Harvey v. Advisors Mortg. Grp., 21-CV-1048 TWR (AGS)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtTodd W. Robinson United States District Court
Decision Date01 October 2021
PartiesBRIAN HARVEY, individually and on behalf of all others similarly situated, Plaintiffs, v. ADVISORS MORTGAGE GROUP, LLC; and DOES 1 through 20, inclusive, Defendants.
Docket Number21-CV-1048 TWR (AGS)

BRIAN HARVEY, individually and on behalf of all others similarly situated, Plaintiffs,

ADVISORS MORTGAGE GROUP, LLC; and DOES 1 through 20, inclusive, Defendants.

No. 21-CV-1048 TWR (AGS)

United States District Court, S.D. California

October 1, 2021


(ECF NOS. 6, 7)

Todd W. Robinson United States District Court

Presently before the Court is Defendant Advisors Mortgage Group, LLC's Motion to Compel Arbitration or, in the Alternative, to Dismiss for Failure to State a Claim (“Def.'s Mot., ” ECF No. 6) and Plaintiff Brian Harvey's Motion to Remand Action to State Court (“Mot. to Remand, ” ECF No. 7) (together, the “Motions”). The Motions are fully briefed, (see ECF Nos. 8-11), and the Court held oral argument on September 29, 2021. (See ECF No. 14.) Having carefully considered the Parties' arguments, the record, and the relevant law, the Court GRANTS Plaintiff's Motion to Remand and DENIES AS MOOT Defendant's Motion.



On April 30, 2021, Plaintiff filed a putative class action Complaint in the Superior Court of California, County of San Diego. (See generally ECF No. 1-4 (“Compl.”).) In his Complaint, Plaintiff generally alleges that Defendant, his former employer, systematically violated California's Labor Laws and Industrial Welfare Commission Wage Orders. (See Id. ¶¶ 1-5.) He brings this action on behalf of “[a]ll California citizens currently or formerly employed by Defendants as nonexempt employees in the State of California at any time between November 3, 2016 and the date of class certification.” (See Id. ¶ 20 (footnote omitted).) Plaintiff brings seven causes of action for (1) failure to pay minimum wages; (2) failure to pay overtime; (3) failure to provide meal periods; (4) failure to permit rest breaks; (5) failure to provide accurate itemized wage statements; (6) failure to pay all wages due upon separation of employment; (7) violation of California's Unfair Competition Law (“UCL”), Cal. Bus & Profs. Code §§ 17200, et seq. (See Compl. ¶¶ 37-94.)

On June 2, 2021, Defendant filed a Notice of Removal in this Court, alleging diversity subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a). (See generally ECF No. 1 (“NOR”).) Specifically, Defendant alleges that “Plaintiff's Complaint asserts claims between citizens of different states and puts in controversy, individually with respect to Plaintiff, an amount that exceeds $75, 000.” (Id. ¶ 8 (citing 28 U.S.C. § 1332(a)).)

On June 23, 2021, Defendant filed its Motion, seeking an Order compelling arbitration and dismissing this action pursuant to the Federal Arbitration Act, 9 U.S.C. ch. 1, and the Loan Officer Assistant Employment Agreement (the “Employment Agreement”) that Plaintiff signed. (See generally Def.'s Mot. at 8-16.) Alternatively, Defendant seeks dismissal of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (See generally Def.'s Mot. at 16-25.) Plaintiff filed the instant Motion to Remand on June 25, 2021, asking the Court to send this action back to state


court because Defendant has failed to establish by a preponderance of the evidence that the amount in controversy exceeds $75, 000.00. (See generally Mot. to Remand.)


I. Legal Standard

“The right of removal is entirely a creature of statute and a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress.” Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002). A suit filed in state court may be removed to federal court if the federal court would have had original jurisdiction over the suit. See 28 U.S.C. § 1441(a). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Removal is proper when a case originally filed in state court presents a federal question or where there is diversity of citizenship among the parties and the amount in controversy exceeds $75, 000. See 28 U.S.C. §§ 1331, 1332(a). A class action may also be removed under the Class Action Fairness Act of 2005 (“CAFA”) so long as the parties are minimally diverse, more than $5, 000, 000 is in controversy, and there are at least 100 putative class members. See 28 U.S.C. § 1332(d). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

The party invoking the removal statute bears the burden of establishing that federal subject-matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). It is “presume[d] that federal courts lack jurisdiction unless the contrary appears affirmatively from the record, ” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)), and courts “strictly construe the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988)); Takeda v. Nw. Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)); but cf. Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (“[N]o antiremoval


presumption attends cases invoking CAFA.” (citing Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 595 (2013))). Therefore, “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).

II. Analysis

Although Plaintiff filed a putative class action, Defendant removed Plaintiff's Complaint from Superior Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a), (see, e.g., NOR ¶¶ 4-5), rather than under CAFA. Through the instant Motion, Plaintiff seeks to remand his action to Superior Court. (See generally Mot. to Remand; ECF No. 7-1 (“Mem.”).) Plaintiff does not contest that there is complete diversity of citizenship among the Parties, (see ECF No. 8 (“Opp'n”) at 1); rather, Plaintiff contends that Defendant has failed to meet its burden of establishing by a preponderance of the evidence that the amount in controversy exceeds $75, 000. (See generally Mot. to Remand at 2; Mem. at 2, 3-8.)

Federal courts have diversity jurisdiction “where the amount in controversy” exceeds $75, 000, and the parties are of “diverse” state citizenship. See 28 U.S.C. § 1332. A defendant seeking to remove a case to federal court must provide only a “short and plain statement of the grounds for removal.” See 28 U.S.C. § 1446(a). Consequently, “when a defendant seeks federal-court adjudication, the defendant's amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court.” See Dart Cherokee, 574 U.S. at 87. But “[i]f the plaintiff [or the court] contests the defendant's allegation, § 1446(c)(2)(B) instructs: ‘[R]emoval . . . is proper on the basis of an amount in controversy asserted' by the defendant ‘if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds' the jurisdictional threshold.” See Id. at 88 (third and fourth alterations in original).

“[T]he plaintiff can contest the amount in controversy by making either a ‘facial' or ‘factual' attack on the defendant's jurisdictional allegations.” Harris v. KM Indus.,


Inc., 980 F.3d 694, 699 (9th Cir. 2020) (citing Salter v. Quality Carriers, 974 F.3d 959, 964 (9th Cir. 2020)). “A ‘facial' attack accepts the truth of the [defendant's] allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.'” Id. (alteration in original) (quoting Salter, 974 F.3d at 964). “A factual attack ‘contests the truth of the . . . allegations' themselves, ” Id. (alteration in original) (quoting Salter, 974 F.3d at 964), or “make[s] a reasoned argument as to why any assumptions on which they are based are not supported by evidence.” Id. at 700 (citing Salter, 974 F.3d at 964; Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1199 (9th Cir. 2015)). “When a plaintiff mounts a factual attack, the burden is on the defendant to show, by a preponderance of the evidence, that the amount in controversy exceeds the . . . jurisdictional threshold.” Id. at 699 (citing Ibarra, 775 F.3d at 1197). “[W]hen the defendant relies on a chain of reasoning that includes assumptions to satisfy its burden of proof, the chain of reasoning and its underlying assumptions must be reasonable ones.” LaCross v. Knight Transp. Inc., 775 F.3d 1200, 1202 (9th Cir. 2015) (citing Ibarra, 775 F.3d. at 1199). “Both parties may submit evidence supporting the amount in controversy before the district court rules.” Harris, 980 F.3d at 699 (citing Salter, 974 F.3d at 963; Ibarra, 775 F.3d at 1197). “The district court should weigh the reasonableness of the removing party's assumptions.” Id. at 701. “After considering any evidence put forth by the parties, and assessing the reasonableness of the defendant's assumptions, ‘the court then decides where the preponderance lies.'” Id. (quoting Ibarra, 775.F3d at 1198).

“In determining the amount in controversy, courts first look to the complaint.” Ibarra, 775 F.3d at 1197. “Generally, ‘the sum claimed by the plaintiff controls if the claim is apparently made in good faith.'” Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). But “[w]here 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 v. Progressive...

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