Shalamar Jones v. G2 Secure Staff LLC et al

Filing 23

MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO REMAND 16 . The Court REMANDS the action to the Superior Court of the State of California for the County ofLos Angeles, and DENIES Plaintiff's Request for Attorney's Fees. This case shall close. Case Remanded to Los Angeles Superior Court, No BC626023. MD JS-6. Case Terminated. (lc)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: March 6, 2017

CASE NO.: CV 17-00061 SJO (SSx)
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Shalamar Jones v. G2 Secure Staff, LLC

========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz
Courtroom Clerk

Not Present
Court Reporter

COUNSEL PRESENT FOR PLAINTIFF:

COUNSEL PRESENT FOR DEFENDANT:

Not Present

Not Present

========================================================================
PROCEEDINGS (in chambers): ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO REMAND [Docket No. 16]
This matter is before the Court on Plaintiff Shalamar Jones' ("Jones" or "Plaintiff") Motion to
Remand ("Motion"), filed on February 3, 2017. In the same Motion, Plaintiff also seeks an award
of attorney's fees ("Request for Attorney's Fees"). Defendant G2 Secure Staff, LLC ("G2" or
"Defendant") filed an Opposition on February 13, 2017. Plaintiff filed a Reply brief on February
17, 2017. The Court found the matter suitable for disposition without oral argument and vacated
the hearing set for March 6, 2017. See Fed. R. Civ. P. 78(b). For the following reasons, the Court
GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Remand.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that she worked for G2 until she was terminated on or about January 12, 2016.
(See Notice of Removal ("Removal"), Ex. A Compl. ("Compl."), ECF No. 1-1.) Plaintiff, through
counsel, sent G2 a written request of her personnel file on March 8, 2016. (Compl. ¶ 11.)
Plaintiff's counsel was told to request the file from an employee at G2's Texas headquarters.
(Compl. ¶ 13.) After contacting said employee, Plaintiff's counsel was told to send $15 to cover
the costs of copying and mailing, and the personnel file would be sent to her. (Compl. ¶ 13.) On
May 20, 2016, Plaintiff's counsel mailed a check for $15, which was cashed on June 2, 2016.
(Compl. ¶ 14.) As of June 6, 2016, Plaintiff had not received the personnel file. (Compl. ¶ 16.)
On July 6, 2016, Plaintiff initiated the instant action against Defendant in the Superior Court of the
State of California for the County of Los Angeles, asserting one cause of action: violation of
California Labor Code section 1198.5 ("Section 1198.5"). (See Compl.) Section 1198.5 provides
that "[e]very current and former employee, or his or her representative, has the right to inspect and
receive a copy of the personnel records that the employer maintains relating to the employee’s
performance or to any grievance concerning the employee," and that, generally, the records must
be made available no later than 30 days from the date the employer receives the written request.
Cal. Lab. Code § 1198.5(a), (b)(1). In the Complaint, Plaintiff seeks a statutory penalty for G2's
failure to produce a copy of her personnel records within thirty days of request, attorneys' fees,
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DATE: March 6, 2017

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cost of suit, and other and further relief the Court may deem just and proper. (Compl. 5.) The
statutory penalty for violation of Section 1198.5 is $750. (Compl. ¶ 56.) Defendant filed its Answer
on August 8, 2016. (See Removal, Ex. B Answer, ECF No. 1-2.)
On December 5, 2016, Plaintiff's counsel emailed Defendant's counsel a proposed first amended
complaint ("PFAC") and indicated that it would be filed on or after December 19, 2016.1 (See
Decl. of Lara C. De Leon in Supp. of Removal ("De Leon Decl."), Ex. 1, ECF No. 3.) The PFAC
alleged damages in excess of $80,000. (De Leon Decl., Ex. 2 PFAC ¶ 73.) On December 22,
2016, Defendant's counsel informed Plaintiff's counsel that it would not stipulate to the PFAC.
(Decl. of Ann Hendrix in Supp. of Mot. ("Hendrix Decl.") ¶ 8, ECF No. 17-1.) In response,
Plaintiff's counsel informed defense counsel that it would file an amended complaint as a matter
of right in January, which would omit all but the PAGA claims. (Mot. 2-3.)
On January 4, 2017, Plaintiff's counsel emailed Defendant's counsel stating that Plaintiff would file
the PFAC the next day or the following; Defendant's counsel did not respond. (Hendrix Decl. ¶
9.) That same day, Defendants removed the action to this Court based on diversity jurisdiction,
under 28 U.S.C. §§ 1441 & 1446. (Removal ¶¶ 6-7.) On January 5, 2017, Plaintiff filed an
amended complaint, which differs from the PFAC; that same day, Plaintiff received notice of
removal.2 (Mot. 1.) Plaintiff now seeks to remand the action, arguing that the operative
pleading–the Complaint–alleges only one cause of action and which places the amount in
controversy far below the $75,000 threshold. (Mot. 1.) In its Opposition, Defendant argues that
the amount in controversy requirement is satisfied because, based on the PFAC, the estimated
value of Plaintiff's claims is in excess of $75,000. (Opp'n 1, ECF No. 18.) For the following
reasons, the Court remands the action because based on the operative pleading at the time of
removal, the amount in controversy is less than $75,000.
II.

DISCUSSION
A.

Legal Standard

A district court has removal jurisdiction pursuant to 28 U.S.C. section 1332 "where the matter in
controversy exceeds the sum of $75,000, exclusive of interest and costs, and is between . . .
citizens of different States." 28 U.S.C. § 1332(a)(1). Diversity jurisdiction requires "complete
1

The PFAC alleged nine causes of action, including the Section 1198.5 claim and a claim
under the Private Attorneys General Act ("PAGA"), which allows a plaintiff to amend her
complaint as a matter of right within 60 days of the exhaustion under PAGA; in this case,
that date was December 19, 2016. (See PFAC ¶¶ 26-31.)
2

The first amended complaint that was filed on January 5, 2017 alleges violations of
Section 1198.5, California Labor Code sections 98.6 and 232.5, and PAGA, as well as
wrongful termination in violation of public policy. (Hendrix Decl. ¶ 2, Ex. A.)
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diversity" of citizenship. Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990). Moreover, the
removing party has the burden of showing that "the matter in controversy exceeds the sum or
value of $75,000, exclusive of interests and costs." 28 U.S.C. § 1332(a); Gaus v. Miles, Inc., 980
F.2d, 564, 566 (9th Cir. 1992).
The procedure for proper removal is set forth in 28 U.S.C. section 1446 ("Section 1446"). The
statute provides "provides two thirty-day windows during which a case may be removed," the first
of which is open during the first thirty days after the defendant receives the initial pleading
provided that the case is clearly removable based on the facts alleged in the complaint. See
Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 692-93 (9th Cir. 2005). If the case is not
removable based on the initial pleading, a second thirty-day window opens after the defendant
receives "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. (quoting 28 U.S.C.
§ 1446(b)(3)) (emphases added).
Courts must "strictly construe the removal statute against removal jurisdiction." Gaus, 980 F.2d
at 566 (citations omitted). "The strong presumption against removal jurisdiction means that the
defendant always has the burden of establishing that removal is proper." Id. (citation and internal
quotation marks omitted). "Where doubt regarding the right to removal exists, a case should be
remanded to state court." See Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089, 1090
(9th Cir. 2003) (footnote omitted).
B.

Analysis

Plaintiff argues that removal was premature because Defendant removed the action based on the
unfiled PFAC, and that the operative Complaint is not removable. (See Mot. 7.) In response,
Defendant argues that removal was proper based on the PFAC, which alleges damages in excess
of $75,000. (Opp'n 4.) Defendant avers that the PFAC constitutes an "other paper" for purposes
of initiating the second thirty-day removal window because it "came from Plaintiff" and signaled
Plaintiff's intent to add claims which would raise the amount in controversy above the statutory
threshold. (Opp'n 5.) Defendant asserts that the PFAC need not have been "filed" with the Court
to form the basis for removal. (Opp'n 6.)
Defendant cites to many non-binding cases in support of this position that a document need not
be filed in order to constitute "other paper," none of which bear on this case. For example, in
Rider v. Sears Roebuck and Co., the triggering event for removal was a deposition testimony
transcript establishing fraudulent joinder. See No. CV 11-02700, 2011 WL 2222171, at *3-4 (C.D.
Cal. June 7, 2011). In Dutro v. Hilarides, the event that triggered removal was either the plaintiff's
submission of discovery responses (which would qualify as "other paper" but not "amended
pleading), or the submission of a copy of a filed amended complaint along with the motion to
amend. See No. CV 12-00212 LJO, 2012 WL 1552772, at *4 (E.D. Cal. 2012). The findings of
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Defendants' cited cases–that the receipt of an unfiled document giving rise to federal jurisdiction
starts the thirty-day clock for removal–are merely persuasive authority and, more importantly,
apply to the "other paper" prong of the Section 1446. Here, however, the PFAC should not be
considered an "other paper." Section 1446 specifically differentiates between an "amended
pleading" and "other paper" as bases for removal. See 28 U.S.C. § 1446(b)(3). Defendant
inexplicably ignores the "amended pleading" prong despite the fact that the document allegedly
giving rise to removal was a proposed amended pleading.
Finally, Defendant attempts to analogize the instant case with Ruiseco v. Corpus Christi Housing
Auth., No. CV 06-00423 JGJ, 2006 WL 3302520 (S.D. Tex. 2006), in which the court found that
the defendant's receipt of the second amended original petition triggered the removal window,
even though the document was not filed with the state court. Ruiseco is distinguishable: there,
the amended document was signed by the pro se plaintiff and contained a certificate of service.
Here, the PFAC was unfiled, unsigned, and not officially served on Defendant. (See generally
PFAC.) Additionally, the Ruiseco court found that the plaintiff's failure to file the amended
pleading in state court was "an oversight," and plaintiff promptly filed it as soon as he learned of
the mistake. See 2006 WL 3302520, at *3. In contrast, here, it is undisputed that the PFAC was
a proposed amended pleading, and that Plaintiff ultimately filed an amended complaint that
substantively differed from the PFAC. See Mejia v. Prologix Distrib. Servs. (W.), LLC, No. CV 4504840 YGR, 2012 WL 5522309, at *5 (N.D. Cal. Nov. 14, 2012) ("The removal statute speaks of
a motion or other paper that discloses that the case is or has become removable, not that it may
sometime in the future become removable if something happens.") (citation and quotation marks
omitted); see also Desmond v. BankAmerica Corp., 120 F. Supp. 2d 1201, 1204 (N.D. Cal. 2000)
(rejecting defendants' argument of plaintiffs' "'intent to amend a complaint' as the jurisdictiontriggering event," because "no motion to amend has been filed, much less an amended
complaint").
"[R]emoval jurisdiction based on an amended pleading arises only after the subsequent pleading
becomes operative." Desmond, 120 F. Supp. 2d at 1203-04 (emphasis added) ("[R]emoval in
this case . . . will become available only upon the filing of an amended complaint."); see Torres
v. Chevron U.S.A., Inc., No. CV 04-02523 SBA, 2004 WL 2348274, *2 (N.D. Cal. Oct. 18, 2004)
(finding that numerous courts that have considered whether removal on the grounds that a
pending motion to amend seeks to add a basis for federal jurisdiction have found that removal is
only proper after the motion to amend has been granted).
Thus, the PFAC had no legal effect for purposes of removal. The original filed Complaint was the
operative pleading at the time of removal, and it alleges only one cause of action, which carries
a statutory penalty of $750. See Cal. Lab. Code § 1198.5. Although Plaintiff also seeks costs and
reasonable attorneys fees, it is not more likely than not that the amount in controversy would
exceed $75,000. See 28 U.S.C. § 1446(c)(2)(B). Therefore, based on the Complaint, removal
was not proper. The Court REMANDS the action.
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C.

The Court Denies an Award of Attorney's Fees Against Defendants

Plaintiff seeks attorney's fees of $9,000 incurred in opposing Defendants' removal and moving for
remand, arguing that Defendant removed this action in bad faith, knowing that the amount in
controversy is far below the required statutory minimum. (Mot. 13.) Further, Defendant has
refused to meet and confer with Plaintiff, costing him time and money. (Mot. 13.) Defendant
argues that it reasonably believed that the second 30-day window for removal had opened after
receiving the December 5, 2016 email containing the PFAC. (Opp'n 14.) The Court agrees.
"[C]ourts may award attorney's fees under [28 U.S.C.] § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied." Martin v. Frankline Capital Corp., 546 U.S. 132,
141 (2005); Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). Here, the
Court finds that the Defendant acted in good faith, and reasonably–albeit mistakenly–believed that
the PFAC constituted an opening of the second thirty-day removal window. Thus, Plaintiff's
Request for Attorney's Fees is DENIED.
III.

RULING

For the reasons stated above, Plaintiff's Motion is GRANTED IN PART AND DENIED IN PART.
The Court REMANDS the action to the Superior Court of the State of California for the County of
Los Angeles, and DENIES Plaintiff's Request for Attorney's Fees. This case shall close.
IT IS SO ORDERED.

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