United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND
DEFENDANT'S MOTION TO DISMISS RE: DKT. NOS. 12,
HAYWOOD S. GILLIAM, JR., United States District Judge
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
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.
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.
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.
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).
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).
Class Action Fairness Act
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).
Rule 12(b)(6) Dismissal
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).
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).
MOTION TO REMAND
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.
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).
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.
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.
Amount in Controversy
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.
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.
argues that Defendant fails to establish by a preponderance
of the evidence that the amount in controversy exceeds
CAFA's $5 million jurisdiction ...