Delgado v. Lincoln Transportation Services, Inc.

          ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND FOR ATTORNEY FEES [DKT. 9]

          CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff 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 GRANTED.^[1]

         II. BACKGROUND

         Plaintiff filed this action in Los Angeles County Superior Court on March 9, 2018. (Dkt. 9-3 Ex. 1 [Complaint, hereinafter “Compl.”].)^[2] 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”] ¶ 2.)^[3] 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.)

         Based 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 motion.

         III. DISCUSSION

         A 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. Untimely Removal

         Generally, 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.

         Untimely 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.

         Plaintiff 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 deficiencies.^[4]

         B. Subject Matter Jurisdiction

         Plaintiff next argues that the Court lacks subject matter jurisdiction over this case. Jurisdictional defects need not be raised within thirty ...