Anthony Guytan v. Swift Transportation Co. of Arizona, LLC et al

Filing 20

ORDER Denying Plaintiff's Motion to Remand [Doc. No. 14] and Denying Defendants' Request for Sanctions [Doc. No. 18] by Judge Virginia A. Phillips denying 14 MOTION to Remand Case to State Court: For the reasons stated above, the Court DENIES Plaintiff's motion to remand and DENIES Defendants' request for sanctions. (see document for further details) (bm)

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United States District Court
Central District of California

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Anthony Guytan,

v.

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Order Denying Plaintiff’s Motion to
Remand [Doc. No. 14] and Denying
Defendants’ Request for Sanctions [Doc.
No. 18]

Swift Transportation Co. of

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United States District Court
Central District of California

CV 17-00626-VAP (DTBx)

Plaintiff,

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Arizona, LLC, et al.,
Defendants.

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On April 28, 2017, Plaintiff Anthony Guytan filed a motion to remand

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to California Superior Court for the County of San Bernardino. (Doc. No.

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14.) On May 15, 2017, Defendants Swift Transportation Co. of Arizona,

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LLC, Swift Transportation Services, LLC, Swift Transportation Co., Inc., and

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Swift Transportation Company filed an opposition and requested sanctions

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against Plaintiff. (Doc. No. 18.) On May 22, 2017, Plaintiff filed a reply.

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(Doc. No. 19.)

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This matter is appropriate for resolution without hearing pursuant to

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Local Rule 7-15 and will stand submitted on the papers timely filed. Having

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considered the papers filed in support of and in opposition to the motion, the

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Court DENIES Plaintiff’s motion. In addition, the Court DENIES Defendants’

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request for sanctions.

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I. BACKGROUND

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On February 7, 2017, Plaintiff filed a complaint in California Superior
Court for the County of San Bernardino against Defendants Swift

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Transportation Co. of Arizona, LLC, Swift Transportation Services, LLC,

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Swift Transportation Co., Inc., Swift Transportation Company, and Does 1

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through 100. (Doc. No. 1-1.) The complaint alleges several claims against

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Defendants, including violations of California’s Fair Employment and

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Housing Act (“FEHA”), Family Rights Act, Labor Code, public policy, and

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United States District Court
Central District of California

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common law. (Id.)

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On March 31, 2017, Defendants filed a notice of removal, which

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asserted that this Court has diversity jurisdiction over this matter because

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(1) Plaintiff is a citizen of California, the named Defendants are citizens of

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Delaware and Arizona, and Courts should disregard the citizenship of

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fictitious Defendants pursuant to 28 U.S.C. § 1441(a); and (2) the amount in

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controversy exceeds $75,000. (Doc. No. 1.) Plaintiff filed the present

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motion to remand on April 28, 2017. (Doc. No. 14.)

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II.

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MOTION TO REMAND

“A motion for remand lies where there is no diversity of citizenship, or

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the claim does not in fact ‘arise under’ federal law.” Cal. Prac. Guide Fed.

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Civ. Pro. Before Trial Ch. 2D-10; Int’l Primate Prot. League v. Adm’rs of

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Tulane Ed. Fund, 500 U.S. 72, 87 (1991). “The ‘strong presumption’ against

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removal jurisdiction means that the defendant always has the burden of

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establishing that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566

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(9th Cir. 1992).

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“In civil cases, subject matter jurisdiction is generally conferred upon

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federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332,

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or federal question jurisdiction, 28 U.S.C. § 1331.” Peralta v. Hispanic Bus.,

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Inc., 419 F.3d 1064, 1069 (9th Cir. 2005). The burden of establishing

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jurisdiction rests on the Plaintiff as the party asserting jurisdiction.

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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A

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party may invoke the Court’s diversity jurisdiction, under 28 U.S.C. § 1332,

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in “all civil actions where the matter in controversy exceeds . . . $75,000 . . .

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United States District Court
Central District of California

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and is between [c]itizens of different States.” 28 U.S.C. § 1332(a)(1).

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Where subject-matter jurisdiction is based on 28 U.S.C. § 1332, complete

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diversity of citizenship is required. Owen Equip. & Erection Co. v. Kroger,

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437 U.S. 365, 373 (1978). In other words, a court lacks subject-matter

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jurisdiction “unless each defendant is a citizen of a different State from each

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plaintiff.” Id. For the purpose of establishing diversity jurisdiction, a

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corporation is a citizen of both the state in which it is incorporated and the

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state in which it maintains its principal place of business. See 28 U.S.C. §

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1332(c)(1).

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Courts should “strictly construe the removal statute against removal

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jurisdiction.” Gaus, 980 F.2d at 566. “Federal jurisdiction must be rejected if

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there is any doubt as to the right of removal in the first instance.” Id.

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III.

DISCUSSION

A. Violation of Local Rule 7-3
Under Local Rule 7–3, “counsel contemplating the filing of any motion
shall first contact opposing counsel to discuss thoroughly, preferably in

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person, the substance of the contemplated motion and any potential

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resolution.” L.R. 7–3 (emphasis in original). The conference “shall take

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place at least seven (7) days prior to the filing of the motion.” Id. If a

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resolution cannot be reached, the moving party shall state in its notice of

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motion the date on which the conference of counsel under Local Rule 7–3

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took place. Id.

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Plaintiff’s counsel did not meet and confer with defense counsel

United States District Court
Central District of California

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before filing his motion to remand. The Court could deny Plaintiff’s motion

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for that reason alone. See, e.g., Singer v. Live Nation Worldwide, Inc., No.

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SACV 11-0427 DOC (MLGx), 2012 WL 123146, at *2 (C.D. Cal. Jan. 13,

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2012); Superbalife, Int'l v. Powerpay, No. CV 08-5099 PSG, 2008 WL

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4559752, at *2 (C.D. Cal. Oct. 7, 2008). Even if the Court considers the

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merits of Plaintiff’s motion, his arguments fail to show he is entitled to

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remand.

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B. Diversity Jurisdiction

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1. Diversity

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Plaintiff’s first argument is that Defendant Doe 1, a terminal manager,

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defeats diversity because he is not “a fictitious and unknown defendant.”

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(Doc. No. 14 at 4.) Plaintiff contends that Doe 1 is not fictitious because

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Plaintiff knows Doe 1 is a terminal manager employed by Defendants and

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that he resides in California. (Id. at 4-5.) The reason he is listed as a “Doe”

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defendant is that “Plaintiff just does not remember his name.” (Id. at 5.)

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In 1988, Congress passed the Judicial Improvements and Access to
Justice Act, which addressed “the issue of Doe defendants for purposes of

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diversity jurisdiction and remand.” Luckett v. Dell, Inc., No. CV07-8283-GW

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(AGRx), 2009 WL 152703, at *4 (C.D. Cal. Jan. 16, 2009). Under that act,

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“28 U.S.C. § 1441 was amended to note that: ‘For purposes of removal

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under this chapter, the citizenship of defendants sued under fictitious names

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shall be disregarded.’” Id. The Ninth Circuit has since held that “[t]he

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citizenship of fictitious defendants is disregarded for removal purposes and

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United States District Court
Central District of California

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becomes relevant only if and when the plaintiff seeks leave to substitute a

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named defendant.” Soliman v. Philip Morris Inc., 311 F.3d 966, 971 (9th Cir.

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2002) (citing 28 U.S.C. §§ 1441(a), 1447(e)); see also Howell v. Circuit City,

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330 F. Supp. 2d 1314, 1317-18 (M.D. Ala. 2004) (rejecting district court

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cases that considered the citizenship of fictitious defendants because those

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cases “predate[d] the 1988 amendment [to § 1441] . . . or incorrectly rel[ied]

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on pre-1988 law”).

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As Plaintiff has not moved to substitute Doe 1 for a named defendant,

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the Court must disregard Doe 1’s citizenship for removal purposes. There is

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no evidence, therefore, to dispute that Defendants have established

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complete diversity for the purposes of removal; Plaintiff is a citizen of

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California and the named Defendants are citizens of Arizona and Delaware.

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(Doc. No. 1.)

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2. Amount in Controversy

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Plaintiff also argues that Defendants have not met their burden of

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showing, by a preponderance of the evidence, that the amount in

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controversy exceeds $75,000.

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“[I]n assessing the estimated amount in controversy, a court must

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assume that the allegations of the complaint are true and assume that a jury

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will return a verdict for the plaintiff on all claims made in the complaint.”

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United States District Court
Central District of California

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Sasso v. Noble Utah Long Beach, LLC, No. CV 14-09154-AB (AJWx), 2015

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WL 898468 at *3 (C.D. Cal. Mar. 3, 2015) (citation omitted). “[I]f a defendant

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prepares a well-founded evidentiary record, a defendant’s reasonable

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extrapolations from the plaintiff’s allegations suffice to establish the amount

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in controversy, if unrebutted by the plaintiff.” Tukay v. United Cont’l

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Holdings, Inc., No. 14-CV-04343-JST, 2014 WL 7275310, at *2 (N.D. Cal.

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Dec. 22, 2014) (citation omitted).

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Plaintiff’s complaint alleges that he was earning an average of

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$1,011.11 per week at the time his employment ended. (Doc. No. 1 at 6.)

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That salary translates to approximately $52,500 per year. Plaintiff’s

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complaint, which was filed in February 2017, does not state the date of his

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termination. (See generally Doc. No. 1-1.) This Court typically sets trial for

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at least one year after the filing of the complaint. Thus, even assuming that

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Plaintiff was terminated only days before he filed his complaint, Plaintiff

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could recover over $50,000 in damages related to lost wages.1

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Plaintiff contends that Defendants failed to address potential mitigation of
damages through new employment. The Court, however, is unpersuaded
by that argument. Plaintiff has failed to offer any evidence—or even

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In addition, Plaintiff seeks emotional distress and punitive damages.

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To establish the emotional distress and punitive damages in controversy, “a

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defendant may introduce evidence of jury verdicts in other cases.” Sasso v.

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Noble Utah Long Beach, LLC, No. CV 14-09154-AB (AJWx), 2015 WL

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898468, at *6. Defendants have submitted evidence of verdicts in similar

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cases awarding both emotional distress and punitive damages well over

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$75,000. (See Doc. No. 18 at 15-16.)

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United States District Court
Central District of California

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Finally, although “[t]here is a split of authority . . . regarding whether a

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district court may consider attorneys’ fees in determining the amount in

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controversy,” this Court is persuaded that “the better view is to consider

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post-removal attorneys’ fees because they are part of the total ‘amount at

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stake.’” Sasso, 2015 WL 898468 at *5 (citing Theis Research, Inc. v. Brown

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& Bain, 400 F.3d 659, 662 (9th Cir. 2005)). The FEHA allows prevailing

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plaintiffs to recover attorneys’ fees as a matter of right. Cal. Gov’t Code §

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12965(b). This Court has determined previously that “an appropriate and

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conservative estimate” for attorneys’ fees in employment cases in this

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district “may reasonably be expected to equal at least $30,000.” Sasso,

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2015 WL 898468 at *6. Thus, even if this Court were to assume that

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Plaintiff would not be entitled to emotional distress or punitive damages, the

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amount in controversy exceeds $75,000 based on lost wages and attorneys’

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fees alone.

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assert—that he actually mitigated his lost wages by obtaining a new job. If
such evidence existed, it would be available readily to Plaintiff and should
have been submitted to this Court along with Plaintiff’s motion to remand.

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For the foregoing reasons, this Court is persuaded that the amount in
controversy exceeds $75,000.

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C. Request for Sanctions
Defendants request the Court sanction Plaintiff’s counsel for its
violation of Local Rule 7-3. Defendants request a sanction in the amount of

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$2,500, which they contend is appropriate because it represents

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significantly less than the amount they incurred opposing Plaintiff’s motion to

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United States District Court
Central District of California

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remand. Pursuant to Local Rule 83-7, this Court may impose monetary

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sanctions on an offending party or counsel for the violation or failure to

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conform to a Local Rule if the conduct was “willful, grossly negligent, or

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reckless” or, in the alternative, may order the payment of costs and

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attorneys’ fees to opposing counsel if “the conduct rises to the level of bad

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faith and/or a willful disobedience of a court order.” L.R. 83-7.

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Although Plaintiff’s counsel’s failure to contact defense counsel before

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filing the present motion was improper, Defendants have not established

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that it was willful, grossly negligent, or reckless. Nor have they established

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that it was done in bad faith or in willful disobedience of a court order.

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Accordingly, the Court declines to grant Defendants’ request for sanctions.

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The Court notes, however, that continued failure to abide by the local rules

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will result in sanctions in the future.

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IV.

CONCLUSION

For the reasons stated above, the Court DENIES Plaintiff’s motion to
remand and DENIES Defendants’ request for sanctions.

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IT IS SO ORDERED.

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Dated:

6/1/17
Virginia A. Phillips
Chief United States District Judge

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United States District Court
Central District of California

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