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Kastler v. Oh My Green, Inc.

United States District Court, N.D. California

October 25, 2019

ANNE KASTLER, Plaintiff,
OH MY GREEN, INC., Defendant.


          HAYWOOD S. GILLIAM, JR., United States District Judge

         Pending before the Court is Plaintiff's motion to remand and Defendant's motion to dismiss. See Dkt. Nos. 12, 21. For the reasons noted below, the Court DENIES both Plaintiff's motion to remand the case to California state court and Defendant's motion to dismiss Count 6 of Plaintiff's First Amendment Complaint.

         I. BACKGROUND

         Plaintiff Anne Kastler filed a wage and hour putative class action complaint in the San Mateo County Superior Court on February 28, 2019. Dkt. No. 1-1 (“Complaint”). Plaintiff listed “OH MY GREEN, INC.” and “DOES 1 through 100” as Defendants. Id. ¶ 6-8. Plaintiff was employed by Defendant Oh My Green as an hourly, non-exempt employee in California from approximately November 2016 to February 2017. Id. ¶ 18. The putative class was comprised of “[a]ll current and former hourly-paid or non-exempt employees who worked for any of the 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. ¶ 13. Plaintiff asserts that Defendants “engaged in pattern and practice of wage abuse against their hourly-paid or non-exempt employees within the State of California. This pattern and practice involved, inter alia, failing to pay them for all regular and/or overtime wages earned and for missed meal periods and rest breaks . . . .” Id. ¶ 26. Plaintiff additionally alleges that Defendants violated sections of the California Labor Code by failing to pay overtime wages, provide uninterrupted meal and rest periods, pay the minimum wage, pay wages owed at discharge or resignation, provide complete or accurate wage statements, keep complete or accurate payroll records, and reimburse all necessary business-related expenses, among other violations. Id. ¶¶ 37-45.

         Plaintiff asserts eight causes of action for violations of (1) California Labor Code sections 510 and 1198 (unpaid overtime); (2) California Labor Code sections 226.7 and 512(a) (unpaid meal period premiums); (3) California Labor Code section 226.7 (unpaid rest period premiums); (4) California Labor Code sections 1194, 1197, and 1197.1 (unpaid minimum wages); (5) California Labor Code sections 201 and 202 (final wages not timely paid); (6) California Labor Code section 226(a) (non-compliant wage statements); (7) California Labor Code sections 2800 and 2802 (unreimbursed business expenses); and (8) California Business and Professional Code section 17200 (Unfair Competition Law, “UCL”). Dkt. No. 15. at 1.

         Defendant Oh My Green, Inc. removed the case to federal court on May 2, 2019, claiming that this Court has jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Defendant filed a motion to dismiss, Dkt. No. 5, on May 9, 2019, which the Court dismissed as moot after Plaintiff filed a First Amended Complaint (“FAC”) on May 23, 2019. Dkt. No. 30. On May 22, 2019, Plaintiff filed a motion to remand, for which bringing is complete. Dkt. Nos. 12 (“Remand Mot.”), 22 (“Remand Opp.”), 24 (“Remand Reply”), and 25 (“Remand Surreply”). On June 3, 2019, Defendant filed a motion for dismiss Plaintiff's FAC. Dkt. Nos. 21 (“Dismiss Mot.”), 23 (“Dismiss Opp.”), and 27 (“Dismiss Reply”). The Court held a hearing on the motion to remand on October 10, 2019. Dkt. No. 38.


         A. Removal Jurisdiction

         A defendant may remove any civil action to federal court where the district court would have original jurisdiction over the action. 28 U.S.C. § 1441; see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). To do so, a party seeking removal must file a notice of removal within 30 days of receiving the initial pleading or within 30 days of receiving “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(1), (3). The notice must contain a “short and plain statement of the grounds for removal.” Id. § 1446(a); see also Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015).

         The removing party bears the burden of establishing removal jurisdiction. Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006). A plaintiff may seek to remand a case to the state court from which it was removed if the district court lacks jurisdiction or if there was a defect in the removal procedure. 28 U.S.C. § 1447(c).

         B. Class Action Fairness Act

         CAFA vests district courts with original jurisdiction over civil actions in which the amount in controversy exceeds $5 million, there is minimal diversity of citizenship between the parties, and the action involves at least 100 class members. 28 U.S.C. § 1332(d). Under CAFA, “the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5, 000, 000.” 28 U.S.C. § 1332(d)(6).

         C. Rule 12(b)(6) Dismissal

         Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, Courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Even if the court concludes that a 12(b)(6) motion should be granted, the “court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted).


         Plaintiff challenges Defendant's removal to federal court, arguing that the notice fails to establish CAFA jurisdiction. Plaintiff does not dispute that the number of putative class members exceeds the jurisdictional requirement, but contends that Defendant fails to establish the remaining requirements: minimal diversity and an amount in controversy exceeding $5 million. Remand Mot. 6. Plaintiff also argues that even if these requirements were met, the local controversy and home-state controversy exceptions require the Court to remand the case to state court. Remand Reply at 6-7. The Court addresses each argument in turn.

         A. Minimal Diversity

         CAFA requires “minimal diversity” between the parties. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 (9th Cir. 2007). The minimal diversity requirement is satisfied if “any member of a class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). For purposes of diversity, a corporation is deemed to be a citizen of every state where it has been incorporated and where it has its “principal place of business.” Id. § 1332(c)(1).

         Here, Defendant admits that it is a citizen of California, given that its headquarters are located in San Mateo, California. Dkt. No. 1 ¶ 20. Plaintiff is also a citizen of California. Dkt. No. 1-1 ¶ 5. Plaintiff argues that Defendant cannot establish minimal diversity under CAFA because its allegation that “at least one of the proposed Class Members is currently a resident of the State of Washington” is insufficient to meet the preponderance standard. Remand Mot. 10. While this statement in Defendant's notice of removal likely was not enough to establish minimal diversity, Defendant provides an affidavit from Grecelie Moreno, Sr., HR Business Partner at Oh My Green, Inc., detailing the names and residences of six current and former hourly-paid and non-exempt employees who worked in California between February 2016 to present, but now live outside of California. Dkt. No. 22-1 ¶ 11-12. Although “a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties, ” Kanter v. Warner-Lamber Co., 265 F.3d 853, 857 (9th Cir. 2001), the Court may properly consider evidence submitted by the removing party “in its opposition to remand, even if this evidence was not submitted with the original removal petition, ” Altamirano v. Shaw Indus., Inc., No. C-13-0939 EMC, 2013 WL 2950600, at *3 (N.D. Cal. June 14, 2013) (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n. 1 (9th Cir. 2002)). After considering the details provided in Defendant's opposition to remand, the Court finds that minimal diversity has been shown.

         Plaintiff further argues that because she seeks to represent a class that is limited to California citizens and amended her complaint specifically to clarify this, the identified out-of-state individuals are not part of the proposed class. Remand Reply 6; see also FAC ¶ 13 (defining proposed class as those “who worked . . . within the State of California . . . and who currently reside in California”) (emphasis added). However, the Court must consider only the operative complaint at the time of removal, not one amended after removal in an effort to eliminate federal jurisdiction. See Broadway Grill, Inc. v. Visa Inc., 856 F.3d 1274, 1277 (9th Cir. 2017) (“plaintiff[‘s] attempts to amend a complaint after removal to eliminate federal jurisdiction are doomed to failure”); see also Doyle v. OneWest Bank, FSB, 764 F.3d 1097, 1098 (9th Cir. 2014) (“[T]he District Court should have determined the citizenship of the proposed plaintiff class based on [plaintiff's] complaint as of the date the case became removable.”) (internal quotation omitted). Plaintiff's Complaint did not limit proposed class members to residents of California, so Defendant meets the minimal diversity requirement.

         B. Amount in Controversy

         When evaluating the amount in controversy, the Court must determine whether it is “more likely than not” that the amount in controversy exceeds $5 million. See Bryan v. Wal-Mart Stores, Inc., No. C 08-5221 SI, 2009 WL 440485, at *2 (N.D. Cal. Feb. 23, 2009). The Court must assume the truth of the allegations in the complaint and that a jury will return a verdict for the plaintiff on all the alleged claims. Id.

         A defendant may not establish federal jurisdiction “by mere speculation and conjecture, [or] with unreasonable assumptions.” Ibarra, 775 F.3d at 1197-98. Instead it must rely on “real evidence and the reality of what is at stake in the litigation.” Id. Nevertheless, “a defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014). Courts have found that declarations or affidavits may be sufficient to satisfy this burden. See, e.g., Lewis v. Verizon, 627 F.3d 395, 397 (9th Cir. 2010) (finding an affidavit showing that “potential damages could exceed the jurisdictional amount” sufficient to satisfy the removing defendant's burden). A defendant is only required to submit evidence establishing the amount in controversy “when the plaintiff contests, or the court questions, the defendant's allegation.” Dart Cherokee, 135 S.Ct. at 554. The Ninth Circuit has not determined whether the plaintiff must also submit evidence, and instead has held that the district court should “set a reasonable procedure . . . so that each side has a fair opportunity to submit proof.” Ibarra, 775 F.3d at 1199-1200.

         Plaintiff argues that Defendant fails to establish by a preponderance of the evidence that the amount in controversy exceeds CAFA's $5 million jurisdiction ...

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