1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO GUERRERO, Case No.: 25-cv-1133-JES-KSC

12 Plaintiff,

ORDER:

13 v. (1) GRANTING MOTION TO 14 SFS BEAUTY CA LLC; DUTY FREE REMAND; and

PARTNERS; KYMBERLI PARKER;

15

ESTÉE LAUDER TRAVEL

(2) DENYING MOTION TO DISMISS 16 RETAIL SERVICES INC.; and DOES 2-

AS MOOT

20, inclusive, 17 Defendants. [ECF Nos. 5, 13] 18 19 Pending before the Court are two motions filed by the parties: (1) Defendant Estée 20 Lauder’s motion to dismiss (ECF No. 5); and (2) Plaintiff’s motion to remand (ECF No. 21 13). The parties filed respective responsive briefing on both matters. ECF Nos. 14-16, 18. 22 On June 25, 2025, the Court held a motion hearing and took the matters under submission. 23 ECF No. 21. After due consideration and for the reasons discussed below, the motion to 24 remand is GRANTED. Because the Court finds that it lacks jurisdiction over the case, the 25 Court DENIES AS MOOT Defendant’s motion to dismiss. 26 // 27 // 28 // 1 I. BACKGROUND 2 Plaintiff Alejandro Guerrero filed this original lawsuit in state court on March 2, 3 2021. ECF No. 1 ¶ 4. The current operative complaint is the Second Amended Complaint 4 (“SAC”), which Plaintiff filed on March 7, 2025. Id.; ECF No. 1-2, Ex. A. 5 Plaintiff alleges that he worked for MAC Cosmetics for almost fifteen years. SAC ¶ 6 1. Around August 2018, Plaintiff was offered a position as a retail manager at a stand-alone 7 MAC boutique at the San Diego International Airport, which Defendants’ owned. Id. ¶ 16. 8 During the course of his employment, he alleges that he was mocked and bullied by 9 Defendant Kymberli Parker (“Parker”) for his gender expression and his disability. Id. ¶¶ 10 16-30. Plaintiff alleges that he was reprimanded for speaking up against this behavior and 11 was ultimately terminated from his employment. Id. ¶¶ 31-42. Based on this course of 12 conduct, Plaintiff alleges causes of action for: (1) discrimination and harassment for gender 13 expression under California Fair Employment and Housing Act, Government Code 14 §§ 12940, et seq. (“FEHA”); (2) discrimination and harassment for disability under FEHA; 15 (3) hostile work environment under FEHA; (4) violation of California Labor Code § 1102.5 16 for whistleblowing; (5) failure to prevent discrimination and harassment under FEHA; and 17 (6) wrongful termination. Id. ¶¶ 49-92. 18 Defendant Estée Lauder Travel Retail Services Inc. (“Estée Lauder”) was a new 19 defendant added in the SAC. Id. ¶ 14. Plaintiff alleges that Estée Lauder “jointly” employed 20 him along with the other Defendants and was involved in employment decisions involving 21 him. Id. ¶¶ 43-48. 22 Defendant Estée Lauder removed the case to federal court on May 2, 2025. ECF No. 23 1. Estée Lauder claimed in the Notice of Removal that no Defendant, including itself, had 24 been served with the SAC. ECF No. 1 ¶ 7; ECF No. 1-3 at ¶ 5. However, Estée Lauder also 25 submits information to the Court that on April 24, 2025, Plaintiff’s counsel had emailed 26 Estée Lauder’s counsel a copy to the SAC, along with other state court documents, 27 including a Notice of Acknowledgement of Receipt packet. ECF No. 16-2 at ¶ 7; at 8-9. 28 Estée Lauder states that its counsel signed and returned this Notice of Acknowledgement 1 on May 2, 2025, and its Notice of Removal was filed on the same day around 5:12 p.m. Id. 2 ¶¶ 9-10. Also, since removal of this case, all other Defendants were served on May 5, 2025. 3 ECF No. 13-2 ¶ 9. On May 19, 2025, all other Defendants filed a Notice of Joinder with 4 the Court stating that they join in Estée Lauder’s Notice of Removal. ECF No. 11. Further, 5 on June 24, 2025, all other Defendants filed an answer to SAC. ECF No. 20. 6 II. LEGAL STANDARDS 7 Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 8 (2013). In a case originally brought in state court, a defendant may remove the action to 9 federal court if there is federal subject matter jurisdiction. 28 U.S.C. § 1441(a) (“Except as 10 otherwise expressly provided by Act of Congress, any civil action brought in a State court 11 of which the district courts of the United States have original jurisdiction, may be removed 12 by the defendant or the defendants, to the district court of the United States for the district 13 and division embracing the place where such action is pending.”). 14 “Consistent with the limited jurisdiction of federal courts, the removal statute is 15 strictly construed against removal jurisdiction.” Audo v. Ford Motor Co., No. 18cv320-L- 16 KSC, 2018 WL 3323244, at *1 (S.D. Cal. July 6, 2018) (citing Gaus v. Miles, Inc., 980 17 F.2d 564, 566 (9th Cir. 1992)). Therefore, the “burden of establishing that removal is 18 proper” always lies with the defendant. Gaus, 980 F.2d at 566. If there is any doubt as to 19 the propriety of removal, the court shall reject federal subject matter jurisdiction. Id.; see 20 also Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) (“If a district court 21 determines at any time that less than a preponderance of the evidence supports the right of 22 removal, it must remand the action to the state court.”). 23 Federal subject matter jurisdiction may arise based on federal question or diversity 24 jurisdiction. 28 U.S.C. § 1331, 1332(a). In the notice of removal, Defendant Estée Lauder 25 states that this court has federal subject matter jurisdiction over the matter based on 26 diversity jurisdiction. ECF No. 1 ¶ 12. The statute requires complete diversity between 27 plaintiffs and defendants. Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 28 1 2009). Further, to satisfy § 1332, the matter in controversy must exceed the sum or value 2 of $75,000, exclusive of interests and costs. 28 U.S.C. § 1332(a). 3 III. DISCUSSION 4 Plaintiff argues that this case must be remanded back to state court for three reasons: 5 (1) the forum-defendant rule bars removal of this action because Defendant Parker is a 6 resident of California; (2) removal was premature because it was filed before the state court 7 endorsed the SAC; and (3) this Court lacks subject matter jurisdiction based on Parker’s 8 residence in California, regardless of the forum-defendant rule. ECF No. 13. Because the 9 Court finds that it lacks subject matter jurisdiction over the case as discussed below, the 10 case will be remanded to state court. 11 Federal court jurisdiction based on diversity of citizenship requires complete 12 diversity; this requires that “each defendant is a citizen of a different State from each 13 plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis in 14 original). It is undisputed that the citizenship of Plaintiff is California and it is undisputed 15 that the citizenship of Defendant Parker is California. This fails the requirement to have 16 complete diversity between each Plaintiff and each Defendant, and therefore, federal court 17 jurisdiction simply must fail. 18 Rather than directly addressing this well-settled, cornerstone principal of diversity 19 jurisdiction and the indisputable conclusion the Court must reach applying it in this case, 20 Defendant Estée Lauder repeatedly discusses how its removal of this case was proper under 21 a concept called “snap removal.” See generally ECF No. 16. Snap removal is related to the 22 federal removal statute, which governs how and when a case may be removed from state 23 court to federal court. 28 U.S.C. § 1441. The statute generally provides that “any civil 24 action brought in a State court of which the district courts of the United States have original 25 jurisdiction, may be removed by the defendant or the defendants, to the district court of the 26 United States for the district and division embracing the place where such action is 27 pending.” 28 U.S.C. § 1441(a). However, the statute provides an exception for where a 28 case cannot be removed to federal court when removal relies on diversity for original 1 jurisdiction—“[a] civil action otherwise removable solely on the basis of the jurisdiction 2 under section 1332(a) of this title may not be removed if any of the parties in interest 3 properly joined and served as defendants is a citizen of the State in which such action is 4 brought.” Id. § 1441(b)(2). In plain words, this exception as applied to this case means that 5 if a defendant is a citizen of California, this case could not be removed to federal court 6 since this Court sits in the state of California. This is known as the forum-defendant rule. 7 Snap removal comes into consideration for this exception because the statute specifically 8 uses the phrase “properly joined and served as defendants.” Snap removal occurs where a 9 party removes the case before a forum-defendant is “properly joined and served” in the 10 case. Many district courts within this Circuit have held that, in this situation, § 1441(b)(2) 11 does not bar this removal based on the plain text of the statute in spite of the unserved 12 forum-defendant.1 See, e.g., Campbell v. CubeSmart, L.P., No. 24-CV-02282-AJB-VET, 13 2025 WL 251429, at *3 (S.D. Cal. Jan. 21, 2025); Fobb v. Uber Techs., Inc., No. 21-CV- 14 07778-HSG, 2022 WL 620336, at *2 (N.D. Cal. Mar. 3, 2022) (collecting cases that “nearly 15 unanimously” support snap removal). 16 As applied to this case, Estée Lauder’s argument is that its snap removal of the case 17 to this Court was proper because it removed the case before Defendant Parker (the “forum- 18 defendant” in this case) was served with the SAC. Since Parker is the only defendant that 19 is from California, the forum-defendant rule would not apply because she was not yet 20 “properly joined and served” before Estée Lauder removed the case. However, even if 21 Estée Lauder is correct that the case could properly be removed through snap jurisdiction 22 because the forum-defendant has not yet been served, it fails to explain how this permits it 23 to evade its duty to establish federal subject matter jurisdiction in the first place. 24 25

26 27 1 The Ninth Circuit has not yet definitely weighed in on the validity of snap removals. See Casola v. Dexcom, Inc., 98 F.4th 947, 965 (9th Cir. 2024) (“[T]he final chapter on snap 28 1 Indeed, numerous cases within our circuit have held that snap jurisdiction cannot be 2 used to evade diversity jurisdiction. Whether a defendant has been served or not is not 3 considered in evaluating whether complete diversity exists. Clarence E. Morris, Inc. v. 4 Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969) (“Whenever federal jurisdiction in a removal 5 case depends upon complete diversity, the existence of diversity is determined from the 6 fact of citizenship of the parties named and not from the fact of service.”); Greenway 7 Nutrients, Inc. v. Pierce, No. CV2203322MWFAFMX, 2022 WL 17486359, at *2 (C.D. 8 Cal. Dec. 6, 2022) (“[T]he Court must consider the citizenship of all Defendants in 9 evaluating diversity jurisdiction, regardless of any service issues.”). Rather, snap removal 10 is a procedural rule that applies to whether removal is “procedurally proper” and not 11 whether federal court jurisdiction exists. Menchaca v. Howmet Aerospace, Inc., No. 12 223CV00098JLSMRW, 2023 WL 2504995, at *3 (C.D. Cal. Mar. 14, 2023) (“The 13 permissibility of snap removal can only help Howmet establish that its removal was 14 procedurally proper—not whether federal jurisdiction actually exists.”); see also Lively v. 15 Wild Oats Markets, Inc., 456 F.3d 933, 936 (9th Cir. 2006) (“We join eight of the nine 16 circuits that have decided this issue and hold that the forum defendant rule is procedural.”); 17 Unsurprisingly and following logically, “no case holds that defendants can use snap 18 removal as an end-run around the diversity jurisdiction statute’s requirement of complete 19 diversity.” Menchaca, 2023 WL 2504995, at *3; See Trotta v. URS Fed. Servs., Inc., 532 20 F. Supp. 3d 985, 989-90 (D. Haw. 2021) (“Here, [defendants] attempt to create diversity 21 jurisdiction through the snap removal process by removing the case to federal court before 22 the in-state defendants have been served. This they cannot do.”). 23 Here, Defendant Parker serves two roles as a California resident. First, she is a 24 forum-defendant for the purposes of the removal statute. Thus, § 1441(b)(2) would 25 normally bar removal of this case to a district court in California but snap removal would 26 permit it if it was done before she was served. Second, she is a non-diverse defendant who 27 destroys complete diversity. The Ninth Circuit has long held that whether or not a 28 defendant has been served has nothing to do with the complete diversity analysis. And 1 crucially, snap removal has nothing to do with the complete diversity analysis either. Estée 2 Lauder conflates these two issues, and its reliance solely on snap removal to establish 3 diversity jurisdiction is untenable. 4 Accordingly, the Court finds that this case must be remanded back to state court for 5 lack of subject matter jurisdiction, regardless of whether snap removal was appropriate or 6 not.2 7 IV. SANCTIONS 8 In Plaintiff’s motion for remand, he also makes a request for attorney fees. ECF No. 9 13 at 13-14. “An order remanding the case may require payment of just costs and any actual 10 expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). 11 Whether to award fees “turns on the reasonableness of the removal” and should be awarded 12 where “the removing party lacked an objectively reasonable basis for seeking removal.” 13 Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005). 14 Plaintiff argues that Estée Lauder’s removal here was objectively unreasonable. 15 Plaintiff argues that the Ninth Circuit held over forty years ago that whether a defendant 16 has been served is not considered in determining complete diversity. ECF No. 13 at 13 17 (citing Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969)). Further, 18 district courts in this circuit have granted fees in the same remand scenarios. See Ross v. 19 United Airlines, Inc., No. 2:22-CV-01532-SB-GJS, 2022 WL 1302680, at *3 (C.D. Cal. 20 Apr. 30, 2022) (granting fees in factually similar scenario after holding that defendant “not 21 only misapplies the forum-defendant rule but also flies in the face of Ninth Circuit law”). 22 The Court finds that fees are appropriate here as well. As noted above, despite 23 Plaintiff squarely raising the issue of diversity jurisdiction in his motion as separate from 24 the forum-defendant rule, Defendant Estée Lauder never meaningfully addresses this in its 25 opposition to the motion for remand. Furthermore, the procedural posture of this case when 26

27 2 Having so found, the Court declines to address the alternative reasons Plaintiff raises for 28 1 Estée Lauder removed it makes its removal basis even more dubious. Defendant Parker, 2 the individual that destroys diversity jurisdiction, had been a proper defendant in the case 3 since its inception in state court in 2021. Estée Lauder never argues that Parker was an 4 improperly or fraudulently joined defendant, rather resting its argument on a hyper 5 technical argument that she was not “served” because she had not yet been served with the 6 SAC, despite her being an active and continuous litigant in the state court case for years 7 prior. The Court does not find it objectively reasonable for Estée Lauder to believe that this 8 technicality could overcome the well-established tenet of the complete diversity 9 requirement for federal court jurisdiction. 10 Having found that fees are appropriate, courts will determine the proper amount of 11 fees using the lodestar method. W.H. Breshears, Inc. v. Del. N. Companies Parks & Resorts 12 at Yosemite, Inc., No. 1:16-CV-1129 AWI SAB, 2016 WL 7010501, at *5 (E.D. Cal. Nov. 13 30, 2016). The lodestar method requires a court to multiply the number of hours the 14 prevailing party spent on the motion multiplied by the reasonably hourly rate of counsel. 15 McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009). The party requesting 16 fees has the initial burden to “‘produce satisfactory evidence’ establishing the 17 reasonableness of the requested fee.” United States v. $28,000.00 in United States 18 Currency, 802 F.3d 1100, 1105 (9th Cir. 2015). 19 Plaintiff submits a declaration from his counsel that she spent 20.4 total hours on 20 various tasks related to this motion to remand. ECF No. 22 ¶ 10. Counsel claims a rate of 21 $538 per hour. Id. ¶ 4. 22 A. Reasonable Hourly Rate 23 “In determining a reasonable hourly rate, the district court should be guided by the 24 rate prevailing in the community for similar work performed by attorneys of comparable 25 skill, experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210- 26 11 (9th Cir. 1986). The Court may take into account factors including: “(1) the novelty and 27 complexity of the issues; (2) the special skill and experience of counsel; (3) the quality of 28 1 representation; and (4) the results obtained.” Kilopass Tech., Inc. v. Sidense Corp., 82 F. 2 Supp. 3d 1154, 1170 (N.D. Cal. 2015). 3 In support of counsel’s requested hourly rate, counsel submits the Laffey Matrix, 4 which is a United States Department of Justice billing matrix that provides billing rates for 5 attorneys of various experience levels in the Washington, D.C. area. Using that matrix for 6 her experience level, and adjusted for San Diego, counsel states that the rate based on that 7 matrix is $581 per hour. ECF No. 22 at 5-6. Estée Lauder argues in opposition that the 8 Laffey Matrix should not be relied upon and that counsel has failed to provide any other 9 evidence to support the rate, including information regarding litigation skill and experience 10 or complexity of the work required. ECF No. 23 at 13-14. 11 The Court agrees that counsel has not submitted much evidence to support her rate 12 request. However, in such a circumstance, the Court may rely on its own knowledge 13 regarding “customary rates and their experience concerning reasonable and proper fees.” 14 Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (upholding district court’s 15 discretion in using its own knowledge and expertise to set an hourly rate). 16 First, with regards to the Laffey matrix, this court has previously considered this 17 source but does not rely on it as the sole factor to determine reasonable billing rates. 18 Ramirez v. Escondido Unified Sch. Dist., No. 11CV1823 DMS (BGS), 2014 WL 19 12675859, at *3 (S.D. Cal. Apr. 17, 2014). The Court independently takes judicial notice 20 of the 2024 Real Rate Report for fee rates in San Diego. See id. (taking judicial notice of 21 same report); 3D Sys., Inc. v. Wynne, No. 21-CV-1141-AGS-DDL, 2025 WL 51443, at *3 22 (S.D. Cal. Jan. 7, 2025) (similarly not relying on Laffey matrix and instead using the Real 23 Rate Report). According to the Real Rate Report for San Diego, the median rate for 24 associates is $295. Real Rate Report at 32. For associates in San Diego with 7 or more 25 years of experience, the mediate rate is $425. Id. at 63. The average rate for associates in 26 the area of Employment and Labor in San Diego is $395. Id. at 121. 27 Based on this data, the Court finds a slight downward departure appropriate from 28 the requested rate of $538 per hour to $425 per hour. This rate is further supported by rates 1 that have been approved in this district in recent years. See, e.g., Blood v. Mercedez-Benz, 2 USA, LLC, No. 23-CV-1463-WQH-AHG, 2024 WL 4875265, at *5 (S.D. Cal. Nov. 22, 3 2024) (approving rate of $395 for an associate with 7 years of experience); Wentworth v. 4 Ford Motor Co., No. 22-CV-01964-W-BGS, 2023 WL 11795672, at *3 (S.D. Cal. Apr. 5 17, 2023) (approving rate of $325 for an associate with 7 years of experience); Buchannon 6 v. Associated Credited Serv., Inc., No 20-cv-2245-BEN-LL, 2021 WL 5360971, at *15-16 7 (S.D. Cal. No. 17, 2021) (approving rate of $375 for associate with 6 years experience); 8 Kries v. City of San Diego, No. 17-CV-1464-GPC-BGS, 2021 WL 120830, at *7 (S.D. Cal. 9 Jan. 13, 2021) (approving rate of $400 for a labor and employment associate with 6 years 10 of experience). 11 B. Reasonable Hours 12 With respect to reasonable hours, the moving party “should provide documentary 13 evidence to the court concerning the number of hours spent,” and hours that are “excessive, 14 redundant, or otherwise unnecessary” should be excluded. McCown, 565 F.3d at 1102. 15 “Plaintiff’s counsel . . . is not required to record in great detail how each minute of his time 16 was expended,” even “minimal” descriptions that establish that the time was spent on 17 matters on which the district court may award fees is sufficient. Lytle v. Carl, 382 F.3d 18 978, 989 (9th Cir. 2004) (citation omitted); see also Trustees of Dirs. Guild of Am.- 19 Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 427 (9th Cir. 2000) (counsel may 20 “identify the general subject matter of his time expenditures”). “Where the documentation 21 is inadequate, the district is free to reduce an applicant’s fee award accordingly.” Id. 22 Counsel for Plaintiff submits a declaration that stated she worked for a total of 20.4 23 hours for the motion to remand. ECF No. 22 at 5-6. She submitted a table of entries, broken 24 down by date, a short description, and time per entry. Id. Defendant objects to the hours 25 requested, arguing that the entries are not detailed enough. Id. at 15-19. 26 The Court has reviewed Plaintiff’s entries and disagrees with Defendant. There is 27 only one motion at issue here, so the Court finds that the entries provide sufficient detail 28 regarding what the requested hours were billed for. In addition, the Court finds that the 1 ||hours requested in the entries are reasonable for the scope of the work entailed for the 2 motion to remand. 3 Accordingly, using the lodestar method, 20.4 hours at a rate of $425 per hour yields 4 ||a total amount of $8,670 in attorney’s fees. 5 □□□ CONCLUSION 6 After due consideration and for the reasons discussed above, the Court GRANTS 7 || Plaintiff's Motion to Remand and remands this case back to state court. The Court 8 ||GRANTS Plaintiff's request for attorney fees in the amount of $8,670. The Court 9 || DENIES AS MOOT Defendant’s motion to dismiss. 10 IT IS SO ORDERED. 11 || Dated: August 26, 2025 12 Vw Sin, 13 Honorable James E. Simmons Jr. 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28