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 DENYING 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 for removal under CAFA are met.
resolve the factual dispute on the issue of timeliness, the
Court ordered Plaintiff to file a declaration and for
Defendant to file a responsive declaration. ECF No. 32, at
10-11. Similarly, the Court required Defendant to address the
date which Defendant learned from its own investigation that
minimal diversity was present. Id. at 11.
filed a supplemental declaration of attorney Michael Nourmand
on December 2, 2019. ECF No. 34. Defendant filed a
supplemental declaration of attorney Anthony Raimondo on
December 10, 2019. ECF No. 25. General Manager of Setton, Lee
Cohen, filed a declaration on December 10, 2019. ECF No. 36.
The Court has reviewed the supplemental declarations and a
decision is suitable on the papers without oral argument
under Local Rule 230(g).
Summary of the Supplemental Declarations
declaration, Nourmand states that he gave two copies of the
damages model to the mediator and informed the mediator that
he could give one to defense counsel. ECF No. 34,
¶¶ 3-4. The mediator returned with only one copy
and told Nourmand that he gave one copy to defense counsel.
ECF No. 34, ¶ 5. Raimondo responds in his supplemental
declaration that he objects to the hearsay statements
contained in Nourmand's declaration by the mediator. ECF
No. 35 ¶ 3. Raimondo again reiterates that he does not
recall receiving the damages model and that it is not
contained in his file on the case. Id. ¶¶
4, 6. Raimondo claims that it is his practice to maintain all
documents produced and received during mediations and a
document detailing damages would be in his file if he
received it. Id. ¶ 6. Cohen's declaration
corroborates Raimondo's version of events. ECF No. 36.
Cohen, who was present at the mediation, avers that they
never received a copy of the damages model. Id.
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).
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 comprises 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, 574 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. See id.;
Dart, 574 U.S. at 84-85.