Amanda Harrod v. Bass Pro Outdoor World, L.L.C. et al

Filing 16

ORDER by Judge Cormac J. Carney, DENYING 9 Plaintiff's MOTION to Remand. On December 27, 2017, Plaintiff filed the instant motion to remand the case, arguing that Defendant had failed to establish the amount in controversy exceeds $75,000. (Dkt. 9 [hereinafter, Mot.].) For the following reasons, the motion is DENIED. (See order) (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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AMANDA HARROD,

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Plaintiff,

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v.
BASS PRO OUTDOOR WORLD,
L.L.C., DBA ISLAMORADA FISH
COMPANY, ET AL.,
Defendants.

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) Case No.: EDCV 17-02386-CJC(SHKx)
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) ORDER DENYING PLAINTIFF’S
) MOTION TO REMAND
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I. INTRODUCTION

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On October 25, 2017, Plaintiff Amanda Harrod filed this action in the San

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Bernadino County Superior Court, against her former employer Defendant Bass Pro

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Outdoor World L.L.C., dba Islamorada Fish Company, and Does 1 through 20. (Dkt. 1-2
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Ex. A [hereinafter, “Compl.”].) On November 27, 2017, Defendant removed the action

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to this Court on the basis of diversity jurisdiction. (Dkt. 1.) On December 27, 2017,

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Plaintiff filed the instant motion to remand the case, arguing that Defendant had failed to

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establish the amount in controversy exceeds $75,000. (Dkt. 9 [hereinafter, “Mot.”].) For

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the following reasons, the motion is DENIED.

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II. BACKGROUND

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Plaintiff was employed by Defendant from July 2015 to August 2017. (Compl. ¶¶

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12, 26.) Plaintiff claims she was harassed by her co-workers and retaliated against for

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complaining about this harassment. (Id. ¶¶ 12–16.) After Plaintiff was transferred to

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another location, Plaintiff claims she was sexually harassed by her supervisor, Mr. Wolf,

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and reported his conduct. (Id. ¶¶ 17–19.) As a result of Plaintiff’s complaints, Mr. Wolf

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was fired and Plaintiff was harassed by her co-workers for reporting his conduct. (Id. ¶¶

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20–26.) Plaintiff also alleges she was subjected to a severe and pervasive hostile work

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environment, discriminated against because of her sex, and wrongfully terminated in

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retaliation for making her complaints. (Id. ¶¶ 18, 21, 25–26.) Plaintiff also alleges that

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she was denied a lunch break on thirty-two occasions during her employment, and was

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denied a rest break each day that she worked. (Id. ¶ 27.)

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In her Complaint, Plaintiff asserts nine causes of action: (1) hostile work

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environment–sexual harassment in violation of the California Fair Employment and

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Housing Act, Government Code Section 12940, et seq. (“FEHA”); (2) retaliation in

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violation of FEHA; (3) failure to prevent discrimination, harassment, and retaliation in

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violation of FEHA; (4) “wrongful constructive termination” in violation of public policy;

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(5) failure to provide meal and rest breaks, in violation of California Labor Code Section

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226.7; (6) failure to provide accurate wage statements, in violation of California Labor

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Code Section 226; (7) waiting-time penalties pursuant to California Labor Code Sections
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201, 202, and 203; (8) intentional infliction of emotional distress; and (9) negligent

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infliction of emotional distress. (Id. ¶¶ 30–103.)

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Plaintiff seeks relief in the form of general and special damages, including

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“emotional distress, mental and physical pain, anguish, pain and suffering, loss of sleep,

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loss of appetite, anxiety, depression and shame,” as well as past and future wage loss,

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punitive damages for acts that were taken and carried out in “willful, knowing, and

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intentional” manner, and attorneys’ fees. (Id. ¶¶ 35–39, 46–50, 55–58, 68–70, 77, 84,

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95–96, 102–103; Prayer for Relief ¶¶ 1–2, 6–7, 9.) Plaintiff also seeks one hour of

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premium pay, at her regular rate of pay, for each missed meal or rest period, statutory

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penalties for failure to provide accurate wage statements, and thirty days’ wages as a

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waiting-time penalty. (Id. ¶¶ 77, 83, 89.) Additionally, Plaintiff seeks payment of unpaid

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wages, liquidated damages, civil penalties, injunctive relief, interest, costs of suit, and

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any other relief that is just and proper. (Id. Prayer for Relief, ¶¶ 3–5, 8, 10–11.) Plaintiff

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does not allege any specific amount of damages, but does seek” damages in excess of the

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jurisdictional limit of” the Superior Court, indicating she seeks over $25,000 for an

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unlimited civil action. (See, e.g., id. ¶ 103.)

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III. LEGAL STANDARD

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Any civil action may be removed to federal district court so long as original

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jurisdiction would lie in the court to which the case is removed. 28 U.S.C. § 1441(a). A

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district court has original “diversity” subject matter jurisdiction over all “civil actions

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where the matter in controversy exceeds the sum or value of $75,000, exclusive of

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interests and cost,” and the action is “between citizens of different States.” 28 U.S.C. §

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1332(a)(1). The district court has jurisdiction only if there is “complete diversity”

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between the parties, meaning that each plaintiff is a citizen of a different state than each

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defendant. See id.; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). If it appears that
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the district court lacks subject matter jurisdiction at any time prior to the entry of final

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judgment, the Court must remand the action to state court. 28 U.S.C. § 1447(c). In

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addition, for “any defect other than the lack of subject matter jurisdiction,” a plaintiff

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may file a motion to remand the case to state court within 30 days after the filing of the

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notice of removal. 28 U.S.C. § 1447(c); see also Kelton Arms Condo Owners Ass’n, Inc.

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v. Homestead Ins. Co., 346 F.3d 1190, 1193 (9th Cir. 2003).

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“Where it is not facially evident from the complaint that more than $75,000 is in

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controversy, the removing party must prove, by a preponderance of the evidence, that the

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amount in controversy meets the jurisdictional threshold.” Matheson v. Progressive

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Specialty Ins. Co., 319 F.3d 1089, 1090–91 (9th Cir. 2003) (citing Sanchez v.

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Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)). To satisfy the

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preponderance of the evidence test for jurisdiction, the court can “consider facts

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presented in the removal petition as well as any ‘summary-judgement-type evidence

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relevant to the amount in controversy at the time of removal.’” Id. “[A] defendant’s

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notice of removal need include only a plausible allegation that the amount in controversy

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exceeds the jurisdictional threshold,” and “[e]vidence establishing the amount is required

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by § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the

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defendant’s allegation. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct.

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547, 554 (2014). In measuring the amount in controversy, the Court assumes the

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allegations in the complaint are true and the jury will return a verdict in favor of the

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plaintiff on all claims therein. See Kenneth Rothschild Trust v. Morgan Stanley Dean

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Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal. 2002) (“In measuring the amount in

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controversy, a court must assume that the allegations of the complaint are true and that a

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jury will return a verdict for the plaintiff on all claims made in the complaint.”); Korn v.

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Polo Ralph Lauren Corp., 536 F. Supp. 2d 1199, 1205 (E.D. Cal. 2008).

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IV. DISCUSSION

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Plaintiff’s Complaint is silent as to the amount of damages claimed. (See generally

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Compl.) Plaintiffs argues that remand is appropriate because there has been no evidence

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or discovery regarding her damages to date, and that Defendant’s Notice of Removal

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“argues a completely hypothetical amount in controversy.” (Mot. at 6–7.) Specifically,

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Plaintiff argues that Defendant failed to provide evidence of jury verdicts in analogous

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cases to support its claim that her emotional distress damages, punitive damages, and

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attorneys’ fees will exceed $75,000. (Id. at 7–9.) Defendant was only required to include

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a “plausible allegation” in its notice removal, and has provided ample case law and

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evidence in its opposition to Plaintiff’s motion to establish that Plaintiff’s requested

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damages exceed $75,000. (Dkt. 13 [hereinafter, “Opp.”].) Plaintiff filed no reply to

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contest Defendant’s showing. (See generally docket entries.)

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On Plaintiff’s FEHA claims, she can seek an award of back pay from the time of

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the unlawful adverse action until the date of judgment, as well as front pay for the time

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after trial. See Andrade v. Arby’s Rest. Grp., Inc., 225 F. Supp. 3d 1115, 1139–40 (N.D.

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Cal. 2016) (noting that a plaintiff alleging a violation of FEHA may seek both “[f]ront

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pay . . . a measure of damages for loss of future income” and “backpay, which is lost-

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wages damages through the time of trial.”). Cal. Gov’t Code § 12965. Defendant

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calculates Plaintiff’s back pay damages to be worth between $9,350 and $14,399, based

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on Plaintiff’s hourly wage of $11 per hour and her past monthly average of 77 hours of

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work (maximum value). (Opp. at 11–12; Dkt. 13-1 ¶¶ 4–5.) Defendant calculates

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Plaintiff’s front pay damages for one year of wages to be worth between $6,600 to

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$10,164, based on the same wage and hour values. (Opp. at 12–13.) See Garcia v. ACE

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Cash Express, Inc., No. SACV 14-0285-DOC, 2014 WL 2468344, at *4 (C.D. Cal. May

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30, 2014) (including reasonable estimate of front pay and back pay in amount in

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controversy analysis).
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Plaintiff also seeks statutory penalties for the lunch and rest breaks Defendant

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denied her under California Labor Code section 226.7. Defendant calculates that Plaintiff

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can seek $704 for the 32 missed lunch breaks for her two years of employment, $1,100

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for missed rest periods (based on missing 25% of rest periods), a $4,000 penalty for

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failure to provide Plaintiff with accurate wage statements, and waiting time penalties of

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$1,320 (equal to 30 days of daily wages based on Plaintiff’s last full month of

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employment.) (Opp. at 13–14; Dkt. 13-1 ¶¶ 4–5, 7.) Plaintiff can conservatively seek

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$7,124 in statutory penalties.

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Defendants provide evidence of jury verdicts from cases with analogous facts

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where the plaintiff’s emotional distress and punitive damages was well in excess of

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$75,000. (Opp. at 14–20.) “[S]ettlements and jury verdicts in similar cases can provide

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evidence of the amount in controversy [where] the cases must be factually identical or, at

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a minimum, analogous to the case at issue.” Mireles v. Wells Fargo Bank, N.A., 845 F.

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Supp. 2d 1034, 1055 (C.D. Cal. 2012) (citing Simmons v. PCR Technology, 209 F. Supp.

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2d 1029, 1034 (N.D. Cal. 2002) (considering damages awarded in a “not perfectly

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analogous” case as evidence “that emotional distress damages in a successful

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employment discrimination case may be substantial”); Conrad Associates v. Hartford

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Accident & Indemnity Co., 994 F. Supp. 1196, 1200 (N.D.Cal.1998) (accepting evidence

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of jury verdicts on analogous punitive damages claims as sufficient to show that the

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amount in controversy requirement was met)). Defendants provide numerous cases

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where the plaintiff brought claims for sexual harassment, hostile work environment, and

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retaliation. (Dkt. 13-2 Exs. B-1 [Paterson v. California Department of General Services,

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et al., No. 2:05-CV-00827-MCE-JFM (E.D. Cal. April 10, 2008) (jury awarded $500,000

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in past emotional distress and $275,500 in other non-economic damages where plaintiff

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complained of sexual harassment and then suffered additional harassment by co-workers

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for making complaint)], B-2 [McCarthy and Schmitt v. R.J. Reynolds Tobacco Company,

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No. 2:09-CV-02495-WBS-DAD (E.D. Cal. June 12, 2011) (awarding each plaintiff
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$150,000 in emotional distress damages and $250,000 in punitive damages in case

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involving hostile work environment, sexual harassment, and retaliation), B-4 [Borck v.

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City of Los Angeles, No. 99-11575-TJH (C.D. Cal. April 1, 2009) (jury awarded

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$1,300,000 in emotional distress damages to plaintiff after determining that defendant

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had failed to prevent sexual harassment and retaliation)].)

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Two cases Defendant cites have particularly analogous facts, concerning a plaintiff

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who objected to sexually harassing behavior by a supervisor, the supervisor was fired, the

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plaintiff was subjected to harassment as a result by co-workers and was ultimately

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terminated. (Dkt. 13-1Ex. B-9 [Taylor v. Nabors Drilling USA, LP, No. 56-2011-

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00393016CU-WT-VTA (Cal. Superior September 11, 2012) (jury awarded $150,000 in

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non-economic damages and $10,000 in economic damages in case involving claims for

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hostile work environment sexual harassment, failure to prevent sexual harassment,

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unlawful retaliation, and wrongful termination in violation of public policy)], Ex. B-10

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[Astor v. Rent-A-Center, Inc., No. 03AS048644 (Cal. Superior August 5, 2005) (plaintiff

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awarded $250,000 in non-economic damages in FEHA sexual harassment and wrongful

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termination case)].) These cases plainly illustrates that Plaintiff’s damages for emotional

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distress and punitive damages alone are more than likely to exceed $75,000.

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In light of the value of Plaintiff’s claims for compensatory damages (back pay and

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front pay), statutory penalties, emotional distress, and punitive damages, there is no

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question that Plaintiff could recover more than $75,000 should she succeed on all of her

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claims.

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Plaintiff requests an award of attorneys’ fees and costs for filing this motion to

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remand. (Mot. at 9–10.) However, “absent unusual circumstances, attorney’s fees

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should not be awarded when the removing party has an objectively reasonable basis for

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removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). As Defendant
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properly removed this action, the Court DENIES Plaintiff’s request for attorneys’ fees

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and costs.

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V. CONCLUSION

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For the foregoing reasons, Plaintiff’s motion to remand is DENIED.

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DATED:

February 5, 2018
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CORMAC J. CARNEY

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UNITED STATES DISTRICT JUDGE

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