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Harp v. Starline Tours of Hollywood, Inc.

United States District Court, C.D. California

November 25, 2014

JOAN HARP ET AL
v.
STARLINE TOURS OF HOLLYWOOD, INC. ET AL

CIVIL MINUTES - GENERAL

CHRISTINA A. SNYDER, District Judge.

(IN CHAMBERS): PLAINTIFFS' MOTION TO REMAND (dkt. 16, filed November 3, 2014)

INDIVIDUAL DEFENDANTS' MOTION TO DISMISS (dkt. 15, CIVIL MINUTES - GENERAL

The Court finds these motions appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local Rule 7-15. Accordingly, the hearing currently scheduled for December 8, 2014 is hereby vacated, and the matter is taken under submission.

I. INTRODUCTION & BACKGROUND

Plaintiff Joan Harp initially filed this putative class action against defendants Starline Tours of Hollywood, Inc., Starline Sightseeing Tours, Inc., Starline Tours USA, Inc., Vahid Sapir, Farid Sapir, and Does 1 through 150 in Los Angeles County Superior Court on December 28, 2012. Dkt. 1-1.[1] Plaintiff filed a first amended complaint ("FAC") in state court on June 14, 2013. Dkt. 1-4. Soon thereafter, the state court struck plaintiff Harp's class allegations, and dismissed Harp as class representative. Dkts. 1-5; 1-6.[2] Plaintiffs subsequently added defendant EHM Productions, Inc., ("EHM") to the FAC. Dkt. 1-9.

On September 29, 2014, the state court granted plaintiffs leave to file the operative Second Amended Complaint ("SAC"). Dkt. 1-14. The SAC asserts the following claims against the Starline defendants and the Sapirs: (1) failure to compensate for all hours worked, in violation of Cal. Labor Code §§ 1182, 1194, 1197, 1197.1, 1198; (2) failure to pay reporting time pay, in violation of Cal. Code Regs. Title 8, §§ 11040, 11090, Subd. 5; (3) failure to pay overtime compensation, in violation of Cal. Labor Code §§ 510, 1194, 1194.2, 1198; (4) failure to pay overtime, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.; (5) failure to provide meal and rest periods, in violation of Cal. Labor Code §§ 226.7, 512; (6) failure to provide itemized wage statements, in violation of Cal. Labor Code § 226; (7) failure to maintain accurate records, in violation of Cal. Labor Code §§ 1174, 1174.5; (8) failure to pay wages upon discharge, in violation of Cal. Labor Code § 203; (9) violation of the Private Attorneys General Act ("PAGA"), Cal. Labor Code § 2698, et seq.; (10) conversion, in violation of Cal. Civil Code § 3336; (11) failure to reimburse expenses, in violation of Cal. Labor Code § 2802; (12) unfair competition, in violation of Cal. Bus. & Prof. Code § 17200, et seq.

In brief, plaintiffs are former hourly employees of EHM and the Starline defendants, businesses that operate sightseeing tours throughout California. See generally SAC. Plaintiffs seek to represent of class of current and former hourly employees who worked as drivers, pamphleteers, and in other positions for the entity defendants. Id.

On October 3, 2014, the Starline defendants and the Sapirs, joined by defendant EHM, removed the action to this Court asserting federal question jurisdiction. Dkt. 1. On November 3, 2014, plaintiffs filed a motion to remand. Dkt. 16. The Starline defendants and the Sapirs filed an opposition on November 17, 2014, dkt. 22, and EHM filed a separate opposition on November 18, 2014, dkt. 25. Plaintiffs have not replied.

Also on November 3, 2014, the Sapirs filed a motion to dismiss claims 1-3 and claims 5-12 pursuant to Rule 12(b)(6), or in the alternative, a motion for a more definite statement pursuant to Rule 12(e). Dkt. 15-1. Plaintiffs opposed the motion on November 17, 2014, dkt. 21, and the Sapirs replied on November 24, 2014, dkt. 27. Having carefully considered the parties' arguments, the Court finds and concludes as follows.

II. LEGAL STANDARD

A motion for remand is the proper procedure for challenging removal. Remand may be ordered either for lack of subject matter jurisdiction or for any defect in removal procedure. See 28 U.S.C. § 1447(c). The Court strictly construes the removal statutes against removal jurisdiction, and jurisdiction must be rejected if there is any doubt as to the right of removal. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing federal jurisdiction. See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). The defendant also has the burden of showing that it has complied with the procedural requirements for removal. Judge William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial § 2:609 (The Rutter Group 2007).

Under 28 U.S.C. § 1446(b), the defendant must file the notice of removal within 30 days after being served with a complaint alleging a basis for removal. When there are multiple defendants, all defendants named in the complaint and who have been properly joined and served in the action must also join in the removal. Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). This is known as the rule of unanimity. See Chicago, Rock Island & Pac. Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854 (1900); see also Schwarzer, supra, § 2:905.2.

If the defendant's removal notice fails to meet the procedural requirements of § 1446(b), the court may remand the action based on the plaintiff's timely motion. McAnally Enters., Inc. v. McAnally, 107 F.Supp.2d 1223, 1226 (C.D. Cal. 2000). Pursuant to 28 U.S.C. § 1447(c), a motion to remand based on any defect other than subject ...


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