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Chalian v. CVS Pharmacy, Inc.

United States District Court, C.D. California

April 11, 2017

Sevag Chalian
v.
CVS Pharmacy, Inc., et al

          PRESENT: THE HONORABLE ANDRE BIROTTE JR., UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES - GENERAL

         Proceedings:[In Chambers] Order DENYING Plaintiffs Motion for Remand (Dkt. No. 10)

         Before the Court is Sevag Chalian's ("Plaintiff) Motion for Remand. ("Motion, " Dkt. No. 10.) Defendants CVS Pharmacy, Inc., CVS RX Services, Garfield Beach CVS, LLC ("Defendants") filed an opposition and Plaintiff filed a reply. (Dkt. Nos. 13, 14.) Having considered the parties' submissions, the Court hereby DENIES Plaintiffs motion.

         I. BACKGROUND

         Plaintiff is a pharmacist who once worked for Defendants at its pharmacy in Regions 65 and 72. (Complaint (Dkt. 1-1) ¶ 7.) While employed with Defendants, Plaintiff and other pharmacists in Region 65 and 72 were denied pay after attending training sessions as required by the California Labor Code Section 1194. ("Section 1194"). (Compl. ¶¶19, 20, 26.)

         On July 20, 2016, Plaintiff filed a class action lawsuit against Defendants in the Los Angeles Superior Court for unpaid wages, failure to pay overtime, failure to provide accurate itemized wage statements, waiting time penalties, and unfair business practices. (See Compl.) Plaintiff alleges the Defendants did not pay him for all of the time he spent completing required training. (Compl. ¶¶ 19, 20.) On December 5, 2016, nearly five months after being served, Defendants removed the case under the Class Action Fairness Act (“CAFA”), alleging that the parties are diverse and the amount in controversy exceeds $5, 000, 000. (Notice of Removal, “Removal” ¶ 7.)

         II. Legal Standard

         A. Removal

         Generally, a state civil action may be removed to federal court by a defendant only if it could have been originally brought in federal court. See 28 U.S.C. § 1441(a). The defendant has the burden of proving the case is removable. See Dunn v. Gaiam, Inc., 166 F.Supp.2d 1273, 1278 (C.D. Cal. 2001). There is a “strong presumption” against removal and courts must “strictly construe the removal statute against removal jurisdiction.” Id. “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Id. Under rule 1446(b), a defendant has thirty days to remove if the complaint reveals a basis for removal. If the plaintiff amends its complaint and the amended complaint presents grounds for removal then a defendant must remove within thirty-days of receipt of the amended complaint. Id. If the complaint or any other paper on its face does not provide the basis for removal and the defendant's own investigation discovered grounds for removal, the defendant can remove the case up to one year after the commencement of the action. Roth v. CHA Hollywood Medical Center, L.P., 720 F.3d 1121, 1125 (9th Cir. 2013). If the defendant untimely removes then its right to removed has been waived. Dunn, 166 F.Supp.2d at 1278.

         B. Class Action Fairness Act

         CAFA allows federal courts to exercise jurisdiction over state law class actions when the “matter in controversy exceeds the sum or value of $5, 000, 000, exclusive of interest and costs, ” and “any member of a class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2). As is with all removal cases, “the burden of establishing removal jurisdiction remains . . . on the proponent of federal jurisdiction.” Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006).

         There are two exceptions to jurisdiction under CAFA: (1) home-state controversy and (2) local controversy. 28 U.S.C. § 1332(d)(4). Under the home-state controversy there is no jurisdiction if two-thirds or more of the plaintiff class and the primary defendants are citizens of the State where the action was originally filed. 28 U.S.C. § 1332(d)(4)(B). Under the local controversy, there is no jurisdiction if (1) more than two-thirds of the proposed plaintiff class are citizens of the state in which the action was originally filed, (2) a significant defendant is from the State, (3) principal injuries occurred in the State, and (4) no other class action “asserting the same or similar factual allegations against any of the defendants” has been filed within three years prior to the present action. 28 U.S.C. § 1332(d)(4)(A). The Plaintiff has the burden to prove an exception to CAFA. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1022 (9th Cir. 2007).

         III. Discussion

         Plaintiff argues that Defendants did not timely remove and that there is no basis for federal jurisdiction on many grounds, so the case must therefore be remanded. The ...


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