Valerie Almeida et al v. Safilo USA, Inc et al

Filing 11

MINUTE (In Chambers) Order Remanding Action by Judge Fernando M. Olguin: IT IS ORDERED that: (1) The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of subject matter jurisdiction pursuant to 28 USC section 1447(c). (2) The Clerk shall send a certified copy of this Order to the state court. (Made JS-6 Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL
Case No.

CV 18-0250 FMO (AFMx)

Title

Valerie Almeida, et al. v. Safilo USA, Inc., et al.

Present: The Honorable

Date

January 23, 2018

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorney Present for Plaintiff:

Attorney Present for Defendant:

None Present

None Present

Proceedings:

(In Chambers) Order Remanding Action

On December 11, 2017, Valerie Almeida (“Almeida”), Dianne Mascaro (“Mascaro”), Sherry
Washington (“Washington”), and Tami Norris (“Norris”) (collectively, “plaintiffs”) filed a Complaint
in the Los Angeles County Superior Court against Safilo USA, Inc. (“Safilo”) and does 1-10
(collectively “defendants”). (See Dkt. 1, Notice of Removal (“NOR”) at ¶ 1; Dkt. 1-1, Exhibit
(“Exh.”) A, Class Action Complaint [] (“Complaint”)). On January 10, 2018, Safilo removed that
action on diversity jurisdiction grounds pursuant to 28 U.S.C. § 1332(a). (See Dkt. 1, NOR at ¶
5). Having reviewed the pleadings, the court hereby remands this action to state court for lack of
subject matter jurisdiction. See 28 U.S.C. § 1447(c).
LEGAL STANDARD
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114
S.Ct. 1673, 1675 (1994). The courts are presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126
S.Ct. 1854, 1861 (2006). Federal courts have a duty to examine jurisdiction sua sponte before
proceeding to the merits of a case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119
S.Ct. 1563, 1569 (1999), “even in the absence of a challenge from any party.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244 (2006).
“The right of removal is entirely a creature of statute and a suit commenced in a state court
must remain there until cause is shown for its transfer under some act of Congress.” Syngenta
Crop Protection, Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 369 (2002) (internal quotation
marks omitted). Where Congress has acted to create a right of removal, those statutes, unless
otherwise stated, are strictly construed against removal jurisdiction.1 See id. Unless otherwise

1

For example, an “antiremoval presumption” does not exist in cases removed pursuant
to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 18-0250 FMO (AFMx)

Date

Title

Valerie Almeida, et al. v. Safilo USA, Inc., et al.

January 23, 2018

expressly provided by Congress, “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court[.]” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724 F.3d 1249, 1252
(9th Cir. 2013) (same). A removing defendant bears the burden of establishing that removal is
proper. See Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per
curiam) (noting the “longstanding, near-canonical rule that the burden on removal rests with the
removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong
presumption against removal jurisdiction means that the defendant always has the burden of
establishing that removal is proper.”) (internal quotation marks omitted). Moreover, if there is any
doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts
in favor of remanding the action to state court. See Gaus, 980 F.2d at 566 (“Federal jurisdiction
must be rejected if there is any doubt as to the right of removal in the first instance.”).
“Under the plain terms of § 1441(a), in order properly to remove [an] action pursuant to that
provision, [the removing defendant] must demonstrate that original subject-matter jurisdiction lies
in the federal courts.” Syngenta Crop Protection, 537 U.S. at 33, 123 S.Ct. at 370. Failure to do
so requires that the case be remanded, as “[s]ubject matter jurisdiction may not be waived, and.
. . the district court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n, Inc.
v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). Indeed, “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c); see Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n. 2
(9th Cir. 1988) (“It is elementary that the subject matter jurisdiction of the district court is not a
waivable matter and may be raised at anytime by one of the parties, by motion or in the
responsive pleadings, or sua sponte by the trial or reviewing court.”); Washington v. United Parcel
Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court may remand an action where
the court finds that it lacks subject matter jurisdiction either by motion or sua sponte).
DISCUSSION
The court’s review of the NOR and the attached state court Complaint makes clear that this
court does not have subject matter jurisdiction over the instant matter.2 In other words, plaintiffs
could not have originally brought this action in federal court, as plaintiffs do not competently allege
facts supplying diversity jurisdiction. Therefore, removal was improper. See 28 U.S.C. § 1441(a);
Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only state-court
actions that originally could have been filed in federal court may be removed to federal court by

2

Safilo seeks to invoke only the court’s diversity jurisdiction. (See, generally, Dkt. 1, NOR
at ¶ 5). Although the NOR refers to 28 U.S.C. §§ 1331, 1441, 1442, and 1453, (see id. at 1), the
NOR does not provide any analysis or evidence of jurisdiction based on federal question or the
presence of federal agencies or officers. (See, generally, Dkt. 1, NOR). Plaintiffs assert only state
law claims, and there are no federal agencies or officers as parties. (See, generally, Dkt. 1-1,
Complaint).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 18-0250 FMO (AFMx)

Title

Date

Valerie Almeida, et al. v. Safilo USA, Inc., et al.

January 23, 2018

the defendant.”) (footnote omitted).
Safilo bears the burden of proving by a preponderance of the evidence that the amount in
controversy meets the jurisdictional threshold. See Valdez v. Allstate Ins. Co., 372 F.3d 1115,
1117 (9th Cir. 2004); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir.
2003) (per curiam) (“Where it is not facially evident from the complaint that more than $75,000 is
in controversy, the removing party must prove, by a preponderance of the evidence, that the
amount in controversy meets the jurisdictional threshold. Where doubt regarding the right to
removal exists, a case should be remanded to state court.”) (footnotes omitted). Here, there is
no basis for diversity jurisdiction because the amount in controversy does not appear to exceed
the diversity jurisdiction threshold of $75,000. See 28 U.S.C. § 1332.3 The amount of damages
plaintiffs seek cannot be determined from the Complaint, as the Complaint does not set forth a
specific amount. (See, generally, Dkt. 1-1, Complaint at 27, “Prayer for Relief”).
Safilo contends, however, that based on the allegations in the Complaint, “[t]he wages,
expenses, and statutory penalties the four named Plaintiffs seek on their own behalf, coupled with
statutory penalties they seek under Labor Code §§ 203 and 226(a) for just 18 members of the
purported class, place in controversy well over the $75,000 threshold for removal.” (Dkt. 1, NOR
at ¶ 15; see id. at ¶ 15 n. 1 (“Given the expansive list of expenses for which Plaintiffs seek
reimbursement for over a four-year period, it is likely that Plaintiffs are placing in controversy well
over $75,000 based strictly on their own claims, without regard to the purported class.”) (internal
citation omitted)). In a non-CAFA class action,4 diversity jurisdiction is established where at least
one class member is diverse from the defendant and no named plaintiff is non-diverse, see Snyder
v. Harris, 394 U.S. 332, 340, 89 S.Ct. 1053, 1059 (1969) (“[I]f one member of a class is of diverse
citizenship from the class’ opponent, and no nondiverse members are named parties, the suit may
be brought in federal court even though all other members of the class are citizens of the same
State as the defendant[.]”); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 n. 4 (9th Cir. 2007),
and at least one of the named plaintiffs satisfies the $75,000 amount in controversy requirement.
See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549, 125 S.Ct. 2611, 2615 (2005)
(“[W]here the other elements of jurisdiction are present and at least one named plaintiff in the
action satisfies the amount-in-controversy requirement, [28 U.S.C.] § 1367 [] authorize[s]
supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or
controversy, even if those claims are for less than the jurisdictional amount[.]”); In re Ford Motor
Co./Citibank (S. Dakota), N.A., 264 F.3d 952, 958 (9th Cir. 2001), cert. dismissed, 537 U.S. 1

3

In relevant part, 28 U.S.C. § 1332(a) provides that a district court has diversity jurisdiction
“where the matter in controversy exceeds the sum or value of $75,000, . . . and is between . . .
citizens of different States” or “citizens of a State and citizens or subjects of a foreign state[.]” 28
U.S.C. §§ 1332(a)(1)-(2).
4

Safilo does not attempt to remove based on CAFA, 28 U.S.C. § 1332(d). (See, generally,
Dkt. 1, NOR).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 18-0250 FMO (AFMx)

Title

Date

Valerie Almeida, et al. v. Safilo USA, Inc., et al.

January 23, 2018

(2002) (“While it may seem paradoxical to decline jurisdiction in the multiplaintiff setting, where
the potential loss to defendants typically is well beyond the jurisdictional amount threshold, it is
implicit in the rule that forbids aggregation of class members’ separate claims that it will sometimes
be more difficult for a party asserting federal jurisdiction to establish the minimum amount of
controversy in a multiplaintiff case than in a much smaller single-plaintiff case.”) (internal quotation
marks and alterations omitted).
Safilo states that “potential statutory penalties for 30 days of waiting time places in issue
approximately $37,730” for the three named Plaintiffs who assert this claim. (See Dkt. 1, NOR at
¶ 16). Safilo provides individualized calculations for Almeida ($10,615.38), Mascaro ($14,538.46),
and Washington ($12,576.92). (See Dkt. 1, NOR at Exh. B, Declaration of Elisabeth Morikawa
(“Morikawa Decl.”) at ¶ 4). Safilo further alleges that “each [plaintiff] could claim the $4,000
maximum penalty [under Labor Code Section 226(a)], totaling $16,000 in statutory penalties for
all four plaintiffs.”5 (See Dkt. 1, NOR at ¶ 17). Thus, having provided evidence of only $14,615.38
in controversy for Almeida, $18,538.46 for Mascaro, $16,576.92 for Washington and $4,000 for
Norris, Safilo has failed to meet its burden of establishing that at least one of the named plaintiffs
satisfies the $75,000 amount in controversy requirement. See Exxon Mobil Corp., 545 U.S. at
554, 125 S.Ct. at 2618 (“[E]very plaintiff must separately satisfy the amount-in-controversy
requirement.”); Matheson, 319 F.3d at 1090 (“Where it is not facially evident from the complaint
that more than $75,000 is in controversy, the removing party must prove, by a preponderance of
the evidence, that the amount in controversy meets the jurisdictional threshold. Where doubt
regarding the right to removal exists, a case should be remanded to state court.”) (footnotes and
citations omitted); Gaus, 980 F.2d at 567 (remanding for lack of diversity jurisdiction where
defendant “offered no facts whatsoever . . . [to] overcome[ ] the strong presumption against
removal jurisdiction, [and did not] satisf[y] [defendant’s] burden of setting forth . . . the underlying
facts supporting its assertion that the amount in controversy exceeds [$75,000].”) (internal
quotations omitted) (emphasis in the original). Finally, Safilo references other forms of relief
requested by plaintiffs, (see Dkt. 1, NOR at ¶ 14), but fails to provide any evidence of the amount
in controversy with respect to the other forms of relief. (See, generally, id.).
In sum, given that any doubt regarding the existence of subject matter jurisdiction must be
resolved in favor of remanding the action to state court, see Gaus, 980 F.2d at 566, the court is
not persuaded, under the circumstances here, that Safilo has met its burden of proving by a
preponderance of the evidence that the amount in controversy meets the jurisdictional threshold.
See Matheson, 319 F.3d at 1090 (“Where it is not facially evident from the complaint that more

5

Safilo also attempts to use the “18 active sales representatives [who] had more than two
years of longevity” of the purported 32 class members to “add[] another $72,000 to the amount
in controversy.” (See Dkt. 1, NOR at ¶¶ 18-19). As discussed above, this is not appropriate
because diversity jurisdiction, in the non-CAFA class context, considers whether at least one of
the named plaintiffs meets the $75,000 amount in controversy requirement. See In re Ford Motor
Co./Citibank (S. Dakota), N.A., 264 F.3d at 958.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 18-0250 FMO (AFMx)

Date

Title

Valerie Almeida, et al. v. Safilo USA, Inc., et al.

January 23, 2018

than $75,000 is in controversy, the removing party must prove, by a preponderance of the
evidence, that the amount in controversy meets the jurisdictional threshold. Where doubt
regarding the right to removal exists, a case should be remanded to state court.”) (footnotes
omitted); Valdez, 372 F.3d at 1118 (same). Therefore, there is no basis for diversity jurisdiction.
This order is not intended for publication. Nor is it intended to be included in or
submitted to any online service such as Westlaw or Lexis.
CONCLUSION
Based on the foregoing, IT IS ORDERED that:
1. The above-captioned action shall be remanded to the Superior Court of the State of
California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of
subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
2. The Clerk shall send a certified copy of this Order to the state court.

Initials of Preparer

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