Roth v. Comerica Bank
| Decision Date | 31 August 2010 |
| Docket Number | Case No. CV 10–03818 MMM (PLAx). |
| Citation | 799 F.Supp.2d 1107 |
| Parties | Gregory ROTH, individually and behalf of other members of the general public similarly situated, Plaintiff, v. COMERICA BANK, a Texas Corporation; Comerica Incorporated, a Delaware Corporation; Comerica Management Company, Inc., a Michigan Corporation; and Does 1 through 100, inclusive, Defendants. |
| Court | U.S. District Court — Central District of California |
OPINION TEXT STARTS HERE
Dina Sera Livhits, Gene F. Williams, Jennifer S. Grock, Orlando J. Arellano, Initiative Legal Group APC, Los Angeles, CA, Edwin Aiwazian, Ghazaleh Hekmatjah, The Aiwazian Law Firm, Glendale, CA, John Glugoski, Matthew Righetti, Righetti Law Firm PC, San Francisco, CA, for Plaintiff.
Christina M. Hanna, Janel Royce Ablon, Keith A. Jacoby, Scott M. Lidman, Littler Mendelson PC, Los Angeles, CA, for Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND
On March 19, 2010, Gregory Roth filed this putative class action in Los Angeles Superior Court against Comerica Bank, Comerica Incorporated, and Comerica Management Company, Inc.1 On May 20, 2010, defendants removed the action to federal court, invoking jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), codified at 28 U.S.C. § 1332(d).2 Plaintiff has now filed a motion to remand,3 which defendants have opposed.4
Defendants employed Roth as a Customer Service Representative or “teller” from June 20, 2005 to May 30, 2008 at a retail banking center in Cerritos, California.5 In this position, Roth was a non-exempt, hourly employee, earning $13 an hour.6
Roth, who is a California resident, alleges that defendants own and operate forty-five Comerica bank centers in California.7 He seeks to bring claims on behalf of “[a]ll current and former non-exempt and/or hourly paid tellers, or persons with similar titles and/or similar job duties, who worked for Comerica in the State of California at any time during the period from four years prior to the filing of this Complaint to final judgment.” 8 Although Roth asserts that the “membership of the entire class is unknown to [him] at this time,” he estimates that the class includes more than one hundred members.9
Roth alleges that defendants intentionally and willfully failed to pay overtime wages to him and other class members in violation of California law. 10 He asserts that he was “forced on a regular basis to work overtime without proper compensation, and then he would be told by his superiors to work fewer hours on other days to account for the overtime hours that he worked.” 11 More broadly, Roth alleges that defendants failed to pay overtime wages despite the fact that he “and [other] class members regularly and/or consistently worked in excess of eight (8) hours in a day, in excess of twelve (12) hours in a day, and/or in excess of forty (40)hours in a week.” 12 Beyond the general assertion that the class members worked unpaid overtime “regularly and/or consistently,” Roth does not allege how frequently class members worked overtime for which they were not properly paid.13
Roth also alleges that he and other class members did not receive all meal and rest periods to which they were entitled under California law.14 The complaint asserts that Roth “and [other] class members often did not take timely, uninterrupted meal periods of not less than thirty (30) minutes,” 15 and that “[d]uring the relevant time period, Defendants willfully required Plaintiff and class members to work during rest periods.” 16 Further, Roth alleges that class members were not paid one additional hour of regular wages as compensation for the missed meal and rest periods.17 Roth does not specifically allege how frequently he and other class members were denied the opportunity to take meal or rest periods.
Additionally, Roth asserts that the wage statements provided to class members during their employment were not accurate, and that class members were not paid all wages owed within required payroll periods.18 Finally, he alleges that defendants failed to pay all wages owed when class members finished their employment.19 He does not specify how many class members left defendants' employ during the class period or how many were not paid their wages on termination.
Based on theses allegations, Roth asserts eight state law causes of action on his behalf and on behalf of the class: (1) failure to pay overtime wages in violation of California Labor Code §§ 510 and 1198; (2) requiring class members to work during meal periods and failing to compensate them members for missed meal periods in violation of California Labor Code §§ 226.7 and 512(a); (3) requiring class members to work during rest periods and failing to compensate class members for missed rest periods in violation of California Labor Code § 226.7; (4) failure to pay class members an overtime rate for overtime hours worked or a regular rate for hours worked during meal periods in violation of California Labor Code §§ 1194, 1197, and 1197.1; (5) failure to pay former employees all wages owed within seventy-two hours of the conclusion of their employment in violation of California Labor Code §§ 201 and 202; (6) failure to pay all wages owed to class members within required payroll periods in violation of California Labor Code § 204; (7) failure to furnish accurate time records to class members in violation of California Labor Code § 226(a); and (8) unlawful business practices in violation of California Business and Professions Code §§ 17200 et seq.20
In his prayer for relief,21 Roth seeks, inter alia, to recover (1) class members' unpaid overtime wages; (2) one hour of regular wages for each day a class member was denied a required meal period; (3) one hour of regular wages for each day a class member was denied a required rest period; (4) statutory penalties under California Labor Code § 1197.1 for failure to pay class members minimum required wages; 22 (5) statutory penalties under California Labor Code § 203 for failure to pay class members all wages earned within thirty days of the date their employment ended; 23 (6) statutory penalties under California Labor Code § 210 for failure to pay all wages owed within specified payroll periods as required by § 204; 24 (7) statutory penalties under California Labor Code § 226 for failure to provide accurate wage statements to class members; 25 and (8) reasonable attorneys' fees. While Roth alleges that his damages total less that $75,000,26 he does not specify or limit the total recovery sought on behalf of the class.
On May 18, 2010, defendants answered Roth's complaint, asserting, inter alia, that Roth's claims were barred in whole or in part by the one-year statute of limitations governing statutory penalties under California Code of Civil Procedure § 340(a), the three-year statute of limitations set forth in § 338(a), and the four-year statute of limitations in California Business and Professions Code § 17208.27
Two days later, on May 20, 2010, defendants removed the action to federal court, invoking CAFA jurisdiction under 28 U.S.C. § 1332(d). 28 Defendants contend there is complete diversity of citizenship between them and plaintiff, that the class includes more than 100 members, and that the amount in controversy exceeds $5 million.29
In support of removal, defendants proffered the declaration of Catherine Moye, the senior vice president in charge of administrative management for defendant Comerica Management Company (“CMC”).30 Moye states that Comerica International is a Delaware corporation with its principal place of business in Texas,31 that Comerica Bank is a subsidiary of Comerica International with its principal place of business in Texas,32 and that CMC is a subsidiary of Comerica Bank, which is incorporated and based in Michigan. 33
Moye asserts that CMC employed Roth from June 20, 2005 to May 30, 2008 as a customer service representative or “teller” at a branch in Cerritos, California, at an hourly wage of $13.34 She represents that since March 19, 2006, CMC has employed 796 former or current tellers in California. 35 These 796 tellers collectively worked approximately 65,413 weeks during the class period.36 CMC employees are paid every two weeks, such that there are a total of twenty-six pay periods in a year. 37 Between March 19, 2009 and March 19, 2010, CMC employed at least 251 tellers for the entire year.38 During the past three years, 318 tellers ended their employment with CMC.39
Defendants also proffered the declaration of Keith A. Jacoby.40 Jacoby has been lead defense counsel in two prior wage and hour class actions initiated by parties who were represented by Initiative Legal Group APC (“ILG”), one of the three law firms currently representing plaintiff. 41 Jacoby asserts that following settlement in both cases, ILG sought more than $1 million in attorneys' fees.42 In an action that settled for $5 million, for example, ILG, with two other firms, sought and was awarded fees of $1,666,667.43 In a suit that settled for $3 million, ILG, together with three other firms, sought and was awarded attorneys' fees of $1 million.44
The right to remove a case to federal court is entirely a creature of statute. See, e.g., Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979) (). The removal statute, 28 U.S.C. § 1441, allows defendants to remove when a case originally filed in state court presents a federal question or is between citizens of different states. See 28 U.S.C. §§ 1441(a), (b); see also 28 U.S.C. §§ 1446 (); 1453 (setting forth removal procedures for class actions). Only those state court actions that could originally have been filed in federal...
To continue reading
Request your trial
-
Vasserman v. Henry Mayo Newhall Mem'l Hosp.
...Both the CBAs and Vasserman's class definition include part-time as well as full-time employees. 65 F.Supp.3d 979Roth v. Comerica Bank, 799 F.Supp.2d 1107, 1122–23 (C.D.Cal.2010) (“the calculation assumes that amounts owed are not paid for a full thirty days after termination, and that all ......
-
Carranza v. Nordstrom, Inc.
...unless 'it appears to a 'legal certainty' that the claim is actually for less than the jurisdictional minimum.'" Roth v. Comerica Bank, 799 F.Supp.2d 1107, 1116 (C.D. Cal. 2010) (quoting Lowdermilk, 479 F.3d at 998 (in turn quoting Abrego Abrego, 443 at 683 n. 8)). Here, Carranza's state co......
-
Van Steenhuyse v. UBS Fin. Servs., Inc.
...per week is suitable for calculation purposes, it is still an assumption, seemingly plucked from thin air"); Roth v. Comerica Bank , 799 F.Supp.2d 1107, 1119–20 (C.D. Cal. 2010) ("More significantly, defendants' calculation admittedly rests on the speculative assumption that every class mem......
-
Hernandez v. Towne Park, Ltd., CASE NO. CV 12-02972 MMM (JCGx)
...violation at some point during his or her employment, and was thus entitled to waiting time penalties. See Roth v. Comerica Bank, 799 F.Supp.2d 1107, 1125-26 (C.D. Cal. 2010) ("The court agrees that Roth's allegations suggest all class members were denied some form of proper compensation du......