United States District Court, C.D. California
CARLOS DELGADO, individually and on behalf of all others similarly situated, Plaintiff,
LINCOLN TRANSPORTATION SERVICES INC., et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND
FOR ATTORNEY FEES [DKT. 9]
J. CARNEY, UNITED STATES DISTRICT JUDGE.
Carlos Delgado filed this putative wage-and-hour class action
against Defendants Lincoln Transportation Services Inc.
(“Lincoln”), Navigator Transport Inc.
(“Navigator”), Jose Cardenas
(“Jose”), Elizabeth Cardenas
(“Elizabeth”), Octavio Beltran, and unnamed Does
in Los Angeles County Superior Court. (Dkt. 1 [Notice of
Removal, hereinafter “NOR”].) Defendants Lincoln,
Jose, and Elizabeth (“Lincoln Defendants”)
removed to this Court. (Id.) Before the Court is
Plaintiff's unopposed motion to remand and for attorney
fees. (Dkt. 9 [hereinafter “Mot.”].) For the
following reasons, Plaintiff's motion is
filed this action in Los Angeles County Superior Court on
March 9, 2018. (Dkt. 9-3 Ex. 1 [Complaint, hereinafter
“Compl.”].) In the operative Second Amended
Complaint (“SAC”), Plaintiff alleges that he was
previously employed as a truck driver for Lincoln and
Navigator and compensated on a piece-rate basis. (Dkt. 9-3
Ex. 3 [hereinafter “SAC”] ¶
Defendants allegedly operate a pickup and delivery business
with locations across California. (Id. ¶ 14.)
Jose, Elizabeth, and Beltran are named as owners, directors,
officers, managers, and/or agents of Lincoln and Navigator.
(Id. ¶ 4.) Defendants allegedly committed
numerous wage-and-hour violations during Plaintiff's
employment. (See generally id.) Specifically,
Defendants allegedly made unlawful wage deductions, failed to
reimburse for business expenses, failed to pay minimum wage,
failed to provide meal and rest periods, failed to compensate
for meal and rest periods, failed to pay earned wages after
separation, and failed to provide accurate itemized wage
statements. (Id. ¶ 2.)
on these allegations, Plaintiff brought suit on behalf of
himself and similarly situated current and former employees.
In the SAC, Plaintiff asserts eleven causes of action for
violations of the California Labor Code and California
Industrial Welfare Commission wage orders, (id.
¶¶ 23-79 [Claims One through Eight]), for
violations of California's Unfair Competition Law,
(id. ¶¶ 80-89 [Claim Nine]), and for civil
penalties under California's Private Attorneys General
Act, (id. ¶¶ 90-118 [Claims Ten and
Eleven]). In November 2018, Lincoln Defendants filed an
Answer to the SAC. (Dkt. 9-3 Ex. 2.) The case was scheduled
to proceed to a jury trial in state court in November 2019.
(Dkt. 9-3 Ex. 4 [Superior Court Minute Order Vacating Jury
Trial].) On November 1, 2019-three days before the state
court trial-Lincoln Defendants filed their notice of removal.
(Id.; NOR.) They assert that this Court has federal
question jurisdiction over the case based on a December 2018
order from the Federal Motor Carrier Safety Administration
(“FMCSA” and the “FMCSA Order”). (NOR
at 3.) Plaintiff filed the instant motion to remand on
December 4, 2019. Lincoln Defendants have failed to file an
opposition or notice of non-opposition to Plaintiff's
plaintiff can move to remand to state court based on
procedural or jurisdictional defects. See 28 U.S.C.
§ 1447(c). Plaintiff first challenges removal as
untimely and then argues that the Court lacks subject matter
jurisdiction over this case. The Court considers both
arguments in turn to determine whether removal was proper.
Concluding it was not, the Court considers whether to award
Plaintiff attorney fees.
a defendant must file a notice of removal within thirty days
of receiving the initial pleading or after the service of
summons. 28 U.S.C. § 1446(b)(1). However, “if the
case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 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.” Id. § 1446(b)(3).
Plaintiff argues that, even if the FMCSA Order is an
“other paper” that made this case removable,
Lincoln Defendants' notice of removal was untimely filed
nearly one year later. The Notice of Removal does not
identify any other document that would make removal timely,
and Lincoln Defendants have failed to oppose the instant
motion. See Local Rule 7-12. The Court therefore
agrees that Lincoln Defendants' removal was untimely but
cannot grant Plaintiff's motion on this basis.
removal is a procedural defect. Maniar v. F.D.I.C.,
979 F.2d 782, 784 (9th Cir. 1992). Under 28 U.S.C. §
1447(c), procedural defects-unlike jurisdictional defects-can
only be raised “within 30 days after the filing of the
notice of removal.” A plaintiff's failure to
challenge a procedural defect before this deadline
constitutes a waiver, and the deadline is strictly enforced.
N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines
Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995);
Ungureanu v. A. Teichert & Son, Inc., 2013 WL
1091279, at *3 n.2 (E.D. Cal. Mar. 15, 2013), report and
recommendation adopted, 2013 WL 2449557 (E.D. Cal. June
5, 2013), aff'd, 605 Fed.Appx. 619 (9th Cir.
2015). Lincoln Defendants filed their notice of removal on
November 1, 2019, and Plaintiff's deadline to raise
procedural defects was Monday, December 2, 2019. See
28 U.S.C. § 1447(c); Fed.R.Civ.P. 6(a). By filing the
instant motion to remand after this deadline-on December 4,
2019-Plaintiff waived his right to challenge the timeliness
of removal. N. Cal. Dist. Council, 69 F.3d at 1038;
Ungureanu, 2013 WL 1091279, at *3 n.2.
likely assumed that his thirty-day window was extended
because Lincoln Defendants' notice of removal was served
by mail. Under Federal Rule of Civil Procedure 6(d),
“[w]hen a party may or must act within a specified time
after service and service is made under [federal rules
providing for, inter alia, service by mail], 3 days are added
after the period would otherwise expire under Rule
6(a).” However, courts in the Ninth Circuit have
consistently found that Rule 6(d) does not apply to the
thirty-day window set out in 28 U.S.C. § 1447(c).
See Bell v. Arvin Meritor, Inc., 2012 WL 1110001, at
*1 (N.D. Cal. Apr. 2, 2012) (collecting cases applying this
rule in the Ninth Circuit). The motion to remand timeline is
triggered when a defendant files the notice of
removal, and “[b]y its own terms, Rule 6(d) applies
only when a party is required to act within a prescribed
period after service, not after filing.”
Ungureanu, 2013 WL 1091279, at *3 n.2 (quotations
omitted). Accordingly, the Court must DENY
Plaintiff's motion to remand based on any procedural
Subject Matter Jurisdiction
next argues that the Court lacks subject matter jurisdiction
over this case. Jurisdictional defects need not be raised
within thirty ...