Mendez v. Wal-Mart Associates, Inc.

• Court: District Court, S.D. California
• Decided: March 6, 2023
• Docket: 3:22-cv-02026
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 || VICTOR MENDEZ, an Individual, Case No.: 3:22-cv-02026-W-MDD Plaintitt,| ORDER DENYING PLAINTIFF'S 15 || MOTION TO REMAND [DOC. 6] 16 || WAL-MART ASSOCIATES, INC, a 7 Delaware corporation and DOES | through 20, inclusive, 18 Defendants. 19 0 Pending before the Court is Plaintiff Victor Mendez’s Motion to Remand this cas 91 the San Diego Superior Court. (Mot. [Doc. 6].) Defendant opposes. (Opp’n [Doc. 11]. 02 The Court takes the matter under submission and without oral argument. See Civ 93 ||R. 7.1(d)(1). For the following reasons, the Court DENIES Plaintiff's Motion to Remanc 74 (Doc. 6]. 25 76 RELEVANT BACKGROUND This case concerns numerous causes of actions arising out of Plaintiff's employmen 9g ||at and ultimate termination from Defendant Walmart. Plaintiff Victor Mendez was at al

1 ||relevant times an employee of Walmart. (Compl., Notice Of Removal Ex. A [Doc. 1-2] 2 }}3-5.) On or about January 1, 2021, Plaintiff broke five ribs during an ATV accident, whict 3 impacted his ability to perform his job. (Compl. 4 18.) Defendant Walmart was unable tc 4 ||honor Plaintiff's work restrictions and placed Plaintiff on a leave of absence. (Compl. § 5 Plaintiff's employment was ultimately terminated on February 8, 2021. (Compl. § 6 20.) 7 On November 17, 2022, Plaintiff filed suit against Defendant in San Diego Superio: 8 || Court, alleging: (1) discrimination; (2) retaliation; (3) failure to prevent discrimination anc 9 || retaliation; (4) failure to provide reasonable accommodations; (5) failure to engage in ¢ 10 || good faith interactive process, all in violation of California’s Fair Employment anc 11 ||}Housing Act, Cal. Gov’t Code §§ 12940 et seq. (“FEHA”); (6) for declaratory judgment: 12 ||(7) wrongful termination in violation of public policy; and (8) failure to permit inspectior 13 || of personnel and payroll records, in violation of California Labor Code § 226 and § 1198.5. 14 ||(Notice Of Removal [Doc. 1] § 2.) In response, Defendant filed a general denial anc 15 affirmative defenses. (Notice Of Removal § 4.) 16 On December 20, 2022, Defendant Walmart removed the case to federal court based 17 diversity jurisdiction. (Notice Of Removal § 9.) Plaintiff now moves to remand the 18 ||case back to state court. (Mot. [Doc. 6] at 1.) 19 LEGAL STANDARD 20 A federal court cannot reach the merits of any dispute until it confirms that it retains 21 |{jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). “Federal 22 courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 23 ||U.S. 375, 377 (1994). “They possess only that power authorized by Constitution or a 24 || statute, which is not to be expanded by judicial decree.” /d. (internal citations omitted). 25 is to be presumed that a cause lies outside this limited jurisdiction and the burden of 26 || establishing the contrary rests upon the party asserting jurisdiction.” (internal citations 27 |jomitted). To establish jurisdiction through diversity of citizenship, the removing party 28

1 |}must show the amount in controversy exceeds $75,000, and that complete diversity exists 2 ||between the parties. 28 U.S.C. § 1332(a) et seq. 3 The district court has an obligation to raise lack of subject matter or removal 4 || jurisdiction sua sponte. See 28 U.S.C. § 1447(c). Therefore, in a removal action, a district 5 ||court must remand a case to state court if, at any time before final judgment, the court 6 || determines that it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c) et seq. The 7 ||Court’s removal jurisdiction must be analyzed on the basis of the pleadings at the time of 8 ||/removal. Sparta Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, 159 F.3d 1209, 1213 (9th 9 Cir.1998). “That the amount in controversy is assessed at the time of removal does not 10 ||mean that the mere futurity of certain classes of damages precludes them from being part 11 || ofthe amount in controversy.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 417 (9th 12 || Cir. 2018) (emphasis in original). 13 Consistent with the limited jurisdiction of federal courts, the removal statute is 14 || strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 15 1992). “The strong presumption against removal jurisdiction means that the defendant 16 always has the burden of establishing that removal is proper.” Jd. “Federal jurisdiction 17 || must be rejected if there is any doubt as to the right of removal in the first instance.” Jd. 18 19 ||TII. DISCUSSION 20 Plaintiff challenges the removal on the grounds that Defendant failed to meet its 21 || burden to establish the amount in controversy.! (Mot. at 4.) Defendant opposes. 22 When a defendant removes a matter to federal court and “the amount [in 23 || controversy] is not ‘facially apparent’ from the complaint, the court may consider facts in 24 removal petition, and may require parties to submit summary-judgment-type evidence 25 |}relevant to the amount in controversy at the time of removal.” Kroske v. U.S. Bank Corp., 26 27 \-—_—_—_______—— 28 Plaintiff does not raise lack of complete diversity of citizenship as a basis for remand.

1 F.3d 976, 980 (9th Cir. 2005) (internal citations omitted). The defendant may “simply 2 |jallege or assert that the jurisdictional threshold has been met,” and “rely on reasonable 3 ||assumptions.” Canesco v. Ford Motor Co., 570 F. Supp. 3d 872, 887 (S.D. Cal. 2021) 4 (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014) and 5 || Arias v. Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019)). But if a plaintiff 6 || challenges the amount in controversy, the defendant must then show by preponderance of 7 ||the evidence that the amount exceeds the jurisdictional threshold. Canesco, 570 F. Supp. 8 ||3d at 888. Ifa defendant presents proof of damages exceeding the amount in controversy, 9 then becomes the plaintiff's burden to show, as a matter of law, that it is certain they will 10 || not recover the jurisdictional amount. Jd. (internal citations omitted). 11 Here, Plaintiff seeks, inter alia, compensatory damages including lost wages. 12 |}earnings, commissions, retirement and other employee benefits, general damages for 13 ||emotional distress and loss of earning capacity, as well as attorneys’ fees and punitive 14 ||damages pursuant to Civil Code §§ 3294.* (Compl. at 18, 19.) Plaintiff contends that 15 |}Defendant has offered no evidence to support a finding that the amount in controversy 16 requirement has been exceeded. However, in reviewing Defendant’s arguments involving 17 wages and attorneys’ fees, this Court finds the amount in controversy requirement is 18 || satisfied. 19 Lost Wages. The Parties seem to agree that Plaintiff's lost wages from date of 20 termination through filing his Complaint amount to $49,680. (Opp’n at 10; Reply [Doc. 21 ||13] at 3.) Accordingly, this amount is the starting point for the Court’s amount in 22 || controversy calculation. 23 24 ©

26 ||* The Court grants Defendant’s Request for Judicial Notice [Doc. 12] filed concurrently with the Motion and hereby takes judicial notice of Plaintiff's Attorney’s previous Motions for Statutory 27 || Attorneys’ Fees, attached as Exhibit A to the Request for Judicial Notice and previous jury awards 28 for non-economic damages for emotional distress in FEHA cases, attached as Exhibit B to the Request for Judicial Notice.

1 Plaintiff argues that only this amount should be considered for amount in controversy 2 purposes because Defendant’s calculations of future lost wages are not accurate, and 3 |linstead are purely speculative. (Mot. at 6, 8.) However, the Ninth Circuit has held that 4 || when “a plaintiffs complaint at the time of removal claims wrongful termination resulting 5 |lin lost future wages, those future wages are included in the amount in controversy.” 6 || Chavez, 888 F.3d at 418. As such, the $49,680 Plaintiff has already accrued at the time of 7 filing is the minimum amount that could be awarded. 8 This amount could, and very likely would, increase significantly when future lost 9 || wages and other employment benefits—both of which Plaintiff has made claims for—are 10 ||determined. In fact, Defendant contends that this amount could reach $92,340 by the 11 ||conclusion of litigation based on the average length of trial. (Opp’n at 3.) Defendant cites 12 four matters where Plaintiff's Attorney’s Motions to Remand have been denied based 13 calculations of past and future lost wages alone. (Opp’n [Doc. 11] at 3.) The facts of 14 || Garcia v. ACE Cash Express, Inc. are particularly similar to the facts here. See 2014 WL 15 2468344 (C.D. Cal. May 30, 2014) (using the “estimated time between removal and trial” 16 || when calculating future lost wages for amount in controversy purposes because “the 17 preponderance of the evidence standard does not require [a defendant] to ‘prove’ the 18 || exactness of any calculated future quantit[y].”) However, given that the weight of authority 19 ||uses more concrete facts to calculate future lost wages and that “the removal statute is 20 strictly construed against removal jurisdiction,” the Court is not persuaded that this 21 speculative amount should be used. See Chavez, 888 F.3d at 416 (“[Plaintiff] did admit in 22 deposition...that she had intended to continue working for another nine years.”) The 23 || Court finds that $49,680 is the starting point for calculating the amount in controversy here. 24 Attorneys’ Fees. The Ninth Circuit has held that “where an underlying statute 25 ||authorizes an award of attorneys’ fees, either with mandatory or discretionary language, 26 ||such fees may be included in the amount in controversy.” Galt G/S v. JSS Scandinavia. 27 || 142 F.3d 1150, 1156 (9th Cir. 1998). The Fair Employment and Housing Act authorizes 28 awards. Gov. Code, § 12965, subd. (b). Courts “must include future attorneys’ fees

1 ||recoverable by statute or contract when assessing whether the amount-in-controversy 2 ||requirement is met.” Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 3 || 794 (9th Cir. 2018). 4 To determine attorneys’ fees amount, Plaintiff asks this Court to use a “conservative 5 |lestimate of attorney’s fees,” and adhere to the formula used in Sasso v. Noble Utah Long 6 || Beach, LLC, 2015 WL 898468 (C.D. Cal. 2015). (Reply at 3.) Sasso explains that courts 7 this circuit have held that a reasonable rate for employment cases is $300 per hour and 8 ||100 hours is an appropriate and conservative estimate of the number of hours expended 9 ||through trial for an employment action. See 2015 WL 898468 at *5; see also Adkins v. 10 || J.B. Hunt Transport, Inc., 293 F. Supp. 3d 1140, 1148 (E.D. Cal. 2018) (quoting and 11 utilizing the Sasso formula). Using the Sasso formula, this Court finds that, contrary to 12 Plaintiff's proposed calculation of $20,000, an appropriate and conservative estimate of 13 attorneys’ fees in this matter is $30,000. The Court also notes that, according to previous 14 motions for statutory attorneys’ fees filed by Plaintiffs counsel in other cases, the actual 15 ||amount here will likely be much higher. (See Defendant’s Request for Judicial Notice 16 || Exhibit A.) Nonetheless, when this conservative estimate of attorneys’ fees ($30,000) is 17 || added to the minimum and uncontested amount of Plaintiffs lost wages ($49,680), the total 18 amounts to $79,680, which satisfies the threshold requirement. 19 Because the amount in controversy requirement is exceeded in calculating presently 20 ||accrued lost wages and a “conservative estimate” of attorneys’ fees alone, and because 21 || Plaintiff has not shown, as a matter of law, that this amount could not be recovered, the 22 || Court’s analysis need not continue. Accordingly, the Court has subject matter jurisdiction 23 the case was properly removed. 24 25 ||TV. ORDER & CONCLUSION 26 In light of the foregoing, the Court DENIES Plaintiffs’ Motion to Remand [Doc. 6] 27 IT IS SO ORDERED. 28

1 2 || Dated: March 6, 2023 Lo 3 ZK Ay 4 Hon. Thomas J. Whelan 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28