United States District Court, S.D. California
PHIL OLSON, individually, and on behalf of other members of the general public similarly situated, Plaintiff,
BECTON, DICKINSON AND COMPANY, a New Jersey corporation, Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO REMAND
[DOC. NO. 8]
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
Phil Olson (“Plaintiff”) filed this putative
class action against Defendant Becton, Dickinson, and Company
(“Defendant”) in the Superior Court of
California, County of San Diego. See Doc. No. 1, Ex.
A (hereinafter “Compl.”). On May 8, 2019,
Defendant removed the action to this Court pursuant to the
Class Action Fairness Act (“CAFA”), 28 U.S.C.
§ 1332(d). See Doc. No. 1. On June 7, 2019,
Plaintiff filed a motion to remand this action back to state
court. See Doc. No. 8. Defendant filed an
opposition, to which Plaintiff replied. See Doc.
Nos. 9, 10. The Court found the matter suitable for
determination on the papers and without oral argument
pursuant to Civil Local Rule 7.1.d.1. See Doc. No.
11. For the reasons set forth below, the Court
DENIES Plaintiff’s motion to remand.
a California resident, previously worked for Defendant as a
non-exempt employee in California from December 2016 to
September 2017. See Compl. ¶¶ 16-17.
Defendant is a New Jersey corporation, with its principal
place of business in New Jersey. See Doc. No. 1,
April 5, 2019, Plaintiff filed this putative class action in
San Diego Superior Court on behalf of himself and all other
similarly situated California employees, alleging the
following eight claims for relief: (1) failure to pay
overtime wages, in violation of Cal. Lab. Code §§
510, 1198; (2) failure to provide meal periods, in violation
of Cal. Lab. Code §§ 226.7, 512(a); (3) failure to
provide rest periods, in violation of Cal. Lab. Code §
226.7; (4) failure to pay minimum wages, in violation of Cal.
Lab. Code §§ 1194, 1197; (5) failure to timely pay
wages, in violation of Cal. Lab. Code §§ 201, 202;
(6) failure to provide complete and accurate wage statements,
in violation of Cal. Lab. Code § 226(a); (7) failure to
reimburse necessary business-related expenses and costs, in
violation of Cal. Lab. Code §§ 2800, 2802; and (8)
unfair and unlawful business practices, in violation of Cal.
Bus. & Prof. Code § 17200 et seq. See
Compl. Plaintiff defines the proposed class as “[a]ll
current and former California-based . . . hourly-paid or
non-exempt individuals employed . . . by Defendants within
the State of California at any time during the period from
four years preceding the filing of this Complaint to final
judgment.” Id. ¶ 12.
a general matter, defendants may remove to the appropriate
federal district court ‘any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.’ 28 U.S.C. § 1441(a).
The propriety of removal thus depends on whether the case
originally could have been filed in federal court.”
City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 163 (1997). The “propriety of
removal” in this case arises under “CAFA[, which]
gives federal courts jurisdiction over certain class actions,
defined in § 1332(d)(1), if the class has more than 100
members, the parties are minimally diverse, and the amount in
controversy exceeds $5 million.” Dart
Cherokee Basin Operating Co., LLC v. Owens, 574 U.S.
81, 84-85 (2014).
notice of removal must contain a “short and plain
statement of the grounds for removal.” 28 U.S.C. §
1446(a). There is no presumption against removal jurisdiction
in CAFA cases. See Dart, 574 U.S. at 89 (noting
“CAFA’s provisions should be read broadly, with a
strong preference that interstate class actions should be
heard in a federal court if properly removed by any
defendant”) (internal quotations omitted). The burden
of establishing removal jurisdiction under CAFA lies with the
proponent of federal jurisdiction. See Ibarra v. Manheim
Invs., Inc., 775 F.3d 1193, 1199 (9th Cir. 2015).
a defendant seeks federal-court adjudication, the
defendant’s amount-in-controversy allegation should be
accepted when not contested by the plaintiff or questioned by
the court.” Dart, 574 U.S. at 87.
“Evidence establishing the amount is required”
where, as here, the plaintiff challenges the
defendant’s amount in controversy assertion.
Id. at 89. “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 88 (citing 28 U.S.C.
§ 1446(c)(2)(B)). “Under the preponderance of the
evidence standard, a defendant must establish ‘that the
potential damage could exceed the jurisdictional
amount.’” Bryant v. NCR Corp., 284
F.Supp.3d 1147, 1149 (S.D. Cal. 2018) (quoting Rea v.
Michaels Stores Inc., 742 F.3d 1234, 1239 (9th Cir.
2014)). “[I]n assessing the amount in controversy, a
removing defendant is permitted to rely on ‘a chain of
reasoning that includes assumptions.’” Arias
v. Residence Inn by Marriott, No. 19-55803, 2019 WL
4148784, at *4 (9th Cir. Sept. 3, 2019) (publication
forthcoming) (quoting Ibarra, 775 F.3d at 1199).
“Such ‘assumptions cannot be pulled from thin air
but need some reasonable ground underlying them.’ An
assumption may be reasonable if it is founded on the
allegations of the complaint.” Id.
is no dispute that the proposed class includes more than 100
employees or that the parties are minimally diverse. Thus,
the sole issue before the Court is whether Defendant has
shown, by a preponderance of the evidence, that the amount in
controversy exceeds $5 million.
Requests for Judicial Notice
initial matter, Defendant requests that the Court take
judicial notice of the complaint and the plaintiff’s
reply brief in support of a motion to remand filed in a
similar action, Baretich v. Everett Fin., Inc., No.
18cv1327-MMA (BGS) (S.D. Cal.). See Doc. No. 9-6.
Because the Court need not rely on these documents in
reaching its conclusion below, the Court DENIES AS
MOOT Defendant’s request for judicial notice.
Plaintiff requests that the Court take judicial notice of the
Undersigned’s decision on the motion to remand in
Baretich. See Doc. No. 10-1. Plaintiff’s
request is misguided because the Court need not take judicial
notice of its previous decisions and “a request for
judicial notice is not a proper vehicle for legal
argument.” Garcia v. California Supreme Court,
No. CV 12-4504-DWM, 2014 WL 309000, at *1 (N.D. Cal. Jan. 21,
2014); see also McVey v. McVey, 26 F.Supp.3d 980,
984 (C.D. Cal. 2014); Ghalehtak v. FNBN I, ...