Waithaka v. Amazon.com, Inc. et al

Filing 26

District Judge Timothy S. Hillman: ORDER AND MEMORANDUM entered denying 13 Motion to Remand. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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BERNARD WAITHAKA, on behalf of
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himself and others similarly situated,
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CIVIL ACTION
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Plaintiffs,
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NO. 18-40150-TSH
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v.
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AMAZON.COM, INC. and AMAZON
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LOGISTICS, INC.,
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Defendants.
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______________________________________ )
ORDER AND MEMORANDUM ON PLAINTIFF’S MOTION TO REMAND
(Docket No. 13)
March 5, 2019
HILLMAN, D.J.
Bernard Waithaka (“Plaintiff”), commenced this class action lawsuit against Amazon.com
Inc., and Amazon Logistics Inc. (“Defendants”) alleging improper classification as independent
contractors and violations of state wage laws. On September 7, 2018, Defendants removed the
action to this Court for the second time. Subsequently, Plaintiff filed this motion to remand the
action back to state court. (Docket No. 13). For the reasons stated below, Plaintiff’s motion is
denied.
Background
On August 28, 2017, Plaintiff filed a Complaint in Worcester Superior Court against
Defendants alleging that Defendants misclassified class members as independent contractors in
violation of the Massachusetts Independent Contractor Law, Mass. Gen. L. c. 149 § 150, (Count
I), that Defendants required class members to bear business expenses necessary to perform their

work in violation of the Wage Act, Mass Gen. L. c. 149 § 148, (Count II), and that Defendants
failed to ensure that class members were paid at least minimum wage in violation of the
Massachusetts Minimum Wage Law, Mass. Gen. L. c. 151 §§ 1, 7, (Count III).
On October 29, 2017, Defendants removed to this Court pursuant to the Class Action
Fairness Act of 2005 (“CAFA”) alleging that the proposed class members exceeded 100
individuals, and the amount in controversy exceeded $5 million in the aggregate. Alternatively,
Defendants argued that 28 U.S.C. § 1332 provided another basis for removal since Plaintiff and
Defendants are diverse and the amount in controversy exceeds $75,000. On November 1, 2017,
Plaintiff moved to remand to state court. On August 28, 2018, this Court granted Plaintiff’s motion
concluding that Defendants had not met the amount in controversy requirements of either CAFA
or Section 1332. See Waithaka v. Amazon.com, Inc., 2018 WL4092074 (D. Mass. Aug. 28, 2018).
Thereafter, Defendants conducted an internal investigation of their updated records finding
that the putative class damages now exceed CAFA’s $5 million threshold. Consequently, on
September 7, 2018, Defendants once again removed to this Court. (Docket No. 1). On October 5,
2018, Plaintiff once again moved to remand to state court. (Docket No. 13).
Legal Standard
CAFA was enacted in order to expand the number of class actions that could be litigated
in federal court. Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 49 (1st Cir. 2009) (“In CAFA,
Congress expressly expanded federal jurisdiction largely for the benefit of defendants against a
background of what it considered to be abusive class action practices in state courts.”). Congress
achieved that purpose “by imposing only a minimal diversity requirement, eliminating the
statutory one-year time limit for removal, and providing for interlocutory appeal of a federal
district court’s remand order.” Id. at 47-48 (citing 28 U.S.C. §§ 1332(d)(2), 1453(b), (c)).

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Congress did, however, impose some restrictions on CAFA’s reach. Pursuant to CAFA, a
district court has jurisdiction over a class action if there is minimal diversity among the parties,
the putative class includes at least 100 members, and the amount is controversy is greater than $5
million. 28 U.S.C. §§ 1332(d)(2), (5)(B); see also Romulus v. CVS Pharmacy, Inc., 770 F.3d 67,
69 (1st Cir. 2014).
Section 1446(b) stipulates two time periods within which a defendant is required remove a
class action that satisfies CAFA’s jurisdictional conditions from state court to federal court. See
28 U.S.C. § 1453(b) (applying Section 1446(b)(1) and (b)(3) removal requirements to class
actions). “If the case as stated by the initial pleading is removable, Section 1446(b)(1) requires
the defendant to remove within thirty days of its receipt. Section 1446(b)(3) requires the defendant
to remove within thirty days of receiving a subsequent paper form which it may first be ascertained
that the class action is or has become removable.” Romulus, 770 F.3d at 69 (citations omitted).
Discussion
There are two questions presented in this case. The first is whether the two thirty-day
periods described in Section 1446(b)(1) and (b)(3) are the only periods when Defendants can
remove or whether they are merely periods during which Defendants must remove if one of the
triggering events occur. If they are not the only periods when Defendants may remove, the second
issue is whether this is a situation where successive removal attempts are permissible.
The first question is an open one in this circuit. See Romulus, 770 F.3d at 80 n.12 (“We do
not address the complicated questions concerning the possibility of removal outside of the
specified CAFA statutory procedures.”). Pursuant to 28 U.S.C. § 1441(a):
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the

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district court of the United Sates for the district and division embracing the place
where such action is pending.
28 U.S.C. § 1441(a). In addition, Section 1446 requires a defendant to remove within 30 days of
the triggering events described. 28 U.S.C. § 1446(b)(1), (3). The statue reads, in relevant part:
b) Requirements; generally.—(1) The notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial pleading has then been filed
in court and is not required to be served on the defendant, whichever period is
shorter
…
(3) Except as provided in subsection (c), if the case stated by the initial pleading is
not removable, a notice of removal may be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained that the case is one which
is or has become removable.
28 U.S.C. § 1446(b)(1), (3).
In Roth v. CHA Hollywood Medical Center, the Ninth Circuit concluded that these
provisions, when “read together, permit a defendant to remove outside the two thirty-day periods
on the basis of its own information, provided that it has not run afoul of either of the thirty-day
deadlines.” 720 F.3d 1121, 1125 (9th Cir. 2013). In that case, it was not clear from the face of the
plaintiff’s complaint whether the amount in controversy was sufficient to confer CAFA
jurisdiction, so the defendant removed after conducting its own internal investigation. In allowing
the defendant to remove, the court noted, “[i]t would be odd, even perverse, to prevent removal in
this case, and we see nothing in the text of §§ 1441 and 1446 to require such a result.” Id. I agree
that, in addition to the troubling practical consequences that would result from holding otherwise,
the most natural reading of the statutes is that they do not forbid a defendant from removing outside

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of the two thirty-day periods on the basis of its own information, so long as it did not allow a thirtyday deadline to lapse following a triggering event.
Indeed, several courts have reached the same conclusion, including two additional circuit
courts. See Cutrone v. Mortg. Elec. Registration Sys., Inc., 749 F.3d 137, 147 (2d Cir. 2014) (“We
agree with the Ninth Circuit that the text of 28 U.S.C. § 1446(b) does not indicate that the two 30day periods listed therein are the exclusive authorizations of removal.”); Walker v. Trailer Transit,
Inc., 727 F.3d 819, 824-26 (7th Cir. 2013); Williams v. Am. Honda Fin. Corp., No. 14-12859-LTS,
2014 WL 5494914, at *3 n.4 (D. Mass. Oct. 30, 2014) (“The reasoning applied by [the Roth,
Cutrone, and Walker courts] is persuasive, and is at least partially driven by the same policy
considerations discussed by the First Circuit in Romulus.”). I find, therefore, that although there
has been no triggering event, Defendants may remove based on their own information.
Consequently, I must address the second issue: whether this is a situation where successive
removal attempts are permissible. The First Circuit has held that “[s]uccessive attempts at removal
are permissible where the grounds for removal become apparent only later in the litigation.”
Amoche, 556 F.3d at 53.
Defendants contend that not only did the grounds only become apparent later in the
litigation, they did not exist until later. It follows, according to Defendants, that removal must be
permissible. See Amoche, 556 F.3d at 51 (noting that “a court’s analysis of the amount in
controversy focuses on whether a removing defendant has shown a reasonable probability that
more than $5 million is in controversy at the time of removal.” (emphasis in original)). Plaintiff
contends, on the other hand, that successive removal should only be permissible when new
information has become apparent to Defendants. According to Plaintiff, no such new information
has been revealed and Defendants’ tactical delays have resulted in greater damages that now satisfy

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the amount-in-controversy requirement. See Waters v. Kohl’s Dept. Stores, Inc., 2018 WL
1664968, at *5 (C.D. Cal. Apr. 4, 2018) (“[C]ontinued accrual of putative damages does not
constitute a change in circumstances that entitles Koh’s to successive removal.”). Plaintiff argues
that permitting this gamesmanship would provide defendants wishing to remove with the perverse
incentive to delay and thereby undermine the efficiency of litigation. 1
The First Circuit noted in Amoche, however, that the defendant’s “removal of this case at
the earliest possible date was understandable, given the removal statute’s requirement that a
defendant file a notice of removal within thirty days of his receipt of the first removable
document.” 556 F.3d at 53. In that case, “the litigation had not developed to a stage where [the
defendant] ha[d] shown that the requirements for federal jurisdiction were met under CAFA.” Id.
Therefore, the court concluded that it was “not unfair that [the defendant] wait until the class
allegations are more fully developed before attempting to remove, if there is a later basis for
removal, especially now that the class actions under CAFA are exempt from the removal statute’s
one-year time limit.” Id.
Here, after the first attempted removal, Defendants undertook a second investigation of
their records which revealed “between October 2017 and September 2018, the number of
independent contractors providing services through the Amazon Flex program had tripled.
Combined, these independent contractors had driven nearly six times the number of miles that had
been driven as of October 2017 when the First Notice of Removal was filed.” (Docket No. 17, at

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It is unclear, however, whether prohibiting this sort of successive removal would resolve the problem that
Plaintiff identifies because Defendants would be placed in the difficult position of choosing the best
moment to remove. On the one hand, they might attempt to remove early in the litigation despite an
ambiguous amount in controversy for fear that a Section 1446 triggering condition had been met. On the
other hand, defendants might be incentivized to wait until they were certain that damages were greater than
$5 million. If defendants decide that waiting is the better approach, they would forego early (and if
successful efficient) attempts at removal.

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4) (emphasis in original). Consequently, the increase in mileage resulted in a higher amount in
controversy, which Plaintiff does not dispute is now above the $5 million threshold. Just like the
defendant in Amoche, Defendants’ first removal attempt was reasonable since the thirty-day clock
potentially began to run. As a result of Defendants’ subsequent investigations, they demonstrated
that the requirements for CAFA jurisdiction are clearly met and this only became apparent after
the first removal attempt since the Flex program grew in the interim. Consequently, Defendants
have satisfied the requirements for successive removal.
Conclusion
For the reasons stated above, Plaintiff’s motion (Docket No. 13) is denied.
SO ORDERED

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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