Jesus Avila v. P and L Development, LLC
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20
MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER DENYING PLAINTIFF'S MOTION TO REMAND 10 . (lc)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CASE NO.: CV 18-01211 SJO (AS)
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DATE: April 18, 2018
Avila v. P and L Development, LLC
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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
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PROCEEDINGS (in chambers): ORDER DENYING PLAINTIFF'S MOTION TO REMAND
[Docket No. 10]
This matter is before the Court on Plaintiff Jesus Avila's ("Avila" or "Plaintiff") Motion for Order
Remanding Action ("Motion") filed on March 20, 2018. Defendant P and L Development, LLC
("Defendant") filed an Opposition (“Opposition”) on April 2, 2018, to which Plaintiff replied (“Reply”)
on April 6, 2018. The Court found this matter suitable for disposition without oral argument and
vacated the hearing set for April 23, 2018. See Fed R. Civ P. 78(b). The Court will still hold the
scheduling conference set for April 23, 2018. For the following reasons, the Court DENIES
Plaintiff's Motion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2017, Plaintiff initiated the instant action again Defendant in the Superior Court
for the State of California, County of Los Angeles. (Notice of Removal ("Notice"), Ex. A, Compl.
("Complaint"), ECF No. 1-1.) Defendant filed an Answer to the Complaint on February 7, 2018
in the Los Angeles Superior Court. (Notice, Ex B, Answer.) On February 13, 2018, Defendant
filed a First Amended Answer. (Notice, Ex. C, First Am. Answer.) Plaintiff's Complaint alleges the
following seven causes of action: (1) discrimination in violation of California's Fair Employment and
Housing Act, Cal. Gov't Code section 12490, et seq. ("FEHA"); (2) retaliation in violation of FEHA;
(3) failure to prevent discrimination and retaliation in violation of FEHA; (4) failure to provide
reasonable accommodation in violation of FEHA; (5) failure to engage in a good faith interactive
process in violation of Government Code FEHA; (6) wrongful termination in violation of public
policy; and (7) declaratory judgment. (See generally Compl.)
The Complaint alleges the following. On or about October 1, 2008, Defendant's predecessor,
Aaron Industries, Inc. ("Aaron Industries") hired Plaintiff to work as a forklift driver. (Compl. ¶ 16.)
In or around late 2013 or early 2014, Defendant acquired Aaron Industries. (Compl. ¶ 16.) In
October 2015, Plaintiff suffered an injury to the left side of his face, which limited Plaintiff's ability
to work, and therefore constituted a disability. (Compl. ¶ 18.) Plaintiff promptly notified
Defendant's human resources representative, Dania Navarro ("Navarro"), of his disability and went
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CASE NO.: CV 18-01211 SJO (AS)
DATE: April 18, 2018
on disability leave, which Plaintiff's doctor extended through October 14, 2016. (Compl. ¶¶ 19-20.)
On or about August 12, 2016, Defendant terminated Plaintiff, "without any dialogue with Plaintiff."
(Compl. ¶¶ 16-17, 21.) That same day, Navarro acknowledged receipt of Plaintiff's doctor's note
extending his leave until October 14, 2016, and told Plaintiff he was terminated because "someone
else would be filling your position; we cannot wait until you get better." (Compl. ¶ 21.)
Defendant's termination paperwork indicated he was terminated because he "exhausted leave."
(Compl. ¶ 21.) In a follow-up letter, Navarro stated that Defendant could not accommodate
additional time for a leave of absence, "due to [Plaintiff] already reaching [his] maximum time
available and because [his] leave of absence has expired." (Compl. ¶ 21.) Plaintiff alleges that
Defendant discriminated and retaliated against him by wrongfully terminating him for exercising
his right to request medical leave to accommodate his disability, and for subsequently requesting
an extension of his medical leave. (Compl. ¶ 22.)
Upon his termination, Plaintiff alleges that, as a result of Defendant's actions, Plaintiff suffered
general and special damages; medical expenses; expenses for psychological counseling and
treatment; past and future lost wages and benefits, bonuses, commissions, benefits and loss or
diminution of earning capacity; and general damages for emotional and mental distress and
aggravation. (Compl. ¶¶ 27-29.) In his Prayer for Relief, Plaintiff seeks the following monetary
damages: (1) compensatory damages, including lost wages, earnings, commissions, retirement
benefits, and other employee benefits, and all other sums of money, together with interest on
these amounts; (2) other special damages; (3) general damages for mental pain and anguish and
emotion distress and loss of earning capacity; (4) prejudgment interest on each of the foregoing;
(5) punitive damages; (6) for cost of suit, attorneys' fees, and expert witness fees; and (7) for postjudgment interest. (Compl. Prayer for Relief.)
On February 14, 2018, Defendant removed the state action to this Court pursuant to 28 U.S.C.
§ 1332(a). (Notice ¶ 8.) In the instant Motion, Plaintiff seeks to remand the action to the Superior
Court for the County of Los Angeles for lack of subject matter jurisdiction because Defendant has
not met the amount in controversy requirement. (See Mot. 1, ECF No. 10.)
II.
DISCUSSION
A.
Legal Standard for Remand
"It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). "A federal court is presumed to lack jurisdiction
in a particular case unless the contrary affirmatively appears." Stock W., Inc. v. Confederated
Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). Lack
of subject matter jurisdiction may be raised by any party at any time, and it is never waived. See
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CASE NO.: CV 18-01211 SJO (AS)
DATE: April 18, 2018
United States v. Cotton, 535 U.S. 625, 630 (2002); Miguel v. Country Funding Corp., 309 F.3d
1161, 1163-64 (9th Cir. 2002).
An action is removable to federal court only if it could have been brought there originally. See
28 U.S.C. § 1441(a). The Ninth Circuit has held that courts must "strictly construe the removal
statute against removal jurisdiction" and reject federal jurisdiction "if there is any doubt as to the
right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)
(citations omitted). "The strong presumption against removal jurisdiction means that the defendant
always has the burden of establishing that removal is proper." Id. (citations and internal quotation
marks omitted).
Section 1332(a), in turn, provides that "the district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs," and is between parties with diverse citizenship. 28 U.S.C. § 1332(a). The amount in
controversy, for purposes of diversity jurisdiction, is the total "amount at stake in the underlying
litigation." Theis Research, Inc. v. Brown & Bain, 400 F.3d 659, 662 (9th Cir. 2005). "[I]n
assessing the amount in controversy, a court must 'assume that the allegations of the complaint
are true and assume that a jury will return a verdict for the plaintiff on all claims made in the
complaint.' " Campbell v. Vitran Exp., Inc., 471 Fed.Appx. 646, 648 (9th Cir. 2012) (quoting
Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D. Cal.
2002)).
"The burden of establishing federal jurisdiction is on the party seeking removal, and the removal
statute is strictly construed against removal jurisdiction." Prize Frize, Inc. v. Matrix (U.S.) Inc., 167
F.3d 1261, 1265 (9th Cir. 1999). The removing party does not need to prove actual facts but
rather need only include a "short and plain statement" setting forth "a plausible allegation that the
amount in controversy exceeds the jurisdictional threshold." Dart Cherokee Basin Operating Co.,
LLC v. Owens, 135 S. Ct. 547, 554 (2014); Fed.R.Civ.P. 8(a). Where the plaintiff contests the
defendant's allegations, "both sides submit proof and the court decides, by a preponderance of
the evidence, whether the amount-in-controversy requirement has been satisfied." Owens, 135
S.Ct. at 550.
The preponderance of the evidence standard means the "defendant must provide evidence
establishing that it is 'more likely than not' that the amount in controversy exceeds that amount."
Sanchez v. Monumental Life Ins. Co., 102 F. 3d 398, 404 (9th Cir. 1996) (emphasis added)
(citation omitted). A defendant must set forth the underlying facts supporting its assertion that the
amount in controversy exceeds the statutory minimum. Gaus v. Miles, Inc., 980 F. 2d 564, 567
(9th Cir. 1992). In addition to the contents of the removal petition, the court considers
"summary-judgment-type evidence relevant to the amount in controversy at the time of removal,"
such as affidavits or declarations. Valdez v. Allstate Ins. Co., 372 F. 3d 1115, 1117 (9th Cir. 2004)
(internal quotations omitted); Singer v. State Farm Mut. Auto. Ins. Co., 116 F. 3d 373, 374 (9th Cir.
1997). A court may also consider supplemental evidence later proffered by the removing
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CASE NO.: CV 18-01211 SJO (AS)
DATE: April 18, 2018
defendant, which was not originally included in the removal notice. Cohn v. Petsmart, Inc., 281
F. 3d 837, 840 n. 1 (9th Cir. 2002).
B.
Analysis
As a preliminary matter, Defendant argues that the Court should deny Plaintiff's Motion because
Plaintiff failed to file it within thirty days of the filing of the Notice of Removal on February 14, 2018,
pursuant to 28 U.S. Code § 1447(c) ("§ 1447(c)"). (Opp'n 3, ECF No. 13.) However, § 1447(c)
provides that "[a] motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of removal under
section 1446(a)." 28 U.S. Code § 1447(c) (emphasis added). Plaintiff's Motion is brought on the
basis of lack of subject matter jurisdiction, and is not subject to § 1447(c)'s 30-day deadline.
1.
Defendant's Basis for Removal
Pursuant to 28 U.S.C. § 1332(a), the federal courts have original jurisdiction over state law actions
where the amount in controversy exceeds $75,000 and the action is between parties of diverse
citizenship. Plaintiff argues that removal was improper because the amount in controversy
requirement under 28 U.S.C. § 1332(a) was not met. (Mot. 1.)
a.
Lost Wages
Defendant's Vice President of Human Resources, Sophia Sutphen, stated that Plaintiff was paid
$11.80/hour, which equates to an annual compensation of approximately $24,500. (Declaration
of Sophia Sutphen in Supp. Notice ("Sutphen Decl. ISO Notice") ¶ 4.) In its Notice of Removal,
Defendant argues that Plaintiff has lost wages in the amount of $34,700, or about seventeen
months of pay. (Notice ¶ 28.) Defendant contends that an additional two years of future lost
wages based on an annual compensation of $24,500 provides for total of $83,700 in lost wages.
(Notice ¶ 28.) In support of Defendant's Opposition, Sutphen attached a copy of Plaintiff's 2015
W-2 and Earnings Summary to her Declaration showing that Plaintiff earned annual compensation
of $29,236.01 at the time of his termination. (Declaration of Sophia Sutphen in Supp. Motion
("Sutphen Decl. ISO Mot.") ¶ 4.)
Plaintiff argues that the Court should only consider his lost wages from the date of his termination
on August 12, 2016, through the date of the Notice of Removal on February 14, 2018, which
amounts to $34,700. (Mot. 8.) While Defendant suggests that the Court should also include
Plaintiff's future lost wages for two additional years, the Court declines to permit Defendant to
extrapolate lost wages through an arbitrary future date. Instead, the weight of authority
demonstrates that the relevant time period for calculating Plaintiff's lost wages is the nearly 18month period between Plaintiff's termination on August 12, 2016, and the filing of the Notice of
Removal on February 14, 2018. Soto v. Kroger Co., No. SACV 12–0780–DOC, 2013 WL
3071267, *3 (C.D. Cal. 2013) ("the guiding principle is to measure amount in controversy at the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CASE NO.: CV 18-01211 SJO (AS)
DATE: April 18, 2018
time of removal"); Fortescue v. Ecolab Inc., No. CV 14–0253 FMO RZX, 2014 WL 296755, at *2
(C.D. Cal. Jan.28, 2014) ("in determining the amount in controversy, the court declines to project
lost wages forward to some hypothetical trial date."); see also Simmons v. PCR Tech., 209 F.
Supp. 2d 1029, 1032 (N.D. Cal. 2002) (limiting amount of lost wages considered in amount in
controversy to those accrued at time of removal). Further, the Complaint does not explicitly
demand front pay, (see generally Compl.), so consideration of lost wages only up to the time of
removal is particularly appropriate here. Accordingly, Plaintiff's lost wages are approximately
$44,000 ($29,236.01 annual compensation x 1.5 years between Plaintiff's termination and the date
of the filing of the Notice of Removal).
b.
Emotional Distress Damages
While settlements and jury verdicts in similar cases can provide evidence of the amount in
controversy, the cases must be factually identical or, at a minimum, analogous to the case at
issue. Conrad Associates v. Hartford Accident & Indemnity Co., 994 F.Supp. 1196, 1200
(N.D.Cal.1998) (accepting evidence of jury verdicts on analogous punitive damages claims as
sufficient to show that the amount in controversy requirement was met). Defendant argues that
Plaintiff is seeking at least $75,000 in emotional distress damages because, "[p]laintiffs alleging
emotional distress as a result of wrongful termination regularly seek in excess of $75,000.00 in
such damages." (Opp'n 7.) Defendant provides a string cite to cases in support of its proposition,
but fails to analogize facts from those cases to the facts of the instant case. Defendant's inclusion
of emotional distress damages in its amount in controversy calculation is thus speculative and
unsupported.
c.
Attorney's Fees
In its Notice of Removal, Defendant estimates that Plaintiff's attorney's fees are $250/hour, and
contends that Plaintiff's attorney's fees alone will exceed $75,000 if the case proceeds to trial.
(Notice 6.) Plaintiff's counsel, Samvel Geshgian, in seeking attorney's fees for preparing the
instant Motion, states that he bills at a rate of $450/hour and that the fee for preparing the instant
Motion is $4,050. (Declaration of Samvel Geshgian in Supp. Mot. ("Geshgian Decl") ¶ 5.) Plaintiff
contends that the only attorney's fees that may be considered as part of the amount in controversy
are those incurred as of the date of removal. (Mot. 9.)
"[W]here an underlying statute authorizes an award of attorney's fees, either with mandatory or
discretionary language, such fees may be included in the amount in controversy." Galt G/S v. JSS
Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998). FEHA provides that "in actions brought under
this section, the court, in its discretion may award to the prevailing party reasonable attorney[s]'
fees and costs except where such action is filed by a public agency or a public official, acting in
an official capacity." Cal. Gov't Code § 12965(b).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CASE NO.: CV 18-01211 SJO (AS)
DATE: April 18, 2018
Any reasonable calculation of attorney's fees must comport with the preponderance of the
evidence standard. See Coleman v. Estes Express Lines, Inc., 730 F.Supp.2d 1141, 1148
(C.D.Cal.2010). Such calculations should be conservative estimates. See Guglielmino v. McKee
Foods Corp., 506 F.3d 696, 701 (9th Cir.2007)."The reasonableness of attorney's fees, when such
fees are unascertainable on the face of the complaint, can be calculated by looking to other
attorney's fees awards in similar cases." Garcia v. ACE Cash Express, Inc., 2014 WL 2468344
(C.D.Cal. 2014). Another judge in this district considering a motion to remand FEHA claims
reasoned:
This Court and others have held that a reasonable rate for employment cases is $300 per
hour. [Citations.] Recent estimates for the number of hours expended through trial for
employment cases in this district have ranged from 100 to 300 hours. [Citations.] Therefore,
100 hours is an appropriate and conservative estimate. Accordingly, attorneys' fees in this
case may reasonably be expected to equal at least $30,000 (100 hours x $300 per hour).
Sasso v. Noble Utah Long Beach, LLC, 2015 WL 898468, at *5 (C.D.Cal. Mar. 3, 2015).
Defendant assumes that prosecuting Plaintiff's seven claims will take Plaintiff's attorney 300 hours
(Opp'n 11), but fails to offer a formula or justification for that figure. Instead, the Court takes a
conservative approach and estimates that Plaintiff's counsel will take 100 hours to prepare for the
instant litigation, totaling attorney's fees of $45,000. As such, attorney's fees would bring the total
amount in controversy to over $75,000.
Defendant has shown by a preponderance of evidence that the amount in controversy exceeds
the statutory threshold and that the Court has subject matter jurisdiction over the instant case.
Plaintiff's Motion is DENIED.
2.
Attorney's Fees
Plaintiff seeks attorney's fees of $4,050 incurred in opposing Defendant's removal and moving for
remand, arguing that Defendant's "removal of the action was improperly predicated upon
excessive front pay two years past the time of removal." (Mot. 14-15.) "[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 and correctly believed that Plaintiff's damages for
lost wages, attorney's fees, and emotional distress exceeded $75,000. Thus, Plaintiff's request
for attorney's fees is DENIED.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CASE NO.: CV 18-01211 SJO (AS)
III.
DATE: April 18, 2018
RULING
For the foregoing reasons, the Court DENIES Plaintiff's Motion to Remand.
IT IS SO ORDERED.
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