Villa v. United Site Services of California, Inc

Filing 21

ORDER GRANTING MOTION TO REMAND by Judge Jon S. Tigar; granting re 3 Motion to Remand. (wsn, COURT STAFF) (Filed on 6/4/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NELSON GONZALEZ VILLA,

Case No. 13-cv-00944-JST

Plaintiff,
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v.

ORDER GRANTING MOTION TO
REMAND

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United States District Court
Northern District of California

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UNITED SITE SERVICES OF
CALIFORNIA, INC,

Re: ECF No. 3

Defendant.

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In this putative class action for violations of California’s labor laws, Plaintiff Villa moves

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to remand the action to the Superior Court of Santa Clara County on the ground that the action

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fails to satisfy the jurisdictional requirements of 28 U.S.C. Section 1332(d). For the reasons set

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forth below, the motion is GRANTED.
I.

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BACKGROUND

Plaintiff Nelson G. Villa, a citizen of California, filed this putative class action in the

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Superior Court of Santa Clara County. Not. of Removal, ECF No. 1. Defendant United, a citizen

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of California, removed the action under 28 U.S.C. Section 1332(d), as amended by the Class

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Action Fairness Act (“CAFA”). Id.

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Villa asserts three claims against United: (1) failure to provide rest breaks under California

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Labor Code Section 226.7; (2) failure to pay wages at the time of discharge under California

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Labor Code Section 203; and (3) failure to pay rest period premiums under California’s Unfair

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Competition Law. Id., Ex. 1, Compl.

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Villa brings these claims on behalf of himself and the following class of individuals: “All

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current and former service technicians and pick-up delivery drivers of Defendant working within

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the State of California at any time during the period beginning four years before the filing of the

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initial complain, who worked for shifts of greater than three and one-half (3 1/2) hours and who

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were denied rest breaks, who were denied compensation, including premium pay on a daily basis,

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and whose premium payments were delayed after their employment was terminated.” Id. ¶ 18.

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Villa now moves to remand this action on the basis that removal under Section 1332(d)

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was improper in part because the complaint asserts “only state law claims and there is no minimal

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diversity.” Mot. at 11, ECF No. 3.
II.

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LEGAL STANDARD

“A civil action in state court may be removed to federal district court if the district court

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had ‘original jurisdiction’ over the matter.” Lowdermilk v. United States Bank Nat’l Ass’n, 479

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F.3d 994, 997 (9th Cir. 2007) (citing 28 U.S.C. § 1441(a)). “As amended by CAFA, 28 U.S.C. §

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United States District Court
Northern District of California

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1332(d) vests district courts with original jurisdiction of any civil action in which, inter alia, the

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amount in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and

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in which the aggregate number of proposed plaintiffs is 100 or greater, and any member of the

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plaintiff class is a citizen of a state different from any defendant.” Id. (citing 28 U.S.C. § 1332(d))

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(internal quotation marks omitted). The burden of establishing removal jurisdiction under CAFA

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is on the proponent of federal jurisdiction. Id. A district court must “strictly construe the removal

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statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)

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(citations omitted).
III.

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DISCUSSION

The Court concludes that United has not met its burden to establish that minimal diversity
exists under Section 1332(d).

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Minimal diversity under Section 1332(d) exists when “any member of a class of plaintiffs

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is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). Because United

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is a citizen of California, minimal diversity would exist in this action if at least one putative class

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member is not a citizen of California.

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United alleges in the Notice of Removal that “[a]t least one purported class member is not

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a citizen of California.” Not. of Removal ¶ 6, ECF No. 1. In its Opposition, United states that at

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least two putative class members are not citizens of California and that “there are likely others but
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this showing is sufficient for purposes of CAFA.” Opp’n at 3, ECF No. 10. In support of this

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contention, United submitted the declarations of two of its lawyers.

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In the first declaration, Susan Bishop states that she had a telephone conversation with

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Miriam Coehlo, a former employee of United, during which Coehlo informed Bishop that she

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moved to Kansas in 2009 and that “she was moving to Oklahoma the following week.” Bishop

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Decl. ¶ 2, ECF No. 14. Bishop further states that “Westlaw shows [Coehlo’s] address to be in

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Kansas” and that another Westlaw search revealed that another former employee of United named

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Isaias Canseco has an address in Texas. Id. ¶¶ 2, 3 (“As confirmation of the address [United] had

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on file for Isaias F. Garcia Canseco, I caused an address search to be completed. Westlaw shows

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United States District Court
Northern District of California

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his address to be in Texas.”).
In the second declaration, Gaetano D’Anna states that Garcia Canseco is a former
employee of United. D’Anna Decl. ¶ 2, ECF No. 12.
Villa argues that these declarations are insufficient to establish that either of these putative

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class members is not a citizen of California because the relevant inquiry for minimal diversity

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purposes is citizenship, not residence. The Court agrees.

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The relevant inquiry for determining whether minimal diversity exists is the citizenship of

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the parties. See 28 U.S.C. § 1332(d)(2)(A). When jurisdictional allegations are challenged, the

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party who bears the burden of establishing jurisdiction must support its allegations “by competent

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proof.” Hertz Corp. v. Friend, 130 S. Ct. 1181, 1194-95 (2010).

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Here, United has not met its burden to support its allegations that minimal diversity under

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Section 1332(d) exists. The declarations submitted by United, at best, speak to the residence of

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the two purported class members, not to their citizenship. Allegations pertaining to the state in

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which a person resides are not conclusive as to whether that person is a citizen of that state. See

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Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (“To be a citizen of a state, a

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natural person must first be a citizen of the United States. The natural person’s state citizenship is

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then determined by her state of domicile, not her state of residence. A person’s domicile is her

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permanent home, where she resides with the intention to remain or to which she intends to return.

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A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a
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citizen of that state.”) (internal citations omitted). The declarations do not establish that the

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putative class members’ permanent home is in a state other than California, because they contain

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no information as to whether the putative class members intend to remain in the places where

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United claims that they currently reside.
Moreover, courts evaluate a person’s domicile “in terms of objective facts.” See Lew v.

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Moss, 797 F.2d 747, 750 (9th Cir. 1986). United has not submitted any objective facts to establish

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the citizenship of the two putative class members. Instead, United submitted two declarations of

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its own lawyers, which contain factual statements that are not based on personal knowledge. For

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that reason, the Court accords them little weight.
United admits that it has access to at least some of the putative class members’ contact

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United States District Court
Northern District of California

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information. See D’Anna Decl. ¶ 2 (“[United] attempts to maintain a database of its current and

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former employees.”). United also claims to have been able to contact at least one putative class

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member who does not currently reside in California. Bishop Decl. ¶ 2. As a result, United

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appears to have been in a position to submit “competent proof” as to the putative class members’

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citizenship, either by submitting declarations of the putative class members themselves, or by

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submitting other proof of citizenship that courts normally consider in these circumstances, such as

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“voting registration and voting practices, location of personal and real property, location of

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brokerage and bank accounts, location of spouse and family, membership in unions and other

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organizations, place of employment or business, driver’s license and automobile registration, and

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payment of taxes.” See Lew, 797 F.2d at 750. United does not explain why it failed to submit any

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such proof.

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Given that United’s jurisdictional showing fails to establish the citizenship of the putative

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class members, and because the Court must resolve any doubts pertaining to removal jurisdiction

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in favor of remand, Villa’s motion to remand is GRANTED. See Alderman v. Pitney Bowes

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Mgmt. Serv, 191 F. Supp. 2d 1113, 1115 (N.D. Cal. 2002) (“The removal statute is strictly

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construed against removal jurisdiction and any doubt must be resolved in favor of remand.”)

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(citations omitted).

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//
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IV.

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CONCLUSION

Villa’s motion to remand is GRANTED. The Clerk shall mail a copy of this Order to the
Superior Court of Santa Clara County and terminate this case.
IT IS SO ORDERED.
Dated: June 4, 2013
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JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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