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Muniz v. UtiliQuest, LLC

United States District Court, C.D. California

December 5, 2019

Jesus Garcia Muniz
v.
UtiliQuest, LLC

          Present: Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES - GENERAL

         Proceedings: IN CHAMBERS - COURT ORDER

         Before the Court is a Motion to Remand filed by plaintiff Jesus Garcia Muniz (“Plaintiff”). (Dkt. No. 15 (“Mot.”).) Defendant Utiliquest, LLC (“Defendant”) filed an Opposition (Dkt. No. 17 (“Opp.”)) and Plaintiff filed a Reply (Dkt. No. 20). Defendant also filed an Ex Parte Application for Leave to File a Sur-Reply (Dkt. No. 21.) The Court grants Defendant's Ex Parte Application, and has considered Defendant's Sur-Reply in connection with this Order. No. further briefing is necessary. The court finds this matter is appropriate for decision without oral argument. The hearing calendared for December 9, 2019, is vacated and the matter taken off calendar.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On December 1, 2017, Plaintiff filed a putative class action Complaint against Defendant in Los Angeles Superior Court on behalf of employees “employed by Defendant anywhere in California as non-exempt employees performing utility line locating services, including . . . Field Technicians, Technicians and any other employee who used a company-owned vehicle to commute to/from their work site.”. (Dkt. No. 1.) Each of Plaintiff's claims is for a violation of the California Labor Code and/or Industrial Welfare Commission Wage Orders. (See id.) Defendant filed its first Notice of Removal on February 27, 2018, alleging this Court had jurisdiction pursuant to the Class Action Fairness Act (“CAFA”). (See Jesus Garcia Muniz v. Utiliquest, LLC (“Muniz I”), 18-cv-1594 (C.D. Cal.), Dkt. No. 1.) Defendant alleged Plaintiff's citizenship was diverse from Defendant's citizenship because Plaintiff “resided in California, ” and Defendant “is a limited liability company existing under the laws of Georgia” with it's “principal place of business [in] Georgia.” (Id.)

         In a February 28, 2018 Order, this Court sua sponte remanded this action back to state court, finding Defendant did “not sufficiently allege the citizenship of any party” and therefore the Court could not “determine whether diversity of citizenship exist[ed].” (See Muniz 1, Dkt No. 8.) The Court noted that, as to Plaintiff, an “individual is not necessarily domiciled where he or she resides, ” and therefore alleging someone's residency is insufficient to establish citizenship. (Id.) In addition, the Court found that because Defendant is an LLC and not a corporation, “its principal place of business and state of formation do not establish its citizenship.” (Id.) Defendant did “not identify the citizenship of its members, and thus [did] not adequately allege[] its own citizenship.” (Id.)

         That same day, Defendant filed a second Notice of Removal, again alleging this Court had jurisdiction over this action based on CAFA. (See Jesus Garcia Muniz v. Utiliquest, LLC (“Muniz II”), 2:18-cv-01715 (C.D. Cal. Dkt. No. 1 (“Removal 2").) In its second Notice of Removal, Defendant claims “Plaintiff is a citizen of California, ” and Defendant is a citizen of the states of Florida and Delaware, as its sole member, Dycom Investments, Inc. is a corporation incorporated in Delaware with its principal place of business in Florida. (Id. 3.)

         On March 30, 2018, Plaintiff filed a Motion to Remand arguing Defendant's second Notice of Removal was based on the same grounds as the initial Notice of Removal, and that this was an improper successive removal. Defendant did not notify the Court that this was its second removal, and instead filed a false Civil Cover Sheet and Notice of Related Cases.[1](Id. Dkt No. 14.) On April 10, 2018 this Court granted Plaintiff's Motion to Remand, finding Plaintiff's second Notice of Removal was an improper successive removal. (Id. Dkt. No. 23.)

         Defendant has now filed a third Notice of Removal, again claiming this Court has jurisdiction over this case based on CAFA diversity. (Dkt. No. 1 (“Removal 3”).) Defendant now alleges that “[a]t least one member of the putative class who was not a member of the putative class at the time of the prior removals, but who is now a member of the putative class because he recently applied for and became employed by Defendant as a locator in California” is a citizen of El Salvador, and “at least one member of the putative class who was not a member of the putative class at [the] time of the prior removals, but who is now a member of the putative class because he recently applied for and became employed by Defendant as a locator working in California, ” is a citizen of California. (Id. 4, 10.) In addition, in its Opposition, Defendant claims it recently discovered that a third employee, “employed by [Defendant] as a locator both at the time of the filing of the initial pleading and at the time of the removal, is a lifelong California citizen.” (Reply 10.) Defendant alleges this establishes a new ground for diversity because the prior removals were based on the citizenship of the named Plaintiff, Jesus Garcia Muniz, not these employees' citizenship. (Id.) In addition, Defendant claims that because the first remand order was issued sue sponte, and the Ninth Circuit has since “held that the initial sua sponte order of remand . . . was improper, ” this “forms a third new ground on which to remove.” (Id. 11 (citing Arias v. Residence Inn., 936 F.3d 920 (9th Cir. 2019).)

         Plaintiff filed a Motion to Remand, arguing: (1) Defendant's removal is an improper successive removal, (2) Defendant's removal is untimely, (3) Defendant waived the right to remove by litigating this case in state court, (4) Defendant failed to plausibly allege an amount in controversy exceeding $5 million, (5) Defendant's removal is defective because it is missing state court documents, and (6) Defendant has not shown the additional employees are putative class members. (Mot. 10-23.) In addition, Plaintiff asks this Court to award him attorneys' fees. (Id. 24.)

         II. LEGAL STANDARD

         Federal courts are courts of limited jurisdiction, having subject matter jurisdiction over only those matters authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A suit filed in state court may be removed to federal court if the federal court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). “The right of removal is entirely a creature of statute, ” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002), and the party seeking to avail itself of a removal statute bears the burden of showing that removal is appropriate. See Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006) (“[U]nder CAFA the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdiction.”).

         Under CAFA, a party may avail itself of federal jurisdiction when “the amount in controversy exceeds $5 million, there is minimal diversity between the parties, and the number of proposed class members is at least 100.” Taylor v. Cox Commc'ns Cal., LLC, CV 16-01915, 2016 WL 2902459, at *2 (C.D. Cal. May 18, 2016); 28 U.S.C. §§ 1332(d)(2), 1332(d)(5)(B).

         In general, removal statutes are strictly construed, and if there is “any doubt as to the right of removal in the first place, ” the case must be remanded. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). However, this presumption does not extend to CAFA cases. See Dart Cherokee Basin Operating thiCo., LLC v. Owens, 574 U.S. 81, 88 (2014) (“[N]o antiremoval presumption attends cases ...


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