Lusardi v. CPM-US, LLC

Filing 15

STIPULATION and ORDER 14 signed by District Judge Troy L. Nunley on 1/31/14. REMANDING this case to Sacramento County Superior Court. Certified copy of remand order sent to other court. CASE CLOSED. (Kastilahn, A)

1 L. Julius M. Turman (SBN 226126)
Email:
[e-mail]
2 Philip J. Smith (SBN 232462)
Email: [e-mail]
3 Elizabeth J. Boca (SBN 255719)
Email:
[e-mail]
4 REED SMITH LLP
101 Second Street
5 Suite 1800
San Francisco, CA 94105-3659
6 Telephone: [phone]
Facsimile: [phone]
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Attorneys for Defendant
8 CPM-US, LLC
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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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13 JAMES LUSARDI, an individual; on behalf of
himself and all other similarly situated current
14 and former employees,
Plaintiff,

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vs.

17 CPM-US, LLC, a Delaware Limited Liability
Company, and DOES 1 through 50, Inclusive,
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Defendant.
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Case No.: 2:13-cv-02649-TLN-EFB
JOINT STIPULATION CONSENTING TO
REMAND AND WITHDRAWAL OF
MOTION TO DISMISS; ORDER
Removal Filed:
December 23, 2013
Motion for Remand Filed: January 6, 2014
Motion To Dismiss Filed: January 24, 2014

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JOINT STIPULATION CONSENTING TO REMAND AND
WITHDRAWAL OF MOTION TO DISMISS; ORDER

US_ACTIVE-115983318

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1.

On November 20, 2013, Plaintiff James Lusardi (“Plaintiff” or “Lusardi”)

3 commenced an Action against CPM-US, LLC (“CPM-US”) by filing a Complaint (“Complaint”) in
4 the Superior Court of California, County of Sacramento, entitled JAMES LUSARDI v. CPM-US
5 LLC, Case No. 34-2013-00154871-CU-OE-GDS (hereinafter, the “the Action”).
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2.

On December 20, 2013, CPM-US timely filed its Answer to the Complaint in the

7 Superior Court of California, County of Sacramento.
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3.

On December 23, 2013, CPM-US timely removed the State Court Action to this

9 Court pursuant to 28 U.S.C. Sections 1332 and 1441(b) (diversity jurisdiction). (See, Dkt No. 1).

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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4.

On December 23, 2013, CPM-US completed the removal process by filing a

11 conformed copy of the Removal papers with the Sacramento County Superior Court.
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5.

On January 6, 2014, Lusardi timely filed a First Amended Complaint as a matter of

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right pursuant to Fed. Rules Civ. Proc. R. 15(a)(1)(B), which added a sixth cause of action for

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violation of the Private Attorney General Act (Cal. Labor Code §§ 2698 et seq.). (See First

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Amended Complaint (Dkt. No. 8)).

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6.

Also on January 6, 2014, Lusardi filed a Motion to Remand the action to state court

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on the grounds that the Court lacks subject matter jurisdiction, because CPM-US purportedly failed

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to provide facts and evidence sufficient to establish that the “amount in controversy” in this Action

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exceeds $75,000 as required under 28 U.S.C. § 1332(a). (See Notice of Motion and Motion to

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Remand (Dkt. Nos. 9 and 9-1)).

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7.

Following closer review of Plaintiff’s Motion to Remand, including the damage

22 calculations and claims therein presented for the first time, on January 9, 2014, CPM-US offered to
23 stipulate to the remand of the matter to state court.
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8.

Lusardi rejected CPM-US’ offer to stipulate to removal because Ninth Circuit

25 precedent “the parties cannot by stipulation or waiver grant or deny federal subject matter
26 jurisdiction.” See Janakes v. United States Postal Service, 768 F.2d 1091, 1095 (9th Cir., 1985).
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9.

On January 14, 2014, CPM-US filed a Statement of Non-Opposition to Lusardi’s
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JOINT STIPULATION CONSENTING TO REMAND AND
WITHDRAWAL OF MOTION TO DISMISS; ORDER

1 Motion to Remand. (See Statement of Non-Opposition (Dkt. No. 11)). In so doing, CPM-US does
2 not dispute this Court lacks subject matter jurisdiction over this Action.
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10.

On January 24, 2014, Defendant filed a Motion to Dismiss the First Amended

4 Complaint, filed in this Court, on the grounds that this court lacks jurisdiction to hear the matter and
5 that the matter should be therefore heard in state court.
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11.

On January 27, 2014, Lusardi filed a Reply brief in support of his Remand Motion,

7 asserting that (a) the Motion to Dismiss was mooted by his unopposed Remand Motion, (b) the
8 Motion to Dismiss was improper because the First Amended Complaint was filed as a matter of right
9 pursuant to Fed. Rules Civ. Proc. R. 15(a)(1)(B), and thereon, the right to undertake the filing was

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 not contingent on the Court having jurisdiction over the case, and could not be stricken by the Court
11 under applicable law, and (c) the Motion to Dismiss was unnecessary, as Lusardi has a concurrent
12 right to amend his complaint to add a PAGA claim as a matter of right in state court pursuant to Cal,
13 Lab. Code § 2699.3 (2)(C).
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NOW THEREFORE, the parties hereby stipulate as follows:
STIPULATION

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1.

The Plaintiff’s unopposed Motion to Remand should be granted, and the Action

17 remanded to the Sacramento County Superior Court;
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2.

CPM-US’ Motion to Dismiss is hereby Withdrawn, as moot;

3.

The parties stipulate that the First Amended Complaint filed on January 6, 2014 is the

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operative Complaint, and thereon, Lusardi shall file the same First Amended Complaint in the
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Sacramento County Superior Court, with the exception of changing the caption to reflect that the
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matter is being filed in state court and deleting paragraph 8, which is no longer relevant;
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4.

Thereafter, CPM-US shall file an Answer to the same First Amended Complaint that

24 Lusardi filed in this court, once it is filed in the Sacramento County Superior Court, and shall not
25 otherwise move to dismiss, file a demurrer, aver or otherwise respond.
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JOINT STIPULATION CONSENTING TO REMAND AND
WITHDRAWAL OF MOTION TO DISMISS; ORDER

1 DATED: January 31, 2014

REED SMITH LLP

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By: /s/ L. Julius M. Turman
Attorneys for Defendant
CPM-US, LLC

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DATED: January 31, 2014

POLLARD BAILEY

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By: /s/ Matt C. Bailey
Matt C. Bailey
Attorneys for Plaintiff
JAMES LUSARDI, individual; on behalf of
himself and all other similarly situated employees

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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ORDER
Pursuant to the Parties’ Joint Stipulation Consenting to the Motion to Remand, and good

12 cause appearing, it is hereby Ordered that the Action be remanded to Sacramento County Superior
13 Court. In furtherance of the Parties further stipulation, the Motion to Dismiss is hereby withdrawn
14 as moot given the remand to state court
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IT IS SO ORDERED.

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Dated: January 31, 2014

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Troy L. Nunley
United States District Judge

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JOINT STIPULATION CONSENTING TO REMAND AND
WITHDRAWAL OF MOTION TO DISMISS; ORDER