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Ali v. Setton Pistachio of Terra Bella, Inc.

United States District Court, E.D. California

November 18, 2019

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.




         Before 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.

         To 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 this order.


         28 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.

         CAFA 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)

         Where a 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.[1] “[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).

         A case 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.

         III. ANALYSIS

         The 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).

         While 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. 1, 2019).

         Tasked 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 paper.” Id.

         A 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.”

         Similarly, 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.

         In 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 ...

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