United States District Court, C.D. California
Present: The Honorable Philip S. Gutierrez, United States
CIVIL MINUTES - GENERAL
(In Chambers): Order DENYING Plaintiff's Motion to Remand
and GRANTING Defendant's Motion to
the Court is Plaintiff Aaron Feao's motion to remand,
Dkt. # 10, and Defendant UFP Riverside, LLC's motion to
dismiss, Dkt. # 8. The Court finds these matters appropriate
for decision without oral argument. See Fed. R.
Civ.P. 78; L.R. 7-15. After considering the papers, the Court
DENIES Plaintiff's motion to remand, and GRANTS
Defendant's motion to dismiss. Plaintiff is permitted
leave to amend claims one, two, three, four, five, nine, and
ten and must do so, if desired, by July 31,
2017. Plaintiff is not permitted leave to amend
claims six and eight. To the extent Plaintiff re-alleges
claim seven in an amended complaint, Plaintiff may re-allege
a claim for actual damages only; statutory penalties are
barred by the statute of limitations.
the Court imposes sanctions on Plaintiff's counsel for
their failure to heed the Court's instructions as to the
federal pleading standard. Defendant may file a motion to
recover attorneys' fees and costs associated with the
filing of the motion to dismiss no later than July
Aaron Feao was employed by Defendant UFP Riverside, LLC as an
hourly, non-exempt employee in California from June 2013 to
August 2014. See Complaint
(“Compl.”), Dkt. # 1-1, ¶ 18. On
February 16, 2017, Plaintiff filed a wage and hour putative
class action complaint against Defendant in the Superior
Court for the County of Los Angeles. See generally
Id. The putative class was comprised of: “All
current and former hourly-paid or non-exempt employees who
worked for any of the Defendants [sic] within the State of
California at any time during the period from four years
preceding the filing of this Complaint to final
judgment.” Id. ¶ 13. Plaintiff asserts
that Defendant “engaged in a uniform policy and
systematic scheme of wage abuse against their [sic]
hourly-paid or non-exempt employees . . . .”
Id. ¶ 25. Plaintiff additionally avers that
“[a]t all material times” Defendant violated
various California Labor Code sections by failing to pay
overtime wages, provide meal and rest periods, pay the
minimum wage, and pay wages owed at termination, among other
violations. Id. ¶¶ 37-45.
asserts ten causes of action for violations of: (1) Cal. Lab.
Code §§ 510, 1198 (unpaid overtime); (2) Cal. Lab.
Code §§ 226.7, 512(a) (unpaid meal period
premiums); (3) Cal. Lab. Code § 226.7 (unpaid rest
period premiums); (4) Cal. Lab. Code §§ 1194, 1197,
1197.1 (unpaid minimum wages); (5) Cal. Lab. Code
§§ 201, 202 (final wages not timely paid); (6) Cal.
Lab. Code § 204 (wages not timely paid during
employment); (7) Cal. Lab. Code § 226(a) (non-compliant
wage statements); (8) Cal. Lab. Code § 1174(d) (failure
to keep requisite payroll records); (9) Cal. Lab. Code
§§ 2800, 2802 (unreimbursed business expenses); and
(10) Cal. Bus. & Prof. Code §§ 17200 et
seq. See Motion to Remand (“MTR”)
1:26-2:10 (summarizing causes of action).
removed this case to federal court on April 24, 2017 pursuant
to the Class Action Fairness Act of 2005
(“CAFA”). On April 28, 2017, Defendant filed the
motion to dismiss, Dkt. # 8, and on May 3, 2017, Plaintiff
filed the motion to remand to state court, Dkt. # 10. Both
motions are opposed.
Motion to Remand
provides federal jurisdiction over class actions in which the
amount in controversy exceeds $5, 000, 000, there is minimal
diversity between the parties, and the number of proposed
class members is at least 100. 28 U.S.C. §§
1332(d)(2), 1332(d)(5)(B). “Congress designed the terms
of CAFA specifically to permit a defendant to remove certain
class or mass actions into federal court . . . [and] intended
CAFA to be interpreted expansively.” Ibarra v.
Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir.
2015). While “no antiremoval presumption attends cases
invoking CAFA, ” Dart Cherokee Basin Operating Co.,
LLC v. Owens, 135 S.Ct. 547, 554 (2014), “the
burden of establishing removal jurisdiction remains, as
before, on the proponent of federal jurisdiction.”
Abrego v. Dow Chem, 443 F.3d 676, 685 (9th Cir.
CAFA, a defendant removing a case must file a notice of
removal containing a “short and plain statement of the
grounds for removal.” Dart Cherokee, 135 S.Ct.
547 at 553. Additionally, the Supreme Court clarified that
“a defendant's notice of removal need include only
a plausible allegation that the amount in controversy exceeds
the jurisdictional threshold, ” unless a
defendant's assertion is contested by the plaintiff.
Id. at 554. Where, as here, a defendant's
asserted amount in controversy is contested,
“[e]vidence establishing the amount is required.”
Id. “In such a case, both sides submit proof
and the court decides, by a preponderance of the evidence,
whether the amount-in-controversy requirement has been
satisfied.” Id. at 550. Ultimately, the
defendant bears the burden of proving that the amount in
controversy is met. Rodriguez v. AT&T Mobility Servs.
LLC, 728 F.3d 975, 978 (9th Cir.2013).
Motion to Dismiss
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests whether the complaint “contain[s]
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). When deciding a Rule 12(b)(6) motion, the court must
accept the facts pleaded in the complaint as true, and
construe them in the light most favorable to the plaintiff.
Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017,
1019 (9th Cir. 2013); Cousins v. Lockyer, 568 F.3d
1063, 1067-68 (9th Cir. 2009). The court, however, is not
required to accept “legal conclusions . . . cast in the
form of factual allegations.” W. Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981); see
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
accepting all non-conclusory allegations as true and drawing
all reasonable inferences in favor of the plaintiff, the
court must determine whether the complaint alleges a
plausible claim to relief. See Iqbal, 556 U.S. at
679-80. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. . . . The plausibility standard
is not akin to a ‘probability requirement, ' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. at 678.
Court first addresses Plaintiff's motion to remand to
determine whether it has subject matter jurisdiction over
this case, and then turns to Defendant's motion to
Motion to Remand
is no dispute that the Complaint satisfies CAFA's
requirements of minimal diversity or numerosity; the sole
jurisdictional dispute involves the amount in controversy.
See MTR 1:3-9. To obtain federal jurisdiction under
CAFA, the amount in controversy must exceed $5, 000, 000.
See 28 U.S.C. §§ 1332(d)(2), (d)(5)(B).
For CAFA jurisdiction purposes, the amount in controversy
“is determined by [the] universe of what the plaintiff
puts at-issue in the complaint.” Schiller v.
David's Bridal, Inc., No. CV 10-0616 AWI (SKOx),
2010 WL 2793650, at *6 (E.D. Cal. July 14, 2010); see
also Ibarra, 775 F.3d at 1198; Lim v. Helio,
LLC, No. CV 11-9183 PSG (PLAx), 2012 WL 359304, at *2
(C.D. Cal. Feb. 2, 2012) (“The ultimate inquiry is . .
. what amount is put ‘in controversy' by the
plaintiff's complaint or other papers, not what the
defendant will actually owe for the actual number of
violations that occurred, if any”).
Notice of Removal, Defendant contends that the amount in
controversy exceeds $5, 000, 000 based on damage calculations
for (1) failure to pay overtime wages, (2) failure to pay the
minimum wage, (3) minimum wage penalties, (4) failure to pay
meal and rest period compensation, (5) waiting time penalties
for failure to furnish timely wage statements at termination,
(6) failure to provide accurate and itemized wage statements,
and (7) attorneys' fees. See Notice of Removal
(“NOR”) ¶¶ 22-36.
support the calculations in the NOR, Defendant submits the
declaration of Jody Perrien, Defendant's Director of
Compensation and HR Systems. Perrien Decl., Dkt. #
1-3, ¶ 1. In the declaration, Perrien provides
statistics gleaned from Defendant's records, such as the
number of putative class members, the putative class
members' weighted average hourly wage, and the number of
putative class members terminated during the relevant time
period. See Id. ¶¶ 4-5. Although Plaintiff
contends that the Perrien declaration is too conclusory to
serve as evidence of each of these data points, the Court
disagrees, finding Perrien competent to serve as a declarant
in this matter. See Dart Cherokee, 135 S.Ct. at 554;
see also Jones v. Tween Brands, Inc., No. CV 14-1631
ODW (PLAx), 2014 WL 1607636, at *2 (C.D. Cal. Apr. 22, 2014)
(recognizing that an HR manager could be expected to have all
the information and to testify competently about the contents
of the declaration). Moreover, Perrien submitted a
supplemental declaration with Defendant's Opposition that
addressed many of the objections that Plaintiff raised to the
declaration. See Dkt. # 16-1.
calculates, based on Plaintiff's allegations and the
Perrien declaration, that the amount in controversy,
excluding attorneys' fees, for Plaintiff's claims
amounts to $5, 119, 566.NOR ¶ 34.
Defendant's calculation of the amount in controversy
assumes that there are 218 people in the putative class, and
that the people worked approximately 22, 218 work weeks and
earned roughly $16.26 per hour in the relevant time period.
See Perrien Decl. ¶¶ 4-5. The calculations
Claims: $541, 897.
Defendant assumes that each class member had at least one
hour of unpaid overtime for each work week. NOR
¶ 22. Because overtime is compensated at a
time-and-a-half rate, see Cal. Lab. Code § 510,
an employee earning $16.26 per hour would be compensated
$24.39 for each overtime hour worked. See NOR 7 n.2.
Given these assumptions, Defendant asserts that the potential
value of Plaintiff's overtime claim is $541, 897 ($24.39
x 22, 218 weeks worked). Id. 8 n.3.
Wage Claims: $722, 530.
Defendant assumes that each class member had at least one
hour of work below the minimum wage for each work week.
Id. ¶ 25. Under California Labor Code section
1197.1, an employer who fails to pay the minimum wage owes
the employee (1) the unpaid minimum wage and (2) liquidated
damages in the same amount as the unpaid wage. Given these
assumptions, Defendant contends that the potential value of
Plaintiff's minimum wage claim is $722, 530, assuming (1)
$361, 265 in unpaid minimum wage ($16.26 x 22, 218 weeks
worked); and (2) $361, 265 in liquidated damages ($16.26 x
22, 218 weeks worked).