Adkins v. J.B. Hunt Transp., Inc.

• Decision Date: 20 March 2018
• Docket Number: Civ. No. 2:18–28 WBS AC
• Citation: 293 F.Supp.3d 1140
• Court: U.S. District Court — Eastern District of California
• Parties: Jeffrey ADKINS, an individual, Plaintiff, v. J.B. HUNT TRANSPORT, INC., a Georgia corporation; and Does 1 through 20 inclusive, Defendants.

293 F.Supp.3d 1140

Jeffrey ADKINS, an individual, Plaintiff,

v.J.B. HUNT TRANSPORT, INC., a Georgia corporation; and Does 1 through 20 inclusive, Defendants.

Civ. No. 2:18–28 WBS AC

United States District Court, E.D. California.

Signed March 20, 2018

Fawn F. Bekam, Aegis Law Firm, PC, Irvine, CA, for Plaintiff.

Constance E. Norton, Charles Robert Harrington, Littler Mendelson, P.C., San Francisco, CA, for Defendants.

MEMORANDUM AND ORDER RE: MOTION TO REMAND AND MOTION TO STAY

WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

Plaintiff Jeffrey Adkins brought this action against defendants J.B. Hunt Transport, Inc. ("J.B. Hunt") and Does 1–20 based on plaintiff's employment with defendant and subsequent termination. Before the court is plaintiff's Motion to remand (Docket No. 6) and defendant J.B. Hunt's Motion to stay plaintiff's eighth through thirteenth causes of action (Docket No. 9.)

On October 18, 2017, plaintiff filed a Complaint in the Superior Court of the State of California, County of San Joaquin containing the following claims: (1) Disability Discrimination; (2) Failure to Reasonably Accommodate; (3) Failure to Engage in Interactive Process; (4) Retaliation in Violation of Fair Employment and Housing Act ("FEHA") [ Gov't Code 12940, et seq. ]; (5) Failure to Prevent Discrimination and Retaliation; (6) Retaliation in Violation of Government Code § 12945.2 ; (7) Wrongful Termination in Violation of Public Policy; (8) Failure to Pay Overtime Wages; (9) Failure to Provide Meal Periods; (10) Failure to Provide Rest Periods; (11) Failure to Provide Accurate Wage Statements; (12) Failure to Pay All Wages Due Upon Separation; and (13) Unfair Business Practices in Violation of Business and Professions Code § 17200. Defendants removed the case under 28 U.S.C. § 1441(b) based on diversity jurisdiction under 28 U.S.C. § 1332(a). (Def.'s Notice of Removal (Docket No. 1).) Defendant removed the case to this court on January 5, 2018.

I. Motion to Remand

Pursuant to 28 U.S.C. § 1441(a), "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 ...." 28 U.S.C. § 1441(b). District courts "have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states ...." 28 U.S.C. § 1332. The party asserting diversity jurisdiction bears the burden of proof. Resnik v. La Paz Guest Ranch, 289 F.2d 814, 819 (9th Cir. 1961)"The burden is particularly stringent for removing defendants," Corral v. Select Portfolio Servicing, Inc., Civ. No. 15-16574, 878 F.3d 770, 773 (9th Cir. 2017), and "[w]here doubt regarding the right to removal exists, a case should be remanded to state court." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). Plaintiff argues that removal was improper because defendant has failed to establish that the amount in controversy requirement has been met.

Defendant asserts, and plaintiff does not dispute, that J.B. Hunt is a citizen of Georgia and Arkansas, and that plaintiff is a citizen of California. (Def.'s Notice of Removal at 2–4.) Thus, the only question before the court is whether the amount in controversy is over $75,000.

When the plaintiff does not dispute the amount in controversy, "[a] defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold." Dart Cherokee Basin Operating Co., LLC v. Owens, ––– U.S. ––––, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014). However, if the plaintiff contests the amount in controversy requirement, then "evidence establishing the amount is required" and "both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied." Id."The parties may submit evidence outside the complaint, including affidavits or declarations, or other ‘summary-judgment-type evidence relevant to the amount in controversy at the time of removal.’ " Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) ). "A defendant cannot establish removal jurisdiction by mere speculation and conjecture, with unreasonable assumptions." Id.

To determine if the amount in controversy requirement is met, the court looks to the amount demanded by the plaintiff in the Complaint. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291–92, 58 S.Ct. 586, 82 L.Ed. 845 (1938). "Where it is not facially evident from the complaint that more than $75,000 is in controversy, the removing party must prove, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional threshold." Matheson, 319 F.3d at 1090. Here, it is not facially evident from the Complaint that the amount in controversy exceeds $75,000. The Complaint did not request a specific amount in damages, but prayed for compensatory, general, special, punitive, exemplary statutorily available damages as well as attorneys' fees and costs. (Compl. Prayer for Relief.) As provided by Business and Professions Code §§ 17200, the Complaint also asks for restitution, and an order requiring defendant to restore and disgorge all funds acquired by means of any act or practice declared by this court to be unlawful, unfair, or fraudulent. (Id. )

A. Compensatory Damages

On plaintiff's FEHA and wrongful termination of public policy claims, plaintiff seeks compensatory damages or front pay and back pay. "Front pay" is "a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial." Andrade v. Arby's Rest. Grp., Inc., 225 F.Supp.3d 1115, 1140 (N.D. Cal. 2016) (quoting Horsford v. Bd. of Trustees of California State Univ., 132 Cal. App. 4th 359, 388, 33 Cal.Rptr.3d 644 (5th Dist. 2005) ).

1. Back Pay

Defendant calculates plaintiff's back pay wages to be worth $36,512.00. (Def.'s Notice of Removal at 5.) Defendant arrived at this number by multiplying $11.41 (the estimated hourly rate of pay for plaintiff) by 40 (the estimated hours plaintiff worked per week¹ ), to show that the plaintiff earned approximately $456.40 during an average workweek. Then defendant multiplied $456.40 by 28 (the number of workweeks between June 22, 2017, plaintiff's last day of work, and January 5, 2018, the date of the Notice of Removal) which totals $12,799.20 of back pay. Thus, defendant has presented sufficient evidence that plaintiff has put $12,799.20 worth of back pay at issue.

Thus, defendant has established evidence that the amount in controversy regarding plaintiff's back pay is $12,799.20. Accordingly, the court will consider that amount in determining whether the amount in controversy requirement is met.

2. Front Pay

Defendant estimates that plaintiff seeks at least $47,465.60 in front pay by estimating that plaintiff seeks front pay damages for two years.² (Def.'s Notice of Removal at 6.) The court is hesitant to accept defendant's estimate where "the Complaint does not expressly seek two years front pay or bonuses. Thus, Defendant's conjecture that Plaintiff could seek or be entitled to two years front pay is speculative and insufficient to meet its burden." Paris v. Michael Aram, Inc., Civ. No. 18-67 PA (SKX), 2018 WL 501560, at *2 (C.D. Cal. Jan. 22, 2018). Accordingly, the court will not include the estimated amount of front pay in calculating the amount in controversy.

B. Labor Code Penalties

1. Overtime Violations

Plaintiff alleges defendant failed to pay overtime wages. (Compl. ¶¶ 86–91.) Defendant estimates that plaintiff seeks at least $14,804.48 in overtime wages. (Def.'s Notice of Removal at 7.) The Complaint is silent as to how many hours of overtime pay plaintiff is seeking. Therefore, defendant estimates that if plaintiff claims he did not receive 5 hours of overtime pay per week, multiplied by 1.5 times plaintiff's 52–week average hourly rate of pay of $11.41, then plaintiff has placed $14,804.48³ in controversy on his overtime claim. (Id. at 7–8.) While defendant can make reasonable assumptions, defendant's calculation rests on the speculative assumption that plaintiff was denied five hours of overtime pay every week.

Here, plaintiff alleges that he routinely worked in excess of eight hours per day and/or forty hours per week, and/or on a seventh consecutive day in a work week, but plaintiff does not provide any estimate as to the number of overtime hours he was allegedly not compensated for by defendant. (Compl. ¶ 90.) Thus, the court may not consider defendant's calculation of overtime because "the court may not base its jurisdiction on speculation and conjecture." Smith v. Brinker Int'l, Inc., Civ. No. 10-213 VRW, 2010 WL 1838726, at *3 (N.D. Cal. May 5, 2010) (citation omitted) (refusing to consider defendant's calculation for overtime damages where defendant assumed each plaintiff worked 2.5 hours overtime each day but that assumption was not supported by the allegations in the complaint and defendants provided no sufficient basis to apply its assumption.) Accordingly, the court will not consider defendant's estimate of $14,804.48.

2. Meal and Rest Break Violations

Plaintiff alleges that defendant failed to provide meal periods and rest periods in violation of Labor Code § 226.7. (Compl. ¶¶ 92–107.) Defendant estimates that plaintiff seeks at least $9,869.65 in meal period premiums and $9,869.65 in rest break periods. In order to arrive at those estimates, defendant assumed that plaintiff missed 1 rest break per day and 1 meal period per day.⁴ (See Notice of Removal ¶¶ 35, 37.) Plaintiff alleges that during the relevant time period, plaintiff did not receive compliant meal periods for working more than five and/or ten hours per day because his meal periods were short,...