Butt v. 9W Halo Western Opco, L.P. et al

Filing 21

ORDER signed by Senior Judge William B. Shubb on 1/13/2023 GRANTING 18 Motion to Remand and DENYING 15 Motion to Consolidate Cases as moot. This Case is REMANDED to Sacramento Superior Court. Certified copy of remand order sent to other court. CASE CLOSED. (Donati, J)

Case 2:22-cv-02012-WBS-AC Document 21 Filed 01/17/23 Page 1 of 9
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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WAQAS N. BUTT, individually and
on behalf of himself and all
others similarly situated,
Plaintiff,

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No. 2:22-cv-02012 WBS AC

MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION TO REMAND
AND DEFENDANT’S MOTION TO
CONSOLIDATE

v.
9W HALO WESTERN OPCO, L.P., a
Delaware limited liability
company doing business as
ANGELICA TEXTILE SERVICES; and
DOES 1 through 50, inclusive,
Defendants.

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----oo0oo----

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Plaintiff Waqas N. Butt initiated this action against

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defendant 9W Halo Western Opco, L.P., doing business as Angelica

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Textile Services, under the Private Attorneys General Act of 2004

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(“PAGA”), Cal. Lab. Code § 2699.

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Defendant removed the action to this court from the Sacramento

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County Superior Court.

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consolidate this matter with Butt v. 9W Halo Western Opco, L.P.,

(See Compl. (Docket No. 1-2).)

(Docket No. 1.)

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Defendant moved to

Case 2:22-cv-02012-WBS-AC Document 21 Filed 01/17/23 Page 2 of 9
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No. 2:22-cv-01446 WBS AC.

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to remand.

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I.

(Docket No. 15.)

Plaintiff now moves

(Docket No. 18.)

Discussion1

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“Under 28 U.S.C. § 1441, a defendant may remove an

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action filed in state court to federal court if the federal court

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would have original subject matter jurisdiction over the action.”

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Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th

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Cir. 2009).

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A.

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Federal Question Jurisdiction
Federal courts have original jurisdiction over actions

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arising under federal law.

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that there is a federal question under the Labor Management

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Relations Act, 29 U.S.C. § 185, because plaintiff was subject to

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a collective bargaining agreement (“CBA”).

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argument for the first time in its opposition brief.

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Opp’n (Docket No. 19) at 7.)

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28 U.S.C. § 1331.

Defendant argues

Defendant raises this
(See Def.’s

“[T]he defendant must state the basis for removal

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jurisdiction in the petition for removal.”

O’Halloran v. Univ.

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of Wash., 856 F.2d 1375, 1381 (9th Cir. 1988).

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seeking to remove a case to federal court must do so within

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thirty days of being served with the complaint.”

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Remediation, LLC v. Dep’t of Health & Env’t Quality of Mont., 213

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F.3d 1108, 1117 (9th Cir. 2000).

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be amended to add a separate basis for removal jurisdiction after

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the thirty day period.”

“A defendant

ARCO Env’t

The notice of removal “cannot

Id. (internal quotation marks omitted).

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Pursuant to Local Rule 230(g), the court finds it would
not benefit from oral argument and accordingly takes the motion
under submission upon the record and briefs.
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Case 2:22-cv-02012-WBS-AC Document 21 Filed 01/17/23 Page 3 of 9
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The court therefore declines to consider defendant’s federal

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question argument, which cannot be properly raised at this

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juncture.

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Transamerica Life Ins. Co., No. 1:16-cv-1412 LJO MJS, 2016 WL

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7173737, at *7 (E.D. Cal. Dec. 9, 2016); Wickens v. Blue Cross of

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Cal., Inc., No. 15-cv-834 GPC JMA, 2015 WL 4255129, at *2 (S.D.

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Cal. July 14, 2015).2

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B.

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See O’Halloran, 856 F.2d at 1381; Marsoobian v.

Diversity Jurisdiction
Federal courts have original jurisdiction over cases

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where complete diversity exists between the parties and the

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amount in controversy exceeds $75,000, exclusive of interest and

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costs.

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against exercising removal jurisdiction when the amount in

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controversy is in question, and “[f]ederal jurisdiction must be

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rejected if there is any doubt as to the right of removal in the

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first instance.”

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Cir. 1992) (internal citations omitted).

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28 U.S.C. § 1332(a).

There is a “strong presumption”

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th

The amount in controversy includes “all relief claimed

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at the time of removal to which the plaintiff would be entitled

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if [he] prevails,” Chavez. v. JPMorgan Chase & Co., 888 F.3d 413,

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418 (9th Cir. 2018), which may include “damages (compensatory,

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punitive, or otherwise) . . . as well as attorneys’ fees under

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Defendant’s argument on federal question jurisdiction
also fails on the merits. Plaintiff asserts claims arising under
a state statute that do not “seek[] purely to vindicate a right
or duty created by the CBA itself” and do not present an “active
dispute over the meaning of [the CBA’s] terms.” See Alaska
Airlines Inc. v. Schurke, 898 F.3d 904, 920–21 (9th Cir. 2018),
cert. denied 139 S. Ct. 1445 (2019) (internal quotation marks
omitted). Accordingly, the Labor Management Relations Act does
not preempt plaintiff’s PAGA claims. See id.
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Case 2:22-cv-02012-WBS-AC Document 21 Filed 01/17/23 Page 4 of 9
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fee shifting statutes,” Gonzalez v. CarMax Auto Superstores, LLC,

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840 F.3d 644, 648 (9th Cir. 2016).

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“In assessing the amount in controversy, [courts] may

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consider allegations in the complaint and in the notice of

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removal, as well as summary-judgment-type evidence relevant to

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the amount in controversy.”

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plaintiff’s state court complaint does not specify an amount of

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damages, the removing defendant bears the burden of establishing,

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by a preponderance of the evidence, that the amount in

Chavez, 888 F.3d at 416.

When a

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controversy exceeds $75,000.

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Co., 102 F.3d 398, 404 (9th Cir. 1996).

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defendant must provide evidence establishing that it is more

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likely than not that the amount in controversy exceeds that

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amount.”

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“need include only a plausible allegation that the amount in

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controversy exceeds the jurisdictional threshold.”

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Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014).

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conclusory allegations as to the amount in controversy are

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insufficient.

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878 F.3d 770, 774 (9th Cir. 2017).

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Sanchez v. Monumental Life Ins.
“Under this burden, the

Id. (internal quotation marks omitted).

A defendant

Dart Cherokee
However,

See Corral v. Select Portfolio Servicing, Inc.,

Plaintiff disputes that the requisite amount in

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controversy has been met.

Defendant argues that the amount in

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controversy is satisfied based on the penalties associated with

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plaintiff’s claims and plaintiff’s anticipated attorneys’ fees.

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The court will address each in turn.

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1.

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Defendant’s notice of removal states that plaintiff

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Value of Plaintiff’s Claims

alleges nine PAGA violations, for which plaintiff would be
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Case 2:22-cv-02012-WBS-AC Document 21 Filed 01/17/23 Page 5 of 9
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entitled to penalties for the initial violation and for each

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subsequent violation.

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period, running from May 28, 2021 to November 7, 2022 (the date

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of removal), there were 74 pay periods, and calculates

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plaintiff’s penalties based on that assumption.

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Removal (Docket No. 1) at 9.)

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plaintiff’s final date of employment was June 3, 2021, and

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therefore plaintiff worked a maximum of two pay periods during

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the PAGA period.

Defendant states that during the PAGA

(See Notice of

However, as plaintiff points out,

(See Decl. of Gennea Moore (Docket No. 1-3) ¶

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4.)

Assuming defendant’s figures of $1,050 in penalties for the

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initial violations and $2,700 in penalties for each subsequent

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pay period in which there were violations (see Notice of Removal

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at 9), plaintiff’s total PAGA penalties are $6,450.3

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Under PAGA, civil penalties recovered by aggrieved

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employees are distributed as follows: “75 percent to the Labor

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and Workforce Development Agency [“LWDA”] . . . and 25 percent to

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the aggrieved employees.”

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is a split among district courts on the issue, this court has

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previously held that the LWDA’s portion of PAGA penalties is not

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to be considered when calculating the amount in controversy.

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Guerrero v. Nwestco, LLC, No. 2:22-cv-01620 WBS JDP, 2022 WL

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16961124, at *2 (E.D. Cal. Nov. 16, 2022); Escobar v. Capstone

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Logistics, LLC, No. 2:20-cv-02501 WBS JDP, 2021 WL 913174, at *2-

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3 (E.D. Cal. Mar. 10, 2021).

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California, Inc., 726 F.3d 1118 (9th Cir. 2013), the Ninth

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Circuit found that “[t]he state, as the real party in interest

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Cal. Lab. Code § 2699(i).

While there

In Urbino v. Orkin Services of

This $6,450 figure results from $2,700 multiplied by
two pay periods, plus $1,050.
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See

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[with respect to the LWDA’s share of PAGA penalties], is not a

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‘citizen’ for diversity purposes.”

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at *3 (quoting Urbino, 726 F.3d at 1122–23).

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“implies that . . . [the state]’s interest is not to be

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considered.”

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Co. of Columbus, No. SACV-20-02051 CJC DFM, 2020 WL 7768711, at

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*3 (C.D. Cal. Dec. 30, 2020)).

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penalties associated with plaintiff’s claims should therefore not

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be included in calculating the amount in controversy.

See Escobar, 2021 WL 913174,
This language

Id. (quoting Hesselink v. Am. Fam. Life Assurance

The LWDA’s share of the PAGA

See

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Guerrero, 2022 WL 16961124, at *2; Escobar, 2021 WL 913174, at

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*2-3.

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Plaintiff’s 25% share of the $6,450 in PAGA penalties

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is $1,612.50.

To satisfy the $75,000 amount in controversy

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requirement, defendant must therefore establish that plaintiff’s

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attorneys’ fees are likely to exceed $73,378.50.

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2.

Attorneys’ Fees

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“[W]here an underlying statute authorizes an award of

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attorneys’ fees, either with mandatory or discretionary language,

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such fees may be included in the amount in controversy,” Shoner

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v. Carrier Corp., 30 F.4th 1144, 1148 (9th Cir. 2022) (citing

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Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998),

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including attorneys’ fees incurred after the time of removal,

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Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 794

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(9th Cir. 2018).

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will be entitled to attorneys’ fees as a matter of right.

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Cal. Lab. Code § 2699.

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attorneys’ fees when assessing the amount in controversy here.

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If plaintiff prevails on his PAGA claims, he
See

Accordingly, the court may consider

Only plaintiff’s pro rata share of attorneys’ fees is
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appropriately considered.

In Gibson v. Chrysler Corp., the Ninth

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Circuit addressed this issue in the context of attorneys’ fees

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sought under Cal. Civ. Proc. Code § 1021.5, which deals with

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actions enforcing a right that affects the public interest.

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261 F.3d 927, 942 (9th Cir. 2001), holding modified on other

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grounds by Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.

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546 (2005).

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anticipated attorneys’ fees cannot be allocated to a named

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plaintiff for purposes of satisfying the amount in controversy.

See

The Gibson court found that an entire class’s

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See id. at 941.

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authorizing statute, which provides that a court may award

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attorneys’ fees “to a successful party” rather than to a named or

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representative party.

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Code § 1021.5) (emphasis in original).

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It based this finding on the language of the

See id. at 942-43 (quoting Cal. Civ. Proc.

PAGA is analogous because it does not specify that only

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a named or representative party is entitled to attorneys’ fees.

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See Cal. Lab. Code § 2699 (“[a]ny employee who prevails in any

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action” is entitled to attorneys’ fees).

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interpretation, the Ninth Circuit has indicated that the Gibson

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rule applies in the PAGA context.

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Corp., 971 F.3d 845, 850 (9th Cir. 2020).

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including this court, have also applied Gibson to PAGA claims.

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See, e.g., Guerrero, 2022 WL 16961124, at *2; Davenport v.

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Wendy’s Co., No. 2:13-cv-02159 GEB, 2013 WL 6859009, at *2 (E.D.

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Cal. Dec. 24, 2013).

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Consistent with this

See Canela v. Costco Wholesale
District courts,

The court will therefore consider only plaintiff’s pro-

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rata share of anticipated attorneys’ fees.

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defendant must establish that plaintiff’s pro rata share of the
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As a result,

Case 2:22-cv-02012-WBS-AC Document 21 Filed 01/17/23 Page 8 of 9
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attorneys’ fees is likely to exceed $73,378.50.

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In cases involving a “common fund” that is distributed

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to class members, district courts can award attorneys’ fees based

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on either a percentage of the total fund or a lodestar

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calculation that incorporates reasonable valuations of the hours

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expended and the hourly rate.

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1011, 1029 (9th Cir. 1998).

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fees, when such fees are unascertainable on the face of the

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complaint, can be calculated by looking to other attorneys’ fees

Hanlon v. Chrysler Corp., 150 F.3d
“The reasonableness of attorneys’

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awards in similar cases.”

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1332, 1337 (E.D. Cal. 2015) (Shubb, J.) (citing Garcia, 2014 WL

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2468344, at *5; Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th

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Cir. 2005)).

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attorneys’ fee, district courts may rely on “their own knowledge

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of customary rates and their experience concerning reasonable and

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proper fees.”

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Cir. 2011).

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Garnett v. ADT LLC, 74 F. Supp. 3d

In determining what constitutes a reasonable

Oth Ingram v. Oroudjian, 647 F.3d 925, 928 (9th

Defendant states that there are more than 2,000

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aggrieved employees included in this action.

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at 5.)

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there are 2,000 aggrieved employees and allocates the attorneys’

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fees equally between them.

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plaintiff’s counsel would need to be awarded more than

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$146,757,000 as a “reasonable” attorneys’ fee award.4

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Buchanan v. Aramark Campus, LLC, No. 19-cv-00384 VKD, 2019 WL

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3302164, at *7 (N.D. Cal. July 23, 2019) (applying similar

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(Notice of Removal

For purposes of this inquiry, the court assumes that

Based on these assumptions,

See

This $146,757,000 figure results from $73,378.50 in
attorneys’ fees multiplied by 2,000 employees.
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Case 2:22-cv-02012-WBS-AC Document 21 Filed 01/17/23 Page 9 of 9
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calculation in determining total requisite attorneys’ fees based

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on plaintiff’s pro rata share).

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to believe that attorneys’ fees in this unextraordinary PAGA

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action would reach such an absurdly high amount.

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Defendant has provided no reason

Accordingly, the court finds that defendant has not

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proven by a preponderance of the evidence that the $75,000 amount

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in controversy threshold is satisfied and has therefore failed to

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overcome the presumption in favor of remand.5

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IT IS THEREFORE ORDERED that plaintiff’s motion to

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remand (Docket No. 18) be, and the same hereby is, GRANTED.

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case is hereby REMANDED to the Superior Court of the State of

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California, in and for the County of Sacramento.

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This

IT IS FURTHER ORDERED that defendant’s motion to

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consolidate (Docket No. 15) is DENIED as moot.

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Dated:

January 13, 2023

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The court need not address plaintiff’s argument that
defendant’s notice of removal was not timely filed as it would
not alter the outcome.
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