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Soratorio v. Tesoro Refining And Marketing Company, LLC

United States District Court, C.D. California

April 26, 2017

Onofre Soratorio
v.
Tesoro Refining and Marketing Company, LLC, et al.

          PRESENT: HONORABLE MICHAEL W. FITZGERALD, U.S. DISTRICT JUDGE

          CIVIL MINUTES-GENERAL

         PROCEEDINGS (IN CHAMBERS): ORDER RE DEFENDANTS' MOTION TO DISMISS CASE [11]; PLAINTIFF'S MOTION TO REMAND CASE [14]

         Before the Court are two motions. First, Defendants filed a Motion to Dismiss on March 3, 2017. (“Motion to Dismiss, ” Docket No. 11). Plaintiff filed an Opposition and Defendants filed a Reply. (Docket Nos. 15, 16).

         In addition, on March 17, 2017, Plaintiff filed a Motion to Remand the case to the California Superior Court in which it was originally filed. (“Motion to Remand, ” Docket No. 14). Defendants filed an Opposition and Plaintiff filed a Reply. (Docket Nos. 18, 19). With the Court's permission Defendants filed a Sur-Reply. (Docket No. 25).

         The Court held a hearing on April 24, 2017. For the reasons stated below, the Court DENIES the Motion to Remand and GRANTS the Motion to Dismiss with leave to amend. The Court concludes Defendants' Notice of Removal was timely filed and the amount in controversy adequately pleaded therein. The Complaint does not state a claim for relief and must be dismissed.

         I. BACKGROUND

         In November 2016, Plaintiff filed a putative class action against Defendants Tesoro Refining & Marketing Company (“Tesoro”) and BP Pipelines North America (“BP”) in California Superior Court asserting claims for failure to pay overtime; failure to provide meal breaks; failure to provide rest breaks; failure to pay all final wages; failure to timely pay regular wages; failure to provide accurate wage statements; and violation of California's Unfair Competition Law. (Complaint, Docket No. 1-1). The class is defined in the complaint as

Current and former Tesoro and BP all non-exempt warehouse workers who were employed at Tesoro and BP's Long Beach facility at any time beginning four years preceding the filing of the Complaint in this action through final judgment in this action.

(Id. ¶ 35).

         II. MOTION FOR REMAND

         The Court first addresses the jurisdictional questions present in Plaintiff's Motion to Remand. Defendant has asserted jurisdiction under both the Class Action Fairness Act (“CAFA”) and the Court's federal question jurisdiction.

         A. CAFA Jurisdiction

         1. Legal Standard

         Under CAFA, the Court has “original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5, 000, 000, exclusive of interest and costs, and is a class action in which” there is minimal diversity. 28 U.S.C. § 1332(d)(2).

         Removal must be accomplished within thirty days after “the receipt by a defendant, through service or otherwise, of a copy of the initial pleading setting froth the claim for relief upon which such action or proceed is based . . . .” 28 U.S.C. § 1446(b)(1). To remove a case to federal court under CAFA, a defendant must demonstrate that the amount in controversy exceeds $5 million. Id. § 1332(d)(2). When determining the amount in controversy, courts first look to the complaint. Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (addressing what proof a defendant seeking removal must produce to prove the amount in controversy requirement under CAFA when the complaint does not include a facially apparent amount in controversy, and vacating district court's remand order to allow for additional briefing). If the complaint is silent as to the amount in controversy, then the defendant bears the burden of showing by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold. Id.

         The Supreme Court held, however, that when a defendant removes an action pursuant to CAFA, the “defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold” of $5 million. Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547, 554 (2014) (emphasis added). Pursuant to 28 U.S.C. § 1446(a), the notice of removal need only “contain[] a short and plain statement of the grounds for removal, ” which is a standard that “tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure.” Id. at 553.

         Where, as here, a plaintiff has challenged the amount in controversy asserted by a defendant, “both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” Id. “Under this system, CAFA's requirements are to be tested by consideration of real evidence and the reality of what is at stake in the litigation, using reasonable assumptions underlying the defendant's theory of damages exposure.” Ibarra, 775 F.3d at 1198.

         There is no presumption against removal jurisdiction in CAFA cases. Dart Cherokee Basin Operating Co., LLC, 135 S.Ct. at 554.

         2. Timeliness

         Plaintiff first argues that Defendants failed to timely remove the action because more than thirty days passed between service upon Defendant Tesoro and Tesoro's filing of the Notice of Removal. Plaintiff asserts that Tesoro was served on January 12, 2017. The Notice of Removal was filed on February 24, 2017. (Docket No. 1). Thus, Plaintiff argues, the case was not timely removed and remand is required. The Remand Motion fails to mention, however, that the parties signed a stipulation in state court agreeing that service on Tesoro was not completed until January 25, 2017. (Ex. A to Defendants' Opposition to Remand Motion). The parties had contested whether service had been properly made upon Tesoro's headquarters in Texas or if service on Tesoro's registered agent for service of process in California was necessary. To settle this dispute the parties agreed to the stipulation, which states that the parties agree “for all purposes” that service “was completed by Plaintiff . . . after Plaintiff's mailing [of the summons and complaint] to Tesoro's San Antonio, Texas corporate office on January 25, 2017 . . . .” (Id. at 4).

         Plaintiff argues in his Reply that parties may not stipulate to extend the thirty-day window for removal due to its jurisdictional nature. While this may be true, Tesoro never sought to extend the removal period through stipulation. Rather, Tesoro and Plaintiff settled a reasonable dispute concerning service and stipulated that service was completed on January 25 and not earlier. Tesoro relied on that stipulation in filing its Notice of Removal on February 24. Plaintiff presents no ...


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