1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 CHRYSTAL L. MILLER, CASE NO. 20-cv-04117-YGR

6 Plaintiff,

ORDER DENYING MOTION FOR REMAND

7 vs. Re: Dkt. Nos. 9, 13 8 ICON CLINICAL RESEARCH LLC, ET AL., 9 Defendants.

10 Plaintiff Chrystal Miller brings this wage-and-hour putative class action against defendants 11 ICON plc (“ICON”); ICON Clinical Research, LLC (“ICON Clinical”); DOCS Global Inc.; and 12 Lynda Holcroft. The complaint alleges that ICON employed plaintiff as a Clinical Research 13 Associate (“CRA”) from approximately October 9, 2017 through March 19, 2019, during which 14 time defendants misclassified her and other CRAs as exempt employees. Plaintiff asserts five 15 causes of action on behalf of herself and the putative class: (1) failure to pay overtime wages; (2) 16 failure to provide meal and rest periods; (3) failure to provide accurate, itemized wage statements; 17 (4) failure to pay all final wages in a timely manner; and (5) unlawful and unfair business 18 practices. Plaintiff defines the putative class as “[a]ll persons employed in the State of California 19 by Defendant ICON plc as a Clinical Research Associate in any position . . . at any time 20 commencing on the date four (4) years prior to the filing of this Complaint and through the date of 21 trial (‘Class Period’).” 22 On June 22, 2020, ICON Clinical Research LLC (“ICON Clinical”) removed this action on 23 the basis that federal subject matter jurisdiction exists pursuant to the Class Action Fairness Act 24 (“CAFA”), 28 U.S.C. sections 1332(d) and 1453. Plaintiff now seeks to remand the case on the 25 ground that this action falls within the local controversy exception to CAFA, set forth in 28 U.S.C. 26 section 1332(d)(4)(A). Under this exception, a district court must decline to exercise jurisdiction: 27 (i) over a class action in which— (II) at least 1 defendant is a defendant–– 1 (aa) from whom significant relief is sought by members of the plaintiff 2 class; (bb) whose alleged conduct forms a significant basis for the claims 3 asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; 4 and (III) principal injuries resulting from the alleged conduct or any related 5 conduct of each defendant were incurred in the State in which the action was 6 originally filed; and (ii) during the 3-year period preceding the filing of that class action, no other class 7 action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons[.] 8 28 U.S.C. § 1332(d)(4)(A). While defendants bear the burden of proving that removal is 9 appropriate, plaintiff bears the burden of showing an exception applies. Serrano v. 180 Connect, 10 Inc., 478 F.3d 1018, 1024 (9th Cir. 2007). 11 There appears to be no dispute that (i) the principal injuries resulting from the alleged 12 conduct were incurred in California and (ii) in the three years prior to filing of the complaint, no 13 other class action has been filed asserting the same or similar allegations against the defendants on 14 behalf of the same proposed class. Thus, the Court proceeds to consider whether plaintiff has 15 demonstrated that (i) greater than two-thirds of the putative class are California citizens and (ii) at 16 least one defendant from whom significant relief is sought and whose conduct forms a significant 17 basis for the claims is a California citizen.1 18

I. Plaintiff Has Not Shown that Greater Than Two-Thirds of the Proposed Class Are

19 Citizens of California 20 To qualify for the local controversy exception, plaintiff must show that greater than two- 21 thirds of the proposed class members are California citizens. 28 U.S.C. § 1332(d)(4)(A)(i)(I). 22 Citizenship is determined “as of the date the case became removable[.]” Mondragon v. Capital 23 One Auto Fin., 736 F.3d 880, 883 (9th Cir. 2013). The individual factors of a party’s citizenship 24 are “essentially factual.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986). Plaintiff must establish 25 the required facts by a preponderance of evidence. Mondragon, 736 F.3d at 884. 26 27 1 With respect to plaintiff herself, the complaint alleges that she is a California citizen, was 2 “employed” “in the state of California” during the class period, and “perform[ed] her duties as a 3 Clinical Research Associate remotely from her California residence or by traveling from her 4 California residence.” Defendant calls into question plaintiff’s citizenship, noting that she was 5 issued a Georgia driver’s license in October 2018. Plaintiff, however, submits evidence that she 6 possesses a current California driver’s license and has resided in California continuously since 7 2017. “[A] person’s old domicile is not lost until a new one is acquired.” Lew, 797 F.2d at 750. 8 Defendant’s proffered evidence of a Georgia driver’s license, particularly when weighed against 9 plaintiff’s declaration and the allegations in the complaint, does not suffice to demonstrate plaintiff 10 is not a California citizen. 11 With respect to the citizenship of the putative class, plaintiff points to evidence that ICON 12 Clinical employed at least 110 CRAs in California during the putative class period of October 9, 13 2017 through March 19, 2019, and issued wage statements to approximately 78 CRAs in 14 California from April 26, 2019 through June 5, 2020. Plaintiff avers that because wage statements 15 were sent to 78 out of 110 CRAs (i.e., approximately 71 percent of the putative class) in 16 California, plaintiff has established their residency and place of employment in California, which 17 in turn is evidence of citizenship. Plaintiff’s conclusion, however, does not follow from the 18 evidence. That ICON Clinical paid 78 CRAs in California during a period spanning both before 19 and after the case became removable does not establish how many of the approximately 110 20 putative class members were California citizens at the time the case became removable. Indeed, 21 ICON Clinical proffers evidence that from April 20, 2016 through June 16, 2020, approximately 22 48 of the 110 CRAs separated from their employment with ICON Clinical, making it likely some 23 of those 78 CRAs paid in California subsequently left the company and moved out of the state. 24 Finally, ICON Clinical proffers that it employed “at least” 110 CRAs in California during the 25 class period. If that number is just slightly greater (i.e., 117 or more), without a corresponding rise 26 in California citizens, plaintiff would not satisfy the two-thirds threshold. 27 The Ninth Circuit has found similar flaws sufficient to defeat remand motions. For 1 registered cars in California. 736 F.3d at 882-83. The Ninth Circuit held that there was “simply 2 no evidence in the record to support a finding of two-thirds citizenship.” Id. at 884. It noted 3 “[t]hat a purchaser may have a residential address in California does not mean that person is a 4 citizen of California.” Id. Rather, cars might have been purchased and registered in California by 5 out-of-state students, owners of second homes, or other temporary residents. Id. Further, the 6 proposed class covered purchases made years before the case became removable, during which 7 time putative class members may have left the state. Id. 8 In King v. Great American Chicken Corp., the Ninth Circuit reaffirmed its holding in 9 Mondragon in the context of a putative wage and hour class action. 903 F.3d 875, 880 (9th Cir. 10 2018). The Ninth Circuit in King overturned the district court’s remand order, finding that despite 11 a stipulation that at least two-thirds of the putative class had last-known addresses in California, 12 the “narrow cushion provided by the stipulation, the likelihood that some putative class members 13 were legally domiciled in or subsequently relocated to another state, and the probability that some 14 class members were not United States citizens,” meant the court could not conclude that there was 15 sufficient evidence to meet the two-thirds requirement. Id. at 879-80.2 16 Here, as in King, plaintiff fails to provide sufficient facts to carry her burden of showing 17 that two-thirds of proposed class members are California citizens. This factor is not satisfied.3 18 II. Plaintiff Has Alleged that One Defendant from Whom Significant Relief Is Sought and Whose Conduct Forms a Significant Basis for the Claims is a California Citizen 19 Although the Court’s finding with respect to the two-thirds requirement precludes remand 20 at this juncture, the Court nevertheless addresses the second factor at issue in the briefing. To 21

22 2 See also Kastler v. Oh My Green, Inc., No. 19-cv-02411-HSG, 2019 WL 5536198, at *8 (N.D. Cal. Oct. 25, 2019) (rejecting argument that two-thirds of putative class members were 23 California citizens only based on allegation in complaint that “expressly limit[ed] the putative class to individuals employed in California”); Ramirez v. Carefusion Res., LLC, No. 18-CV-2852- 24 BEN-MSB, 2019 WL 2897902, at *7 (S.D. Cal. July 5, 2019) (rejecting plaintiff’s argument that local controversy exception applied because the class members were employed in California at 25 one time but may have left the state after separating from their employment). 26 3 Plaintiff cites Mondragon for the proposition that a party may rely on the presumption that evidence of one’s residence is prima facie evidence of domicile, and once established, a 27 person’s state of domicile continues unless rebutted with sufficient evidence of change. Mondragon, 736 F.3d at 885-886. Here, however, the Court is not persuaded that the wage 1 qualify for the local controversy exception, plaintiff also must show at least one defendant from 2 whom “significant relief” is sought and whose alleged conduct forms a “significant basis” for the 3 claims asserted is a California citizen. 28 U.S.C. § 1332(d)(4)(A)(i)(II). Plaintiff points to 4 Holcroft, who the complaint alleges is a citizen of California. Plaintiff also has submitted 5 evidence in support of the motion showing that Holcroft is a citizen of California, as she is a 6 current resident of the state and has resided here continuously since 1991. Thus, the question 7 before the Court is whether plaintiff has satisfied the “significant basis” and “significant relief” 8 requirements as they relate to Holcroft. In determining whether these requirements are met, this 9 Court must look to the allegations in the complaint and may not consider extrinsic evidence. 10 Coleman v. Estes Express Lines, Inc., 631 F.3d 1010, 1019 (9th Cir. 2011). 11 A. “Significant Basis” 12 The complaint alleges all causes of action against all defendants. Paragraph 7 of the 13 complaint addresses Holcroft specifically. Plaintiff alleges that Holcroft is a “director” of ICON 14 and “oversaw the work” of CRAs “by providing guidance and oversight to the clinical trial 15 monitoring employees ensuring adherence to project scope, SOPs, timelines, and budget 16 requirements.” Plaintiff further alleges that Holcroft “is being sued in her capacity as a Director of 17 ICON, and is personally liable under Labor Code § 558.1 as a natural person who is an owner, 18 director, officer, or managing agent of ICON, Plaintiff’s and the Class’ employer.” These 19 allegations are sufficient to satisfy the “significant basis” requirement. See Coleman, 631 F.3d at 20 1020 (finding “significant basis” requirement satisfied where complaint alleged that in-state and 21 out-of-state defendants violated same laws, because “allegations against [the out-of-state] 22 defendant in no way make the allegations against [the in-state defendant] . . . insignificant”); see 23 also Bloomquist v. Covance, Inc., No. 16-CV-2559-BAS (BLM), 2017 WL 1735170, at *4 (S.D. 24 Cal. May 4, 2017) (“[T]he in-state defendants are alleged in the complaint to be more than simply 25 local agents or employees . . . . Rather, they are directors within the company. . . . Moreover, the 26 complaint alleges the exact same violations of California Labor Code against all defendants, and 27 this Court need not look further than those allegations.”). 1 ICON Clinical avers that although Holcroft’s job title includes the term “director,” she 2 does not serve on the Board of Directors, is several levels removed from executive management, 3 and does not have and never has had any managerial responsibility over CRAs. In support 4 thereof, ICON Clinical proffers as evidence declarations from Holcroft and a human resources 5 manager. The Ninth Circuit has made clear, however, that in considering whether the “significant 6 basis” requirement is met, the Court may not look any further than the complaint. Coleman, 631 7 F.3d at 1020; see also Allen v. Boeing Co., 821 F.3d 1111, 1117-18 (9th Cir. 2016) (“[N]othing in 8 CAFA . . . indicates a congressional intention to turn a jurisdictional determination concerning the 9 local defendant’s ‘alleged conduct’ into a mini-trial on the merits of the plaintiff’s claims.”).4 10 As such, plaintiff has carried her burden of satisfying the “significant basis” requirement. 11 B. “Significant Relief” 12 As explained, plaintiff brings all claims against all defendants. Plaintiff further seeks 13 declaratory, injunctive, and monetary relief against all defendants equally. ICON Clinical avers 14 that the complaint nevertheless is insufficient because plaintiff has not apportioned the relief 15 sought amongst defendants, and specifically, has not identified the alleged damages attributable to 16 Holcroft. However, the Ninth Circuit has never held that such specificity is required in the context 17 of the “significant relief” inquiry. To the contrary, the court has acknowledged that a plaintiff 18 “may not know, and perhaps cannot know at this time, how much of [its] damages is the result of 19 [the out-of-state defendants’] actions and how much is the result of [the in-state defendants’] 20 actions or inactions.” Allen, 821 F.3d at 1119. Nonetheless, the complaint alleges that plaintiff is 21 seeking significant relief against Holcroft, as well as other defendants, for the conduct alleged. 22 For purposes of the “significant relief” requirement, that is enough. 23 24

25 4 ICON Clinical relies on Busker v. Wabtec Corp., 70 Fed. App’x 522 (9th Cir. 2018) to argue plaintiff has not met the “significant basis” requirement. Citing to unpublished opinions, 26 however, is not persuasive. See Alex Kozinski & Stephen Reinhardt, Please Don’t Cite This! Why We Don't Allow Citation to Unpublished Dispositions, Cal. Lawyer, June 2000, at 43-44. 27 Moreover, here, plaintiff alleges that Holcroft is a director, not merely an “employee, agent, and/or representative” of her employer who could be held liable, if at all, “only derivatively.” Busker, 70 1 Ninth Circuit case law is in accord. For example, in Coleman, 631 F.3d at 1020, plaintiffs 2 alleged that both the in-state defendant and the out-of-state defendant violated California law and 3 sought damages equally from both. The court found those allegations sufficient to satisfy the 4 “significant relief” requirement. Id. at 1020. Likewise, in Benko v. Quality Loan Serv. Corp., 789 5 F.3d 1111, 1119 (9th Cir. 2015), the Ninth Circuit held that claims for general damages, punitive 6 damages as a result of deceptive trade practices and fraud, and equitable relief were “sufficient to 7 show that the Plaintiffs claim ‘significant relief’ from a local defendant. In Allen, the court 8 followed Coleman and Benko, finding that where alleged damages “appear[ed] to be the same 9 whether caused by” the in-state or out-of-state defendant, the complaint sufficiently alleged that 10 plaintiffs were seeking significant relief against the in-state defendant. 821 F.3d at 1119; see also 11 Bloomquist, 2017 WL 1735170, at *4 (“Although Bloomquist did not quantify the alleged 12 damages, he seeks damages from all defendants equally for their alleged wrongful conduct.”)5 13 As such, plaintiff has carried her burden of satisfying the “significant relief” requirement. 14 III. Jurisdictional Discovery and Leave to Amend 15 Finally, plaintiff avers that if the Court requires additional evidence to determine if this 16 action falls within the local controversy exception, plaintiff should be permitted to obtain 17 jurisdictional discovery and amend her complaint in order to clarify jurisdictional facts. 18 Importantly, the Ninth Circuit frequently has adopted this approach in similar cases. See, e.g., 19 Mondragon, 736 F.3d at 886 (remanding “with instructions to allow Mondragon an opportunity, if 20 he so chooses, to renew his motion to remand and to gather evidence to prove that more than two- 21 thirds of putative class members are citizens of California”); King, 903 F.3d at 881 (“On remand 22 to the district court, however, King should be given an opportunity to seek additional jurisdictional 23 24 5 ICON Clinical cites Adame v. Comprehensive Health Mgmt., Inc., No. CV 19-00779- 25 CJC(SKX), 2019 WL 1276192, at *3 (C.D. Cal. Mar. 19, 2019) for the proposition that a “plaintiff fails to establish ‘significant relief’ from a local defendant where the complaint lacks sufficient 26 specificity to determine what conduct is attributable to what defendant or how damages might be apportioned.” This Court disagrees. Adame makes this claim by citing to a case from the Eastern 27 District of California but does not distinguish Coleman, Benko, or Allen. Id. Moreover, Adame is factually distinguishable because there, the complaint contained no specific allegations regarding 1 discovery and to renew her motion to remand.”). 2 Here, plaintiff fails to satisfy one factor of the local controversy exception: that greater 3 || than two-thirds of the putative class are California citizens.° Jurisdictional discovery may fill in 4 || this gap. Namely, ICON Clinical likely maintains employment and payroll records that shed light 5 on the exact number of plaintiffs in the putative class and their citizenship at the time of removal. 6 As such, the Court hereby DENIES plaintiff’s motion to remand WITHOUT PREJUDICE to 7 || plaintiff renewing the motion based on facts uncovered during discovery. The Court further 8 ORDERS that plaintiff shall be entitled to conduct limited jurisdictional discovery regarding the 9 citizenship of the putative class only.’ 10 This Order terminates Docket Numbers 9 and 13.8 11 IT Is SO ORDERED. 12 || Dated: August 20, 2020 Syreee Msgtffleeg

B YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT COURT JUDGE

—.|__Oq