1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Hellen Owuor, No. 2:21-cv-02232-KJM-JDP 12 Plaintiff, ORDER 13 v. 14 Wal-Mart Associates, Inc., 1S Defendant. 16 17 Plaintiff Hellen Owuor brought this gender and pregnancy discrimination lawsuit against 18 | her employer, defendant Wal-Mart Associates, Inc., in Sacramento County Superior Court. Wal- 19 | Mart timely removed to this court, invoking the court’s diversity jurisdiction. Ms. Owuor moved 20 | for remand, arguing Wal-Mart fails to establish the amount in controversy exceeds $75,000. As 21 | explained below, the court finds Wal-Mart has established it is more likely than not the amount in 22 | controversy exceeds $75,000; the court therefore denies Ms. Owuor’s motion. 23 | I. BACKGROUND 24 Ms. Owuor has worked as a pharmacist for Wal-Mart since March 2017. See Compl. § 8, 25 | Jassy Decl. Ex. A, ECF No. 1-2. She was promoted to pharmacy manager in August 2017. Jd. 26 | 49. Ms. Owuor learned she was pregnant in March 2018, and she began her pregnancy leave in 27 | November 2018. Jd. 9§j 10, 12. 28 | /////
1 Upon Ms. Owuor’s return from pregnancy leave, she encountered various problems 2 related to her efforts to pump breast milk at work. She often had trouble finding a place to pump, 3 which she sought to do every two hours as recommended by her doctors. Id. ¶¶ 13, 18. Wal- 4 Mart managers directed Ms. Owuor to pump in two non-private spaces: the “immunization room” 5 in the pharmacy department and the assistant managers’ office in the back of the store. See id. 6 ¶¶ 14, 16–17. Ms. Owuor could only use the immunization room when it was not otherwise in 7 use, id. ¶ 16, and the office was regularly busy and otherwise locked, id. ¶¶ 17–18. Managers 8 were often slow in responding to Ms. Owuor’s requests to access the office. See, e.g., id. ¶¶ 18, 9 29. When Ms. Owuor raised these issues, her calls for better access and privacy were mostly 10 ignored or treated with hostility. See, e.g., id. ¶¶ 19–23, 32, 34–35. 11 Ms. Owuor also alleges Wal-Mart failed to respect her privacy. The immunization room 12 where Ms. Owuor was directed to pump had a glass door facing the pharmacy department, and 13 pharmacy staff could see into the room. Id. ¶ 17. When Ms. Owuor pumped in the office, Wal- 14 Mart’s managers walked in on her “approximately every other day.” Id. ¶ 24. After months of 15 pumping breast milk in the office, Ms. Owuor also learned of a surveillance camera in the room. 16 Id. ¶ 27. 17 These problems, among others, compromised Ms. Owuor’s ability to do her job. See id. 18 ¶ 30. After a series of write-ups, Ms. Owuor was demoted. See id. ¶¶ 31–38. This demotion 19 resulted in Ms. Owuor’s making $4.00 less per hour and working reduced hours. Id. ¶ 38. It also 20 resulted in Ms. Owuor’s losing her eighty hours of paid time off, unlike other employees who had 21 been demoted. See id. ¶¶ 39–40. 22 Ms. Owuor sued Wal-Mart alleging various forms of discrimination and retaliation. See 23 generally Compl. Ms. Owuor seeks, as relevant here, lost wages, attorneys’ fees, emotional 24 distress damages, and punitive damages. See generally id. As noted, Wal-Mart timely removed 25 to this court. See Not. Removal, ECF No. 1. Ms. Owuor timely moved to remand, arguing this 26 court lacks subject matter jurisdiction because less than $75,000 is at issue in this lawsuit. See 27 ///// 28 ///// 1 generally Mot. Remand, ECF No. 6. The court received full briefing and submitted the matter 2 without oral argument. See Opp’n, ECF No. 7; Reply, ECF No. 10; Min. Order, ECF No. 9.1 3 II. LEGAL STANDARD 4 A motion to remand is the proper procedure to challenge a removal based on lack of 5 jurisdiction. See 28 U.S.C. § 1447(c). Removal is proper when (1) the case presents a federal 6 question, or (2) there is diversity of citizenship between the parties and the amount in controversy 7 exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 8 The amount in controversy is an “estimate of the total amount in dispute.” Lewis v. 9 Verizon Communications, Inc., 627 F.3d 395, 400 (9th Cir. 2010) (citation omitted). In this 10 circuit, when the amount of damages is unspecified, the removing party must show by a 11 preponderance of the evidence that the amount in controversy exceeds the jurisdictional 12 threshold. Canela v. Costco Wholesale Corp., 971 F.3d 845, 849 (9th Cir. 2020); Sanchez v. 13 Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (“Under this burden, the defendant 14 must provide evidence establishing that it is ‘more likely than not’ that the amount in controversy 15 exceeds [the jurisdictional amount].”). To determine if the amount in controversy is met, the 16 district court considers the complaint, allegations in the removal petition, and “summary- 17 judgment-type evidence relevant to the amount in controversy,” Kroske v. U.S. Bank Corp., 18 432 F.3d 976, 980 (9th Cir. 2005) (citation omitted); see also Fritsch v. Swift Transportation Co. 19 of Arizona, LLC, 899 F.3d 785, 788 (9th Cir. 2018) (clarifying amount in controversy not limited 20 to amount at time of removal, at least with respect to future attorneys’ fees), as well as evidence 21 filed in opposition to the motion to remand, Lenau v. Bank of Am., N.A., 131 F. Supp. 3d 1003, 22 1005 (E.D. Cal. 2015) (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (per 23 curiam)). 1 In connection with these submissions, both parties request that the court take judicial notice of various publicly available legal documents. See Def.’s Req. Judicial Notice, ECF No. 8; Pl.’s Req. Judicial Notice, ECF No. 11. Both requests are unopposed. Both requests are granted. See Intri–Plex Tech., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (“A court may take judicial notice of matters of public record . . . as long as the facts noticed are not subject to reasonable dispute.” (internal citation & quotation marks omitted)); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court 1 III. DISCUSSION 2 Ms. Owuor does not specify an amount of damages in her complaint. Wal-Mart must 3 therefore show it is more likely than not that the total amount in dispute exceeds $75,000. See 4 Sanchez, 102 F.3d at 404. Wal-Mart bases its amount-in-controversy calculation on Ms. Owuor’s 5 claims for (1) lost wages, (2) attorneys’ fees, (3) emotional distress damages, and (4) punitive 6 damages. See generally Not. Removal; Opp’n. Ms. Owuor does not dispute Wal-Mart’s 7 assertion that her lost wages amount to $12,000, see Not. Removal at 7; Mot. Remand at 5; Reply 8 at 2–5, and the court accepts that figure for present purposes. The court next addresses attorneys’ 9 fees before turning to Ms. Owuor’s alleged damages. 10 A.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Hellen Owuor, No. 2:21-cv-02232-KJM-JDP 12 Plaintiff, ORDER 13 v. 14 Wal-Mart Associates, Inc., 1S Defendant. 16 17 Plaintiff Hellen Owuor brought this gender and pregnancy discrimination lawsuit against 18 | her employer, defendant Wal-Mart Associates, Inc., in Sacramento County Superior Court. Wal- 19 | Mart timely removed to this court, invoking the court’s diversity jurisdiction. Ms. Owuor moved 20 | for remand, arguing Wal-Mart fails to establish the amount in controversy exceeds $75,000. As 21 | explained below, the court finds Wal-Mart has established it is more likely than not the amount in 22 | controversy exceeds $75,000; the court therefore denies Ms. Owuor’s motion. 23 | I. BACKGROUND 24 Ms. Owuor has worked as a pharmacist for Wal-Mart since March 2017. See Compl. § 8, 25 | Jassy Decl. Ex. A, ECF No. 1-2. She was promoted to pharmacy manager in August 2017. Jd. 26 | 49. Ms. Owuor learned she was pregnant in March 2018, and she began her pregnancy leave in 27 | November 2018. Jd. 9§j 10, 12. 28 | /////
1 Upon Ms. Owuor’s return from pregnancy leave, she encountered various problems 2 related to her efforts to pump breast milk at work. She often had trouble finding a place to pump, 3 which she sought to do every two hours as recommended by her doctors. Id. ¶¶ 13, 18. Wal- 4 Mart managers directed Ms. Owuor to pump in two non-private spaces: the “immunization room” 5 in the pharmacy department and the assistant managers’ office in the back of the store. See id. 6 ¶¶ 14, 16–17. Ms. Owuor could only use the immunization room when it was not otherwise in 7 use, id. ¶ 16, and the office was regularly busy and otherwise locked, id. ¶¶ 17–18. Managers 8 were often slow in responding to Ms. Owuor’s requests to access the office. See, e.g., id. ¶¶ 18, 9 29. When Ms. Owuor raised these issues, her calls for better access and privacy were mostly 10 ignored or treated with hostility. See, e.g., id. ¶¶ 19–23, 32, 34–35. 11 Ms. Owuor also alleges Wal-Mart failed to respect her privacy. The immunization room 12 where Ms. Owuor was directed to pump had a glass door facing the pharmacy department, and 13 pharmacy staff could see into the room. Id. ¶ 17. When Ms. Owuor pumped in the office, Wal- 14 Mart’s managers walked in on her “approximately every other day.” Id. ¶ 24. After months of 15 pumping breast milk in the office, Ms. Owuor also learned of a surveillance camera in the room. 16 Id. ¶ 27. 17 These problems, among others, compromised Ms. Owuor’s ability to do her job. See id. 18 ¶ 30. After a series of write-ups, Ms. Owuor was demoted. See id. ¶¶ 31–38. This demotion 19 resulted in Ms. Owuor’s making $4.00 less per hour and working reduced hours. Id. ¶ 38. It also 20 resulted in Ms. Owuor’s losing her eighty hours of paid time off, unlike other employees who had 21 been demoted. See id. ¶¶ 39–40. 22 Ms. Owuor sued Wal-Mart alleging various forms of discrimination and retaliation. See 23 generally Compl. Ms. Owuor seeks, as relevant here, lost wages, attorneys’ fees, emotional 24 distress damages, and punitive damages. See generally id. As noted, Wal-Mart timely removed 25 to this court. See Not. Removal, ECF No. 1. Ms. Owuor timely moved to remand, arguing this 26 court lacks subject matter jurisdiction because less than $75,000 is at issue in this lawsuit. See 27 ///// 28 ///// 1 generally Mot. Remand, ECF No. 6. The court received full briefing and submitted the matter 2 without oral argument. See Opp’n, ECF No. 7; Reply, ECF No. 10; Min. Order, ECF No. 9.1 3 II. LEGAL STANDARD 4 A motion to remand is the proper procedure to challenge a removal based on lack of 5 jurisdiction. See 28 U.S.C. § 1447(c). Removal is proper when (1) the case presents a federal 6 question, or (2) there is diversity of citizenship between the parties and the amount in controversy 7 exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 8 The amount in controversy is an “estimate of the total amount in dispute.” Lewis v. 9 Verizon Communications, Inc., 627 F.3d 395, 400 (9th Cir. 2010) (citation omitted). In this 10 circuit, when the amount of damages is unspecified, the removing party must show by a 11 preponderance of the evidence that the amount in controversy exceeds the jurisdictional 12 threshold. Canela v. Costco Wholesale Corp., 971 F.3d 845, 849 (9th Cir. 2020); Sanchez v. 13 Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (“Under this burden, the defendant 14 must provide evidence establishing that it is ‘more likely than not’ that the amount in controversy 15 exceeds [the jurisdictional amount].”). To determine if the amount in controversy is met, the 16 district court considers the complaint, allegations in the removal petition, and “summary- 17 judgment-type evidence relevant to the amount in controversy,” Kroske v. U.S. Bank Corp., 18 432 F.3d 976, 980 (9th Cir. 2005) (citation omitted); see also Fritsch v. Swift Transportation Co. 19 of Arizona, LLC, 899 F.3d 785, 788 (9th Cir. 2018) (clarifying amount in controversy not limited 20 to amount at time of removal, at least with respect to future attorneys’ fees), as well as evidence 21 filed in opposition to the motion to remand, Lenau v. Bank of Am., N.A., 131 F. Supp. 3d 1003, 22 1005 (E.D. Cal. 2015) (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (per 23 curiam)). 1 In connection with these submissions, both parties request that the court take judicial notice of various publicly available legal documents. See Def.’s Req. Judicial Notice, ECF No. 8; Pl.’s Req. Judicial Notice, ECF No. 11. Both requests are unopposed. Both requests are granted. See Intri–Plex Tech., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (“A court may take judicial notice of matters of public record . . . as long as the facts noticed are not subject to reasonable dispute.” (internal citation & quotation marks omitted)); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court 1 III. DISCUSSION 2 Ms. Owuor does not specify an amount of damages in her complaint. Wal-Mart must 3 therefore show it is more likely than not that the total amount in dispute exceeds $75,000. See 4 Sanchez, 102 F.3d at 404. Wal-Mart bases its amount-in-controversy calculation on Ms. Owuor’s 5 claims for (1) lost wages, (2) attorneys’ fees, (3) emotional distress damages, and (4) punitive 6 damages. See generally Not. Removal; Opp’n. Ms. Owuor does not dispute Wal-Mart’s 7 assertion that her lost wages amount to $12,000, see Not. Removal at 7; Mot. Remand at 5; Reply 8 at 2–5, and the court accepts that figure for present purposes. The court next addresses attorneys’ 9 fees before turning to Ms. Owuor’s alleged damages. 10 A. Attorneys’ Fees 11 “[W]hen a statute or contract provides for the recovery of attorneys’ fees, prospective 12 attorneys’ fees must be included in the assessment of the amount in controversy.” Arias v. 13 Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019) (citation omitted). Most of 14 Ms. Owuor’s claims are brought under the California Fair Employment and Housing Act, which 15 provides that “[i]n actions brought under this section, the court, in its discretion, may award to the 16 prevailing party reasonable attorney’s fees and costs.” Cal. Gov’t Code § 12965(b). 17 “A defendant does ‘not need to prove to a legal certainty’ that a plaintiff will be awarded 18 the proffered attorneys’ fees in the removal notice.” Greene v. Harley-Davidson, Inc., 965 F.3d 19 767, 774 n.4 (9th Cir. 2020) (citing Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 20 81, 88 (2014)). The estimated attorneys’ fees must simply be reasonable. Id. “The 21 reasonableness of attorney’s fees, when such fees are unascertainable on the face of the 22 complaint, can be calculated by looking to other attorney’s fees awards in similar cases.” Sasso v. 23 Noble Utah Long Beach, LLC, No. 14-09154, 2015 WL 898468, at *5 (C.D. Cal. Mar. 3, 2015) 24 (internal quotation marks omitted). 25 Wal-Mart asserts $30,000 is a reasonable estimate of attorneys’ fees in this single-plaintiff 26 pregnancy discrimination case. See Opp’n at 8 (calculating $300 per hour x 100 hours); Not. 27 Removal ¶¶ 33–37 (citing cases). The court agrees. Cf., e.g., Sasso, 2015 WL 898468, at *5 28 (finding $300 per hour is “a reasonable rate for employment cases” and “100 hours is an 1 appropriate and conservative estimate” of the time required for employment cases); Stainbrook v. 2 Target Corp., No. 16-00090, 2016 WL 3248665, at *5 (C.D. Cal. June 8, 2016) (using $30,000 as 3 a “conservative estimate” where defendant did not introduce specific evidence of attorneys’ fees 4 in an employment discrimination case); Alvarez v. Interstate Hotels, LLC, No. 21-807684, 2019 5 WL 77133, at *3 (C.D. Cal. Jan. 2, 2019) (using the “reasonable estimate” of $31,107 in 6 attorneys’ fees in a single-plaintiff employment discrimination case); Ponce v. Med. Eyeglass 7 Ctr., Inc., No. 15-04035, 2015 WL 4554336, at *3 n.6 (C.D. Cal. July 27, 2015) (collecting state- 8 court, single-plaintiff pregnancy discrimination cases where attorney’s fee awards amounted to 9 $84,000, $249,345, and $160,050). 10 Accepting Wal-Mart’s reasonable attorneys’ fees calculation, the value of Ms. Owuor’s 11 claims for lost wages and attorneys’ fees amounts to $42,000. The remaining question, then, is 12 whether Ms. Owuor’s damages amount to more than $33,000. If so, this case satisfies the 13 jurisdictional minimum. 14 B. Damages 15 Ms. Owuor seeks emotional distress damages and punitive damages. See Compl. at 26 & 16 ¶ 95. Emotional distress damages may be considered in determining the amount in controversy. 17 See Kroske, 432 F.3d at 980; see also Hankins v. Am. Med. Response Ambulance Serv., Inc., 18 No. 16-01046, 2018 WL 339062, at *4 (E.D. Cal. Jan. 9, 2018) (analogizing to other 19 discrimination cases and noting in “cases alleging similar harassment and retaliation claims, 20 emotional distress damages alone often well exceed $75,000”). Punitive damages may also be 21 considered when they are recoverable under one or more of plaintiff’s claims for relief. See 22 Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001). Most of Ms. Owuor’s claims are 23 brought under FEHA, and punitive damages are recoverable for FEHA violations. See 24 Commodore Home Systems, Inc. v. Superior Court, 32 Cal. 3d 211, 220–21 (1982) (“[I]n a civil 25 action under the FEHA, all relief generally available in noncontractual actions, including punitive 26 damages, may be obtained.”); see also Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1033 27 (N.D. Cal. 2002) (considering punitive damages towards amount in controversy in FEHA case). 28 ///// 1 To establish probable emotional distress and punitive damages, a defendant may introduce 2 evidence of jury verdicts from cases with analogous facts. See Kroske, 432 F.3d at 980 (noting 3 “district court properly considered . . . emotional distress damage awards in similar age 4 discrimination cases”); Simmons, 209 F. Supp. 2d at 1033. Such cases are probative if they are 5 “factually identical or, at a minimum, analogous to the case at issue.” Mireles v. Wells Fargo 6 Bank, N.A., 845 F. Supp. 2d 1034, 1055 (C.D. Cal. 2012). 7 Wal-Mart highlights several California cases involving lactation accommodation or 8 pregnancy discrimination in which emotional distress and punitive damages awards far exceeded 9 $33,000. See Opp’n at 6–7; see also generally Def.’s Req. Jud. Not. These cases are not 10 perfectly analogous: They all, for example, involve wrongful termination claims. See, e.g., 11 Gilman-Veronese v. Lucasfilm Ltd, Def.’s Req. Jud. Not. Ex. D. But they are sufficiently similar 12 to serve as benchmarks: They all involve lactation accommodation or pregnancy discrimination, 13 see, e.g., Wrysinski v. Agilent Tech., Inc., Def.’s Req. Jud. Not. Ex. A (upholding jury award of 14 $117,000 in non-economic damages and $3,854,320 in punitive damages to plaintiff who suffered 15 pregnancy-related discrimination and retaliation at work), and some involve adverse employment 16 actions and financial and emotional injury caused by pregnancy discrimination in violation of 17 FEHA, see, e.g., Hagan v. Archdiocese of Los Angeles Jury Award, Def.’s Req. for Judicial 18 Notice Ex. F (jury award of $600,000 in pain-and-suffering damages and $450,000 in punitive 19 damages to plaintiff who was harassed, discriminated against, and wrongfully terminated because 20 of pregnancy). Courts often require far less at this stage. See, e.g., Simmons, 209 F. Supp. 2d at 21 1033–34. 22 Wal-Mart has shown it is more likely than not that emotional distress damages and 23 punitive damages put more than $33,000 in controversy. Taken together with the $42,000 from 24 Ms. Owuor’s claims for lost wages and attorneys’ fees, Wal-Mart has met its burden of 25 establishing, by a preponderance of the evidence, that the amount in controversy exceeds the 26 jurisdictional threshold at the time of removal. 27 ///// 1 IV. CONCLUSION 2 Ms. Owuor’s motion for remand in denied. 3 This order resolves ECF No. 6. 4 IT IS SO ORDERED. 5 DATED: May 24, 2022.