1 The Honorable Barbara J. Rothstein
5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 NO. 23-cv-1806-BJR JACOB ATKINSON, 8 ORDER GRANTING REMAND Plaintiff, 9 v. 10 PENNEY OPCO LLC, et al., 11 Defendants. 12
13 I. INTRODUCTION 14 Plaintiff, Jacob Atkinson, originally filed this case in King County Superior Court alleging 15 that Defendant, Penney OpCo LLC (“Penney”) had violated a specific provision of Washington 16 State’s Equal Pay and Opportunities Act (“EPOA”), RCW 49.58.110, which requires certain 17 employers to disclose the wage scale or salary range, and a general description of other 18 compensation and benefits, in each posting for an available position. Penney removed the case to 19 this Court on the basis of diversity jurisdiction and under the Class Action Fairness Act (“CAFA”), 20 28 U.S.C. §§ 1332(a), (d); 1453. See Notice of Removal, ECF No. 1. Now pending before the Court 21 is Plaintiff’s motion to remand this case. Mot., ECF No. 14. Having reviewed the materials1 and 22
23 1 Including the motion, ECF No. 14; response in opposition, ECF No. 15; and reply, ECF No. 18.
24 ORDER GRANTING REMAND 1 the relevant legal authorities, the Court will grant Plaintiff’s motion and remand this case to King 2 County Superior Court. The reasoning for the Court’s decision follows. 3 II. BACKGROUND 4 On March 3, 2023, Jacob Atkinson applied to work for Penney in Lynnwood, Washington. 5 Compl. ¶¶ 8, 14-15; Ex.1, ECF No. 1-2. He alleges that the posting for the job opening did not 6 disclose the wage scale or salary range to be offered. Id. ¶¶ 14-15; Ex.1. Mr. Atkinson claims to 7 represent more than 40 potential class members who also applied for jobs with Penney for positions 8 that did not disclose the wage scale or salary range. Id. ¶ 14. Mr. Atkinson’s complaint was virtually 9 identical to numerous other putative class-action lawsuits filed by multiple plaintiffs represented 10 by Emery Reddy, PLLC, and subsequently removed to this Court by the defendants. In his remand 11 motion, Mr. Atkinson refers to prior decisions this Court has made in other cases, arguing that
12 similarly, his case must be remanded because this Court lacks subject matter jurisdiction due to his 13 failure to plead Article III standing. Mot. 1-3. He also contends that the Court lacks both CAFA 14 and diversity jurisdiction. Id. at 1, 4-8. 15 III. LEGAL STANDARD 16 A defendant may remove to federal court any case filed in state court over which the federal 17 court would have original jurisdiction. 28 U.S.C. § 1441(a). Federal question jurisdiction exists 18 over “civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 19 § 1331. “The general rule, referred to as the ‘well-pleaded complaint rule,’ is that a civil action 20 arises under federal law for purposes of § 1331 when a federal question appears on the face of the 21 complaint.” City of Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020) (quoting Caterpillar
22 Inc. v. Williams, 482 U.S. 386, 392 (1987)). Jurisdiction is based on the pleadings filed at the time 23 of removal and is based “solely on the plaintiff’s claims for relief and not on anticipated defenses
24 ORDER GRANTING REMAND 1 to those claims.” Id. (quoting ARCO Env’t Remediation, L.L.C. v. Dep’t of Health & Env’t Quality 2 of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000)). 3 Removal requirements should be strictly construed. Gaus v. Miles, Inc., 980 F.2d 564, 566 4 (9th Cir. 1992). A removing party bears the burden of establishing federal jurisdiction and must 5 overcome a “strong presumption” against removal. Abrego Abrego v. The Dow Chem. Co., 443 6 F.3d 676, 685 (9th Cir. 2006); Gaus, 980 F.2d at 566. Federal jurisdiction “must be rejected if there 7 is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566. “[T]he court 8 resolves all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 9 1039, 1042 (9th Cir. 2009) (citing Gaus, 980 F.3d at 566). If at any time before final judgment it 10 appears that the federal district court lacks subject matter jurisdiction, “the case shall be remanded” 11 to state court. 28 U.S.C. § 1447(c); see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996).
12 IV. DISCUSSION 13 Penney argues in detail why this Court has federal jurisdiction under CAFA and diversity 14 jurisdiction. Opp’n 3-4, 8-12, ECF No. 15. “The burden of establishing removal jurisdiction, even 15 in CAFA cases, lies with the defendant seeking removal.” Washington v. Chimei Innolux Corp., 16 659 F.3d 842, 847 (9th Cir. 2011). And as mentioned above, jurisdiction is based on the pleadings 17 filed at the time of removal, so the Court must look to Mr. Atkinson’s first amended complaint 18 provided to the Court with the notice of removal. 19 “Under Article III, the Federal Judiciary is vested with the ‘Power’ to resolve not questions 20 and issues but ‘Cases’ or ‘Controversies.’” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 21 132 (2011). “Among other things, that limitation requires a plaintiff to have standing.” Fed.
22 Election Comm’n v. Cruz, 596 U.S. 289, 295–96 (2022). In the context of a class action, the class 23 representatives must have standing. See NEI Contracting & Eng’g, Inc. v. Hanson Aggregates Pac.
24 ORDER GRANTING REMAND 1 Sw., Inc., 926 F.3d 528, 532 (9th Cir. 2019) (“[I]f none of the named plaintiffs purporting to 2 represent a class establishes the requisite of a case or controversy with the defendants, none may 3 seek relief on behalf of himself or any other member of the class.”) (quoting O’Shea v. Littleton, 4 414 U.S. 488, 494 (1974))); see also Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 5 1022 (9th Cir. 2003) (“[S]tanding is the threshold issue in any suit. If the individual plaintiff lacks 6 standing, the court need never reach the class action issue.”). Whether plaintiffs have Article III 7 standing to proceed with this lawsuit implicates the Court’s subject matter jurisdiction. See Warth 8 v. Seldin, 422 U.S. 490, 498 (1975) (stating that standing is jurisdictional). 9 “[T]o establish standing, a plaintiff must show (i) that he suffered an injury in fact that is 10 concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the 11 defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC v.
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1 The Honorable Barbara J. Rothstein
5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 NO. 23-cv-1806-BJR JACOB ATKINSON, 8 ORDER GRANTING REMAND Plaintiff, 9 v. 10 PENNEY OPCO LLC, et al., 11 Defendants. 12
13 I. INTRODUCTION 14 Plaintiff, Jacob Atkinson, originally filed this case in King County Superior Court alleging 15 that Defendant, Penney OpCo LLC (“Penney”) had violated a specific provision of Washington 16 State’s Equal Pay and Opportunities Act (“EPOA”), RCW 49.58.110, which requires certain 17 employers to disclose the wage scale or salary range, and a general description of other 18 compensation and benefits, in each posting for an available position. Penney removed the case to 19 this Court on the basis of diversity jurisdiction and under the Class Action Fairness Act (“CAFA”), 20 28 U.S.C. §§ 1332(a), (d); 1453. See Notice of Removal, ECF No. 1. Now pending before the Court 21 is Plaintiff’s motion to remand this case. Mot., ECF No. 14. Having reviewed the materials1 and 22
23 1 Including the motion, ECF No. 14; response in opposition, ECF No. 15; and reply, ECF No. 18.
24 ORDER GRANTING REMAND 1 the relevant legal authorities, the Court will grant Plaintiff’s motion and remand this case to King 2 County Superior Court. The reasoning for the Court’s decision follows. 3 II. BACKGROUND 4 On March 3, 2023, Jacob Atkinson applied to work for Penney in Lynnwood, Washington. 5 Compl. ¶¶ 8, 14-15; Ex.1, ECF No. 1-2. He alleges that the posting for the job opening did not 6 disclose the wage scale or salary range to be offered. Id. ¶¶ 14-15; Ex.1. Mr. Atkinson claims to 7 represent more than 40 potential class members who also applied for jobs with Penney for positions 8 that did not disclose the wage scale or salary range. Id. ¶ 14. Mr. Atkinson’s complaint was virtually 9 identical to numerous other putative class-action lawsuits filed by multiple plaintiffs represented 10 by Emery Reddy, PLLC, and subsequently removed to this Court by the defendants. In his remand 11 motion, Mr. Atkinson refers to prior decisions this Court has made in other cases, arguing that
12 similarly, his case must be remanded because this Court lacks subject matter jurisdiction due to his 13 failure to plead Article III standing. Mot. 1-3. He also contends that the Court lacks both CAFA 14 and diversity jurisdiction. Id. at 1, 4-8. 15 III. LEGAL STANDARD 16 A defendant may remove to federal court any case filed in state court over which the federal 17 court would have original jurisdiction. 28 U.S.C. § 1441(a). Federal question jurisdiction exists 18 over “civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 19 § 1331. “The general rule, referred to as the ‘well-pleaded complaint rule,’ is that a civil action 20 arises under federal law for purposes of § 1331 when a federal question appears on the face of the 21 complaint.” City of Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020) (quoting Caterpillar
22 Inc. v. Williams, 482 U.S. 386, 392 (1987)). Jurisdiction is based on the pleadings filed at the time 23 of removal and is based “solely on the plaintiff’s claims for relief and not on anticipated defenses
24 ORDER GRANTING REMAND 1 to those claims.” Id. (quoting ARCO Env’t Remediation, L.L.C. v. Dep’t of Health & Env’t Quality 2 of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000)). 3 Removal requirements should be strictly construed. Gaus v. Miles, Inc., 980 F.2d 564, 566 4 (9th Cir. 1992). A removing party bears the burden of establishing federal jurisdiction and must 5 overcome a “strong presumption” against removal. Abrego Abrego v. The Dow Chem. Co., 443 6 F.3d 676, 685 (9th Cir. 2006); Gaus, 980 F.2d at 566. Federal jurisdiction “must be rejected if there 7 is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566. “[T]he court 8 resolves all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 9 1039, 1042 (9th Cir. 2009) (citing Gaus, 980 F.3d at 566). If at any time before final judgment it 10 appears that the federal district court lacks subject matter jurisdiction, “the case shall be remanded” 11 to state court. 28 U.S.C. § 1447(c); see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996).
12 IV. DISCUSSION 13 Penney argues in detail why this Court has federal jurisdiction under CAFA and diversity 14 jurisdiction. Opp’n 3-4, 8-12, ECF No. 15. “The burden of establishing removal jurisdiction, even 15 in CAFA cases, lies with the defendant seeking removal.” Washington v. Chimei Innolux Corp., 16 659 F.3d 842, 847 (9th Cir. 2011). And as mentioned above, jurisdiction is based on the pleadings 17 filed at the time of removal, so the Court must look to Mr. Atkinson’s first amended complaint 18 provided to the Court with the notice of removal. 19 “Under Article III, the Federal Judiciary is vested with the ‘Power’ to resolve not questions 20 and issues but ‘Cases’ or ‘Controversies.’” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 21 132 (2011). “Among other things, that limitation requires a plaintiff to have standing.” Fed.
22 Election Comm’n v. Cruz, 596 U.S. 289, 295–96 (2022). In the context of a class action, the class 23 representatives must have standing. See NEI Contracting & Eng’g, Inc. v. Hanson Aggregates Pac.
24 ORDER GRANTING REMAND 1 Sw., Inc., 926 F.3d 528, 532 (9th Cir. 2019) (“[I]f none of the named plaintiffs purporting to 2 represent a class establishes the requisite of a case or controversy with the defendants, none may 3 seek relief on behalf of himself or any other member of the class.”) (quoting O’Shea v. Littleton, 4 414 U.S. 488, 494 (1974))); see also Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 5 1022 (9th Cir. 2003) (“[S]tanding is the threshold issue in any suit. If the individual plaintiff lacks 6 standing, the court need never reach the class action issue.”). Whether plaintiffs have Article III 7 standing to proceed with this lawsuit implicates the Court’s subject matter jurisdiction. See Warth 8 v. Seldin, 422 U.S. 490, 498 (1975) (stating that standing is jurisdictional). 9 “[T]o establish standing, a plaintiff must show (i) that he suffered an injury in fact that is 10 concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the 11 defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC v.
12 Ramirez, 594 U.S. 413, 423 (2021) ((citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 13 (1992)). Further, “each element must be supported in the same way as any other matter on which 14 the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the 15 successive stages of the litigation.” Lujan, 504 U.S. at 561. 16 As Mr. Atkinson argues, this Court has found in similar— virtually identically pleaded— 17 cases, that the plaintiffs failed to allege that they applied for the posted positions in good faith with 18 a genuine interest in employment with the employer. See, e.g., Floyd v. Insight Global, LLC, No. 19 2:23-cv-01680-BJR (W.D. Wash.); Atkinson v. Aaron’s, LLC, No. 2:23-cv-01742-BJR (W.D. 20 Wash.); David v. Herc Rentals Inc., No. 2:24-cv-00175-BJR (W.D. Wash.). The Court concluded 21 that a violation of the statutory provision at issue here—a job posting with no compensation
22 information included—is a technical or procedural violation that by itself does not manifest 23 concrete injury but requires a bona fide applicant before there is a risk of harm. Consequently, there
24 ORDER GRANTING REMAND 1 was no allegation of injury sufficiently concrete for the purposes of Article III. See Robins v. 2 Spokeo, Inc., 867 F.3d 1108, 1118 (9th Cir. 2017)). 3 When a plaintiff lacks Article III standing, the district court must remand the case. See Polo 4 v. Innoventions Int’l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016) (“The rule that a removed case in 5 which the plaintiff lacks Article III standing must be remanded to state court under § 1447(c) applies 6 as well to a case removed pursuant to CAFA as to any other type of removed case.”). Here, Penney, 7 as the “party invoking federal jurisdiction,” has not met its burden of demonstrating a case or 8 controversy under Article III standing at this stage of litigation. Because Plaintiff’s lack of Article 9 III standing implicates the Court’s subject matter jurisdiction, see Warth, 422 U.S. at 498, this case 10 will be remanded to King County Superior Court pursuant to 28 U.S.C. § 1447(c). As such, the 11 Court need not address the arguments relating to diversity or CAFA jurisdiction.
12 V. CONCLUSION 13 For the foregoing reasons, 14 1. Plaintiff’s Motion to Remand, ECF No. 14, is GRANTED. 15 2. This case is remanded to King County Superior Court. 16 DATED this 30th day of July 2024. A 17 18 B arbara Jacobs Rothstein U.S. District Court Judge 19 20 21 22 23
24 ORDER GRANTING REMAND