Paul Noll v. Travelcenters of America LLC

concurring:

I concur in the result but disagree with the grounds set forth by the majority.

The original complaint filed in this case did not state an amount sought in damages, and therefore failed to clearly indicate the amount in controversy. Accordingly, the first thirty-day period for removal under 28 U.S.C. § 1446 (b) was not triggered because the $5 million jurisdictional threshold under 28 U.S.C. § 1332 (d) was not established on the face of the initial pleading. See Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694-96 (9th Cir.2005) (“The first thirty-day period for removal in 28 U.S.C. § 1446 (b) only applies if the case stated by the initial pleading is removable on its face.”); Carvalho v. Equifax Info. Servs., LLC, 615 F.3d 1217 , 1225 (9th Cir.2010) (“Because the face of the initial pleading — Carvalho’s superior court complaint — lacked any indication of the amount in controversy, it did not trigger this first thirty-day removal period.”). Defendant’s understanding of the scope of the class at the time of the initial pleading is irrelevant to this analysis because they had no independent duty to calculate the amount in controversy during this first thirty-day…

MEMORANDUM **

In this case involving the Class Action Fairness Act (CAFA), Appellant Travel-Centers of America (TA) challenges the district court’s grant of Appellee Paul Noll’s (Noll) motion to remand Noll’s class action suit to state court. We affirm.

*251 The district court properly held that TA’s notice of removal was untimely, as Noll’s original complaint “revealfed] a basis for removal.” Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). Noll’s complaint alleged that TA misclassifíed salaried store employees as exempt managerial/exeeutive employees for overtime compensation. Despite sufficient notice of the putative class, TA failed to timely remove the action to federal court as required by CAFA. See id.

Because we hold that TA’s notice of removal was untimely based on the original complaint’s allegations, we need not and do not address TA’s challenge to the district court’s application of the revival exception to removal or the district court’s alternative basis for remanding Noll’s action to state court premised on TA’s failure to demonstrate the requisite amount in controversy.

AFFIRMED.

This disposition is not appropriate for publication and is…

FILED

NOT FOR PUBLICATION NOV 23 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL NOLL; STEVEN MCCLURE; No. 10-56511

MARK SUTHERLAND,

D.C. No. 5:10-cv-00589-JHN- Plaintiffs - Appellees, AJW

v.

MEMORANDUM*

TRAVELCENTERS OF AMERICA LLC,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Jacqueline H. Nguyen, District Judge, Presiding

Argued and Submitted November 3, 2010 Pasadena, California

Before: GOODWIN and RAWLINSON, Circuit Judges, and ZOUHARY, District Judge.**

In this case involving the Class Action Fairness Act (CAFA), Appellant

TravelCenters of America (TA) challenges the district court’s grant of Appellee

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The Honorable Jack Zouhary, U.S. District Judge for the Northern District of Ohio, sitting by designation. Paul Noll’s (Noll) motion to remand Noll’s class action suit to state court. We

affirm.

The district court properly held that TA’s…