Batieste v. United Parcel Service, Inc.

Filing 22

ORDER by Judge Edward M. Chen granting 14 Plaintiff's Motion to Remand. (emclc2, COURT STAFF) (Filed on 5/13/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANTE BATIESTE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 24-cv-00473-EMC
ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

v.
UNITED PARCEL SERVICE, INC.,
Defendant.

Docket No. 14

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The instant case is related to Benter v. United Parcel Service, Inc., No. C-24-0375 EMC

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(N.D. Cal.). Like the plaintiff in Benter, Mr. Batieste has made a single claim of failure to

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reimburse business expenses, specifically, cell phone expenses ($50/month). Like the plaintiff in

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Benter, Mr. Batieste initiated proceedings against UPS before the California Department of

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Industrial Relations, Labor Commissioner’s Office (“DIR”) and lost, after which he filed an

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appeal with the Contra Costa Superior Court. UPS removed the case from state court to this

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Court, as it did in Benter. Mr. Batieste now moves for a remand. The Court finds this matter

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suitable for disposition without oral argument and thus VACATES the hearing on the motion.

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In Benter, the Court granted the plaintiff’s motion to remand. The Court does so here as

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well. First, UPS did not timely remove. Mr. Batieste served UPS with notice of his state court

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suit on December 21, 2023. UPS had 33 days to remove: (1) the 30 days afforded by the removal

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statute, see 28 U.S.C. § 1446, plus (2) 3 more days under Federal Rule of Civil Procedure 6(d)

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because service was effectuated by mail. In other words, UPS had until January 23, 2024, to

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remove. Because UPS did not remove until January 25, 2024, its removal was not timely.1
Second, even if UPS did timely remove, it has failed to prove by a preponderance of the

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evidence that the amount in controversy has been met for purposes of diversity jurisdiction. The

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analysis in Benter is equally applicable here.

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Accordingly, the Court GRANTS Mr. Batieste’s motion to remand. However, as in

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Benter, it denies the request for attorneys’ fees because UPS’s removal was not unreasonable. See

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28 U.S.C. § 1447(c). That is, it was not unreasonable for UPS to argue that the amount in

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controversy could be met. UPS also did not act unreasonably in arguing that its removal was

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timely based on § 1013 (i.e., instead of Rule 6). See note 1, supra.
Accordingly, the Clerk of the Court is instructed to remand this case back to Contra Costa

United States District Court
Northern District of California

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Superior Court and close the file in this case.

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This order disposes of Docket No. 14.

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IT IS SO ORDERED.

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Dated: May 13, 2024

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______________________________________
EDWARD M. CHEN
United States District Judge

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UPS argues its removal was timely based on a provision in the California Code of Civil
Procedure (and not Rule 6). See Cal. Code Civ. Proc. § 1013(a) (“Service is complete at the time
of the deposit, but any period of notice and any right or duty to do any act or make any response
within any period or on a date certain after service of the document, which time period or date is
prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if
the place of address and the place of mailing is within the State of California . . . .”) (emphasis
added).
The Court agrees with Mr. Batieste that Rule 6, not § 1013(a), is applicable. See Student A
v. Metcho, 710 F. Supp. 267, 268 (N.D. Cal. 1989) (rejecting defendants’ contention that §
1013(a) was applicable because, “although state law determines when service is made, federal law
defines the procedure for the federal removal statute,” and Rule 6 “governs computation of time
for purposes of that statute”); Owens v. Gen. Dynamics Corp., 686 F. Supp. 827 (S.D. Cal. 1988)
(stating that “‘[t]he time limitations in Section 1446 are mandatory and must be strictly construed
in accordance with the computation principles in Federal Rule of Civil Procedure 6’”). But see
Duran v. DHL Express (USA), Inc., No. CV 15-09965-BRO (Ex), 2016 U.S. Dist. LEXIS 23331,
at *11 n.6 (C.D. Cal. Feb. 24, 2016) (suggesting that § 1013 would give the defendant an
additional 5 days).
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