1 2 3 4 JS-6 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EDUARDO VELASCO, individual andon ) Case No. ED CV 24-2492 FMO (DTBx) behalf of all others similarly situated, ) "° Plaintiff, 11 ) ORDER REMANDING ACTION 1 V.

WERNER ENTERPRISES, INC., )

Defendant. 14) 0) 15 On September 4, 2024, Eduardo Velasco (“plaintiff”) filed a Complaint in the San 16 || Bernardino County Superior Court against Werner Enterprises, Inc. (“defendant”) under the Private 17 || Attorneys General Act (“PAGA’), Cal. Lab. Code § 2698, et seqg., asserting state law employment claims. (See Dkt. 1, Notice of Removal (“NOR”) {J 1-2); (Dkt. 1-2, Exh. A, Complaint at 91). On November 21, 2024, defendant removed that action on diversity jurisdiction grounds pursuant to 28 U.S.C. §§ 1332(a) & 1441. (See Dkt. 1, NOR at 1). Having reviewed the pleadings, the court hereby remands this action to state court for lack of subject matter jurisdiction. See 28 U.S.C. § 22|| 1447(c). 23 LEGAL STANDARD 24 “Federal courts are courts of limited jurisdiction. They possess only that power authorized 25 || by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 26 || S.Ct. 1673, 1675 (1994). The courts are presumed to lack jurisdiction unless the contrary appears affirmatively from the record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 28 || S.Ct. 1854, 1861 n. 3 (2006). Federal courts have a duty to examine jurisdiction sua sponte

1|| before proceeding to the merits of a case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 2| 119S.Ct. 1563, 1569 (1999), “even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244 (2006). 4 “Under the plain terms of § 1441 (a), in order properly to remove [an] action pursuant to that provision, [the removing defendant] must demonstrate that original subject-matter jurisdiction lies in the federal courts.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33, 123 S.Ct. 366, 370 (2002); Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting the “longstanding, near-canonical rule that the burden on removal rests with the removing defendant’); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.”) (internal quotation marks omitted). If there is any doubt regarding the 12 || existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding 13|| the action to state court.’ See Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”). 15 DISCUSSION 16 The court's review of the NOR and the attached Complaint makes clear that the court does 17 || not have subject matter jurisdiction over the instant matter. In other words, plaintiff could not have originally brought this action in federal court, as plaintiff does not competently allege facts 19|| supplying diversity jurisdiction.2, Therefore, removal was improper. See 28 U.S.C. § 1441(a); 20] Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only state-court actions that originally could have been filed in federal court may be removed to federal court by 22 || the defendant.”). 23 Defendant bears the burden of proving by a preponderance of the evidence that the amount 24 || in controversy meets the jurisdictional threshold. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 25 |) ———___—— 26 ' An “antiremoval presumption” does not exist in cases removed pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Dart Cherokee Basin Operating Co., LLC v. 27|| Owens, 574 U.S. 81, 89, 135 S.Ct. 547, 554 (2014). 28 2 Defendant seeks only to invoke the court’s diversity jurisdiction. (See Dkt. 1, NOR). 95

1117 (9th Cir. 2004); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam) (“Where it is not facially evident from the complaint that more than $75,000 is 3] in controversy, the removing party must prove, by a preponderance of the evidence, that the 4] amount in controversy meets the jurisdictional threshold. Where doubt regarding the right to removal exists, a case should be remanded to state court.”) (footnote omitted). Here, there is no 6| basis for diversity jurisdiction because the amount in controversy does not appear to exceed the diversity jurisdiction threshold of $75,000. See 28 U.S.C. § 1332(a).° 8 As an initial matter, the amount of damages plaintiff seeks cannot be determined from the Complaint, as the Complaint does not set forth a specific amount. (See, generally, Dkt. 1-2, Exh. A, Complaint). Defendant notes that PAGA provides for statutory penalties and that defendant “has employed at least 67 non-exempt” employees during the relevant time period. (See Dkt. 1, 12 || NOR 15). According to defendant, the potential recovery of each aggrieved employee should 13 || be aggregated “for the purposes of meeting the jurisdictional minimum” because a “common and undivided interest exists[.]” (See id.). But defendant cites no authority for this proposition, and “[t]he traditional rule is that multiple plaintiffs who assert separate and distinct claims are precluded 16 || from aggregating them to satisfy the amount in controversy requirement.” Urbino v. Orkin Servs. 17 || of California, Inc., 726 F.3d 1118, 1122 (9th Cir. 2013). “[l]n a diversity action not subject to 18|| CAFA, the traditional ‘anti-aggregation’ rule applies.” Patel Nike Retail Servs., Inc., 58 F.Supp.3d 1032, 1043 (N.D. Cal. 2014). In other words, “[t]he penalties attributed to all aggrieved 20 || employees [in a PAGA action] may not be aggregated to satisfy the amount in controversy. Only those recoverable by the named plaintiff are considered.” Lindsey v. WC Logistics, Inc., 586 22 || F.Supp.3d 983, 997 (N.D. Cal. 2022) (internal citations omitted); see also Urbino, 726 F.3d at 1122 23 || (‘Each employee suffers a unique injury-an injury that can be redressed without the involvement of other employees. . . . Thus, diversity jurisdiction does not lie because their claims cannot be 25 26 > In relevant part, 28 U.S.C. § 1332(a) provides that a district court has diversity jurisdiction “where the matter in controversy exceeds the sum or value of $75,000, . . . and is between... citizens of different States” or “citizens of a State and citizens or subjects of a foreign state[.]” 28 U.S.C. §§ 1332(a)(1)-(2).

1|| aggregated.”) (internal citations omitted). Further, defendant's “conclusory assertions that the 2| jurisdictional amount is exceeded without evidence, calculations or explanation of [its] assumptions 3] is insufficient to satisfy [its] burden to prove by the preponderance of the evidence that the jurisdictional threshold is exceeded in the PAGA Action.” Lindsey, 586 F.Supp.3d at 998; see also 5| Gaus, 980 F.2d at 567 (remanding for lack of diversity jurisdiction where defendant “offered no 6| facts whatsoever. . . . [to] overcome[] the strong presumption against removal jurisdiction, [and 7| did not] satisf[y defendant’s] burden of setting forth . . . the underlying facts supporting its assertion that the amount in controversy exceeds $[75],000”) (internal quotation marks omitted) (emphasis in original). 10 In sum, given that any doubt regarding the existence of subject matter jurisdiction must be 11 || resolved in favor of remanding the action, see Gaus, 980 F.2d at 566, the court is not persuaded, 12 || under the circumstances here, that defendant has met its burden of showing by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold. See Matheson, 319 F.3d at 1090 (“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 16 || amount in controversy meets the jurisdictional threshold. Where doubt regarding the right to 17 || removal exists, a case should be remanded to state court.”) (footnote omitted); Valdez, 372 F.3d 18] at 1117. 19 This order is not intended for publication. Nor is it intended to be included in or 20 || submitted to any online service such as Westlaw or Lexis. 21 Based on the foregoing, IT IS ORDERED that: 22 1. The above-captioned action shall be remanded to the Superior Court of the State of 23 || California, County of San Bernardino, for lack of subject matter jurisdiction pursuant to 28 U.S.C. 24] § 1447(c). 25 2. The Clerk shall send a certified copy of this Order to the state court. 26 || Dated this 13th day of December, 2024. 27 /s/ Fernando M. Olguin 28 United States District Judge