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Tajonar v. Echosphere, LLC

United States District Court, S.D. California

July 2, 2015

JOSE TAJONAR, Plaintiff,
v.
ECHOSPHERE, L.L.C., et al., Defendants.

ORDER DENYING REMAND

LARRY ALAN BURNS, District Judge.

Plaintiff Jose Tajonar filed a class action complaint on August 19, 2014, alleging various violations of California's labor codes, including: (1) failure to provide meal periods (Cal. Lab. Code § 226.7); (2) failure to timely pay final wages (Cal. Lab. Code § 203); and (3) failure to provide accurate and compliant wage statements (Cal. Lab. Code § 226).

Defendants, including DISH Network California Service Corporation (DISH), removed this action on November 11. Tajonar then filed a motion to remand.

I. 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. Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006).

II. Discussion

In removing this case, DISH relied on the Class Action Fairness Act (CAFA), under which the Court has jurisdiction over matters where, among other things, removal is timely and the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d)(2). Tajonar's Motion to Remand argues the Notice of Removal was: (1) untimely; and (2) failed to meet CAFA's minimum amount in controversy. The Court disagrees.

A. Timeliness of Removal

Removing parties must timely file their notice of removal. 28 U.S.C. § 1441. Under § 1446(b), a party generally has two thirty-day periods for removing a case. See Kuxhausen v. BMW Fin. Serv. NA LLC, 707 F.3d 1136, 1139 (9th Cir. 2013) (citing Carvalho v. Equifax Info. Serv., LLC, 629 F.3d 876, 885 (9th Cir. 2010)). If the case is removable on the face of the complaint, the first thirty-day period is triggered upon service of the summons and complaint. Id.; § 1446(b). A renewed thirty-day removal period commences when a defendant receives "an amended pleading, motion, order or other paper" from which removal can be first ascertained. § 1446(b).

The two thirty-day periods are nonexclusive, however. If the two periods are never triggered, a defendant may remove outside these periods "on the basis of its own information." Roth v. CHA Hollywood Med. Ctr., LP, 720 F.3d 1121, 1125 (9th Cir. 2013). Defendants have no duty of inquiry where removal is indeterminate based on the initial pleading or other paper. Id. at 1125. Pleadings or other paper are "indeterminate" if the jurisdictional elements are vague on the face of the complaint. Kuxhausen, 707 F.3d 1136 at 1139 (9th Cir. 2013).

DISH properly removed outside the two thirty-day periods. On its face, the SAC alleged the amount in controversy is "not anticipated to exceed $5, 000, 000."[1] (SAC, 3:3-4.) Yet in its motion to remand, Tajonar contends this somehow reasonably notified DISH that the amount in controversy exceeds $5 million. (Motion to Remand, 7:5-7, 25-27.) Tajonar's jurisdictional allegation is facially vague in the SAC, and its inconsistent motion supports this. DISH was left to guess whether the amount in controversy will ever exceed $5 million.

But since Tajonar failed to affirmatively allege CAFA's jurisdictional minimum, DISH was excused from filing a notice of removal within the two thirty-day periods. In light of Tajonar's indeterminate complaint, DISH had no obligation to race against the removal clock while engaging in a fact-finding scavenger hunt. See Kuxhausen, 707 F.3d at 1140 ("[D]efendants need not make extrapolations or engage in guesswork, " but only "apply a reasonable amount of intelligence in ascertaining removability"); Roth, 720 F.3d at 1126 (the "defendants subjective knowledge cannot convert a non-removable action into a removable one such that the thirty-day time limit of § 1446(b)(1) or (b)(3) begins to run against the defendant") (internal quotation marks omitted). The Ninth Circuit clearly articulated its position against such a rule:

A defendant should not be able to ignore pleadings or other documents from which removability may be ascertained and seek removal only when it becomes strategically advantageous for it to do so. But neither should a plaintiff be able to prevent or delay removal by failing to reveal information showing removability and then ...

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