Massoud Azimihashemi v. First Transit, Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 MASSOUD AZIMIHASHEMI, Case No. 8:21-cv-00780-JWH-JDEx individually and on behalf of other 12 members of the general public similarly situated, ORDER DENYING PLANTIFF’S 13 MOTION TO REMAND [ECF Plaintiff, No. 9] 14 v. 15 FIRST TRANSIT SERVICES, INC., 16 an unknown business entity; FIRST TRANSIT, INC., an unknown 17 business entity; FIRST GROUP AMERICA, an 18 unknown business entity; and DOES 1 through 100, inclusive, 19 Defendants. 20 21 22 23 24 25 26 27 1 Before the Court is the motion of Plaintiff Massoud Azimihashemi to 2 remand this action to the Orange County Superior Court.1 The Court finds this 3 matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; 4 L.R. 7-15. After considering the papers filed in support and in opposition,2 the 5 Court orders that the Motion is DENIED, as set forth herein. 6 I. BACKGROUND 7 A. Procedural Background 8 On February 24, 2021, Azimihashemi filed this action in the Superior 9 Court of California for the County of Orange, asserting 10 causes of action under 10 various California labor statues.3 Defendant First Transit, Inc. (“First 11 Transit”) removed the action to this Court on April 26, 2021, under the Class 12 Action Fairness Act of 2005, 28 U.S.C. § 1332(d) (“CAFA”).4 Azimihashemi 13 moved to remand on May 26, 2021.5 First Transit opposed the Motion and filed 14 supporting documents on June 11, 2021.6 Azimihashemi replied in support of 15 his Motion on June 18, 2021.7 The matter now stands submitted. 16 B. Factual Allegations 17 Azimihashemi makes the following factual allegations: 18 19 20 21 1 Pl.’s Mot. to Remand (the “Motion”) [ECF No. 9]. 22 2 The Court considered the following papers: (1) Compl. (the “Complaint”) [ECF No. 1-1]; (2) the Motion (including its attachments); 23 (3) Def’s Opp’n to Pl.’s Mot. to Remand (the “Opposition”) [ECF No. 14]; and (4) Pl.’s Reply in Supp. of Pl.’s Mot. to Remand (the “Reply”) [ECF 24 No. 17]. 3 See generally Complaint. 25 4 Def.’s Notice of Removal (the “Notice of Removal”) [ECF No. 1]. 26 5 See generally Motion. 27 6 See generally Opposition; Decl. of David J. Dow and Ex. A, Decl. of Tara E. Blessing (the “Blessing Declaration”) [ECF Nos. 14-1 & 14-2]. 1 First Transit and Defendants First Transit Services, Inc.8 and FirstGroup 2 America (“FirstGroup”) (collectively, “Defendants”) employed 3 Azimihashemi, a California resident, as an hourly-paid, non-exempt employee 4 from December 2019 to March 2020.9 5 Azimihashemi seeks to represent a proposed class defined as follows: 6 Class: All current and former hourly-paid or non-exempt employees 7 who worked for any of the Defendants within the State of California 8 at any time during the period from four years preceding the filing of 9 the Complaint to final judgment and who reside in California. 10 Subclass A: All current and former hourly-paid or non-exempt 11 employees who worked for any of the Defendants within the State of 12 California at any time during the period from four years preceding 13 the filing of the Complaint to final judgment who were subject to 14 Defendants’ practice of rounding time recorded for compensation of 15 regular/overtime wages and who reside in California. 16 Subclass B: All current and former hourly-paid or non-exempt 17 employees who worked for any of the Defendants within the State of 18 California at any time during the period from four years preceding 19 the filing of the Complaint to final judgment who were required by 20 Defendants to stay on Defendants’ premises for rest breaks and who 21 reside in California. 22 Subclass C: All current and former hourly-paid or non-exempt 23 employees who worked for any of the Defendants within the State of 24 California at any time during the period from four years preceding 25 the filing of the Complaint to final judgment who received overtime 26 27 8 First Transit asserts in its Notice of Removal that there is no entity called “First Transit Services, Inc.” Notice of Removal ¶ 27. 1 compensation at a rate lower than their respective regular rate of pay 2 because Defendants failed to include all non-discretionary bonuses 3 or other incentive-based compensation in the calculation of the 4 regular rate of pay for overtime pay purposes and who reside in 5 California.10 6 Azimihashemi does not know the number of class members, but he estimates it 7 to be greater than 50 individuals.11 8 Defendants failed to compensate Azimihashemi and other proposed class 9 members (collectively, “Plaintiffs”) for all hours worked and missed meal and 10 rest periods.12 Plaintiffs worked for Defendants over eight hours a day and/or 40 11 hours a week.13 Defendants did not pay Plaintiffs minimum wage for all hours 12 worked.14 Defendants did not provide Plaintiffs with complete and accurate 13 wage statements.15 Defendants did not keep complete and accurate payroll 14 records.16 Defendants failed to pay Plaintiffs all wages owed to them upon their 15 respective discharges or resignations.17 Defendants failed to reimburse Plaintiffs 16 for all necessary business-related expenses and costs.18 Defendants failed to pay 17 Plaintiffs promptly.19 18 First Transit asserted in its Notice of Removal that removal under CAFA 19 was justified because the proposed class has over 100 members; First Transit 20 21 10 Id. ¶ 13. 22 11 Id. ¶ 15. 23 12 Id. ¶ 19. 13 Id. ¶ 24. 24 14 Id. ¶ 30. 25 15 Id. ¶ 33. 26 16 Id. ¶ 34. 17 Id. ¶ 40. 27 18 Id. ¶ 44. 1 and FirstGroup are both citizens of both Delaware and Ohio; and the amount in 2 controversy exceeds $5,000,000.20 3 II. LEGAL STANDARD 4 Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey 5 possess only that power authorized by Constitution and statute.” Kokkonen v. 6 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In every federal case, the 7 basis for federal jurisdiction must appear affirmatively from the record. See 8 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). “The right of 9 removal is entirely a creature of statute and a suit commenced in a state court 10 must remain there until cause is shown for its transfer under some act of 11 Congress.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal 12 quotation marks omitted). Unless otherwise expressly provided by Congress, 13 “any civil action brought in a State court of which the district courts of the 14 United States have original jurisdiction, may be removed by the defendant or the 15 defendants, to the district court.” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724 16 F.3d 1249, 1252 (9th Cir. 2013) (internal quotation marks omitted). 17 To remove an action to federal court under 28 U.S.C. § 1441(a), the 18 removing defendant “must demonstrate that original subject-matter jurisdiction 19 lies in the federal courts.” Syngenta, 537 U.S. at 33. In other words, the 20 removing defendant bears the burden of establishing that removal is proper. See 21 Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (noting 22 the “longstanding, near-canonical rule that the burden on removal rests with the 23 removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) 24 (“The strong presumption against removal jurisdiction means that the 25 defendant always has the burden of establishing that removal is proper.” 26 (quotation marks omitted)). 27 1 III. DISCUSSION 2 First Transit removed this action to this Court pursuant to 28 U.S.C. 3 § 1441, asserting jurisdiction under CAFA. Thus, First Transit bears the 4 burden of establishing that this Court has original subject matter jurisdiction 5 over this action. 6 A. Legal Standard Under CAFA 7 Under CAFA, the Court has “original jurisdiction of any civil action in 8 which the matter in controversy exceeds the sum or value of $5,000,000, 9 exclusive of interest and costs, and is a class action in which” there is minimal 10 diversity. 28 U.S.C. § 1332(d)(2). To remove a case to federal court under 11 CAFA, a defendant must demonstrate that the amount in controversy exceeds 12 $5 million, exclusive of interest and costs. Id. The general rule is that a 13 removing defendant’s well-pleaded amount in controversy allegations “should 14 be accepted when not contested by the plaintiff or questioned by the court.” 15 Dart Cherokee, 574 U.S. at 87; see also Ibarra v. Manheim Invs., Inc., 775 F.3d 16 1193, 1197 (9th Cir. 2015) (in evaluating the amount in controversy, the court 17 first looks to the complaint). 18 However, where, as here, the plaintiff challenges the removing 19 defendant’s jurisdictional allegation, under 28 U.S.C. § 1446(c)(2)(B), 20 “removal . . . is proper on the basis of an amount in controversy asserted” by the 21 defendant only “if the district court finds, by the preponderance of the evidence, 22 that the amount in controversy exceeds” the jurisdictional threshold. Dart 23 Cherokee, 574 U.S. at 88. “In such a case, both sides submit proof and the court 24 decides . . . whether the amount-in-controversy requirement has been satisfied.” 25 Id (emphasis added). The preponderance of the evidence standard means that 26 the “defendant must provide evidence establishing that it is ‘more likely than 27 not’ that the amount in controversy” meets or exceeds the jurisdictional 1 1996) (emphasis added). The defendant must set forth the underlying facts 2 supporting its assertion that the amount in controversy exceeds the statutory 3 minimum. Gaus, 980 F.2d at 567. In addition to the contents of the notice of 4 removal, the Court may consider “summary-judgment-type evidence relevant to 5 the amount in controversy at the time of removal,” such as affidavits or 6 declarations. Ibarra, 775 F.3d at 1197; Valdez v. Allstate Ins. Co., 372 F.3d 1115, 7 1117 (9th Cir. 2004). There is no presumption against removal jurisdiction in 8 CAFA cases. Dart Cherokee, 574 U.S. at 89. 9 Here, as a threshold matter, Azimihashemi does not dispute that minimal 10 diversity exists, as required by CAFA.21 See 28 U.S.C. § 1332(d)(2). The only 11 jurisdictional dispute concerns to the amount-in-controversy requirement under 12 CAFA.22 13 B. Amount in Controversy 14 In its Notice of Removal, First Transit asserts that the amount in 15 controversy in this case exceeds $5 million. Azimihashemi alleges that First 16 Transit improperly denied Plaintiffs “all requisite uninterrupted meal and rest 17 periods.”23 The penalty for each missed period is one hour of wages.24 First 18 Transit analyzed the pay data of 5,780 employees employed during the class 19 period; when multiplied by the length of the class period and the average hourly 20 pay, the penalty for the second and third causes of action alone exceeds 21 $5 million.25 In its Opposition, First Transit supported these figures with a 22 declaration by its payroll director, Tara Blessing.26 23 24 21 See generally Motion (no discussion of diversity). 25 22 Id. at 2:2-4. 26 23 Complaint ¶ 38. 24 Notice of Removal ¶ 36. 27 25 Notice of Removal ¶ 38-39. 1 Azimihashemi argues that the Blessing Declaration is insufficient 2 evidence.27 But this and other courts have found that in similar CAFA removal 3 cases, a declaration from the defendant’s payroll director is sufficient evidence 4 when a plaintiff does not submit any evidence in opposition. See, e.g., Vasquez v. 5 RSI Home Prod., Inc., 2020 WL 6778772, at *4 (C.D. Cal. Nov. 12, 2020) 6 (reasonable to rely on defendant’s declaration where declaration aligned with 7 allegations in the complaint and plaintiff did not submit any evidence); Torrez v. 8 Freedom Mortg., Corp., 2017 WL 2713400, at *5 (C.D. Cal. June 22, 2017) 9 (similar). 10 Azimihashemi further asserts that the Blessing Declaration incorrectly 11 assumes that First Transit’s assumption of a 100% violation rate is baseless.28 12 But Azimihashemi offers no alternative violation rate, and the Complaint itself 13 alleges a 100% violation rate: “During the relevant time period, Defendants 14 failed to provide all requisite uninterrupted meal and rest periods to Plaintiff and 15 the other class members.”29 As this Court has previously pointed out, 16 Azimihashemi likely worded the Complaint extremely broadly on purpose, in 17 order to seek justice for the maximum number of people. It is, therefore, 18 reasonable to look to this wording when determining the alleged violation rate. 19 See Vasquez, 2020 WL 6778772, at *4 (C.D. Cal. Nov. 12, 2020) (assumption of 20 100% violation rate was reasonable where pleadings were “general and 21 expansive”); compare Schiller v. Ashley Distribution Servs., Ltd., 2021 WL 22 1292511, at *5 (C.D. Cal. Apr. 6, 2021) (declining to find universal violation rate 23 reasonable where complaint specified that violations occurred “not regularly”). 24 Thus, Azimihashemi’s second and third claims for relief alone allege an 25 amount in controversy sufficient for CAFA removal. The Court need not 26 27 Reply at 5:3-6:1. 27 28 Motion at 7:24-8:4. 1|| analyze Azimihashemi’s other causes of action; however, to the extent that First Transit was over-inclusive in its calculations of damages, it is likely that the 3 || remaining claims for relief will lead to an amount in controversy exceeding 4|| $5 million. 5 IV. CONCLUSION 6 For the reasons stated above, the Court DENIES Azimihashemi’s || Motion to Remand. 8 IT IS SO ORDERED. MUO 10 || Dated: July 15, 2021 □ 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28