United States District Court, E.D. California
LILIA ALI, on behalf of herself and all similarly aggrieved employees, Plaintiff,
SETTON PISTACHIO OF TERRA BELLA, INC. and DOES 1 through 100, inclusive, Defendants.
ORDER FOR SUPPLEMENTAL DECLARATIONS RE MOTION TO
REMAND (ECF NO. 7)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
INTRODUCTION & BACKGROUND
the Court is Lilia Ali's (“Plaintiff”) motion
to remand to state court (ECF No. 7). Plaintiff's lawsuit
was originally filed on April 27, 2016 in Tulare County
Superior Court alleging wage violations under California Law.
ECF No. 1, Complaint, at 1. Plaintiff subsequently amended
the complaint on August 1, 2016. ECF No. 1, First Amended
Complaint (“FAC”), at 14. On July 12, 2019,
Defendant, Setton Pistachio of Terra Bella, Inc.,
(“Defendant” or “Setton”) filed a
notice of removal to federal court under the Class Action
Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).
ECF No. 1. Plaintiff asserts that the lawsuit must be
remanded because Defendant's removal of the case was
untimely. Defendant contends that the time to remove the case
has not expired or begun to run because minimal diversity of
citizenship was not readily apparent on the face of the
complaint or the FAC. Similarly, the parties dispute when the
amount in controversy was disclosed to Defendant. Plaintiff
asserts that the amount in controversy was disclosed during
mediation on June 28, 2017 in the form of a “damages
model” provided to Defendant. Nourmand Decl., ECF 7-2
¶ 2. Defendant contends that it never received this
document and that it only learned of the amount in
controversy in an email from defense counsel on June 14,
2019. Raimondo Decl., ECF No. 9-3 ¶¶ 3-4; ECF No.
1, at 2. The parties do not otherwise dispute that the
requirements under CAFA for removal are met.
resolve the factual dispute on the issue of timeliness, the
Court orders Plaintiff to file a declaration, and for
Defendant to file a responsive declaration, consistent with
U.S.C. § 1441(a) provides that civil actions brought in
state court may be removed when the district courts of the
United States have original jurisdiction.
provides expanded original diversity jurisdiction for class
actions meeting the amount in controversy, minimal diversity,
and numerosity requirements set forth in 28 U.S.C. §
1332(d). See Ibarra v. Manheim Invs., Inc., 775 F.3d
1193, 1195 (9th Cir. 2015)
party seeks to invoke federal jurisdiction under CAFA, the
party must show (1) minimal diversity-that at least one
plaintiff is diverse in citizenship from any defendant, (2)
the putative class is comprised of at least 100 members, and
(3) that the amount in controversy exceeds $5, 000, 000
exclusive of costs and interest. 28 U.S.C. §§
1332(d)(2) and (5); Ibarra, 775 F.3d at 1195. The
party seeking removal bears the burden of establishing
federal jurisdiction. Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 682 (9th Cir. 2006). This burden
remains unchanged when a party seeks removal under CAFA
jurisdiction. Id. at 685. “[N]o antiremoval
presumption attends cases invoking CAFA, a statute Congress
enacted to facilitate adjudication of certain class actions
in federal court.” Dart Cherokee Basin
Operating Co., LLC v. Owens, 547 U.S. 81, 82 (2014).
becomes removable pursuant to CAFA when the ground for
removal is first disclosed, and the case may be removed
within 30 days after receipt of such disclosure. Jordan
v. Nationstar Mortg. LLC, 781 F.3d 1178, 1184
(9th Cir. 2015). If a notice of removal is filed after the
30-day window, it is untimely and remand to state court is
appropriate. Babasa v. LensCrafters, Inc., 498 F.3d
972, 974 (9th Cir. 2007).
[I]f the case stated by the initial pleading is not
removable, a notice of removal may be filed within thirty
days after receipt by the defendant, through service or
otherwise, of a copy of 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)(3). In other words, the 30-day clock
starts as soon as the initial pleading, amended pleading,
motion, order, or other paper reveals that the amount in
controversy exceeds $5, 000, 000, the putative class is 100
members or more, and at least one plaintiff is diverse in
citizenship from any defendant.
question presented is whether the “damages model,
” purportedly given to Defendant during mediation in
June 2017 constitutes an “other paper” that
placed Defendant on notice that the case was removable. Next,
if the document constitutes an “other paper, ”
the Court must determine whether it was received by the
Defendant, “through service or otherwise . . . .”
28 U.S.C. § 1446(b)(3).
the term “other paper” is not defined in the
statute, courts within the Ninth Circuit have interpreted
this term broadly. Rynearson v. Motricity, Inc., 626
F.Supp.2d 1093, 1097 (W.D. Wash. 2009) (“The type of
document that constitutes an ‘other paper' for the
purpose of the statute is broad, reflecting courts'
‘embracive construction' of the term.”);
see also Thomas v. CVS Health Corp., No.
2:19-CV-04283-R-FFM, 2019 WL 3526344, at *2 (C.D. Cal. Aug.
with interpreting the term “other paper” in
§ 1446(b)(3), the First Circuit utilized canons of
statutory interpretation, the case law of other circuits, and
the legislative history of CAFA to conclude that Congress
intended a “broad interpretation of ‘other
paper' adopted by some courts to include deposition
transcripts, discovery responses, settlement offers and other
documents or occurrences that reveal the removability of a
case.” Romulus v. CVS Pharmacy, Inc., 770 F.3d
67, 78 (1st Cir. 2014) (internal quotation marks omitted).
Under this reasoning, the Romulus Court held that
email correspondence from the plaintiff to the defendant
concerning damages can constitute an “other
settlement letter sent in advance of mediation has been
deemed an “other paper” under § 1446(b).
Babasa v. LensCrafters, Inc., 498 F.3d 972, 975 (9th
Cir. 2007). In Babasa, the Ninth Circuit held that
the plaintiff's pre-mediation settlement letter
constituted § 1446 notice because the letter estimated
damages at $9.5 million supported by details of the injuries.
498 F.3d at 973-75. In Jiminez v. Sears, Roebuck &
Co., 2010 WL 653548 at *2-*3 (C.D. Cal. Feb. 18, 2010),
the district court held that an oral statement was not an
“other paper, ” but acknowledged,
“[s]ettlement letters or other documents provided
during mediation may form a basis for removal.”
deposition testimony can be considered an “other
paper” within the meaning of § 1446(b).
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876,
887 (9th Cir. 2010). In Carvalho, the Ninth Circuit
held that the plaintiff's answer during her deposition
put the defendant on notice that the amount in controversy
was met. Id.
addition, one other district court held that a declaration
filed by a codefendant which revealed the amount in
controversy was an “other paper” under §
1446(b). Vagle v. Archstone Communities, LLC, No. CV