Morand-Doxzon v. Delaware North Companies Sportservice, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 MELISSA MORAND-DOXZON, on Case No. 20-cv-1258 DMS (BLM) behalf of herself, all others similarly 11 situated, and on behalf of the general ORDER DENYING MOTION TO public, REMAND 12 Plaintiff, 13 v. 14 DELAWARE NORTH 15 COMPANIES SPORTSERVICE, INC.; CALIFORNIA 16 SPORTSERVICE, INC.; and DOES 1-100, 17 Defendants. 18 19 20 Pending before the Court is Plaintiff Melissa Morand-Doxzon’s renewed 21 motion to remand. Defendants Delaware North Companies Sportservice, Inc. and 22 California Sportservice, Inc. filed a response in opposition to Plaintiff’s motion. 23 Plaintiff filed a reply.1 For the following reasons, Plaintiff’s motion is denied. 24 / / / 25 / / / 26

27 1 Defendants also filed objections to Plaintiff’s request for judicial notice. The Court 1 I. 2 BACKGROUND 3 On May 26, 2020, Plaintiff, on behalf of herself, all others similarly situated, 4 and on behalf of the general public, commenced the present action against 5 Defendants in the San Diego County Superior Court. Plaintiff brings the following 6 claims against Defendants: (1) failure to pay all straight time wages, (2) failure to 7 pay all overtime wages, (3) failure to provide meal periods, in violation of Cal. Labor 8 Code §§ 226.7 and 512 and the applicable California Industrial Welfare Commission 9 (“IWC”) Wage Order, (4) failure to authorize and permit rest periods, in violation of 10 Cal. Labor Code § 226.7 and the applicable IWC Wage Order, (5) failure to provide 11 suitable resting facilities for meal or rest periods, in violation of Cal. Labor Code § 12 226.7 and the applicable IWC Wage Orders, (6) knowing and intentional failure to 13 comply with itemized employee wage statement provisions, in violation of Cal. 14 Labor Code §§ 226, 1174 and 1175, and the applicable IWC Wage Order, (7) failure 15 to pay all wages due at the time of termination of employment, in violation of Cal. 16 Labor Code §§ 201–203, (8) violations of the Labor Code Private Attorneys General 17 Act of 2004 (“PAGA”), and (9) violation of unfair competition law, under Cal. Bus. 18 & Prof. Code § 17200 et seq. (ECF No. 1-2.) 19 On July 6, 2020, Defendants removed the case to this Court based on (1) the 20 Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332, and (2) Section 301 21 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. (ECF No. 1.) 22 Plaintiff filed a motion to remand the case to state court arguing that CAFA’s Local 23 Controversy and Home State Controversy Exceptions applied. The Court denied the 24 motion without prejudice because Plaintiff failed to demonstrate that an exception 25 to CAFA applied.2 (ECF No. 23.) 26

27 2 Plaintiff also argued remand was proper because Defendants failed to show that 1 Plaintiff now renewed motion to remand, arguing that new jurisdictional 2 discovery shows the local controversy exception to CAFA applies to this case. (ECF 3 No. 28.) Plaintiff also argues that Defendants have not met their burden of 4 demonstrating that Section 301 of the LMRA preempts any of the causes of action 5 in the Complaint. (Id.) The Court declines to reach the latter argument because 6 subject matter jurisdiction exists under CAFA. 7 II. 8 LEGAL STANDARDS 9 The Class Action Fairness Act was passed by Congress “to permit defendants 10 to remove class actions to federal court if they meet three requirements: there must 11 be minimal diversity of citizenship between the parties; the proposed class must have 12 at least 100 members; and the aggregated amount in controversy must equal or 13 exceed the sum or value of $5 million.” Jordan v. Nationstar Mortg. LLC, 781 F.3d 14 1178, 1182 (9th Cir. 2015) (citing 28 U.S.C. § 1332(d)). Furthermore, “no 15 antiremoval presumption attends cases invoking CAFA,” and its provisions must be 16 interpreted “broadly in favor of removal.” Id. at 1184 (citing Dart Cherokee Basin 17 Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014)). Although the party 18 seeking removal still bears the burden of establishing removal jurisdiction, the party 19 seeking remand bears the burden of showing that an exception to CAFA jurisdiction 20 applies. See, e.g., Mondragon v. Capital One Auto Fin., 736 F.3d 880, 883 (9th Cir. 21 2013); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1022 (9th Cir. 2007). 22 The local controversy exception to CAFA provides that district courts shall 23 decline jurisdiction where (1) “more than two-thirds of the plaintiffs are citizens of 24 California”; (2) “at least one defendant from whom significant relief is sought and 25 whose alleged conduct forms a significant basis for the claims is a California 26 citizen”; (3) “the principal injuries about which Plaintiffs complain were suffered in 27 1 California”; and (4) “no similar class action has been filed against any of the 2 defendants in the preceding three years.” Bridewell-Sledge v. Blue Cross of 3 California, 798 F.3d 923, 929 (9th Cir. 2015); 28 U.S.C. § 1332(d)(4)(A). “CAFA 4 was intended to strongly favor federal jurisdiction over interstate class actions.” 5 King v. Great American Chicken Corp., Inc., 903 F.3d 875, 879 (9th Cir. 2018) 6 (citing Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118, 1121 (9th Cir. 2017)). 7 The local controversy exception is intended to be applied narrowly, “particularly in 8 light of the purposes of CAFA.” Benko v. Quality Loan Service Corp., 789 F.3d 9 1111, 1116 (9th Cir. 2015). Indeed, when courts evaluate whether this exception 10 applies, “all doubts [should be] resolved in favor of exercising jurisdiction over the 11 case.” Evans v. Walter Indus., Inc., 449 F.3d 1159, 1163 (11th Cir. 2006) (quotation 12 omitted); see also Arbuckle Mountain Ranch v. Chesapeake Energy Corp., 810 F.3d 13 335, 338 (5th Cir. 2016) (“If the applicability of an exception is not shown with 14 reasonable certainty, federal jurisdiction should be retained”). 15 III. 16 DISCUSSION 17 Plaintiff argues that remand is proper under the local controversy exception 18 to CAFA. (ECF No. 28.) In this case, only one of the exception’s requirements is in 19 dispute: whether Plaintiff has demonstrated that more than two-thirds of the 20 plaintiffs are citizens of California. 21 As discussed, the local controversy exception to CAFA only applies where 22 more than two-thirds of the action’s prospective class members are citizens of the 23 state where the action was filed. Mondragon, 736 F.3d at 883–884. The statute does 24 not provide for remand based solely on a plaintiff’s allegations, when those 25 allegations are challenged by the defendant. Id. at 884. A district court makes 26 factual findings regarding jurisdiction under a preponderance of the evidence 27 standard. Id. Plaintiff bears the burden of demonstrating that a CAFA exception 1 To qualify for the local controversy exception, Plaintiff must show that more 2 than 66.66% of the purported class members are citizens of California. Citizenship 3 is determined by a person’s state of domicile,” which is defined as the state “where 4 (i) she resides, (ii) ‘with the intention to remain or to which she intends to return.’” 5 Adams v. West Marine Products, Inc., 958 F.3d 1216, 1221 (9th Cir. 2020). 6 “[N]umerous courts treat a person's residence as prima facie evidence of the person's 7 domicile.” Mondragon, 736 F.3d at 886 (citations omitted). To this end, Plaintiff 8 provides the court with a list of prospective class members’ residences to 9 demonstrate their California citizenship. (ECF No. 28-1 at 15–16; ECF No. 28-2 at 10 3–4, 56–101.) The list excludes addresses of class members who requested that their 11 contact information not be disclosed to Plaintiff’s counsel, as well as addresses to 12 which materials sent by the third-party were unable to be delivered. (ECF No. 28-1 13 at 15; ECF No. 28-2 at 3–4.) Plaintiff provides no evidence as to the residency of 14 those two groups of putative class members. The list shows that 2,292 out of 2,833 15 class members have California addresses. (ECF No. 28-1 at 15–16; ECF No. 28-2 16 at 3–4, 56–101.) Plaintiff takes these numbers and calculates that 81% of class 17 members live within California.3 (ECF No. 28-1 at 16; ECF No. 28-2 at 4.) 18 However, the list’s evidentiary value to establishing citizenship of class 19 members is dubious. “[A] party with the burden of proving citizenship may rely on 20 the presumption of continuing domicile, which provides that, once established, a 21 person’s state of domicile continues unless rebutted with sufficient evidence of 22 change.” Mondragon, 736 F.3d at 885. Here, citizenship is determined “as of the 23 24 3 Plaintiff also submits evidence pertaining to a “skip tracing” process conducted by a third-party company, the results of which purportedly represent a more accurate 25 accounting of the addresses of putative class members. (See ECF No. 28-1 at 17– 26 18.) Plaintiff asserts this search methodology, when applied to the assumptions she used to establish the 81% residency figure, reveals that “78% of class members live 27 within California.” (Id. at 18 (emphasis omitted).) Defendants raise numerous 1 date the case became removable[.]” Id. at 883; 28 U.S.C. § 1332(d)(7). While 2 Defendants removed the case on July 7, 2020, it became removable on May 26, 3 2020, when the complaint was filed. 4 Nonetheless, Plaintiff argues that because May 26 “is still in close proximity 5 to the date on which Defendants provided the address information,” the presumption 6 of continuing domicile means that she “has shown that two-thirds of the class 7 members were California citizens at the time of removal.” (ECF No. 33 at 10.) This 8 misconstrues both the exception’s citizenship requirement and the nature of the 9 presumption of continuing domicile. First, citizenship is properly determined as of 10 the date upon which removal becomes possible, not the date upon which removal 11 actually occurs. Thus, the Court is concerned with determining class members’ 12 citizenship as of May 26, not any other date. Second, the presumption of continuing 13 domicile is forward-looking, so even if the list provides prima facie evidence of 14 citizenship, it only does so for dates after it was created. This presumption does not 15 reach back to the relevant date of May 26, 2021. 16 This is not the end of Plaintiff’s problems. For example, Plaintiff cites 17 Calleros v. Rural Metro of San Diego, Inc., as an instance where a court used a class 18 residence address list to determine that the two-thirds citizenship requirement was 19 satisfied. (ECF No. 28-1 at 16 (citing 2018 WL 2228710 (S.D. Cal. May 15, 2018).) 20 There, however, the defendants “offer[ed] no evidence that would support a finding 21 that less than two-thirds of the class members [were] California citizens.” Calleros, 22 2018 WL 2228710 at *3. 23 In this case, by contrast, Defendants introduce uncontested evidence that 24 15.3% of prospective class members are not United States citizens. (ECF No. 31- 25 1.) “To be a citizen of a state, a natural person must first be a citizen of the United 26 States.” Adams, 958 F.3d at 1221 (quoting Kanter v. Warner-Lambert Co., 265 F.3d 27 853 (9th Cir. 2001)). Defendants argue that Plaintiff has failed to show that two- 1 Plaintiff’s assumptions and calculations, and subtracting out the 15.3% of potential 2 class members who are not U.S. citizens, only 65.7% of the potential class members 3 could be California citizens.” (ECF No. 31 at 16.) Considering the general principle 4 encouraging the resolution of doubt in favor of exercising jurisdiction, the Court is 5 persuaded by Defendants’ reasoning. 6 Plaintiff replies that Defendants’ calculation is inapposite because it assumes 7 that the percentage of non-citizens identified by Defendants should be subtracted 8 from the total number of class members, rather than the percentage of purported 9 California citizens. (ECF No. 30 at 11.) She further argues that the number of non- 10 United States citizens likely overlaps with class members who have undeliverable 11 addresses. (Id.) While district courts may draw reasonable inferences from facts in 12 evidence to determine whether CAFA's local controversy exception applies, 13 “jurisdictional finding of fact should be based on more than guesswork.” 14 Mondragon, 736 F.3d at 884. Plaintiff provides no evidence upon which the Court 15 could draw such an inference. The Ninth Circuit has held that the local controversy 16 exception “require[es] evidentiary proof of propositions that appear likely on their 17 face,” even where doing so will cause inefficiency. Mondragon, 736 F.3d at 884. 18 The same court resolved a case against a party seeking remand under the local 19 controversy exception, partly based on a similar lack of evidence regarding non- 20 United States citizens in the proposed class. See King v. Great American Chicken 21 Corp., Inc., 903 F.3d 875, 879 (9th Cir. 2018) (finding party moving for remand 22 failed to show two-thirds local state citizenship in absence of evidence indicating 23 proportion of non-United States citizens in proposed class). Because Plaintiff has 24 not established that the non-United States citizens identified by Defendants are not 25 California residents, the Court finds Plaintiff has failed to show the two-thirds 26 citizenship threshold is met. Therefore, the local controversy exception does not 27 apply. 1 IV. 2 CONCLUSION 3 For the foregoing reasons, Plaintiff's motion to remand is denied. 4 IT IS SO ORDERED. 5 || Dated: March 4, 2021 ° □□ Yn. Lh, 8 United States Chief District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28