Case 2:22-cv-03159-SPG-JEM Document 38 Filed 10/31/22 Page 1 of 6 Page ID #:400

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PAUL RODRIGUEZ, an individual, on Case No. 2:22-cv-03159-SPG-JEM 11 behalf of himself and on behalf of all 12 persons similarly situated, ORDER DENYING PLAINTIFF’S

MOTION TO REMAND

13 Plaintiff, [ECF NO. 31] v. 14

COMMERCE DISTRIBUTION

15 COMPANY LLC; SMART & FINAL

STORES LLC; SMART & FINAL

16

LLC,

17 Defendants. 18 19 Before the Court is Plaintiff Paul Rodriguez’s motion to remand this proposed class 20 action to the Superior Court of California for the County of Los Angeles. (ECF No. 31). 21 Defendants oppose. (ECF No. 35). Having considered the parties’ submissions, the 22 relevant law, and the record in this case, the Court finds that the matter is suitable for 23 resolution without oral argument. See Fed. R. Civ. P. 78(b); Central District of California 24 Local Rule 7-15. For the reasons stated below, the Court DENIES Plaintiff’s Motion to 25 Remand. 26 27 28

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1 I. BACKGROUND 2 Plaintiff Paul Rodriguez alleges that Defendants Commerce Distribution Company 3 LLC, Smart & Final Stores LLC, and Smart & Final LLC (together, “Defendants”) violated 4 California’s wage and hour laws. (ECF No. 1-1 (“Compl.”)). On March 30, 2022, Plaintiff 5 filed a putative class action complaint in the Superior Court of California for the County 6 of Los Angeles (the “LA Superior Court”). (Id.). Plaintiff alleges Defendants were his 7 joint employers and share joint responsibility for the alleged misconduct. (Id. ¶ 4). 8 Plaintiff served Defendants on April 6, 2022. (ECF No. 1 (“NOR”) at 5). On May 6, 2022, 9 Defendants timely removed this class action from the LA Superior Court pursuant to 28 10 U.S.C. § 1332(d). (Id.). On September 1, 2022, Plaintiff filed a motion to remand back to 11 the LA Superior Court. (ECF No. 31-1 (“Mot.”)). Defendants opposed on October 12, 12 2022, (ECF No. 35 (“Opp.”)), and Plaintiff replied on October 19, 2022. (ECF No. 36). 13 II. LEGAL STANDARD 14 A motion to remand is the procedural means to challenge removal and must be made 15 within 30 days from removal. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 16 (9th Cir. 2009); 28 U.S.C. § 1447(c). In general, a civil action may be removed only if, at 17 the time of removal, it is one over which there is federal jurisdiction. 28 U.S.C. § 1441(a). 18 The Class Action Fairness Act (“CAFA”) confers original jurisdiction to the district courts 19 in any class action in which the amount in controversy exceeds $5,000,000, the number of 20 members of all proposed plaintiff classes is at least 100, and any member of a class of 21 plaintiffs is a citizen of a state different from any defendant. 28 U.S.C. § 1332(d). CAFA 22 defines a class action as “any civil action filed under rule 23 of the Federal Rules of Civil 23 Procedure or similar State statute ....” Id. § 1332(d)(1)(B). “Congress enacted [CAFA] to 24 facilitate adjudication of certain class actions in federal court.” Dart Cherokee Basin 25 Operating Co. v. Owens, 574 U.S. 81, 89 (2014). The Supreme Court has advised that “no 26 antiremoval presumption attends cases invoking CAFA.” Id. Indeed, “CAFA’s provisions 27 should be read broadly, with a strong preference that interstate class actions should be heard 28 in a federal court if properly removed by any defendant.” Id. (cleaned up); see also Ibarra

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1 v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (“Congress intended CAFA to 2 be interpreted expansively.”). 3 “A defendant’s amount in controversy allegation is normally accepted when 4 invoking CAFA jurisdiction, unless it is ‘contested by the plaintiff or questioned by the 5 court.’” Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th 989, 992 (9th Cir. 2022) 6 (quoting Dart Cherokee, 574 U.S. at 87). “When a plaintiff contests the amount in 7 controversy allegation, ‘both sides submit proof and the court decides, by a preponderance 8 of the evidence, whether the amount-in-controversy requirement has been satisfied.’” Id. 9 (quoting Dart Cherokee, 574 U.S. at 88). “The parties may submit evidence outside the 10 complaint, including affidavits or declarations, or other ‘summary-judgement-type 11 evidence relevant to the amount in controversy at the time of removal.’” Id. (quoting 12 Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). “[T]he 13 removing party must be able to rely ‘on a chain of reasoning that includes assumptions to 14 satisfy its burden to prove by a preponderance of the evidence that the amount in 15 controversy exceeds $5 million,’ as long as the reasoning and underlying assumptions are 16 reasonable. Id. at 993 (quoting LaCross v. Knight Transp. Inc., 775 F.3d 1200, 1201 (9th 17 Cir. 2015)). 18 III. DISCUSSION 19 A. CAFA Jurisdiction 20 To begin, it is undisputed that CAFA’s requirements for numerosity (at least 100 21 individuals) and minimum diversity (any member of a class of plaintiffs is a citizen of a 22 state different from any defendant) are met here. Plaintiff’s sole argument to remand this 23 putative class action is that Defendants have not satisfied the $5 million amount-in- 24 controversy requirement. Specifically, Plaintiff argues that Defendants’ NOR “vastly 25 inflates the amount-in-controversy by impermissibly assuming the Class consists of all 26 29,321 non-exempt employees.” (Mot. at 6). 27 In the Complaint, Plaintiff defines the putative class as “all persons who are or 28 previously were employed by Defendant Commerce Distribution Company and/or

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1 Defendant Smart & Final Stores and/or Defendant Smart & Final in California and 2 classified as non-exempt employees.” (Compl. ¶ 11 (emphasis added)). Plaintiff defines 3 the class period as “any time during the period beginning four (4) years prior to the filing 4 of this Complaint and ending on the date as determined by the Court.” (Id.). Defendants’ 5 NOR thereby calculates the number of individuals who fall within Plaintiff’s definition for 6 the class to be 29,321. (NOR at 7). Defendants’ calculation consists of 614 individuals 7 employed by Commerce Distribution, 28,560 individuals employed by Smart & Final 8 Stores, and 147 individuals employed by Smart & Final. (Id. at 3). 9 Plaintiff argues that “Defendants misread Plaintiff’s Complaint to include a class 10 that also includes all non-exempt employees who worked for Defendants Smart & Final 11 Stores and Smart & Final.” (Mot. at 5 (emphasis in original)). Plaintiff claims the class is 12 limited to only approximately 607 current and former non-exempt employees who worked 13 for Commerce Distribution and argues that Smart & Final Stores and Smart & Final “were 14 merely named as joint employers of Plaintiff and the class members, not for purposes of 15 expanding the Class to include those non-exempt employees who worked for said entities.” 16 (Id. (emphasis in original)). Plaintiff further points to Defendants’ agreement to mediate 17 this matter for only Defendant Commerce Distribution’s non-exempt employees and the 18 parties’ efforts to prepare for mediation. (Id. at 3). Specifically, during a meet and confer 19 on May 19, 2022, and through subsequent email exchanges, Defendants agreed to mediate 20 the case with a class size of 607. (ECF No. 31-2 ¶¶ 3-6, Ex. 2). 21 The Court finds that a plain reading of the Complaint indisputably provides for a 22 putative class including employees of all three Defendants. See (Compl. ¶ 11). Given the 23 Complaint’s clear definition of its putative class, Defendants properly based their NOR on 24 nonexempt current and former employees from all three Defendants—not just Commerce 25 Distribution. Moreover, the parties’ mediation discussions narrowing the class size to 607 26 are immaterial as they occurred after Plaintiff filed the Complaint and Defendants filed the 27 NOR. It is well settled that “the amount in controversy is determined by the complaint 28 operative at the time of removal and encompasses all relief a court may grant on that

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1 complaint if the plaintiff is victorious.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 2 414–15 (9th Cir. 2018) (emphasis added). And it is equally “well settled that ‘post-filing 3 developments do not defeat jurisdiction if jurisdiction was properly invoked as of the time 4 of filing.’” Visendi v. Bank of Am., N.A., 733 F.3d 863, 868 (9th Cir. 2013) (quoting United 5 Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, 6 AFL-CIO, CLC v. Shell Oil Co., 602 F.3d 1087, 1091–92 (9th Cir. 2010)). When, for 7 example, “a defendant properly remove[s] a putative class action at the get-go, a district 8 court’s subsequent denial of Rule 23 class certification does not divest the court of 9 jurisdiction, and it should not remand the case to state court.” Id. at 1092. See, e.g., Ellison 10 v. Autozone Inc., 486 F. App’x 674, 675 (9th Cir. 2012) (holding that where “jurisdiction 11 was proper at the time of removal, subsequent dismissal or transfer of class claims does 12 not defeat the court’s CAFA jurisdiction over remaining individual claims”). 13 Therefore, because Defendants’ calculation of damages based on 29,321 appears 14 reasonable and Plaintiff does not argue otherwise, the Court finds that Defendants have 15 satisfied CAFA’s amount in controversy requirement. See Jauregui, 28 F.4th at 992 (“A 16 defendant’s amount in controversy allegation is normally accepted when invoking CAFA 17 jurisdiction, unless it is ‘contested by the plaintiff or questioned by the court.’” (quoting 18 Dart Cherokee, 574 U.S. at 87)). The Court thus denies Plaintiff’s Motion to Remand. 19 B. Timeliness of Remand 20 A motion to remand “on the basis of any defect other than lack of subject matter 21 jurisdiction must be made within 30 days after the filing of the notice of removal.” 28 22 U.S.C. § 1447(c). Defendants filed the NOR on May 6, 2022. (ECF NO. 1). Plaintiff filed 23 his Motion to Remand on September 1, 2022—more than 30 days after Defendants’ NOR. 24 (ECF No. 31). The Court also notes that on May 31, 2022, Plaintiff indicated in the parties’ 25 joint report under Rule 26(f) that the parties intended to file a joint stipulation to stay the 26 case pending mediation and that Plaintiff intended to file a motion to remand following 27 mediation. (ECF No. 18 at 3). However, the parties did not file a joint stipulation until 28 June 14, 2022—still more than 30 days after Defendants’ NOR—and the Court did not

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1 grant the stipulation until June 23, 2022. (ECF No. 26). Therefore, because Plaintiff filed 2 the Motion more than 30 days after Defendant’s NOR, the Court denies Plaintiff’s Motion 3 to Remand as untimely under section 1447(c). 4 IV. CONCLUSION 5 For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Remand. 6 7 IT IS SO ORDERED. 8 9 DATED: October 31, 2022 10 HON. SHERILYN PEACE GARNETT

UNITED STATES DISTRICT JUDGE

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