1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THERESA BENDORF, individually, and Case No.: 21-cv-02061-AJB-AGS on behalf of other members of the public 12 similarly situated, ORDER GRANTING PLAINTIFF’S 13 MOTION TO REMAND Plaintiff, 14 (Doc. No. 6) 15 v.

16 SEA WORLD LLC, a Delaware limited 17 liability company doing business as SEAWORLD SAN DIEGO doing 18 business as AQUATICA SAN DIEGO; 19 SEAWORLD PARKS & ENTERTAINMENT, an unknown entity; 20 and DOES 1 THROUGH 25, inclusive, 21 Defendants. 22

23 24 Before the Court is Theresa Bendorf’s (“Plaintiff” or “Bendorf”) motion to remand. 25 (Doc. No. 6.) Sea World LLC and SeaWorld Parks & Entertainment, Inc. (“Defendants” 26 or “Sea World”) oppose the motion, and Plaintiff filed a reply. (Doc. Nos. 11, 12.) For the 27 reasons set forth below, the Court GRANTS Plaintiff’s motion to remand. 28 1 I. BACKGROUND 2 On August 25, 2021, Plaintiff filed this putative class action in San Diego County 3 Superior Court against Sea World, her former employer. She brought claims for: (1) failure 4 to pay vested vacation wages; (2) failure to timely pay wages upon termination; (3) failure 5 to provide accurate itemized wage statements; (4) failure to recall; and (5) unfair 6 competition under California law. (Doc. No. 1-2, Compl.) Plaintiff’s claims stem from her 7 allegation that “[i]n or around April of 2020, Defendants indefinitely laid off thousands of 8 employees with little or no notice in response to the Coronavirus (‘COVID-19’) 9 pandemic.” (Id. at ¶ 18.) 10 On October 15, 2021, Plaintiff filed a motion to intervene in a related state court 11 class action, Jones v. SeaWorld Parks & Entertainment, Inc., Case No. 37-2018-0057 12 (“Jones Action”). (Doc. No. 6-1 at 176.) In the motion, Plaintiff stated that the “[w]aiting 13 time penalties for [her] vacation pay claim alone amount to more than $6 million dollars” 14 and estimated them to “be $6,942,000.” (Id. at 184, 195.) 15 On December 9, 2021, Defendants removed this action to federal court. (Doc. No. 16 1.) Plaintiff thereafter filed the instant motion to remand, arguing that Defendants’ removal 17 was untimely. (Doc. No. 6.) This Order follows. 18 II. LEGAL STANDARD 19 The right to remove a case to federal court is entirely a creature of statute. See 20 Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal 21 statute, 28 U.S.C. § 1441, allows defendants to remove an action when a case originally 22 filed in state court presents a federal question or is between citizens of different states. See 23 28 U.S.C. §§ 1441(a), (b); 28 U.S.C. §§ 1331, 1332(a). Additionally, under the Class 24 Action Fairness Act (“CAFA”), “a district court has original jurisdiction over a class action 25 where: (1) there are one-hundred or more putative class members; (2) at least one class 26 member is a citizen of a state different from the state of any defendant; and (3) the 27 aggregated amount in controversy exceeds $5 million, exclusive of costs and interest.” 28 Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1067 (9th Cir. 2019) (internal quotation 1 marks and citation omitted); see 28 U.S.C. § 1332(d)(2), (5)(B), (6). 2 A plaintiff may move to remand a case back to state court if the defendant’s removal 3 of the case was untimely. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th 4 Cir. 2010). The timeliness of removal is governed by 28 U.S.C. § 1446(b), which identifies 5 two thirty-day periods for removing a case. Id. The first is triggered “if the case stated by 6 the initial pleading is removable on its face.” Harris v. Bankers Life & Cas. Co., 425 F.3d 7 689, 694 (9th Cir. 2005). The second is triggered “if the initial pleading does not indicate 8 that the case is removable, and the defendant receives ‘a copy of an amended pleading, 9 motion, order or other paper’ from which removability may first be ascertained.” Carvalho, 10 629 F.3d at 885 (quoting 28 U.S.C. § 1446(b)(3)). “[D]efendants need not make 11 extrapolations or engage in guesswork; yet the statute requires a defendant to apply a 12 reasonable amount of intelligence in ascertaining removability.” Kuxhausen v. BMW Fin. 13 Servs. NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) (internal quotations omitted). Remand 14 is “mandatory under section 1447(c) once the district court determine[s] that [the] petition 15 for removal was untimely.” Schmitt v. Ins. Co. of North America, 845 F.2d 1546, 1551 (9th 16 Cir. 1988) (citations omitted). 17 III. DISCUSSION 18 The issue in dispute is whether Defendants timely removed this case.1 And the 19 dispositive question is at what point in time were Defendants able to ascertain that the 20 amount in controversy in this action satisfied CAFA’s monetary threshold. Plaintiff 21 contends that the allegations in her Complaint were sufficient to enable Defendants to 22 ascertain that the amount in controversy exceeded $5 million, and that their failure to file 23 within thirty days of receiving the Complaint (first thirty-day removal period) warrants a 24 remand. In the alternative, Plaintiff argues that her motion to intervene in the Jones Action 25 constitutes “other paper” from which Defendants were able to ascertain that the case was 26

27 1 The Court declines to consider arguments that Plaintiff raised them for the first time in her reply brief. 28 See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments 1 removable, and their failure to file within thirty days of receiving this “other paper” (second 2 thirty-day removal period) warrants a remand. The Court discusses these arguments in turn. 3 A. Timeliness of Removal 4 1. Whether Plaintiff’s Complaint Triggered the 30-Day Removal Period 5 Under Section 1446(b)(1) 6 Plaintiff argues that removal was untimely because Defendants could have 7 determined that the amount in controversy requirement was satisfied from the face of her 8 Complaint. (Doc. No. 6.) In support, Plaintiff points to the following allegations in her 9 Complaint: (1) “this case involves ‘thousands of employees’ who were indefinitely laid off 10 by Defendants in or around April of 2020”; (2) “Defendants failed to pay these employees 11 all wages owed to them upon termination”; and (3) she “seeks recovery of waiting time 12 penalties[.]” (Id. at 8.) According to Plaintiff, these allegations were more than enough to 13 allow Defendants to perform straightforward calculations demonstrating that the potential 14 amount in controversy exceeded CAFA’s $5 million requirement. (Id.) Defendants counter 15 that they could not ascertain the amount in controversy from the Complaint alone because 16 it “does not state the number of people in the putative class or subclasses, does not specify 17 anyone’s rates of pay and hours worked, and lacks substantive facts regarding the basis for 18 Plaintiff’s claims.” (Doc. No. 1 at 6.) The Court agrees. 19 The Ninth Circuit applies a “bright-line approach” under which the first thirty-day 20 period is triggered “only if removability is ascertainable from examination of the four 21 corners of the applicable pleadings, not through subjective knowledge or a duty to make 22 further inquiry.” Carvalho, 629 F.3d at 886 (internal quotations omitted). The Ninth Circuit 23 adopted this approach “to avoid the spectre of inevitable collateral litigation over whether 24 defendant had subjective knowledge, or whether defendant conducted sufficient inquiry.” 25 Id. (alterations omitted). 26 Here, the Complaint does not specify the total amount in controversy for the 27 proposed class; Plaintiff simply pleads her damages as an amount that “exceed[s] the 28 minimal jurisdiction limits of the Superior Court and will be established according to proof 1 at trial.” (Doc. No. 1-2 at ¶ 1.) While Defendants must apply a reasonable amount of 2 intelligence, which includes multiplying figures clearly stated in a complaint, see 3 Kuxhausen, 707 F.3d at 1140, Plaintiff’s Complaint does not provide any figures regarding 4 the number of weeks worked by putative class members or their hourly wages. As the four 5 corners of the Complaint does not contain sufficient information from which Defendants 6 could calculate and ascertain that the amount in controversy exceeded $5 million, it falls 7 short of triggering the removal clock under Section 1446(b)(1). 8 The Court finds without merit Plaintiff’s argument that Defendants’ own public 9 records and investigation in the Jones Action establish that they were on notice that this 10 case was removable at the time it was filed. Defendants’ conduct in other cases is irrelevant 11 to the inquiry here, which is limited to what the four corners of Plaintiff’s Complaint 12 affirmatively reveals. As previously discussed, the Complaint is indeterminate with respect 13 to removability, and as such, Defendants had no duty of further inquiry. See Carvalho, 629 14 F.3d at 886; Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013) 15 (“[A] defendant does not have a duty of inquiry if the initial pleading or other document is 16 ‘indeterminate’ with respect to removability.”). 17 Accordingly, because the Complaint does not affirmatively reveal the amount in 18 controversy, the Court does not find that the first thirty-day removal period under Section 19 1446(b)(1) was triggered. See Kuxhausen, 707 F.3d at at 1139 (“[T]he ground for removal 20 must be revealed affirmatively in the initial pleading in order for the first thirty-day clock 21 under § 1446(b) to begin.”). However, as more fully explained below, the Court finds that 22 Defendants received an “other paper” which triggered the second thirty-day removal period 23 under Section 1446(b)(3). 24 // 25 // 26 // 27 // 28 // 1 2. Whether Plaintiff’s Motion to Intervene in the Jones Action Triggered 2 the 30-Day Removal Period under Section 1446(b)(3) 3 Plaintiff next argues that because her motion to intervene in the Jones Action2 4 revealed that the amount in controversy in this action exceeded $5 million, the motion 5 allowed Defendants to ascertain removability and triggered the second removal clock under 6 Section 1446(b)(3). (Doc. No. 6 at 9.) As earlier mentioned, under Section 1446(b)(3), if 7 the initial pleading did not state a removable case, a second thirty-day period is triggered 8 upon “an amended pleading, motion, order, or other paper from which a ground for removal 9 may be ‘ascertained’.” Dietrich v. Boeing Co., 14 F.4th 1089, 1093 (9th Cir. 2021). This 10 removal period “does not start until a paper makes a ground for removal ‘unequivocally 11 clear and certain.’” Id. at 1091. 12 Pertinent here, Section 1446(b)(3) does not define “other paper.” In determining 13 whether something is an “other paper,” district courts in the Ninth Circuit have held, as a 14 general rule, that ‘“other paper’ must be generated within the specific state proceeding 15 which was removed in order to provide grounds for removal[.]” Webb Equip. Co. v. Auto 16 Owners Ins. Co., No. C10-5138 RBL, 2010 WL 1576731, at *3 (W.D. Wash. Apr. 20, 17 2010). Several district courts, however, have also applied an exception to this general rule. 18 See Thomas v. CVS Health Corp., No. 2:19-CV-04283-R-FFM, 2019 WL 3526344, at *2 19 (C.D. Cal. Aug. 1, 2019). “The type of document that constitutes an ‘other paper’ for the 20 purposes of the statute is broad, reflecting courts’ ‘embracive construction of the term.’” 21 22 2 The parties have filed requests for judicial notice of various documents, including Plaintiff’s state court filing of a motion to intervene in the Jones Action. Federal Rule of Evidence 201(b) permits judicial notice 23 of any fact “not subject to reasonable dispute because it: (1) is generally known within the trial court’s 24 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be questioned.” Fed. R. Evid. 201(b) “Under Rule 201, the court can take judicial notice of public 25 records and government documents available from reliable sources on the internet such as websites run by government agencies.” U.S. ex rel. Modglin v. DJO Global Inc., 48 F. Supp. 3d 1362, 1381 (C.D. Cal. 26 2014) (collecting cases). Because the motion to intervene is a publicly available document on file in state court and there is no dispute as to its authenticity, the Court deems it appropriate for judicial notice. 27 Accordingly, the Court GRANTS the request for judicial notice as to this document. The Court DENIES 28 as moot the requests as to other documents not explicitly referenced in this Order and on which the Court 1 Id. (citations omitted). Defendants argue that Plaintiff’s motion to intervene in the Jones 2 Action did not trigger the thirty-day removal clock in this action because it was filed in a 3 different case. The Court disagrees and finds Thomas v. CVS Health Corp. instructive. 4 In Thomas, the plaintiff filed two separate actions against the same defendants—one 5 discrimination action and a second action under the California Private Attorneys General 6 Act (“PAGA”). Id. at *1. The plaintiff argued that removal of her discrimination action 7 was untimely because a document attached to her separate PAGA complaint was an “other 8 paper” providing notice to the defendants that her discrimination action was removable. Id. 9 at *2. The Thomas court agreed and found the exception to the general rule that the 10 thirty-day clock is only triggered by an “other paper” in the same case applied. Id. at *3. In 11 so finding, the court focused on the fact that both cases involved the same parties, with the 12 exception of one additional defendant. Id. Additionally, the cases involved essentially the 13 same facts, and the same attorneys had represented the defendants in both actions. Id. 14 Similar circumstances are present here. Plaintiff’s case and the Jones Action involve 15 the same defendants: Sea World. And like in Thomas, the two cases concern essentially the 16 same class claims, and the same attorneys represent Sea World in each action. While 17 Plaintiff was not the representative plaintiff in the Jones Action, the Court does not find 18 this difference significant. Plaintiff was nevertheless a class member, and indeed, through 19 her motion to intervene, sought to be a plaintiff intervenor in the Jones Action. Defendants 20 received notice of this. Thus, the Court finds Thomas analogous and concludes that 21 Plaintiff’s motion to intervene constitutes “other paper” under Section 1446(b)(3). 22 Turning to the contents of the motion to intervene, Plaintiff explicitly stated therein 23 that the “waiting time penalties for [her] vacation pay claim alone amount[s] to more than 24 $6 million dollars, not including the unpaid wages themselves.” (Doc. No. 6-1 at 184). In 25 fact, the motion specified that they amount to at least $6,942,000. (Id. at 195.) These 26 statements show that Plaintiff’s motion to intervene in the Jones Action provided 27 Defendants with unequivocally clear and certain information that the amount in 28 controversy in this case exceeded $5 million. 1 That Defendants believed Plaintiff’s calculations were flawed is unavailing. The 2 relevant inquiry here focuses on the content of the “other paper” and whether it contained 3 unequivocally clear and certain facts supporting removal—not Defendants’ subjective 4 evaluation of the calculations. See Harris, 425 F.3d at 695 (“We will not require courts to 5 inquire into the subjective knowledge of the defendant[.] . . . Rather, we will allow the 6 court to rely on the face of the initial pleading and on the documents exchanged in the case 7 by the parties to determine when the defendant had notice of the grounds for removal, 8 requiring that those grounds be apparent within the four corners of the initial pleading or 9 subsequent paper.”(alteration and citation omitted)); accord Dietrich, 14 F.4th at 1094 10 (“We also believe the “unequivocally clear and certain” standard will solidify the 11 “jurisdictional and procedural interests” we developed in Harris to guide our interpretation 12 of removal statutes.”). 13 For the reasons stated above, Defendants had notice on October 15, 2021 that this 14 action was removable under Section 1446(b)(3). They failed to remove the case within 15 thirty days of that notice. Consequently, Defendants’ removal of this case was untimely. 16 The case must therefore be remanded under Section 1447(c). See Schmitt, 845 F.2d at 1551. 17 B. Request for Attorney’s Fees 18 Lastly, Plaintiff requests attorney’s fees under 28 U.S.C. § 1447(c) for improper 19 removal. “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) 20 only where the removing party lacked an objectively reasonable basis for seeking removal. 21 Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v. 22 Franklin Capital Corp., 546 U.S. 132, 141 (2005). Although the Court finds Defendants’ 23 removal untimely, Defendants’ arguments to the contrary were not objectively 24 unreasonable. As the Ninth Circuit has observed, “removal is not objectively unreasonable 25 solely because the removing party’s arguments lack merit, or else attorney’s fees would 26 always be awarded whenever remand is granted.” Lussier v. Dollar Tree Stores, Inc., 518 27 F.3d 1062, 1065 (9th Cir. 2008). Consequently, an award of attorney’s fees is not warranted 28 here. Thus, the Court DENIES Plaintiff’s request for attorney’s fees. 1 CONCLUSION 2 Based on the foregoing, the Court finds that Defendants failed to timely remove this 3 action. Accordingly, Plaintiff's motion to remand is GRANTED (Doc. No. 6). The Clerk 4 ||of Court is instructed to REMAND this case to the San Diego County Superior Court. 5 IT IS SO ORDERED. 6 Dated: April 8, 2022

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