the burden of establishing that the court has subject matter jurisdiction. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006).
Federal courts are presumed to lack jurisdiction, and the burden always falls on the party invoking it. See Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir.1981). Although the Court looks in the first instance to the remand motion, the Court is also under an independent obligation to confirm its own jurisdiction even if jurisdictional defects
are not raised by the parties. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 966 (9th Cir. 2004). Thus, Molina's failure to raise issues or make arguments does not prevent the Court from considering those issues or arguments sua sponte; rather, the Court is obligated to consider any possible defects in jurisdiction its analysis may discover, even if Molina has not raised them. By contrast, the Court is not allowed to create arguments or engage in speculation in favor of jurisdiction; any doubts must be resolved against jurisdiction and in favor of remand. Gaus, 980 F.2d at 566.
In removing the case, Pacer relied on the Class Action Fairness Act, 28 U.S.C. § 1332(d), under which the Court has jurisdiction over matters where, among other things, the amount in controversy exceeds five million dollars. The remand motion argues that the threshold is not met, and the Court therefore lacks jurisdiction.
Amount in Controversy
This is a wage and hour case, arising under California law. The complaint alleges that Pacer misclassified employees as independent contractors, wrongly required class members to work through meal breaks, did not provide required rest breaks, and failed to pay overtime. The notice of removal bases the amount in controversy on these three claims.
As mentioned in the notice of removal, the complaint does not plead a particular amount in controversy or seek particular amounts of damages. Pacer therefore must establish by a preponderance of evidence that the aggregate amount in controversy exceeds $5 million. Rodriguez v. AT& T Mobility Servs., LLC, 728 F.3d 975, 981 (9th Cir. 2013). This cannot be based on speculation and conjecture, see Roth v. Comerica Bank, 799 F.Supp.2d 1107, 1118 (C.D.Cal., 2010), but must be based instead on facts. See Korn v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199, 1206 (E.D.Cal., 2008) (citing Gaus, 980 F.2d at 567).
This means that Pacer is required to " set forth underlying facts to support key variables used in [its] calculations." See Manier v. Medtech Products, Inc., 2014 WL 1609655, slip op. at *2 (S.D.Cal., Apr. 22, 2014). The facts may come from the complaint itself ( i.e., facts pleaded on the face of the complaint), or facts set forth in the removal petition. Abrego, 443 F.3d at 690. The Court may also consider " summary-judgment-type" evidence. Id. Estimates must be reasonable and fact-based, not speculative or inflated. See Romsa v. Ikea U.S. West, Inc., 2014 WL 4273265, at *2 (C.D.Cal., Aug. 28, 2014) (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002)). See also Behrazfar v. Unisys Corp., 687 F.Supp.2d 999, 1004 (C.D.Cal., 2009) (finding by a preponderance of evidence that the amount in controversy was met, where calculations were " relatively conservative, made in good faith, and based on evidence whenever possible" ). Because Pacer bears the burden of showing removal was proper, its failure to produce evidence (whether by pointing out allegations in the complaint or by presenting facts in its own briefing) would mean it has not carried its burden, at least as to that claim. See, e.g., Reames v. AB Car Rental Servs., Inc., 899 F.Supp.2d 1012, 1016 (D.Or., 2012) (" [B]ecause defendants submitted no evidence as to the amount of plaintiffs attorney fees incurred as of the time of removal, defendants have not met their burden" of establishing that removal was proper).
There is no real dispute between the parties about these standards. Rather, the focus is on how they apply to the ...