United States District Court, Central District of California
ORDER REMANDING ACTION
Fernando M. Olguin, United States District Judge.
On November 12, 2014, Jorge Rodriguez (“plaintiff”) filed a Complaint in the Superior Court of the State of California for the County of Los Angeles against Scripps Media, Inc. (“defendant”); Does 1 through 10, business entities with unknown names; Does 11 through 20, individuals; and Does 21 through 30, inclusive. (See NOR at ¶¶ 3-5; Complaint at ¶¶ 1 & 9-10). The Complaint arises from plaintiff’s employment with defendant from January 11, 2012, until August 21, 2014. (See Complaint at ¶¶ 20-21). On January 2, 2015, defendant removed the action on diversity jurisdiction grounds pursuant to 28 U.S.C. §§ 1332 and 1441. (See NOR at ¶ 1).
Having reviewed the pleadings, the court hereby remands this action to state court for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c); Kelton Arms Condominium Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (“Subject matter jurisdiction may not be waived, and, indeed, we have held that the district court must remand if it lacks jurisdiction.”); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“Federal Rule of Civil Procedure 12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on appeal.”); Washington v. United Parcel Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court may remand an action where the court finds that it lacks subject matter jurisdiction either by motion or sua sponte).
A removing defendant bears the burden of establishing that removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.”) (internal quotation marks omitted). Moreover, if there is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court. See id. (“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”).
Here, the court’s review of the Notice of Removal and the Complaint makes clear that this court lacks diversity jurisdiction over the instant matter. In other words, plaintiff could not have originally brought this action in federal court, in that plaintiff does not competently allege facts supplying diversity jurisdiction, and therefore removal was improper. See 28 U.S.C. §§ 1441(a);Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.”) (footnote omitted).
There is no basis for diversity jurisdiction because the amount in controversy does not appear to exceed the diversity jurisdiction threshold of $75, 000. See 28 U.S.C. § 1332. As an initial matter, the amount of damages plaintiff seeks cannot be determined from the Complaint as it does not set forth a specific amount. (See, generally, Complaint at 15, Prayer). Defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold, see Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam), and for the reasons set forth below, it has failed to do so.
I. OVERTIME CLAIM.
Plaintiff alleges that defendant: “failed and refused to properly calculate overtime compensation”; “routinely and systematically failed to properly record accurate time records”; and “routinely and systematically failed to pay plaintiff for the premium pay for all of plaintiff’s overtime hours[.]” (See Complaint at ¶¶ 33-36). Defendant asserts that plaintiff’s claim for overtime wages owed under California Labor Code § 1194(a) amounts to $19, 570.40. (See NOR at ¶ 15(a)). To arrive at this figure, defendant estimated plaintiff’s hourly pay rate to be $19.19 based on his earnings of $104, 396.30 over 136 weeks at 40 hours per week ($104, 396.30 / 136 / 40 = $19.19), (see Declaration of Justine Han [Director of Human Resources for Scripps Media Inc.] in Support of Notice of Removal (“Han Decl.”) at ¶ 4), and assumed that plaintiff worked one hour in excess of eight hours per work day, i.e., five hours of overtime per week, at one and one-half (1.5) times his regular pay rate, for all 136 weeks plaintiff worked for defendant (($19.19 x 1.5) x 5 x 136). (See NOR at ¶ 15(a)).
Defendant’s assumptions are unreasonable as there no basis in the Complaint or elsewhere in the record to support those assumptions. (See, generally, Complaint, NOR & Han Decl.). For example, defendant’s assumption with respect to plaintiff’s hourly rate (i.e., $19.19 per hour) appears inflated because plaintiff alleges that “at all relevant times herein, [plaintiff] was entitled to an hourly pay rate of approximately $17.00-$18.00 per hour.” (See Complaint at ¶ 26). Also, plaintiff has not pled with any specificity when or how often he was not paid for all hours worked. (See, generally, Complaint at ¶¶ 32-44). Defendant’s speculation that plaintiff worked one hour in excess of eight hours each work day throughout his tenure is insufficient. See Jimenez v. Menzies Aviation, Inc., 2013 WL 1411228, *3 (N.D. Cal. 2013) (“the Court cannot credit Defendants’ speculative damages estimate” where they “failed to provide evidence supporting their assertion” that plaintiff was entitled to one hour of overtime per day, five days a week); Willis v. Xerox Bus. Servs., LLC, 2013 WL 6053831, *5 (E.D. Cal. 2013) (“Defendants have not explained why it is proper to assume Plaintiff seeks 15 hours a week in overtime[.] . . . [T]his is insufficient.”). Under the circumstances, the court finds defendant has failed to show by a preponderance of the evidence the amount in question with respect to plaintiff’s overtime claim. Without more, the court is unwilling to include plaintiff’s damages for his overtime claim in the amount in controversy.
II. WAITING TIME PENALTY.
Plaintiff alleges that “[u]pon termination of [his] employment relationship, defendant . . . willfully failed and refused to timely pay to plaintiff, pursuant to [California] Labor Code §§ 201(a) and 202(a), . . . all wages earned[.]” (See Complaint at ¶ 75). He alleges that he is entitled, under California Labor Code § 203, to “recover waiting time penalties, calculated as a continuance of plaintiff’s wages from the due date of the wage at the same rate until paid or until an action therefore is commenced, up to and including 30 days.” (Id. at ¶ 79).
In relevant part, California Labor Code § 203(a) provides:
If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.
Defendant argues plaintiff is entitled to $4, 605.60 in penalties under § 203, i.e., “full waiting time penalties of 30 days’ pay[, ]” (i.e., $19.19 x 8 x 30). (See NOR at ¶ 19(a)). Defendant does not supply the basis for its assumption that plaintiff is entitled to the maximum 30-day penalty, (see, generally, id. at ¶ 19(a) & Han Decl.), and the Complaint does not support this assumption. (See, generally, Complaint at ¶¶ 74-80). Defendant has not shown by a preponderance of the evidence the amount placed in controversy relating to plaintiff’s waiting time claim. See Garibay v. Archstone Communities LLC, 539 F.App’x 763, 764 (9th Cir. 2013) (district court properly found defendant had not met its burden to prove by preponderance of the evidence plaintiffs’ waiting time penalties where it “assume[d] that each employee would be entitled to the maximum statutory penalty, but provide[d] no evidence supporting the assertion.”); Letuligasenoa v. Int’l Paper Co., 2014 WL ...