Tompkins v. C&S Wholesale Grocers, Inc. et al

Filing 15

ORDER signed by Judge Garland E. Burrell, Jr on 7/9/11 REMANDING CASE to Sacramento Superior Court. Copy of remand order sent to other court. CASE CLOSED. Copy of remand order sent. CASE CLOSED. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID TOMPKINS; individually and
on behalf of members of the
general public similarly
situated, and as aggrieved
employees pursuant to the
Private Attorney General Act
(“PAGA”),
Plaintiffs,

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v.

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C&S WHOLESALE GROCERS, INC., a
Vermont corporation; TRACY
LOGISTICS, LLC, an unknown
business entity; and DOES 1
through 100, inclusive,

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Defendants.
________________________________

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2:11-cv-0703-GEB-EFB
ORDER GRANTING MOTION TO
REMAND

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On April 13, 2011, Plaintiff David Tompkins filed a motion

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seeking to remand this case to the Sacramento County Superior Court in

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California from which it was removed. (ECF No. 10.) Defendants C&S

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Wholesale

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“Defendants”) oppose the motion. (ECF No. 11.) Defendants argue in their

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opposition the motion should be denied because diversity jurisdiction

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exists under 28 U.S.C. § 1332(a) which supports the removal of this case

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to federal court based on the uncontroverted evidence establishing that

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the amount in controversy is well in excess of $75,000.” (Opp’n 1:11-

Grocers,

Inc.

and

Tracy

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1

Logistics,

LLC

(collectively,

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12.) For the reasons stated below, Plaintiff’s motion to remand will be

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GRANTED.

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I. BACKGROUND

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On February 3, 2011, Plaintiff filed a Complaint in the

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Sacramento County Superior Court, alleging the following three claims

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under state law. (Compl. ¶¶ 56-102.): (1) failure to pay minimum wages

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and overtime wages in violation of California Labor Code sections 510

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and 1198; (2) civil penalties under California Labor Code sections 2698,

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et seq.; and (3) unfair business practices in violation of California

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Business and Professions Code sections 17200, et seq. Id. Plaintiff also

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alleges

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compensatory damages, interest, and pro rata share of attorneys’ fees,

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is less than $75,000.” Id. ¶ 1.

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that

the

amount

in

controversy

“including

claims

for

On March 14, 2011, Defendants filed a Notice of Removal,

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removing

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jurisdiction. (Notice of Removal ¶ 7.) Defendants’ Notice of Removal

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states that removal is proper since there is complete diversity of

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citizenship

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controversy exceeds the sum of $75,000, exclusive of costs and interest.

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Id.

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this

case

between

to

federal

Plaintiffs

court

and

on

the

Defendants

basis

and

of

the

diversity

amount

in

II. LEGAL STANDARD

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Removal to federal court is only proper under diversity

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jurisdiction when a case originally filed in state court is between

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citizens of different states and involves an amount in controversy that

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exceeds $75,000. See 28 U.S.C. § 1332(a). “The removal statute is

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strictly construed against removal jurisdiction [and] [t]he defendant

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bears the burden of establishing that removal is proper.” Provincial

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Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir.
2

1

2009) (citations omitted). “Where doubt regarding the right to removal

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exists,

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Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).

a

case

should

be

remanded

to

state

court.”

Matheson

v.

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“Where it is not facially evident from the complaint that more

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than $75,000 is in controversy, the removing party must prove, by a

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preponderance of the evidence, that the amount in controversy meets the

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jurisdictional threshold.” Matheson, 319 F.3d at 1090. Defendants need

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to “provide evidence establishing that it is ‘more likely than not’ that

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the amount in controversy exceeds” $75,000. Sanchez v. Monumental Life

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Insurance Co., 102 F.3d 398, 404 (9th Cir. 1996). The Court will

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“consider[] facts presented in the removal petition as well as any

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‘summary judgment-type evidence relevant to the amount in controversy at

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the time of removal.’ Conclusory allegations as to the amount in

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controversy are insufficient.” Matheson, 319 F.3d at 1090-91.

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Plaintiff, citing Guglielmino v. McKee Foods Corp., 506 F.3d

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696, 699 (9th Cir. 2007), argues that since he “unequivocally alleges

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the amount in controversy . . . is less than $75,000[,] . . . Defendants

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must prove to a legal certainty, that the federal jurisdiction amount is

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met.” (Mot. 4:3-5, 18-19.) However, “[i]n a footnote, the Guglielmino

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court discussed and left open the question whether the . . . ‘legal

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certainty’ standard applies only in the [Class Action Fairness Act

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(“CAFA”)]

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09-CV-1260-OWW-JLT, 2010 WL 546721, at *5 (E.D. Cal. Feb. 10, 2010).

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Several district courts have extended the legal certainty burden of

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proof to § 1332(a) diversity jurisdiction cases. See e.g. Lara v. Trimac

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Transp. Servs. Inc., No. CV 10-4280-GHK (JCx), 2010 WL 3119366, at *1

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n.1 (C.D. Cal. Aug. 6, 2010) (applying the legal certainty standard in

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a § 1332(a) diversity jurisdiction case); accord Site Mgmt. Solutions,

context.”

HSBC

Bank

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USA,

NA

v.

Valencia,

No.

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Inc. v. TMO CA/NV, LLC, No. CV 10–08679 MMM (JEMx), 2011 WL 1743285, at

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*3 (C.D. Cal. May 4, 2011); but see Lyon v. W.W. Grainger, Inc., No. C

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10-00884

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(explaining “[i]t would be an unprecedented extension of Ninth Circuit

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caselaw to apply the burden of proof that plaintiff suggests to a

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non-CAFA case such as this”). However, this issue need not be determined

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in this case since, as discussed below, Defendants have not met their

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burden of proof under the preponderance of the evidence standard.

WHA,

2010

WL

1753194,

at

*1

(N.D.

Cal.

Apr.

29,

2010)

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III. Discussion

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Plaintiffs argue this action should be remanded to state court

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since Defendants failed to offer “evidence supporting [their] contention

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that the amount in controversy exceeds $75,000[.]” (Mot. for Remand

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(“Mot.”) 6:1-2.) Defendants respond, arguing diversity jurisdiction

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exists since the “the uncontroverted evidence establishes that the

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amount in controversy is well in excess of $75,000.” (Opp’n 1:11-12.)

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A.

Unpaid Overtime

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Defendants argue the “amount in controversy [is] more than

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$75,000 on [Plaintiff’s unpaid overtime] claim alone[.]” (Opp’n 8:13-

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14.) Plaintiff alleges that “Defendants regularly and consistently

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failed to pay overtime wages to Plaintiff” and Plaintiff was “required

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to work more than eight (8) hours per day and/or forty (40) hours per

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week without overtime compensation.” (Compl. ¶ 40.) Defendants argue

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they “based their removal calculations on the amount in controversy for

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Plaintiff’s overtime claim on the assumption that Plaintiff ‘regularly

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and consistently’ worked at least 10 hours of overtime per week.” (Opp’n

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6:14-16.)

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“[w]hen asked to stipulate that he worked less than 10 hours of overtime

Defendants

argue

their

“estimates

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[are]

credible”

since

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per week, Plaintiff refused to stipulate.” Id. 7:15-17. Plaintiff

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counters that his “refusal to stipulate to the amount of overtime hours

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[he] worked is [not] evidence of bad faith” and “Defendants cannot prove

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their overtime calculations without [their] assumption” that Plaintiff

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worked ten hours of overtime per week. (Reply 2:24-25, 6:25-26.)

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Defendants acknowledge their calculations of the amount in

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controversy

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“assumption”; Plaintiff’s refusal to stipulate to the amount of overtime

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hours he worked is not evidence and does not support Defendants’

in

Plaintiff’s

unpaid

overtime

claim

are

based

on

an

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“assumption”.

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07cv2346-L(JMA), 2008 WL 2157005, at *3 (S.D. Cal. May 21, 2008) (“If a

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plaintiff’s refusal to stipulate is sufficient to satisfy that burden,

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a defendant could force the plaintiff to choose between stipulating

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against his or her future remedies and remaining in federal court.”).

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Defendants

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controversy in Plaintiff’s unpaid overtime claim with evidence and

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“conclusory

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insufficient.” Matheson, 319 F.3d at 1090-91. Therefore, Defendants

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cannot establish the amount in controversy in this claim.

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B.

See

fail

to

Bassel

v.

support

allegations

as

4Access

their

to

Communications

calculation

the

amount

of

the

in

Co.,

No.

amount

controversy

in

are

Unpaid Minimum Wages

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Plaintiff also alleges he was “not paid at least minimum

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compensation for all hours worked.” (Compl. ¶ 62.) Defendants argue

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Plaintiff’s Complaint “is completely silent on how many hours for which

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Plaintiff

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However,

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Plaintiff is more likely than not to recover for his unpaid minimum wage

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claim. Therefore, Defendants fail to establish the amount in controversy

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for this claim.

claims

he

Defendants

was
do

not
not

paid
offer

5

minimum
any

wage.”

evidence

(Opp’n

or

8:24-15.)

calculate

what

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///

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3

C.

Liquidated Damages

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Plaintiff seeks liquidated damages in his claim for unpaid

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overtime and minimum wages, under California Labor Code section 1194.2,

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which states in relevant part: “In any action under Section 1193.6 or

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Section 1194 to recover wages because of the payment of a wage less than

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the minimum wage . . . , an employee shall be entitled to recover

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liquidated damages in an amount equal to the wages unlawfully unpaid and

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interest thereon.” CAL . LAB . CODE § 1194.2(a).

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Defendants argue that “Plaintiff’s request for liquidated

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damages would double the amount in controversy at issue on the unpaid

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minimum wages and overtime wages claim.” (Opp’n 9:3-4.) However, section

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1194.2 proscribes that “nothing in this subdivision shall be construed

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to authorize the recovery of liquidated damages for failure to pay

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overtime compensation.” CAL . LAB . CODE § 1194.2(a). Since Defendants fail

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to establish the amount in controversy for Plaintiff’s unpaid minimum

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wage

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Plaintiff’s unpaid minimum wage claim.

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claim,

D.

Defendant

cannot

calculate

liquidated

damages

for

Civil Penalties

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Plaintiff also seeks to recover civil penalties in his claim

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for failure to pay overtime and minimum wages, under California Labor

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Code section 1197.1. (Compl. ¶ 71.) In his second claim, Plaintiff seeks

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penalties under California’s Private Attorneys General Act (“PAGA”),

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California Code of Regulations Title 8 section 11070, and California

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Labor Code section 210. (Compl. ¶ 84(a),(b),(c).) Defendants argue that

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under these provisions Plaintiff will recover $3,100 in penalties for

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his first claim, and $32,000 in penalties for his second claim. (Opp’n
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9:16-19.) Even assuming arguendo that Plaintiff would be entitled to the

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maximum penalties under these statutes, Defendant establishes $35,100 in

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controversy for these claims.

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E.

Attorneys’ Fees

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Defendants argue “plaintiff may recover reasonable attorneys’

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fees” and that these attorneys’ fees “add to the amount in controversy.”

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(Opp’n 13:8-10.) Defendants argue that “[u]sing a conservative hourly

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rate of $300 per hour for Plaintiff’s counsel, if Plaintiff’s counsel

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spent 200 hours on the instant case, it would about to $60,000 in

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attorney’s

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Defendants make these conclusions relating to the amount of attorneys’

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fees, [they] failed to submit any supporting evidence.” (Mot. 12:3-4.)

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Defendants counter that “Plaintiff’s counsel do not state that their

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hourly rates are . . . less than $300" and they do not “state that they

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will not seek attorney’s fees of more than $60,000[.]" (Opp’n 13:19-21.)

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However, “[D]efendant[s] bear[] the burden of establishing that removal

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is proper[,]” and their assumptions regarding the attorneys’ fees

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Plaintiff will recover lack a foundation. Placer Dome, Inc., 582 F.3d at

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1087. Defendants’ conclusory argument does not prove by a preponderance

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of the evidence that Plaintiff will recover $60,000 in attorneys’ fees.

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Since Defendants have not proved by a preponderance of the

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evidence that the amount in controversy exceed $75,000, Plaintiff’s

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remand motion is GRANTED.

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Sacramento County Superior Court in California.

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Dated:

fees.”

Id.

13:10-12.

Plaintiff

argues

that

Therefore, this case is REMANDED to the

July 9, 2011

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“[a]lthough

GARLAND E. BURRELL, JR.
United States District Judge

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