United States District Court, C.D. California
HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE.
CIVIL MINUTES - GENERAL
(in chambers): ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO REMAND [Docket No. 16]
matter is before the Court on Plaintiff Shalamar Jones'
("Jones" or "Plaintiff") Motion to Remand
("Motion"), filed on February 3, 2017. In the same
Motion, Plaintiff also seeks an award of attorney's fees
("Request for Attorney's Fees"). Defendant G2
Secure Staff, LLC ("G2" or "Defendant")
filed an Opposition on February 13, 2017. Plaintiff filed a
Reply brief on February 17, 2017. The Court found the matter
suitable for disposition without oral argument and vacated
the hearing set for March 6, 2017. See Fed. R. Civ.
P. 78(b). For the following reasons, the Court GRANTS
IN PART AND DENIES IN PART Plaintiff's Motion to
FACTUAL AND PROCEDURAL BACKGROUND
alleges that she worked for G2 until she was terminated on or
about January 12, 2016. (See Notice of Removal
("Removal"), Ex. A Compl. ("Compl."), ECF
No. 1-1.) Plaintiff, through counsel, sent G2 a written
request of her personnel file on March 8, 2016. (Compl.
¶ 11.) Plaintiff's counsel was told to request the
file from an employee at ¶ 2's Texas headquarters.
(Compl. ¶ 13.) After contacting said employee,
Plaintiff's counsel was told to send $15 to cover the
costs of copying and mailing, and the personnel file would be
sent to her. (Compl. ¶ 13.) On May 20, 2016,
Plaintiff's counsel mailed a check for $15, which was
cashed on June 2, 2016. (Compl. ¶ 14.) As of June 6,
2016, Plaintiff had not received the personnel file. (Compl.
6, 2016, Plaintiff initiated the instant action against
Defendant in the Superior Court of the State of California
for the County of Los Angeles, asserting one cause of action:
violation of California Labor Code section 1198.5
("Section 1198.5"). (See Compl.) Section
1198.5 provides that "[e]very current and former
employee, or his or her representative, has the right to
inspect and receive a copy of the personnel records that the
employer maintains relating to the employee's performance
or to any grievance concerning the employee, " and that,
generally, the records must be made available no later than
30 days from the date the employer receives the written
request. Cal. Lab. Code § 1198.5(a), (b)(1). In the
Complaint, Plaintiff seeks a statutory penalty for G2's
failure to produce a copy of her personnel records within
thirty days of request, attorneys' fees, cost of suit,
and other and further relief the Court may deem just and
proper. (Compl. 5.) The statutory penalty for violation of
Section 1198.5 is $750. (Compl. ¶ 56.) Defendant filed
its Answer on August 8, 2016. (See Removal, Ex. B
Answer, ECF No. 1-2.)
December 5, 2016, Plaintiff's counsel emailed
Defendant's counsel a proposed first amended complaint
("PFAC") and indicated that it would be filed on or
after December 19, 2016. (See Decl. of Lara C. De Leon
in Supp. of Removal ("De Leon Decl."), Ex. 1, ECF
No. 3.) The PFAC alleged damages in excess of $80, 000. (De
Leon Decl., Ex. 2 PFAC ¶ 73.) On December 22, 2016,
Defendant's counsel informed Plaintiff's counsel that
it would not stipulate to the PFAC. (Decl. of Ann Hendrix in
Supp. of Mot. ("Hendrix Decl.") ¶ 8, ECF No.
17-1.) In response, Plaintiff's counsel informed defense
counsel that it would file an amended complaint as a matter
of right in January, which would omit all but the PAGA
claims. (Mot. 2-3.)
January 4, 2017, Plaintiff's counsel emailed
Defendant's counsel stating that Plaintiff would file the
PFAC the next day or the following; Defendant's counsel
did not respond. (Hendrix Decl. ¶ 9.) That same day,
Defendants removed the action to this Court based on
diversity jurisdiction, under 28 U.S.C. §§ 1441
& 1446. (Removal ¶¶ 6-7.) On January 5, 2017,
Plaintiff filed an amended complaint, which differs from the
PFAC; that same day, Plaintiff received notice of
removal. (Mot. 1.) Plaintiff now seeks to remand
the action, arguing that the operative pleading-the
Complaint-alleges only one cause of action and which places
the amount in controversy far below the $75, 000 threshold.
(Mot. 1.) In its Opposition, Defendant argues that the amount
in controversy requirement is satisfied because, based on the
PFAC, the estimated value of Plaintiff's claims is in
excess of $75, 000. (Opp'n 1, ECF No. 18.) For the
following reasons, the Court remands the action because based
on the operative pleading at the time of removal, the amount
in controversy is less than $75, 000.
district court has removal jurisdiction pursuant to 28 U.S.C.
section 1332 "where the matter in controversy exceeds
the sum of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States." 28 U.S.C.
§ 1332(a)(1). Diversity jurisdiction requires
"complete diversity" of citizenship. Carden v.
Arkoma Assocs., 494 U.S. 185, 187 (1990). Moreover, the
removing party has the burden of showing that "the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interests and costs." 28 U.S.C. §
1332(a); Gaus v. Miles, Inc., 980 F.2d, 564, 566
(9th Cir. 1992).
procedure for proper removal is set forth in 28 U.S.C.
section 1446 ("Section 1446"). The statute provides
"provides two thirty-day windows during which a case may
be removed, " the first of which is open during the
first thirty days after the defendant receives the initial
pleading provided that the case is clearly removable based on
the facts alleged in the complaint. See Harris v. Bankers
Life and Cas. Co., 425 F.3d 689, 692-93 (9th Cir. 2005).
If the case is not removable based on the initial pleading, a
second thirty-day window opens after the defendant receives
"an amended pleading, motion, order
or other paper from which it may first be
ascertained that the case is one which is or has become
removable." Id. (quoting 28 U.S.C. §
1446(b)(3)) (emphases added).
must "strictly construe the removal statute against
removal jurisdiction." Gaus, 980 F.2d at 566
(citations omitted). "The strong presumption against
removal jurisdiction means that the defendant always has the
burden of establishing that removal is proper."
Id. (citation and internal quotation marks omitted).
"Where doubt regarding the right to removal exists, a
case should be remanded to state court." See