WATSON v. PRESTIGE DELIVERY SYSTEMS et al

Filing 17

MEMORANDUM & ORDER. For the reasons stated in the Memorandum & Order filed herewith, Plaintiffs' Motion to Remand (Doc. 7 ) is GRANTED, and this matter shall be REMANDED to the Court of Common Pleas of Allegheny County. Plaintiffs' request for attorneys' fees and costs is DENIED. Signed by Judge Cathy Bissoon on 2/16/2017. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD WATSON and DAVID
CLARY, on behalf of themselves and
others similarly situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
PRESTIGE DELIVERY SYSTEMS, INC., )
et al.,
)
)
Defendants.
)

Civil Action No. 16-1823
Judge Cathy Bissoon

MEMORANDUM AND ORDER
Pending before the Court is a Motion to Remand filed by Plaintiffs Richard Watson and
David Clary (“Plaintiffs”) (Doc. 7). For the reasons stated below, the Court will GRANT
Plaintiffs’ Motion to Remand (Doc. 7) and REMAND this action to Court of Common Pleas of
Allegheny County, Pennsylvania. However, the Court will DENY Plaintiffs’ request for
attorneys’ fees and costs under 28 U.S.C. § 1447(c).
MEMORANDUM
A. Background
On September 11, 2009, Plaintiff Richard Watson filed a class action complaint against
Defendants Prestige and NICA in the Court of Common Pleas of Allegheny County. (See
Compl. (Doc. 7-3)). Over the course of the litigation, Plaintiffs amended the complaint three
times. (See Doc. 7-3; Am. Compl. (Doc. 7-6); Second Am. Compl. (Doc. 7-4); Third Am.
Compl. (Doc. 7-7); Fourth Am. Compl. (Doc. 7-5)). The operative complaint is the Fourth

1

Amended Complaint, filed by Plaintiffs on February 27, 2012. (Doc. 7-5). Each iteration of the
complaint contains an allegation that defines the class as including: all Pennsylvania residents
who worked for Prestige Delivery Systems as package pick-up and delivery drivers in
Pennsylvania, and who were designated by Defendants as independent contractors “during the
period September 10, 2006 to the present.” (Doc. 7-3 ¶ 55; Doc. 7-6 ¶ 59; Doc. 7-4 ¶ 77; Doc.
7-7 ¶ 77; Doc. 7-5 ¶ 83) (emphasis added). Furthermore, each iteration of the complaint (with
the exception of the original complaint), contains a provision stating that “the value of the matter
in controversy does not exceed $5,000,000.” (Doc. 7-6 ¶ 70; Doc. 7-4 ¶ 88; Doc. 7-7 ¶ 88; Doc.
7-5 ¶ 94).
On May 6, 2013, Plaintiffs moved for class certification. (State Court Docket (Doc. 78)). In their Motion for Class Certification, Plaintiffs explicitly sought certification of a class
including all Prestige drivers from September 10, 2006 to the present, as well as a subclass of
drivers who worked for Prestige while Prestige was under contract with NICA from 2006 to
2009. (Motion for Class Certification (Doc. 7-17), ¶¶ 1, 12). In its brief in opposition to the
Motion for Class Certification, Prestige acknowledged that Plaintiffs were seeking to certify a
class of drivers from 2006 to the present, though it disputed that Plaintiffs had clearly delineated
the class period in their complaints. (See, e.g., Prestige’s May 13, 2015 Reply to Plaintiffs’
Motion for Class Certification (Doc. 7-32) at 18) (“For nearly a year, Plaintiffs have clung to the
argument that the class, if certified, extends from 2006 to the present.”)).
On March 24, 2016, the Court of Common Pleas of Allegheny County granted Plaintiffs’
Motion for Class Certification as to Counts II and V of the Fourth Amended Complaint. (See
Class Certification Order (Doc. 7-13) at 19-20). Consistent with Plaintiffs’ class definition in
every iteration of the complaint, the state court defined the class as “all persons who are or were

2

Pennsylvania residents who worked for Prestige Delivery Systems, Inc., as package pick-up and
delivery drivers in Pennsylvania for one week or more, and who were designated by defendants
as ‘independent contractors’ during the period of September 10, 2006 to the present.” (Id. at 19).
Thereafter, Prestige filed several motions, purportedly “[s]eeking clarification [of the March 24,
2016 Order regarding whether] . . . the class was now expanded beyond March 15, 2009.”
(Notice of Removal (Doc. 1) ¶ 21; Doc. 1-12 at 4-22).
On November 7, 2016, the Court of Common Pleas issued an order denying
reconsideration. (Doc. 1-12 at 463). Less than one month later, on December 6, 2016, Prestige
filed its Notice of Removal. (Doc. 1). Prestige asserts that this Court has jurisdiction over this
case under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d) because the amount of
damages in dispute now exceeds $5 million. (Id. ¶¶ 32, 36). Prestige claims that its Notice of
Removal was timely, because it was filed within thirty days of the state court’s November 7,
2016 Order Denying Reconsideration. Prestige argues that the November 7, 2016 Order “had the
determinative effect of expanding the class from approximately three (3) years to at least ten (10)
years,” and that “[b]ased on the even most rudimentary and minimalist damages estimates, as
this is now a 10+ year class, there is no factual or logical way for the potential damages to be
under $5,000,000.” (Doc. 1 ¶¶ 27-28).
Plaintiffs filed the instant motion to remand on January 5, 2017. Although Plaintiffs do
not contest that federal jurisdiction exists under CAFA, they argue that Prestige’s removal of this
action was untimely. In addition, Plaintiffs request payment of attorneys’ fees and costs pursuant
to 28 U.S.C. § 1447(c).

3

B. Discussion
a. Prestige’s Notice of Removal Was Untimely
Plaintiffs assert that Prestige failed to remove this action to federal court within the 30
day period prescribed by 28 U.S.C. § 1446(b). Under Section 1446, a notice of removal must be
filed “within 30 days after the receipt by the defendant . . . of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C.
§ 1446(b)(1). If the case is initially not removable, however, 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.” Id. § 1446(b)(3) (emphasis added). Although
Section 1446(b) does not define “other paper,” the statute is clear “that the time for removal
begins to run when the defendant receives the requisite written notice of facts which make the
case removable.” Broderick v. Dellasandro, 859 F. Supp. 176, 178 (E.D. Pa. 1994).
In its Notice of Removal, Prestige claims that it was not on notice that the putative class
period ran from 2006 to the present, and thus was not aware that the amount in controversy
exceeded $5 million, until the Court of Common Pleas denied reconsideration and entered a final
class certification order on November 7, 2016. (See Doc. 1 ¶¶ 18-31). But the record clearly
belies Prestige’s claim. As Plaintiffs assert in their Motion to Remand, each and every iteration
of the complaint, including the Fourth Amended Complaint, defines the class as extending from
“September 10, 2006 to the present.” (Doc. 7-3 ¶ 55; Doc. 7-6 ¶ 59; Doc. 7-4 ¶ 77; Doc. 7-7 ¶
77; Doc. 7-5 ¶ 83). Furthermore, Plaintiffs’ Motion for Class Certification, filed in 2013,
explicitly sought certification of a class of Prestige drivers from September 10, 2006 to the
present. (Doc. 7-17 ¶¶ 1, 12). These litigation documents put Prestige on notice that the class

4

period extended from 2006 to the present. Indeed, in briefing filed in 2015, Prestige
acknowledged as much, stating: “For nearly a year, Plaintiffs have clung to the argument that
the class, if certified, extends from 2006 to the present.” (Doc. 7-32 at 18) (emphasis added).
Accordingly, the record in this case indisputably demonstrates that Prestige knew that the class
period ran from 2006 to the present long before it filed its Notice of Removal.
Prestige nonetheless argues that it could not have known that the case was removable
under CAFA because the state court complaints expressly provided that the amount in
controversy was less than $5 million. (Prestige’s Brief in Opposition to Motion to Remand
(Doc. 13) at 2) (“In particular, the entire argument of the Plaintiffs in support of their motion for
remand is that Prestige “could have, should have” known (or guessed) that the damages were
above $5,000,000, even though the Plaintiffs had filed a verified pleading specifically stating that
the damages were under $5,000,000.”). The Court, however, attaches no significance to
Plaintiffs’ assertions in their complaints that the amount in controversy is less than $5 million.
As the United States Supreme Court held in Standard Fire Insurance Co. v. Knowles, 133 S. Ct.
1345 (2013), this type of pre- certification stipulation in a complaint does not, by itself, take a
case outside CAFA’s scope, because the stipulation can bind only the named plaintiff and not the
entire proposed class. Id. at 1348–50. Thus, Prestige should have known (at least after the
Supreme Court issued the Knowles decision in 2013) that Plaintiffs’ allegations regarding the
jurisdictional amount in controversy were not binding. 1 In any event, even if the complaints did
not, on their face, demonstrate removability, other litigation documents filed over the course of
this seven-year litigation clearly put Prestige on notice that the amount in controversy exceeded
$5 million. As noted, Prestige acknowledged in briefing filed in 2015 that, for over a year,
1

To be clear, even the operative iteration of the Amended Complaint indicates that the amount
sought does not exceed $5 million.
5

Plaintiffs had expressed their intent to certify a class extending from 2006 to the present. (Doc.
7-32 at 18). Prestige also conceded in its Notice of Removal that, as soon as it was on notice that
Plaintiffs sought to certify a class extending from 2006 to the present, it knew that the amount in
controversy exceeded $5 million. (Doc. 1 ¶ 28 (“Based on the even most rudimentary and
minimalist damages estimates, as this is now a 10+ year class, there is no factual or logical way
for the potential damages to be under $5,000,000.”). Because Prestige clearly knew by 2014 (if
not earlier) that the amount in controversy exceeded $5 million, Prestige cannot rely on the
jurisdictional averments in Plaintiffs’ complaints to argue that its Notice of Removal was timely.
Prestige’s reliance on Portillo v. Nat’l Freight, Inc.. 169 F. Supp. 3d 585 (D.N.J. 2016)
also is misplaced. Prestige cites to Portillo for the proposition that defendants have no
“affirmative duty” to investigate whether the amount in controversy in a case exceeds $5 million.
In fact, the Portillo Court explained:
28 U.S.C. § 1446(b) . . . imposes a time limit on [] removal only where the
Plaintiffs’ initial pleading or subsequent document sufficiently demonstrates
removability. In other words, these limitations focus “solely on when the
plaintiffs’ papers reveal removability,” and defendants have, in their own right, no
duty to investigate or supply facts outside of those provided by the plaintiff.
169 F. Supp. 3d at 596 (citing Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 69 (1st Cir. 2014).
Here, as discussed above, both Plaintiffs’ “initial pleading and subsequent documents” filed by
Plaintiffs sufficiently demonstrated removability under CAFA. Accordingly, Portillo’s holding
that defendants are not required to conduct an independent investigation into removability when
a plaintiff’s papers do not reveal such a basis is inapplicable here.
Finally, Prestige argues that it “was not required to anticipate losing its argument on class
size” when calculating the amount in controversy under CAFA. (Doc. 13 at 5). But, in fact, that
is exactly what it was required to do. As Plaintiffs argue, the removal statute requires notice of
the “amount in controversy,” i.e., the amount the plaintiff is seeking, not, as Prestige insists, the
6

amount of damages that the plaintiff will necessarily be awarded. 28 U.S.C. § 1446(c)(2); see
Allen v. Bloomingdale’s, Inc., 2016 WL 4579975, at *2 (D.N.J. July 19, 2016) (“A jurisdictional
analysis is performed on what is alleged in the Complaint, not what one may ultimately
recover . . .”); accord Weis v. Del Webb Communities, 2013 WL 3297099, * 3 (D. Nev. 2013)
(“[T]the ultimate existence of facts or allegations necessary to support removal does not need to
be conclusively determined before § 1446’s clock begins running. . . . Whether or not Plaintiffs
would eventually succeed in certifying their claim on appeal had no bearing on whether the case
‘is one which is or has become removable.’”).
In short, because Prestige knew that Plaintiffs sought to certify a class that covered the
period 2006 to the present and, thus, that the amount in controversy exceeded $5 million, years
before it filed its Notice of Removal, removal in this case was not timely. Accordingly, the
Court will grant Plaintiffs’ Motion to Remand, and will remand this case to the Court of
Common Pleas of Allegheny County.
b. The Court will Not Award Attorneys’ Fees and Costs to Plaintiffs
Plaintiffs also request that the Court award them attorneys’ fees and costs incurred in
responding to Prestige’s untimely removal. A district court is authorized to impose attorneys’
fees and other costs when a plaintiff prevails on a Motion to Remand. 28 U.S.C. § 1447(c).
“The standard for awarding fees [under § 1447(c)] should turn on the reasonableness of the
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “Absent unusual
circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal.” Id. This standard “recognize[s] the
desire to deter removals sought for the purpose of prolonging litigation and imposing costs on

7

the opposing party, while not undermining Congress’ basic decision to afford defendants a right
to remove as a general matter, when the statutory criteria are satisfied.” Id. at 140.
The Court finds that Prestige had a reasonable basis for seeking removal in this case.
Indeed, as both parties seem to agree, this case meets the statutory requirements for removability
under CAFA. Accordingly, the Court will not exercise its discretion to award attorneys’ fees and
costs in this case.
ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiffs’ Motion to Remand is GRANTED
2. Plaintiffs’ request for attorneys’ fees is DENIED.
3. This matter shall be REMANDED to the Court of Common Pleas of Allegheny
County, Pennsylvania.
4. The Clerk of Court is directed to CLOSE this case.

IT IS SO ORDERED.

February 16, 2017

s/Cathy Bissoon
.
Cathy Bissoon
United States District Judge

CC (via ECF email notification):
All Counsel of Record

8