Massoud Azimihashemi v. First Transit, Inc.

Filing 23

ORDER DENYING PLANTIFF'S MOTION TO REMAND [ECF No. 9 ] by Judge John W. Holcomb: For the reasons stated above, the Court DENIES Azimihashemi's Motion to Remand. IT IS SO ORDERED. (See document for further details) (yl) Modified on 7/15/2021 (yl).

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MASSOUD AZIMIHASHEMI,
individually and on behalf of other
members of the general public
similarly situated,
Plaintiff,
v.
FIRST TRANSIT SERVICES, INC.,
an unknown business entity;
FIRST TRANSIT, INC., an unknown
business entity;
FIRST GROUP AMERICA, an
unknown business entity; and
DOES 1 through 100, inclusive,
Defendants.

Case No. 8:21-cv-00780-JWH-JDEx
ORDER DENYING PLANTIFF’S
MOTION TO REMAND [ECF
No. 9]

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Before the Court is the motion of Plaintiff Massoud Azimihashemi to

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remand this action to the Orange County Superior Court.1 The Court finds this

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matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78;

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L.R. 7-15. After considering the papers filed in support and in opposition,2 the

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Court orders that the Motion is DENIED, as set forth herein.
I. BACKGROUND

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A.

Procedural Background

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On February 24, 2021, Azimihashemi filed this action in the Superior

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Court of California for the County of Orange, asserting 10 causes of action under

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various California labor statues.3 Defendant First Transit, Inc. (“First

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Transit”) removed the action to this Court on April 26, 2021, under the Class

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Action Fairness Act of 2005, 28 U.S.C. § 1332(d) (“CAFA”).4 Azimihashemi

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moved to remand on May 26, 2021.5 First Transit opposed the Motion and filed

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supporting documents on June 11, 2021.6 Azimihashemi replied in support of

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his Motion on June 18, 2021.7 The matter now stands submitted.

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B.

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Factual Allegations
Azimihashemi makes the following factual allegations:

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Pl.’s Mot. to Remand (the “Motion”) [ECF No. 9].
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The Court considered the following papers: (1) Compl. (the
“Complaint”) [ECF No. 1-1]; (2) the Motion (including its attachments);
(3) Def’s Opp’n to Pl.’s Mot. to Remand (the “Opposition”) [ECF No. 14];
and (4) Pl.’s Reply in Supp. of Pl.’s Mot. to Remand (the “Reply”) [ECF
No. 17].
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See generally Complaint.
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Def.’s Notice of Removal (the “Notice of Removal”) [ECF No. 1].
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See generally Motion.
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See generally Opposition; Decl. of David J. Dow and Ex. A, Decl. of Tara
E. Blessing (the “Blessing Declaration”) [ECF Nos. 14-1 & 14-2].
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See generally Reply.
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First Transit and Defendants First Transit Services, Inc.8 and FirstGroup

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America (“FirstGroup”) (collectively, “Defendants”) employed

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Azimihashemi, a California resident, as an hourly-paid, non-exempt employee

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from December 2019 to March 2020.9

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Azimihashemi seeks to represent a proposed class defined as follows:

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Class: All current and former hourly-paid or non-exempt employees

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who worked for any of the Defendants within the State of California

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at any time during the period from four years preceding the filing of

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the Complaint to final judgment and who reside in California.

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Subclass A: All current and former hourly-paid or non-exempt

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employees who worked for any of the Defendants within the State of

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California at any time during the period from four years preceding

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the filing of the Complaint to final judgment who were subject to

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Defendants’ practice of rounding time recorded for compensation of

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regular/overtime wages and who reside in California.

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Subclass B: All current and former hourly-paid or non-exempt

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employees who worked for any of the Defendants within the State of

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California at any time during the period from four years preceding

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the filing of the Complaint to final judgment who were required by

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Defendants to stay on Defendants’ premises for rest breaks and who

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reside in California.

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Subclass C: All current and former hourly-paid or non-exempt

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employees who worked for any of the Defendants within the State of

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California at any time during the period from four years preceding

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the filing of the Complaint to final judgment who received overtime

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First Transit asserts in its Notice of Removal that there is no entity called
“First Transit Services, Inc.” Notice of Removal ¶ 27.
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Complaint ¶¶ 5-7 & 18.
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compensation at a rate lower than their respective regular rate of pay

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because Defendants failed to include all non-discretionary bonuses

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or other incentive-based compensation in the calculation of the

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regular rate of pay for overtime pay purposes and who reside in

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California.10

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Azimihashemi does not know the number of class members, but he estimates it

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to be greater than 50 individuals.11
Defendants failed to compensate Azimihashemi and other proposed class

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members (collectively, “Plaintiffs”) for all hours worked and missed meal and

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rest periods.12 Plaintiffs worked for Defendants over eight hours a day and/or 40

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hours a week.13 Defendants did not pay Plaintiffs minimum wage for all hours

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worked.14 Defendants did not provide Plaintiffs with complete and accurate

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wage statements.15 Defendants did not keep complete and accurate payroll

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records.16 Defendants failed to pay Plaintiffs all wages owed to them upon their

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respective discharges or resignations.17 Defendants failed to reimburse Plaintiffs

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for all necessary business-related expenses and costs.18 Defendants failed to pay

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Plaintiffs promptly.19
First Transit asserted in its Notice of Removal that removal under CAFA

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was justified because the proposed class has over 100 members; First Transit

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Id. ¶ 13.
Id. ¶ 15.
Id. ¶ 19.
Id. ¶ 24.
Id. ¶ 30.
Id. ¶ 33.
Id. ¶ 34.
Id. ¶ 40.
Id. ¶ 44.
Id. ¶ 92.
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and FirstGroup are both citizens of both Delaware and Ohio; and the amount in

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controversy exceeds $5,000,000.20
II. LEGAL STANDARD

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Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey

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possess only that power authorized by Constitution and statute.” Kokkonen v.

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In every federal case, the

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basis for federal jurisdiction must appear affirmatively from the record. See

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DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). “The right of

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removal is entirely a creature of statute and a suit commenced in a state court

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must remain there until cause is shown for its transfer under some act of

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Congress.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal

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quotation marks omitted). Unless otherwise expressly provided by Congress,

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“any civil action brought in a State court of which the district courts of the

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United States have original jurisdiction, may be removed by the defendant or the

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defendants, to the district court.” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724

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F.3d 1249, 1252 (9th Cir. 2013) (internal quotation marks omitted).

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To remove an action to federal court under 28 U.S.C. § 1441(a), the

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removing defendant “must demonstrate that original subject-matter jurisdiction

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lies in the federal courts.” Syngenta, 537 U.S. at 33. In other words, the

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removing defendant bears the burden of establishing that removal is proper. See

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Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (noting

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the “longstanding, near-canonical rule that the burden on removal rests with the

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removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)

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(“The strong presumption against removal jurisdiction means that the

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defendant always has the burden of establishing that removal is proper.”

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(quotation marks omitted)).

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Notice of Removal ¶¶ 13-15, 21, 22, 25, & 30-55.
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III. DISCUSSION

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First Transit removed this action to this Court pursuant to 28 U.S.C.

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§ 1441, asserting jurisdiction under CAFA. Thus, First Transit bears the

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burden of establishing that this Court has original subject matter jurisdiction

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over this action.

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A.

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Legal Standard Under CAFA
Under CAFA, the Court has “original jurisdiction of any civil action in

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which the matter in controversy exceeds the sum or value of $5,000,000,

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exclusive of interest and costs, and is a class action in which” there is minimal

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diversity. 28 U.S.C. § 1332(d)(2). To remove a case to federal court under

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CAFA, a defendant must demonstrate that the amount in controversy exceeds

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$5 million, exclusive of interest and costs. Id. The general rule is that a

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removing defendant’s well-pleaded amount in controversy allegations “should

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be accepted when not contested by the plaintiff or questioned by the court.”

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Dart Cherokee, 574 U.S. at 87; see also Ibarra v. Manheim Invs., Inc., 775 F.3d

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1193, 1197 (9th Cir. 2015) (in evaluating the amount in controversy, the court

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first looks to the complaint).

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However, where, as here, the plaintiff challenges the removing

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defendant’s jurisdictional allegation, under 28 U.S.C. § 1446(c)(2)(B),

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“removal . . . is proper on the basis of an amount in controversy asserted” by the

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defendant only “if the district court finds, by the preponderance of the evidence,

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that the amount in controversy exceeds” the jurisdictional threshold. Dart

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Cherokee, 574 U.S. at 88. “In such a case, both sides submit proof and the court

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decides . . . whether the amount-in-controversy requirement has been satisfied.”

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Id (emphasis added). The preponderance of the evidence standard means that

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the “defendant must provide evidence establishing that it is ‘more likely than

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not’ that the amount in controversy” meets or exceeds the jurisdictional

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threshold. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.
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1996) (emphasis added). The defendant must set forth the underlying facts

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supporting its assertion that the amount in controversy exceeds the statutory

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minimum. Gaus, 980 F.2d at 567. In addition to the contents of the notice of

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removal, the Court may consider “summary-judgment-type evidence relevant to

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the amount in controversy at the time of removal,” such as affidavits or

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declarations. Ibarra, 775 F.3d at 1197; Valdez v. Allstate Ins. Co., 372 F.3d 1115,

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1117 (9th Cir. 2004). There is no presumption against removal jurisdiction in

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CAFA cases. Dart Cherokee, 574 U.S. at 89.
Here, as a threshold matter, Azimihashemi does not dispute that minimal

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diversity exists, as required by CAFA.21 See 28 U.S.C. § 1332(d)(2). The only

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jurisdictional dispute concerns to the amount-in-controversy requirement under

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CAFA.22

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B.

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Amount in Controversy
In its Notice of Removal, First Transit asserts that the amount in

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controversy in this case exceeds $5 million. Azimihashemi alleges that First

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Transit improperly denied Plaintiffs “all requisite uninterrupted meal and rest

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periods.”23 The penalty for each missed period is one hour of wages.24 First

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Transit analyzed the pay data of 5,780 employees employed during the class

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period; when multiplied by the length of the class period and the average hourly

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pay, the penalty for the second and third causes of action alone exceeds

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$5 million.25 In its Opposition, First Transit supported these figures with a

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declaration by its payroll director, Tara Blessing.26

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See generally Motion (no discussion of diversity).
Id. at 2:2-4.
Complaint ¶ 38.
Notice of Removal ¶ 36.
Notice of Removal ¶ 38-39.
Blessing Declaration ¶ 3.
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Azimihashemi argues that the Blessing Declaration is insufficient

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evidence.27 But this and other courts have found that in similar CAFA removal

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cases, a declaration from the defendant’s payroll director is sufficient evidence

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when a plaintiff does not submit any evidence in opposition. See, e.g., Vasquez v.

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RSI Home Prod., Inc., 2020 WL 6778772, at *4 (C.D. Cal. Nov. 12, 2020)

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(reasonable to rely on defendant’s declaration where declaration aligned with

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allegations in the complaint and plaintiff did not submit any evidence); Torrez v.

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Freedom Mortg., Corp., 2017 WL 2713400, at *5 (C.D. Cal. June 22, 2017)

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(similar).

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Azimihashemi further asserts that the Blessing Declaration incorrectly

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assumes that First Transit’s assumption of a 100% violation rate is baseless.28

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But Azimihashemi offers no alternative violation rate, and the Complaint itself

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alleges a 100% violation rate: “During the relevant time period, Defendants

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failed to provide all requisite uninterrupted meal and rest periods to Plaintiff and

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the other class members.”29 As this Court has previously pointed out,

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Azimihashemi likely worded the Complaint extremely broadly on purpose, in

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order to seek justice for the maximum number of people. It is, therefore,

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reasonable to look to this wording when determining the alleged violation rate.

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See Vasquez, 2020 WL 6778772, at *4 (C.D. Cal. Nov. 12, 2020) (assumption of

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100% violation rate was reasonable where pleadings were “general and

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expansive”); compare Schiller v. Ashley Distribution Servs., Ltd., 2021 WL

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1292511, at *5 (C.D. Cal. Apr. 6, 2021) (declining to find universal violation rate

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reasonable where complaint specified that violations occurred “not regularly”).
Thus, Azimihashemi’s second and third claims for relief alone allege an

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amount in controversy sufficient for CAFA removal. The Court need not
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Reply at 5:3-6:1.
Motion at 7:24-8:4.
Complaint ¶ 38 (emphasis added).
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analyze Azimihashemi’s other causes of action; however, to the extent that First

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Transit was over-inclusive in its calculations of damages, it is likely that the

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remaining claims for relief will lead to an amount in controversy exceeding

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$5 million.

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IV. CONCLUSION

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For the reasons stated above, the Court DENIES Azimihashemi’s

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Motion to Remand.
IT IS SO ORDERED.

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Dated: July 15, 2021

John W. Holcomb
UNITED STATES DISTRICT JUDGE

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