Tajonar v. Echosphere, L.L.C.

• Decision Date: 02 July 2015
• Docket Number: CASE NO. 14cv2732-LAB (RBB)
• Court: U.S. District Court — Southern District of California
• Parties: JOSE TAJONAR, Plaintiff, v. ECHOSPHERE, L.L.C., et al., Defendants.

JOSE TAJONAR, Plaintiff, v. ECHOSPHERE, L.L.C., et al., Defendants.

CASE NO. 14cv2732-LAB (RBB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

July 2, 2015

ORDER DENYING REMAND

Plaintiff Jose Tajonar filed a class action complaint on August 19, 2014, alleging various violations of California's labor codes, including: (1) failure to provide meal periods (Cal. Lab. Code § 226.7); (2) failure to timely pay final wages (Cal. Lab. Code § 203); and (3) failure to provide accurate and compliant wage statements (Cal. Lab. Code § 226).

Defendants, including DISH Network California Service Corporation (DISH), removed this action on November 11. Tajonar then filed a motion to remand.

I. Removal

Under 28 U.S.C. § 1441(a), a case can be removed from state to federal court, provided it could originally have been brought in federal court. This statute is construed strictly against removal, and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992); see also Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir.1988). The removing party bears the burden of establishing that the court has subject matter jurisdiction. Abrego Abrego v. Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006).

II. Discussion

In removing this case, DISH relied on the Class Action Fairness Act (CAFA), under which the Court has jurisdiction over matters where, among other things, removal is timely and the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d)(2). Tajonar's Motion to Remand argues the Notice of Removal was: (1) untimely; and (2) failed to meet CAFA's minimum amount in controversy. The Court disagrees.

A. Timeliness of Removal

Removing parties must timely file their notice of removal. 28 U.S.C. § 1441. Under § 1446(b), a party generally has two thirty-day periods for removing a case. See Kuxhausen v. BMW Fin. Serv. NA LLC, 707 F.3d 1136, 1139 (9th Cir. 2013) (citing Carvalho v. Equifax Info. Serv., LLC, 629 F.3d 876, 885 (9th Cir. 2010)). If the case is removable on the face of the complaint, the first thirty-day period is triggered upon service of the summons and complaint. Id.; § 1446(b). A renewed thirty-day removal period commences when a defendant receives "an amended pleading, motion, order or other paper" from which removal can be first ascertained. § 1446(b).

The two thirty-day periods are nonexclusive, however. If the two periods are never triggered, a defendant may remove outside these periods "on the basis of its own information." Roth v. CHA Hollywood Med. Ctr., LP, 720 F.3d 1121, 1125 (9th Cir. 2013). Defendants have no duty of inquiry where removal is indeterminate based on the initial pleading or other paper. Id. at 1125. Pleadings or other paper are "indeterminate" if the jurisdictional elements are vague on the face of the complaint. Kuxhausen, 707 F.3d 1136 at 1139 (9th Cir. 2013).

DISH properly removed outside the two thirty-day periods. On its face, the SAC alleged the amount in controversy is "not anticipated to exceed $5,000,000."¹ (SAC, 3:3-4.)Yet in its motion to remand, Tajonar contends this somehow reasonably notified DISH that the amount in controversy exceeds $5 million. (Motion to Remand, 7:5-7, 25-27.) Tajonar's jurisdictional allegation is facially vague in the SAC, and its inconsistent motion supports this. DISH was left to guess whether the amount in controversy will ever exceed $5 million.

But since Tajonar failed to affirmatively allege CAFA's jurisdictional minimum, DISH was excused from filing a notice of removal within the two thirty-day periods. In light of Tajonar's indeterminate complaint, DISH had no obligation to race against the removal clock while engaging in a fact-finding scavenger hunt. See Kuxhausen, 707 F.3d at 1140 ("[D]efendants need not make extrapolations or engage in guesswork," but only "apply a reasonable amount of intelligence in ascertaining removability"); Roth, 720 F.3d at 1126 (the "defendants subjective knowledge cannot convert a non-removable action into a removable one such that the thirty-day time limit of § 1446(b)(1) or (b)(3) begins to run against the defendant") (internal quotation marks omitted). The Ninth Circuit clearly articulated its position against such a rule:

A defendant should not be able to ignore pleadings or other documents from which removability may be ascertained and seek removal only when it becomes strategically advantageous for it to do so. But neither should a plaintiff be able to prevent or delay removal by failing to reveal information showing removability and then objecting to removal when the defendant has discovered that information on its own.

Roth, 720 F.3d at 1125.

Because DISH lacked notice of removability, it timely removed.

B. Amount in Controversy

The complaint fails to affirmatively plead a particular amount in controversy or seek specific damages. In this case, DISH must establish by the preponderance of evidence that the amount in controversy exceeds $5 million. Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). A defendant's notice of removal must include only a plausible allegation that the amount in controversy exceeds CAFA's minimum. Dart Cherokee BasinOperating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014). Removal jurisdiction cannot be established by mere speculation and conjecture, with unreasonable assumptions; it must be based on facts. See id.; Roth v. Comerica Bank, 799 F. Supp. 2d 1107, 1118 (C.D. Cal. 2010).

This means that DISH is required to "set forth underlying facts to support key variables used in [its] calculations." See Manier v. Medtech Prod., Inc., 2014 WL 1609655, at *2 (S.D. Cal. Apr. 22, 2014). In proving the amount in controversy, "[t]he 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, 775 F.3d at 1197. Estimates must be reasonable and fact-based, not speculative or inflated. See Romsa v. Ikea US West, Inc., 2014 WL 4273265, at *2 (C.D. Cal. Aug. 28, 2014) (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002)). See also Behrazfar v. Unisys Corp., 687 F. Supp. 2d 999, 1004 (C.D. Cal. 2009) (finding by a preponderance of evidence that the amount in controversy was met, where calculations were "relatively conservative, made in good faith, and based on evidence whenever possible").

There is no dispute between the parties about these standards. Rather, the focus is on how they apply to the pleadings and facts. Tajonar challenges the sufficiency of evidence DISH produced to prove the amount in controversy.

1. Sufficiency of Evidence

Tajonar's pleadings are peppered with arguments contesting DISH's evidence. DISH submits affidavits by its attorney of record and DISH's In-Home Services Human Resource Director, both of which are admissible. Tajonar claims DISH should have instead produced detailed reports, precise payroll documents, and other supporting information. (Reply to Motion to Remand, 13-19; Motion to Remand, 21-27.)

Tajonar misconstrues DISH's burden. A defendant "is not required to comb through its records to identify and calculate the exact frequency of violations"; rather it merely must prove the amount in controversy by a preponderance of the evidence. Oda v. Gucci Am., 2015 WL 93335, at *5 (C.D. Cal. Jan. 7, 2015). Affidavits and declarations serve as sufficientevidentiary tools, and the Court will review them in analyzing whether DISH met its burden. See Unutoa, 2015 WL 898512, at *3 (C.D. Cal. Mar. 13, 2015) ("[A] removing defendant is not required to go so far as to prove Plaintiff's case for him by proving the actual rates of violation.") (citing Oda, at *5)).

2. Cal. Lab. Code § 226.7: Meal Period Violations

California Labor Code § 226.7(b) states that "[a]n employer shall not require an employee to work during a meal or rest or recovery period." Violating § 226.7(b) results in a penalty of "one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest or recovery period is not provided." § 226.7(c). "Any action on any UCL cause of action is subject to the four-year period of limitations created by that section." Cortez v. Purolator Air Filtration Prod. Co., 23 Cal. 4th 163, 178 (2000).

The SAC gives an estimate of over 100 putative class members, but says nothing else about the class size. (Compl., ¶ 77.) DISH contends that it employed 1,773 class members during the four-year limitations period, starting from September 23, 2010, through October 28, 2014. (Decl. of Wodell (Docket no. 1-8), ¶ 11.) Of that group, 1,552 employees worked as full time Field Service Technicians ("FSTs") (Id.) Each worked an average of 746 days during the four-year limitations period. (Decl. of Muraco (Docket no. 1-9), ¶ 5.)) Active and former employees were paid an average hourly wage of $20.99/hour. (Id.) In calculating the meal period premiums, DISH assumes that at any time during this four-year period, an FST missed at least one meal period. By multiplying 1,552 class members by $20.99, DISH's calculations put the estimated meal period premiums at $32,576.

DISH calculates a conservative estimate. It not only narrowed its calculations to include full-time FSTs alone, but relied on Tajonar's own allegations, which suggest that each of the 1,552 FSTs missed only one meal period during their entire employment.

Tajonar claims that "pursuant to company policy and/or practice and/or direction . . . Plaintiffs and other hourly employees were deprived of their mandatory meal periods." (SAC, ¶ 48.) FSTs install and service equipment in customer's homes, (Decl. of Wodell (Docket no. 1-8), ¶ 9.), and by doing so, were "required to miss their meal breaks inorder to drive to the next installation." (SAC, ¶ 51) (emphasis added).) Construed together, these allegations suggest DISH...