1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBIN MURDOCK, Case No. 5:21-cv-00657-JWH (SPx)

12 Plaintiff, ORDER DENYING PLAINTIFF’S

MOTION TO REMAND [ECF

13 v. No. 14]

14 MCLANE/SUNEAST, INC., a Texas corporation, and 15 DOES 1 through 100

16 Defendants.

17 18 19 20 21 22 23 24 25 26 27 1 Before the Court is the motion of Plaintiff Robin Murdock to remand this 2 case to San Bernardino County Superior Court.1 The Court finds this matter 3 appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. 4 After considering the papers filed in support and in opposition,2 the Court 5 orders that the Motion is DENIED, for the reasons set forth herein. 6 I. BACKGROUND 7 Murdock was employed by Defendant McLane/Sunset East, Inc. 8 (“MSE”) as a non-exempt hourly employee in California.3 Murdock filed this 9 labor dispute against MSE in San Bernardino County Superior Court on 10 December 10, 2020.4 On February 25, 2021, Murdock filed and served her First 11 Amended Complaint.5 12 Murdock asserts eight claims for relief: (1) unfair business practices 13 under California’s Unfair Competition Law; (2) “unpaid wages” based on a 14 failure to pay overtime and meal and rest period payments at “the regular rate”; 15 (3) wage statement penalties; (4) failure to authorize and permit rest periods; 16 (5) waiting time penalties; (6) unpaid wages for work allegedly performed “off 17 the clock” while being subjected to bag checks; (7) unreimbursed business 18 19 20 21 1 Mot. to Remand Case to San Bernardino Superior Court (the “Motion”) 22 [ECF No. 14]. 23 2 The Court considered the following papers: (1) the Notice of Removal (the “Removal Notice”) [ECF No. 1]; (2) the Compl. (the “Complaint”) [ECF 24 No. 1-1]; (3) the First Am. Compl. (the “Amended Complaint”) [ECF No. 1-3]; (4) the Motion (including its attachments); (5) Def.’s Opp’n to the Motion and 25 Request for Attorneys’ Fees and Costs of $3,500 (the “Opposition”) [ECF No. 16]; and (6) Pl.’s Reply to Def.’s Opp’n to the Motion (the “Reply”) [ECF 26 No. 17]. 3 Amended Complaint ¶ 13. 27 4 See generally Complaint. 1 expenses; and (8) civil penalties under Cal. Lab. Code §§ 2698, et seq.6 Murdock 2 seeks to prosecute this action on behalf of a proposed class and six subclasses.7 3 MSE removed this action to federal court on April 13, 2021.8 In its 4 Removal Notice, MSE asserts that this Court has jurisdiction over this action 5 under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d), 6 because minimal diversity exists, the controversy exceeds $5 million exclusive of 7 interest and costs, and the number of members of all proposed Murdock classes 8 in the aggregate is at least 100 class members.9 MSE made its own calculations 9 regarding the potential liability for several claims for relief and alleged that those 10 claims alone amount to over $18 million.10 Murdock now moves to remand, 11 arguing that removal was not timely and that MSE failed to introduce any 12 evidence to support its allegation that this court has jurisdiction.11 13 II. LEGAL STANDARD 14 A defendant may remove an action from state court to federal court if the 15 plaintiff could have originally filed the action in federal court. See 28 U.S.C. 16 § 1441(a). CAFA provides federal subject matter jurisdiction if (1) the proposed 17 plaintiff class is not less than 100 members; (2) the parties are minimally 18 diverse; and (3) the aggregate amount in controversy exceeds $5 million. 28 19 U.S.C. § 1332(d)(2) & (5)(B). “Congress intended CAFA to be interpreted 20 expansively.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). 21 The party seeking removal bears the burden of establishing federal subject 22 matter jurisdiction under CAFA. Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 23 24 6 Id. at ¶¶ 20-88. 25 7 Id. at ¶ 15. 26 8 See generally Removal Notice. 9 Id. at ¶ 2. 27 10 Id. at ¶ 36. 1 683 (9th Cir. 2006). When the amount in controversy is not apparent from the 2 face of the complaint, the removing party “must prove by a preponderance of 3 the evidence that the amount in controversy requirement [under CAFA] has 4 been met.” Id. Generally, “a defendant’s notice of removal need include only a 5 plausible allegation that the amount in controversy exceeds the jurisdictional 6 threshold.” However, when a plaintiff contests the amount in controversy put 7 forth by the defendant, “[e]vidence establishing the amount is required. . . .” 8 Dart Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014). The parties, thus, 9 “may submit evidence outside the complaint, including affidavits or 10 declarations, or other ‘summary-judgment-type evidence relevant to the amount 11 in controversy at the time of removal.’” Ibarra, 775 F.3d at 1197 (quoting Singer 12 v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). “Under this 13 system, a defendant cannot establish removal jurisdiction by mere speculation 14 and conjecture, with unreasonable assumptions.” Id. 15 Removal under CAFA must also be timely. A defendant must remove the 16 case to federal court “(1) during the first thirty days after the defendant receives 17 the initial pleading, or (2) during the first thirty days after the defendant receives 18 ‘an amended pleading, motion, order or other paper from which it may be first 19 ascertained that the case is one which is or has become removable.’” Reyes v. 20 Dollar Tree Stores, Inc., 781 F.3d 1185, 1189 (9th Cir. 2015) (quoting 28 U.S.C. 21 § 1446(b)(1) & (b)(3)) (italics omitted). The first time period under 28 U.S.C. 22 § 1446(b)(1) is “triggered if the case stated by the initial pleading is removable 23 on its face,” and the second time period under 28 U.S.C. § 1446(b)(3) is 24 “triggered if the initial pleading does not indicate that the case is removable, and 25 the defendant receives a copy of an amended pleading, motion, order or other 26 paper from which removability may first be ascertained.” Carvalho v. Equifax 27 Info. Servs., LLC, 629 F. 3d 876, 885 (9th Cir. 2010) (internal quotation marks 1 III. DISCUSSION 2 A. Timeliness 3 Murdock argues that removal was not timely because MSE did not 4 remove this action within 30 days of receiving either the originally filed 5 Complaint or Amended Complaint.12 Thus, the Court should remand this case 6 to San Bernardino County Superior Court.13 MSE responds that the 30-day 7 removal period was not triggered because the pleadings did not affirmatively 8 reveal the facts necessary for federal court jurisdiction.14 9 If the face of the Complaint does not reveal that the case is removable, 10 then MSE would not have an affirmative obligation to calculate the amount in 11 controversy to determine whether CAFA jurisdiction is proper under 28 U.S.C. 12 § 1446(b)(1). Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 13 2005) (“removability under [28 U.S.C.] § 1446(b) is determined through 14 examination of the four corners of the applicable pleadings, not through 15 subjective knowledge or a duty to make further inquiry”). If CAFA was 16 interpreted otherwise—to require a defendant to investigate the necessary 17 jurisdictional facts—then “defendants would be faced with an unreasonable and 18 unrealistic burden to determine removability within thirty days after receiving 19 the initial pleading.” Id. Thus, “the ground for removal must be revealed 20 affirmatively in the initial pleading in order for the . . . thirty-day clock under 21 [the removal statute] to begin.” Id. at 695 (emphasis added); see also Kuxhausen 22 v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) (even where it 23 would be a fair assumption from the named plaintiff’s alleged damages to 24 conclude that the amount in controversy is met, defendant is not charged with 25 26 12 Motion 6:15-10:9. 27 13 Id. at 4:23-24. 1 notice of removability absent the receipt of a paper indicating the amount 2 demanded by the putative class as a whole). 3 From a review of the Complaint filed on December 10, 2020, and the 4 Amended Complaint filed on February 25, 2021, it does not appear that either 5 document affirmatively reveals that the amount in controversy in this action 6 exceeds $5 million. Murdock does not estimate damages within her pleadings, 7 and MSE did not have a duty to consult its records to estimate them. Harris, 8 425 F.3d at 694. Nor does Murdock allege any financial figures that, after 9 simple multiplication, would have made clear that this Court has jurisdiction 10 under CAFA. Thus, a 30-day removal period was never triggered, and MSE’s 11 removal on April 13, 2021, after its own investigation, was proper. 12 B. Merits of Removal 13 Next, Murdock challenges MSE’s removal by arguing that MSE does not 14 offer evidence to support its claims that the amount-in-controversy exceeds 15 $5 million.15 Murdock also contends that MSE improperly aggregated putative 16 class member claims and speculated about the class size, about average wage 17 rates of putative class members, and about the magnitude of attorneys’ fees.16 18 First, MSE need not have submitted evidence regarding the amount in 19 controversy at the time of removal. See Arias v. Residence Inn by Marriott, 936 20 F.3d 920, 922 (9th Cir. 2019) (noting a “removing defendant’s notice of 21 removal need not contain evidentiary submissions but only plausible allegations 22 of the jurisdictional elements”) (internal quotations and citation omitted). In 23 opposition to Murdock’s Motion to Remand, MSE also submits the declaration 24 of Stephanie McAtee, Director of Payroll, attesting to the data underlying 25

26 15 Motion at 10:11-19. The Court observes, though, that Murdock does not challenge that the other requirements of CAFA jurisdiction are met here; i.e., 27 that there is minimal diversity, and the class size exceeds 100 members. See generally id. 1 MSE’s amount-in-controversy requirements.17 Thus, Murdock’s challenge to 2 the sufficiency of MSE’s evidence in support of the court’s subject matter 3 jurisdiction is unfounded. 4 Second, a review of MSE’s Removal Notice and its Opposition causes the 5 Court to conclude that MSE has shown by a preponderance of the evidence that 6 the amount-in-controversy exceeds $5 million. Murdock alleges nine claims for 7 relief on behalf of six proposed subclasses.18 MSE estimates that Murdock’s 8 claim for rest break violations alone amounts to a potential liability exceeding 9 $5 million,19 relying on reasonable assumptions such as a 20% violation rate and a 10 $18.96 effective hourly rate.20 Moreover, Murdock has failed to submit any 11 evidence that the amount in controversy amounts to less than $5 million. See, 12 e.g., Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 401 (9th Cir. 2010) (vacating 13 remand order because “[t]he Plaintiff is seeking recovery from a pot that 14 Defendant has shown could exceed $5 million and the Plaintiff has neither 15 acknowledged nor sought to establish that the class recovery is potentially any 16 less”). 17 IV. CONCLUSION 18 For the foregoing reasons, the Court hereby ORDERS as follows: 19 1. The Court DENIES the Murdock’s Motion to Remand. 20

21 17 Decl. of Stephanie McAtee in Supp. of the Opposition [ECF No. 16-1]. Murdock raises evidentiary objections to the McAtee declaration. See Pl.’s 22 Objections to Decl. of Stephanie McAtee [ECF No. 17-1]. Many of Murdock’s objections, however, are unfounded, and the declaration sufficiently supports 23 the court’s exercise of jurisdiction. Accordingly, Murdock’s evidentiary objections are OVERRULED. 24 18 Amended Complaint at ¶ 15. 25 19 Opposition at 18:12-15. 20 Id. at 17:7-8 & 18:12-15. Citing Urbino v. Orkin Servs. of Cal., 726 F.3d 26 1118, 1122 (9th Cir. 2013), Murdock argues MSE improperly attempts to aggregate putative class claims. See Motion at 12:21-22. But Urbino is 27 inapposite, as it involved aggregation for purposes of meeting the $75,000 amount-in-controversy for purposes of diversity jurisdiction, rather than 1 2. The Court likewise DENIES the Murdock’s request for an award 2|| of $3,500 in attorneys’ fees. 3 IT IS SO ORDERED. Hee 5|| Dated: December 17, 2021

6 NITED STATES DISTRICT JUDGE 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28