Mendez v. Wal-Mart Associates, Inc.

Opinion

1 8 VICTOR MENDEZ, an Individual, Case No.: 3:22-cv-02026-W-MDD Plaintitt,| ORDER DENYING PLAINTIFF'S MOTION TO REMAND [DOC. 6] WAL-MART ASSOCIATES, INC, a Delaware corporation and DOES | through 20, inclusive, Defendants. 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]. 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]. 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] }}3-5.) On or about January 1, 2021, Plaintiff broke five ribs during an ATV accident, whict impacted his ability to perform his job. (Compl. 4 18.) Defendant Walmart was unable tc honor Plaintiff's work restrictions and placed Plaintiff on a leave of absence. (Compl. § Plaintiff's employment was ultimately terminated on February 8, 2021. (Compl. § 20.) On November 17, 2022, Plaintiff filed suit against Defendant in San Diego Superio: Court, alleging: (1) discrimination; (2) retaliation; (3) failure to prevent discrimination anc retaliation; (4) failure to provide reasonable accommodations; (5) failure to engage in ¢ good faith interactive process, all in violation of California’s Fair Employment anc }Housing Act, Cal. Gov’t Code §§ 12940 et seq. (“FEHA”); (6) for declaratory judgment: (7) wrongful termination in violation of public policy; and (8) failure to permit inspectior of personnel and payroll records, in violation of California Labor Code § 226 and § 1198.5. (Notice Of Removal [Doc. 1] § 2.) In response, Defendant filed a general denial anc affirmative defenses. (Notice Of Removal § 4.) On December 20, 2022, Defendant Walmart removed the case to federal court based diversity jurisdiction. (Notice Of Removal § 9.) Plaintiff now moves to remand the case back to state court. (Mot. [Doc. 6] at 1.) A federal court cannot reach the merits of any dispute until it confirms that it retains {jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by Constitution or a statute, which is not to be expanded by judicial decree.” /d. (internal citations omitted). is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction.” (internal citations jomitted). To establish jurisdiction through diversity of citizenship, the removing party

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

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

* 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 Attorneys’ Fees, attached as Exhibit A to the Request for Judicial Notice and previous jury awards for non-economic damages for emotional distress in FEHA cases, attached as Exhibit B to the Request for Judicial Notice.

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

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

Dated: March 6, 2023 Lo ZK Ay Hon. Thomas J. Whelan United States District Judge