Deaver v. BBVA Compass Consulting and Benefits, Inc. et al

Filing 40

ORDER TO SHOW CAUSE RE: PENDING APPEAL. Show Cause Response due by 12/20/2013. Signed by Magistrate Judge Jacqueline Scott Corley on 12/5/2013. (ahm, COURT STAFF) (Filed on 12/5/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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CHERYL DEAVER, individually and on
behalf of all others similarly situated and
on behalf of the general public
Plaintiffs,

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Case Nos.: 13-cv-0222 JSC
13-cv-4598 JSC
ORDER TO SHOW CAUSE RE:
PENDING APPEAL

v.

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BBVA COMPASS CONSULTING AND
BENEFITS, INC.; et al.,
Defendants.

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Plaintiff filed this putative state law wage and hour class action in Alameda County
Superior Court on November 19, 2012. Defendants BBVA Compass Insurance Agency, Inc.
and Compass Bank (collectively “Defendants”) subsequently removed the case to federal
court under the Class Action Fairness Act (“CAFA”) of 2005. See 28 U.S.C. §§ 1332(d),
1441, 1453. On May 17, 2013, this Court granted Plaintiff’s Motion to Remand in Deaver v.
BVA Compass Consulting and Benefits, Inc., No. 13-cv-0222 (Dkt. No. 32). Defendants
timely filed a petition for permission to appeal with the Ninth Circuit Court of Appeals
pursuant to 28 U.S.C. 1453(c). While the petition was pending, the Ninth Circuit issued
Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975 (9th Cir. 2013), which overruled

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prior circuit court precedent regarding CAFA jurisdiction. Although the petition for

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permission to appeal remains pending with the Ninth Circuit, Plaintiff (the respondent) was

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ordered to show cause as to why the petition should not be summarily granted and remanded

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to this Court in light of Rodriguez. The parties have both filed responses to the Ninth

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Circuit’s order.

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Concurrently, the case proceeded in the Alameda County Superior Court until October

Consulting and Benefits, Inc., No. 13-cv-4598 (Dkt. No. 1). The two removal actions were

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related and are currently pending before the undersigned. Shortly after removal, Defendants

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filed a motion to dismiss and motion to transfer venue (Dkt. Nos. 13 & 14) and Plaintiff filed

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Northern District of California

4, 2013 when Defendants filed a second notice of removal. See Deaver v. BVA Compass

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United States District Court

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a motion to remand (Dkt. No. 25), which are set for hearing on December 12, 2013.

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Given the procedural posture of this case, the parties are ORDERED TO SHOW

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CAUSE as to why the pending motions should not be held in abeyance pending disposition of

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the petition for permission to appeal. It is at least likely that the Ninth Circuit will grant the

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petition and remand the action to this Court in which case the original complaint would be

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back before the Court. Why should the Court review an intervening complaint to determine if

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removal is proper prior to reconsidering whether the original complaint was properly

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removed? The parties shall submit simultaneous briefs in response to this Order by

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December 20, 2013.

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The hearing on the pending motions scheduled for December 12, 2013 is hereby taken
off calendar.

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IT IS SO ORDERED.

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Dated: December 5, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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