United States District Court, N.D. California
ORDER RE REMAND MOTION RE: DKT. NO.
DONATO, UNITED STATES DISTRICT JUDGE.
are truck drivers employed by defendant Penske Logistics, LLC
(“Penske”) and filed this action for California
state labor code violations in Alameda Superior Court. Dkt.
No. 1. Penske removed the case to federal court based on
diversity jurisdiction. Id.; 28 U.S.C. §
1441(b). Plaintiffs move to remand the case back to state
court, or, in the alternative, for leave to amend the
complaint by adding a non-diverse defendant. Dkt. No. 10. The
motion is denied.
remand motion is based on the timeliness of the removal
petition. Plaintiffs contend defendants waited too long to
remove the case under 28 U.S. Code Section 1446(b).
Plaintiffs filed the state court complaint on September 16,
2016, and defendants did not remove the action until
September 18, 2017.
rules governing the timing of removal are straightforward.
“After a defendant learns that an action is removable,
he has thirty days to remove the case to federal
court.” Durham v. Lockheed Martin Corp., 445
F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. §
1446(b)). The removal clock “starts to run from
defendant's receipt of the initial pleading only when
that pleading affirmatively reveals on its face the facts
necessary for federal court jurisdiction.” Id.
(internal quotation and citation omitted). Otherwise, the
removal period begins when a defendant “receives
‘a copy of an amended pleading, motion, order or other
paper' from which it can determine that the case is
removable.” Id. (quoting 28 U.S.C. §
1446(b)). These rules are applied in conjunction with the
principle that removal statutes are “‘strictly
construed' against removal jurisdiction.”
Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th
Cir. 2012) (citing Syngenta Crop Prot., Inc. v.
Henson, 537 U.S. 28, 32 (2002)).
plaintiffs concede, the complaint did not disclose
removability on its face. Dkt. No. 1-1. The question, then,
is whether a subsequent document demonstrated the possibility
of removal, and whether defendants acted in a timely manner
in light of that disclosure. Plaintiffs suggest several dates
by which defendants should have known removal was possible,
but did not act. For example, they say the removal clock
began to run on July 18, 2017, when the parties filed a joint
case management statement acknowledging their agreement to
mediate the action as an individual rather than a class
proceeding. See 28 U.S.C. § 1446(c)(3)
(“information relating to the amount in controversy in
the record of the State proceeding . . . shall be treated as
an ‘other paper' under subsection (b)(3)”).
Plaintiffs overstate the import of that document. Certainly,
the removal statute “‘requires a defendant to
apply a reasonable amount of intelligence in ascertaining
removability.'” Kuxhausen v. BMW Fin. Servs. NA
LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) (quoting
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206
(2d Cir. 2001)). “Multiplying figures clearly stated in
a complaint is an aspect of that duty, ” but defendants
are “not obligated to supply information which [the
plaintiff] . . . omitted, ” or even to make a
“plausible-enough guess” about the amount in
controversy. Id. at 1140-41. This standard
“forces plaintiffs to assume the costs associated with
their own indeterminate pleadings.” Id. at
1141. Here, the complaint does not offer any numbers
regarding wages or total hours worked by any plaintiff. As
plaintiffs' own remand motion indicates, defendant would
have had to “review its records” in order to
calculate potential damages. Dkt. No. 10 at 8. Circuit
precedent makes clear that such reviews are not required by
the removal statute.
also argue that the removal clock began to run on August 8,
2017, when the parties participated in a mediation session.
Babasa v. LensCrafters, Inc., 498 F.3d 972, 975 (9th
Cir. 2007) (“‘settlement letter is relevant
evidence of the amount in controversy'”) (quoting
Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir.
2002)). The mediator shared plaintiffs' gross settlement
demands rather than individual plaintiffs' demands. Dkt.
No. 11-1. Plaintiffs do not dispute that only a gross
settlement amount was discussed, see Dkt. No. 13,
nor do they argue that the gross settlement amount evidenced
at least $75, 000 in controversy for a specific individual.
See Urbino v. Orkin Servs. of California, Inc., 726
F.3d 1118, 1122 (9th Cir. 2013). Consequently, Penske could
not have determined removability on August 8, and the removal
clock did not begin to run.
record shows that the clock properly started when Penske
received a breakdown of individual demands on September 6,
2017. See Dkt. No. 10-1 Exh. 1. It promptly filed a
notice of removal 12 days later. Consequently, removal was
timely under Section 1446(b)(3). Plaintiffs do not seek
remand under Section 1446(c)(1), which states that a
“case may not be removed under subsection (b)(3) on the
basis of [diversity jurisdiction] more than 1 year after
commencement of the action.” 28 U.S.C. § 1446(c).
While it appears that Penske removed the case more than a
year after the action was filed, Section 1446(c)(1) imposes
“a procedural, non jurisdictional requirement”
that is “waivable.” Smith v. Mylan Inc.,
761 F.3d 1042, 1045 (9th Cir. 2014). Plaintiffs have waived
the one year limitation by failing to raise it in their
motion, and the Court lacks authority to remand sua sponte on
alternative, plaintiffs ask that the Court permit joinder of
Joshua Blahnick, a non-diverse defendant, and remand the
action to state court. See 28 U.S.C. § 1447(e).
Plaintiffs allege that Blahnick was the operations manager
and highest ranking supervisor at the Patterson terminal,
where several plaintiffs worked, and was responsible for at
least some of the labor code violations in the case. Dkt. No.
10-1 at 3; Dkt. No. 13-1. Plaintiffs do not contend that they
have a right to amend as a matter of course under Rule 15(a).
decision regarding joinder of a diversity
destroying-defendant is left to the discretion of the
district court.” Newcombe v. Adolf Coors Co.,
157 F.3d 686, 691 (9th Cir. 1998). The standard is
“permissive, ” id., and the district
court's discretion to deny joinder under Section 1447(e)
is greater than in the Rule 15(a) context. See McGrath v.
Home Depot USA, Inc., 298 F.R.D. 601, 607 (S.D. Cal.
2014) (listing cases). A “trial court should look with
particular care at [plaintiff's motive in seeking
joinder] . . . in removal cases, when the presence of a new
defendant will defeat the court's diversity jurisdiction
and will require a remand to the state court.”
Desert Empire Bank v. Ins. Co. of N. Am.,
623 F.2d 1371, 1376 (9th Cir. 1980) (discussing joinder
standards under Rule 20, before enactment of Section
1447(e)). Here, plaintiffs' proposed amendment appears to
be motivated solely by their desire to litigate this action
in state court. Plaintiffs represent that they sent a letter
to the California Labor and Workforce Development Agency
documenting their wage and hour allegations in July 2016.
Dkt. No. 13-1 at 2. They filed this lawsuit in September
2016. They offer no compelling explanation for why it took
them well over a year to identify the highest ranking
supervisor at plaintiffs' workplace. See Dkt.
No. 13. That long delay appears even more suspect in light of
plaintiffs' insistence that Blahnick is “required
for just adjudication of this dispute.” Id. at
8. Plaintiffs' motion for remand or joinder is denied.