1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PIERRE RHODAN, on behalf of himself Case No.: 19-CV-1141-CAB-BGS and others similarly situated, 12 ORDER GRANTING MOTION TO Plaintiff, 13 REMAND v. 14 JOB OPTIONS, INC. et al., [Doc. No. 9] 15 Defendants. 16 17 18 This matter is before the Court on Plaintiff’s motion to remand. The motion has 19 been fully briefed, and the Court deems it suitable for submission without oral argument. 20 For the following reasons, the motion is granted, and this case is remanded to San Diego 21 County Superior Court. 22 I. Background 23 On November 29, 2018, Plaintiff filed a complaint in San Diego County Superior 24 Court asserting one claim against Defendant Job Options, Inc. (“JOI”), whom the 25 complaint alleged was Plaintiff’s employer, for failure to provide access to employee 26 personnel records as required by the California Labor Code. [Doc. No. 1-2.] JOI was 27 personally served with the complaint on December 3, 2018. 28 1 Plaintiff subsequently amended the complaint to add several individuals as 2 defendants [Doc. No. 1-3], and again to assert numerous wage and hour violation claims 3 under California law, including a claim under California’s Private Attorney General Act, 4 and a claim under California’s Unfair Competition Law [Doc. No. 1-4]. Neither the 5 original complaint nor the operative first amended complaint (“FAC”) included an 6 allegation as to the physical location where Plaintiff worked for JOI. On April 26, 2019, 7 Defendants demurred to Plaintiff’s FAC in state court. [Doc. No. 9-2.] 8 On May 21, 2019, while the demurrer was pending, Plaintiff sought leave from the 9 state court to file a second amended complaint (“SAC”). [Doc. No. 1-5.] The proposed 10 SAC attached to Plaintiff’s application added, among other things, an allegation that 11 Defendants had assigned Plaintiff “to work at the Camp Pendleton MCB Commissary as a 12 Shelf Stocker.” [Doc. No. 1-5 at 28.] The state court denied Plaintiff’s application to file 13 the SAC on May 22, 2019. [Doc. No. 9-2 at 4.] On May 24, 2019, Plaintiff filed an 14 opposition to the demurrer [Doc. No. 1-6 at 145], and on May 31, 2019, Defendants filed 15 their reply in support of their demurrer [Doc. No. 1-6 at 197]. On June 7, 2019, the state 16 court overruled Defendants’ demurrer. [Doc. No. 1-6 at 222.] 17 On June 17, 2019, ten days after losing their demurrer, Defendants removed the case 18 to federal court, alleging subject matter jurisdiction on the basis of a federal question 19 because Camp Pendleton is a federal enclave. On July 17, 2019, Plaintiff filed his motion 20 to remand. 21 II. Discussion 22 Plaintiff makes three arguments for remand: (1) removal was untimely; (2) 23 Defendants waived their right to remove; and (3) lack of federal question jurisdiction. 24 Because the first two grounds for remand have merit, the Court need not address whether 25 Defendants demonstrated the existence of subject matter jurisdiction based on Plaintiff’s 26 employment at a federal enclave. 27 28 1 A. Timeliness of Removal 2 Defendants contend that this Court has federal question jurisdiction because 3 Plaintiff’s claims concern his employment at Camp Pendleton, which is a federal enclave. 4 For the purposes of this opinion, the Court assumes that subject matter jurisdiction on the 5 basis of a federal question exists on that ground. See generally Jamil v. Workforce Res., 6 LLC, No. 18-CV-27-JLS (NLS), 2018 WL 2298119, at *4 (S.D. Cal. May 21, 2018) 7 (holding that federal question jurisdiction based on the federal enclave doctrine existed for 8 the plaintiff’s wage and hour claims stemming from work performed at Camp Pendleton). 9 Defendants contend that their removal on this ground was timely because it was 10 made within thirty days of Plaintiff’s allegation in the proposed SAC filed on May 21, 11 2019, that he worked at Camp Pendleton. The applicable removal statute states that: 12 (b) Requirements; generally. –(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, 13 through service or otherwise, of a copy of the initial pleading setting forth the 14 claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading 15 has then been filed in court and is not required to be served on the defendant, 16 whichever period is shorter. 17 . . . 18 (3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days 19 after receipt by the defendant, through service or otherwise, of a copy of an 20 amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 21 28 U.S.C. § 1446(b). The 30-day time limit “is mandatory and a timely objection to a late 22 petition will defeat removal. . . .” Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 23 (9th Cir. 1980). 24 “[T]he ground for removal must be revealed affirmatively in the initial pleading in 25 order for the first thirty-day clock under § 1446(b) to begin.” Harris v. Bankers Life & 26 Cas. Co., 425 F.3d 689, 695 (9th Cir. 2005). “[A] defendant does not have a duty of inquiry 27 if the initial pleading or other document is ‘indeterminate’ with respect to removability.” 28 1 Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013) (citing 2 Harris, 425 F.3d at 693–94). Defendants are not charged “with notice of removability until 3 [they have] received a paper that gives them enough information to remove.” Kenny v. Wal- 4 Mart Stores, Inc., 881 F.3d 786, 791 (9th Cir. 2018) (citation omitted). At the same time, 5 “a defendant is required ‘to apply a reasonable amount of intelligence in ascertaining 6 removability.’” Garcia v. Wal-Mart Stores Inc., 207 F. Supp. 3d 1114, 1129–30 (C.D. Cal. 7 2016) (quoting Kuxhausen v. BMW Fin. Servs. NA, LLC, 707 F.3d 1136, 1140 (9th Cir. 8 2013)). “A defendant should not be able to ignore pleadings or other documents from 9 which removability may be ascertained and seek removal only when it becomes 10 strategically advantageous for it to do so.” Roth, 720 F.3d at 1125. 11 Here, Defendants argue that the original complaint and FAC did not trigger the first 12 30-day time limit because they did not contain an allegation that Plaintiff worked at Camp 13 Pendleton. Further, according to Defendants the second 30-day time limit in §1446(b)(3) 14 was not triggered until Plaintiff served the proposed SAC containing an allegation that 15 Plaintiff worked at Camp Pendleton. The proposed SAC, however, was not the first 16 document from this litigation indicating that Plaintiff worked at Camp Pendleton. Putting 17 aside the fact that Defendants, as Plaintiff’s employer, presumably knew all along that 18 Plaintiff worked at Camp Pendleton, documents Defendants produced to Plaintiff more 19 than thirty days prior to the notice of removal indicate that Plaintiff worked there. [Doc. 20 No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PIERRE RHODAN, on behalf of himself Case No.: 19-CV-1141-CAB-BGS and others similarly situated, 12 ORDER GRANTING MOTION TO Plaintiff, 13 REMAND v. 14 JOB OPTIONS, INC. et al., [Doc. No. 9] 15 Defendants. 16 17 18 This matter is before the Court on Plaintiff’s motion to remand. The motion has 19 been fully briefed, and the Court deems it suitable for submission without oral argument. 20 For the following reasons, the motion is granted, and this case is remanded to San Diego 21 County Superior Court. 22 I. Background 23 On November 29, 2018, Plaintiff filed a complaint in San Diego County Superior 24 Court asserting one claim against Defendant Job Options, Inc. (“JOI”), whom the 25 complaint alleged was Plaintiff’s employer, for failure to provide access to employee 26 personnel records as required by the California Labor Code. [Doc. No. 1-2.] JOI was 27 personally served with the complaint on December 3, 2018. 28 1 Plaintiff subsequently amended the complaint to add several individuals as 2 defendants [Doc. No. 1-3], and again to assert numerous wage and hour violation claims 3 under California law, including a claim under California’s Private Attorney General Act, 4 and a claim under California’s Unfair Competition Law [Doc. No. 1-4]. Neither the 5 original complaint nor the operative first amended complaint (“FAC”) included an 6 allegation as to the physical location where Plaintiff worked for JOI. On April 26, 2019, 7 Defendants demurred to Plaintiff’s FAC in state court. [Doc. No. 9-2.] 8 On May 21, 2019, while the demurrer was pending, Plaintiff sought leave from the 9 state court to file a second amended complaint (“SAC”). [Doc. No. 1-5.] The proposed 10 SAC attached to Plaintiff’s application added, among other things, an allegation that 11 Defendants had assigned Plaintiff “to work at the Camp Pendleton MCB Commissary as a 12 Shelf Stocker.” [Doc. No. 1-5 at 28.] The state court denied Plaintiff’s application to file 13 the SAC on May 22, 2019. [Doc. No. 9-2 at 4.] On May 24, 2019, Plaintiff filed an 14 opposition to the demurrer [Doc. No. 1-6 at 145], and on May 31, 2019, Defendants filed 15 their reply in support of their demurrer [Doc. No. 1-6 at 197]. On June 7, 2019, the state 16 court overruled Defendants’ demurrer. [Doc. No. 1-6 at 222.] 17 On June 17, 2019, ten days after losing their demurrer, Defendants removed the case 18 to federal court, alleging subject matter jurisdiction on the basis of a federal question 19 because Camp Pendleton is a federal enclave. On July 17, 2019, Plaintiff filed his motion 20 to remand. 21 II. Discussion 22 Plaintiff makes three arguments for remand: (1) removal was untimely; (2) 23 Defendants waived their right to remove; and (3) lack of federal question jurisdiction. 24 Because the first two grounds for remand have merit, the Court need not address whether 25 Defendants demonstrated the existence of subject matter jurisdiction based on Plaintiff’s 26 employment at a federal enclave. 27 28 1 A. Timeliness of Removal 2 Defendants contend that this Court has federal question jurisdiction because 3 Plaintiff’s claims concern his employment at Camp Pendleton, which is a federal enclave. 4 For the purposes of this opinion, the Court assumes that subject matter jurisdiction on the 5 basis of a federal question exists on that ground. See generally Jamil v. Workforce Res., 6 LLC, No. 18-CV-27-JLS (NLS), 2018 WL 2298119, at *4 (S.D. Cal. May 21, 2018) 7 (holding that federal question jurisdiction based on the federal enclave doctrine existed for 8 the plaintiff’s wage and hour claims stemming from work performed at Camp Pendleton). 9 Defendants contend that their removal on this ground was timely because it was 10 made within thirty days of Plaintiff’s allegation in the proposed SAC filed on May 21, 11 2019, that he worked at Camp Pendleton. The applicable removal statute states that: 12 (b) Requirements; generally. –(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, 13 through service or otherwise, of a copy of the initial pleading setting forth the 14 claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading 15 has then been filed in court and is not required to be served on the defendant, 16 whichever period is shorter. 17 . . . 18 (3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days 19 after receipt by the defendant, through service or otherwise, of a copy of an 20 amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 21 28 U.S.C. § 1446(b). The 30-day time limit “is mandatory and a timely objection to a late 22 petition will defeat removal. . . .” Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 23 (9th Cir. 1980). 24 “[T]he ground for removal must be revealed affirmatively in the initial pleading in 25 order for the first thirty-day clock under § 1446(b) to begin.” Harris v. Bankers Life & 26 Cas. Co., 425 F.3d 689, 695 (9th Cir. 2005). “[A] defendant does not have a duty of inquiry 27 if the initial pleading or other document is ‘indeterminate’ with respect to removability.” 28 1 Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013) (citing 2 Harris, 425 F.3d at 693–94). Defendants are not charged “with notice of removability until 3 [they have] received a paper that gives them enough information to remove.” Kenny v. Wal- 4 Mart Stores, Inc., 881 F.3d 786, 791 (9th Cir. 2018) (citation omitted). At the same time, 5 “a defendant is required ‘to apply a reasonable amount of intelligence in ascertaining 6 removability.’” Garcia v. Wal-Mart Stores Inc., 207 F. Supp. 3d 1114, 1129–30 (C.D. Cal. 7 2016) (quoting Kuxhausen v. BMW Fin. Servs. NA, LLC, 707 F.3d 1136, 1140 (9th Cir. 8 2013)). “A defendant should not be able to ignore pleadings or other documents from 9 which removability may be ascertained and seek removal only when it becomes 10 strategically advantageous for it to do so.” Roth, 720 F.3d at 1125. 11 Here, Defendants argue that the original complaint and FAC did not trigger the first 12 30-day time limit because they did not contain an allegation that Plaintiff worked at Camp 13 Pendleton. Further, according to Defendants the second 30-day time limit in §1446(b)(3) 14 was not triggered until Plaintiff served the proposed SAC containing an allegation that 15 Plaintiff worked at Camp Pendleton. The proposed SAC, however, was not the first 16 document from this litigation indicating that Plaintiff worked at Camp Pendleton. Putting 17 aside the fact that Defendants, as Plaintiff’s employer, presumably knew all along that 18 Plaintiff worked at Camp Pendleton, documents Defendants produced to Plaintiff more 19 than thirty days prior to the notice of removal indicate that Plaintiff worked there. [Doc. 20 No. 9-2 at 25.] These documents were produced in response to requests that included the 21 following: “All DOCUMENTS evidencing PLAINTIFF’S work locations during 22 PLAINTIFF’S employment for YOU.” [Doc. No. 9-2 at 18.]1 Defendants claim that these 23 documents are not “other papers” under §1446(b)(3) because JOI produced them, but 24 §1446(b)(3) contains no requirement that “other papers” be received from or produced by 25 26 27 1 In addition, on April 15, 2019, Plaintiff served document requests on Defendants asking for “all agreements between YOU and the Defense Commissary Agency concerning the management and control 28 1 the plaintiff. Rather, it states that the 30-day clock starts “after receipt by the defendant, 2 through service or otherwise, of a copy of an . . . other paper.” 28 U.S.C. § 1446(b)(3). At 3 a minimum, Defendants here were in receipt of the documents they produced to Plaintiff 4 when they located those documents in their own files and produced them to Plaintiff in 5 accordance with their discovery obligations in this case. 6 Although Defendants may not have had a duty to search their own records upon 7 receipt of the complaint to determine removability, see Kenny, 881 F.3d at 791, and even 8 if their subjective knowledge that Plaintiff worked at Camp Pendleton did not trigger the 9 30-day time limit for removal, see Roth, 720 F.3d at 1125, they cannot “ignore” documents 10 they produced in the litigation itself that demonstrate removability. See id. Accordingly, 11 because at a minimum, the 30-day clock of §1446(b)(3) was triggered more than thirty 12 days before removal, removal was untimely. 13 B. Waiver 14 Even if removal was timely, Defendants waived their right to remove by 15 proceeding through adjudication of their demurrer in state court before filing the notice of 16 removal. “A party, generally the defendant, may waive the right to remove to federal court 17 where, after it is apparent that the case is removable, the defendant takes actions in state 18 court that manifest his or her intent to have the matter adjudicated there, and to abandon 19 his or her right to a federal forum.” Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 20 1230, 1240 (9th Cir. 1994), as amended (Jan. 20, 1995). The waiver must be “clear and 21 unequivocal,” and “the right of removal is not lost by action in the state court short of 22 proceeding to an adjudication on the merits.” Id. (quoting Beighley v. FDIC, 868 F.2d 776, 23 781 (5th Cir. 1989)). 24 Defendants argue that their filing of a demurrer in state court did not constitute a 25 waiver of their right to remove because the case did not become removable until Plaintiff 26 filed the proposed SAC on May 21, 2019. Accepting Defendants’ premise that the case 27 did not become removable until May 21, 2019, the filing of a demurrer before that date did 28 not constitute a waiver. The inquiry does not end there, however. Defendants did not 1 merely file a demurrer, they saw it through to final adjudication by the state court even 2 when, by their own admission, they knew the case to be removable. Defendants could have 3 removed this case any time between May 21, 2019 and June 6, 2019, before the state court 4 ruled on their motion. Instead, they continued to prosecute their demurrer, filing their reply 5 on May 31, 2019, which reiterated their request that the FAC be dismissed with prejudice 6 [Doc. No. 1-6 at 210], and then waiting until the state court ruled on the demurrer before 7 filing their notice of removal. In other words, Defendants hoped to obtain an adjudication 8 on the merits in state court,2 and only when that effort was unsuccessful did they file their 9 notice of removal. By choosing to file a reply to their demurrer and await the state court’s 10 decision instead of filing a notice of removal, Defendants made a clear and unequivocal 11 waiver of their right to remove. Compare Kenny, 881 F.3d at 791 (finding that where the 12 defendant had filed a demurrer, the fact that it removed the case before an opposition was 13 filed “and before any hearing was held, let alone any ruling issued,” demonstrated that the 14 defendant did not waive its right to remove); and Yusefzadeh v. Nelson, Mullins, Riley & 15 Scarborough, LLP, 365 F.3d 1244, 1247 (11th Cir. 2004) (holding no waiver where the 16 defendant, despite filing a motion to dismiss did not schedule a hearing and the state court 17 had not ruled on the motion); cf. City of Albuquerque v. Soto Enterprises, Inc., 864 F.3d 18 1089, 1099 (10th Cir. 2017) (“[W]hen a defendant files a motion to dismiss seeking 19 disposition, in whole or in part, on the merits in state court before removing the case to 20 federal court, it manifests a ‘clear and unequivocal’ intent to submit the case to the state 21 court’s jurisdiction, and thus waives removal.”). Accordingly, the motion to remand is 22 granted on this ground as well. 23 24 25
26 2 Cf. Hammler v. Davis, No. 214CV2073MCEACP, 2016 WL 336193, at *2 (E.D. Cal. Jan. 28, 2016), 27 report and recommendation adopted, No. 214CV2073MCEACP, 2016 WL 8731359 (E.D. Cal. Mar. 4, 2016) (“The sustaining of a demurrer may be construed as an adjudication on the merits for purposes of 28 1 II. Conclusion 2 Defendants, as Plaintiff's employer, presumably knew that Plaintiff worked at Camp 3 || Pendleton when the original complaint was filed. Yet, Defendants did not seek to remove 4 ||this action upon service of the original complaint or FAC. Defendants then produced 5 ||documents, in response to document requests from Plaintiff, indicating that Plaintiff 6 || worked at Camp Pendleton. Again, Defendants did not seek to remove this action. Then 7 || Plaintiff explicitly alleged in the proposed SAC that he worked at Camp Pendleton, and 8 instead of filing a notice of removal at that time, Defendants filed a reply to their previously 9 || filed demurrer ten days later, and waited another week for the state court to rule on their 10 ||motion. Then, only after the state court overruled their demurrer did Defendants finally 11 a notice of removal. Because Defendants were in receipt of documents produced in 12 ||response to discovery in this litigation that indicate that Plaintiff worked in a federal 13 |}enclave more than thirty days before filing their notice of removal, their removal was 14 |/untimely under 28 U.S.C. § 1446(b)(3). Further, by filing a reply brief and waiting until 15 || after the state court had overruled their demurrer before filing their notice of removal, when 16 ||by their own admission the grounds for removal arose weeks before the state court’s 17 decision, Defendants waived their right to remove. Accordingly, because removal was 18 |;untimely and/or waived, the motion to remand is GRANTED, and this case is 19 ||} REMANDED to San Diego County Superior Court. Plaintiffs request for costs and 20 |/expenses pursuant to 28 U.S.C. § 1447(c) is DENIED because Defendants had an 21 || objectively reasonable basis for removal. See Martin v. Franklin Capital Corp., 546 U.S. 22 136 (2005) (“[A]bsent unusual circumstances, attorney’s fees should not be awarded 23 || when the removing party has an objectively reasonable basis for removal.”’). 24 It is SO ORDERED. 25 ||Dated: August 19, 2019 (if 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28