Lehman v. Amazon.com Services LLC ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAIRRIN SIMONE LEHMAN, No. 2:23-cv-02022-DAD-JDP 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO REMAND AND GRANTING 14 AMAZON.COM SERVICES, LLC, DEFENDANT’S REQUEST FOR JUDICIAL NOTICE 15 Defendant. (Doc. Nos. 6, 9) 16 17 18 This matter is before the court on plaintiff’s motion to remand this action to the 19 Sacramento County Superior Court. (Doc. No. 6.) The motion was taken under submission on 20 the papers pursuant to the parties’ stipulation under Local Rule 230(g) to forgo a hearing. (Doc. 21 Nos. 11, 12.) For the reasons set forth below, the court will deny plaintiff’s motion to remand. 22 BACKGROUND 23 On August 14, 2023, plaintiff filed this employment discrimination action against 24 defendant Amazon.com Services LLC (“defendant”) and unnamed defendants Does 1–20 in the 25 Sacramento County Superior Court. (Doc. No. 1-3 at 3–5.) In her complaint, plaintiff asserts the 26 following twelve causes of action: (1) employment discrimination in violation of the California 27 Fair Employment and Housing Act (“FEHA”); (2) retaliation in violation of FEHA; (3) failure to 28 prevent discrimination and retaliation; (4) failure to accommodate; (5) failure to engage in the 1 interactive process; (6) violation of California’s Pregnancy Disability Leave Law (“PDLL”); 2 (7) declaratory judgment; (8) retaliation in violation of the California Labor Code; (9) wrongful 3 termination in violation of public policy; (10) battery; (11) negligent supervision and retention; 4 and (12) failure to permit inspection of personnel and payroll records. (Id. at 3–4.) As relief, 5 plaintiff seeks “special damages,” “medical expenses,” “past and future lost wages, bonuses, 6 commissions, benefits and loss or diminution of earning capacity,” “general damages for 7 emotional and mental distress and aggravation in a sum in excess of the jurisdictional minimum,” 8 “punitive damages in excess of the jurisdictional minimum,” “attorneys’ fees and costs,” “expert 9 fees,” “a civil penalty not exceeding ten thousand dollars,” and “a civil penalty of $750.” (Id. at 10 9–27.) 11 On September 18, 2023, defendant removed this action to this federal court pursuant to 28 12 U.S.C. §§ 1332, 1441, and 1446, on the grounds that diversity jurisdiction exists because plaintiff 13 and defendant are citizens of different states and the amount in controversy exceeds $75,000. 14 (Doc. No. 1.) On October 18, 2023, plaintiff filed the pending motion to remand this action to the 15 Sacramento County Superior Court, arguing that the amount-in-controversy requirement under 28 16 U.S.C. § 1332 is not met here. (Doc. No. 6.) On November 1, 2023, defendant filed an 17 opposition to plaintiff’s motion to remand. (Doc. No. 8.) Plaintiff did not file a reply in support 18 of the pending motion. On November 20, 2023, the parties filed a joint stipulation to submit the 19 motion for a decision on the papers and vacate the hearing set for December 5, 2023. (Doc No. 20 11.) Pursuant to Local Rule 230(g), plaintiff’s motion was accordingly taken under submission 21 without a hearing. (Doc. No. 12.) 22 LEGAL STANDARD 23 A suit filed in state court may be removed to federal court if the federal court would have 24 had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case 25 originally filed in state court presents a federal question or where there is diversity of citizenship 26 among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 27 1332(a). 28 ///// 1 “If at any time before final judgment it appears that the district court lacks subject matter 2 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “The removal statute is strictly 3 construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to 4 the party invoking the statute.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 5 2004) (citation omitted); see also Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 6 1083, 1087 (9th Cir. 2009) (“The defendant bears the burden of establishing that removal is 7 proper.”). If there is any doubt as to the right of removal, a federal court must reject jurisdiction 8 and remand the case to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 9 1090 (9th Cir. 2003); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 (9th Cir. 2004). 10 A party’s notice of removal must contain “a short and plain statement of the grounds for 11 removal.” 28 U.S.C. § 1446(a). “By design, § 1446(a) tracks the general pleading requirement 12 stated in Rule 8(a) of the Federal Rules of Civil Procedure,” and a “statement ‘short and plain’ 13 need not contain evidentiary submissions.” Dart Cherokee Basin Operating Co., LLC v. Owens, 14 574 U.S. 81, 83–84 (2014); see also Ramirez-Duenas v. VF Outdoor, LLC, No. 1:17-cv-0161- 15 AWI-SAB, 2017 WL 1437595, at *2 (E.D. Cal. Apr. 41, 2017) (“The notice of removal may rely 16 on the allegations of the complaint and need not be accompanied by any extrinsic evidence.”). 17 The party asserting diversity jurisdiction bears the burden of proving by a preponderance 18 of the evidence—that is, that it is “more likely than not”—that the amount in controversy exceeds 19 $75,000. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007); Sanchez v. 20 Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). The amount in controversy “is 21 simply an estimate of the total amount in dispute, not a prospective assessment of [the] 22 defendant’s liability.” Lewis v. Verizon Comm. Inc., 627 F.3d 395, 400 (9th Cir. 2010). “[T]he 23 amount in controversy is determined by the complaint operative at the time of removal and 24 encompasses all relief a court may grant on that complaint if the plaintiff is victorious.” Chavez 25 v. JPMorgan Chase & Co., 888 F.3d 413, 414–15 (9th Cir. 2018). “In calculating the amount in 26 controversy, a court must assume that the allegations in the complaint are true and that a jury will 27 return a verdict for plaintiffs on all claims alleged.” Page v. Luxottica Retail N. Am., No. 2:13- 28 cv-01333-MCE-KJN, 2015 WL 966201, at *2 (E.D. Cal. Mar. 4, 2015) (citing Korn v. Polo 1 Ralph Lauren Corp., 536 F. Supp. 2d 1199, 1205 (E.D. Cal. 2008)); accord Campbell v. Vitran 2 Express, Inc., 471 F. App’x 646, 648 (9th Cir. 2012).1 Moreover, “a court must include [actual 3 and] future attorneys’ fees recoverable by statute or contract when assessing whether the amount- 4 in-controversy requirement is met.” Fritsch v. Swift Trans. Co. of Ariz., LLC, 899 F.3d 785, 794 5 (9th Cir. 2018). 6 ANALYSIS 7 In the pending motion to remand, plaintiff contends that defendant improperly removed 8 this action because defendant failed to satisfy its burden to establish federal subject matter 9 jurisdiction based on diversity. (Doc. No. 6.) Plaintiff does not dispute that complete diversity of 10 citizenship exists here. Instead, plaintiff argues that defendant has failed to show in its notice of 11 removal that the amount in controversy exceeds $75,000. (Id.) The court notes that plaintiff has 12 not asserted in her complaint or moving papers that she seeks less than $75,000 in this action. 13 Rather, plaintiff merely argues that defendant has not met its burden of establishing by a 14 preponderance of the evidence that the amount in controversy exceeds the jurisdictional 15 minimum; though, she offers no contrary evidence of her own. Moreover, in her complaint, 16 plaintiff does not specify the amount in controversy or provide an estimate of the damages sought 17 in this action.2 Instead, as noted above, plaintiff broadly requests the award of damages for past 18 and future lost wages, bonuses, commissions, benefits, loss or diminution of earning capacity, 19 physical sickness, emotional distress, medical expenses, punitive damages, attorney’s fees, and 20 litigation costs. (Doc. No. 1-3 at 9.) 21 In opposing plaintiff’s motion to remand, defendant contends that the amount in 22 controversy exceeds $75,000 based on this broad range of damages sought by plaintiff, including 23 24 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b). 25 2 Notably, when a state court complaint affirmatively alleges that the amount in controversy is 26 less than the jurisdictional threshold, the party seeking removal must prove with “legal certainty” 27 that the jurisdictional amount is met. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007); see also Glassical Creations, Inc. v. Canter, No. 15-cv-04358-MMM-PJW, 2015 WL 28 4127912, at *4 & n. 10 (C.D. Cal. July 7, 2015). That is not the case here. 1 loss of earnings (for approximately 49 weeks full-time at $17.75 per hour), emotional distress 2 damages, punitive damages, and attorneys’ fees (for an estimated 100 hours at a reasonable rate 3 of $300 per hour). (Doc. No. 8 at 4–9.) Plaintiff has not offered any counterargument or 4 evidence to rebut defendant’s contention in this regard. Indeed, plaintiff did not file a reply brief 5 in support of the pending motion, and thus forwent the opportunity to refute defendant’s 6 estimated amounts. Plaintiff also stipulated to forgo oral argument and did not seek to be heard 7 by the court with regard to any such counterarguments. (Doc. No. 11.) Indeed, plaintiff’s 8 decision to not submit a reply brief and of opting out of oral argument may suggest that plaintiff 9 no longer wishes to pursue the pending motion to remand. Nevertheless, the court will assess 10 defendant’s estimates with regard to each of the categories of damages and determine whether it 11 has shown by a preponderance of the evidence that the amount in controversy in this case exceeds 12 the $75,000 jurisdictional threshold. 13 A. Lost Wages 14 In its notice of removal, defendant does not provide an estimate of the lost wages at issue 15 in this case. Defendant simply asserts that in sum, all the categories of damages that plaintiff 16 seeks amount to more than $75,000. (Doc. No. 1 at 3.) According to plaintiff’s motion to 17 remand, defendant’s contention in this regard is “based solely on conjecture.” (Doc. No. 6 at 6) 18 However, in support of its opposition, defendant concurrently filed a declaration from their senior 19 human resources business partner, Raheem Muhammad-Terrell, in which he declared that he 20 reviewed defendant’s records and determined that plaintiff’s last day worked was November 22, 21 2022, and her hourly wages were $17.75. (Doc. No. 8-3.) Defendant noted that “[w]ithout 22 mitigation, [p]laintiff’s potentially recoverable lost wages attributable to the approximate 49 23 weeks between the conclusion of her employment and [d]efendant’s removal are approximately 24 $34,000, and ongoing.”3 (Doc. No. 8 at 8.) Plaintiff was silent on the question of her amount of 25 lost wages and/or mitigation, as she filed no reply brief. Plaintiff had an opportunity to provide 26 3 By the court’s calculation, there are at most 43 weeks between the conclusion of plaintiff’s 27 employment on November 22, 2022 and defendant’s notice of removal on September 18, 2023. Lost wages for full-time work at $17.75 per hour would therefore add up to approximately 28 $30,530 during this time. 1 the court with any evidence reflecting her employment status since her termination, but she chose 2 not to do so. Because plaintiff has not provided any such evidence, the court’s accounting for any 3 potential offsets or mitigation in the amount-in-controversy calculation at this point would itself 4 be “based solely on conjecture.” 5 Given the evidence that defendant has submitted regarding plaintiff’s earnings, and in the 6 absence of any evidence from plaintiff to the contrary, the court concludes that the category of 7 lost wages alone results in at least $30,000 in controversy. Notably, this estimate does not 8 account for future wages, which plaintiff also seeks in this action (Doc. No. 1-3 at 9), and which 9 is generally included in the amount in controversy. See Chavez, 888 F.3d at 418 (“Where, as 10 here, a plaintiff’s complaint at the time of removal claims wrongful termination resulting in lost 11 future wages, those future wages are included in the amount in controversy.”). However, 12 defendant has not provided an estimate for that subcategory of damages, so lost future wages are 13 not included in defendant’s estimated amount for lost wages. 14 Thus, plaintiff’s prayer for lost wages by itself, even before factoring in plaintiff’s 15 numerous other grounds for relief, contributes $30,000 to the amount in controversy by a 16 conservative estimate, though likely more. 17 B. Attorneys’ Fees 18 Plaintiff also seeks recovery of attorneys’ fees, which further pushes the amount in 19 controversy to the threshold. See Chavez, 888 F.3d at 418 (“the amount in controversy includes 20 all relief claimed at the time of removal to which the plaintiff would be entitled if she prevails”); 21 see also Fritsch, 899 F.3d at 794. In her complaint, plaintiff requests “a reasonable award of 22 attorneys’ fees and costs,” both “pursuant to the FEHA” and “for the purpose of redressing, 23 preventing, or deterring discrimination and harassment.” (Doc. No. 1-3 at 11–20.) FEHA 24 permits the recovery of costs and attorneys’ fees to the prevailing parties. Cal. Gov’t Code 25 § 12965(c)(6); Williams v. Chino Valley Indep. Fire Dist., 61 Cal. 4th 97, 115 (2015) (holding 26 that “a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless 27 special circumstances would render such an award unjust.”). Defendant claims that attorneys’ 28 fees in this case will equal at least $30,000. (Doc. No. 8 at 12.) Defendant estimates this $30,000 1 figure based on the analysis in a few district court decisions in similar cases. First, another judge 2 of this district court found $30,000 to be “a reasonable estimate of attorneys’ fees in a single- 3 plaintiff pregnancy discrimination case.” Owuor v. Wal-Mart Assocs., Inc., No. 2:21-cv-02232- 4 KJM-JDP, 2022 WL 1658738 at *3 (E.D. Cal. May 25, 2022). Second, this $30,000 figure was 5 calculated using $300 per hour as a “reasonable rate for employment cases” and 100 hours as an 6 “appropriate and conservative estimate” of the time required. Id. (citing Sasso v. Noble Utah 7 Long Beach, LLC, No. 14-cv-09154-AB-AJW, 2015 WL 898468 at *6 (C.D. Cal. Mar. 3, 2015)). 8 Plaintiff’s counsel did not dispute defendant’s estimate, disclose their actual hourly rates, or 9 otherwise respond to defendant’s argument in this regard. Moreover, in estimating future 10 attorneys’ fees, district courts may “rely on their own knowledge of customary rates and their 11 experience concerning reasonable and proper fees.” Fritsch, 899 F.3d at 795. Accordingly, 12 based on its experience, the court agrees that $30,000 is a reasonable and conservative estimate of 13 the potential attorneys’ fees, especially when accounting for plaintiff’s prosecution of twelve 14 separate claims. 15 Accepting defendant’s reasonable attorneys’ fees calculation, the value of plaintiff’s 16 claims for lost wages and attorneys’ fees therefore amounts to at least $60,000. The remaining 17 question, then, is whether plaintiff’s other requested categories of damages amount to more than 18 $15,000. If so, the jurisdictional threshold is satisfied here. 19 C. Emotional Distress 20 Plaintiff seeks emotional distress damages (Doc. No. 1-3 at 9), which may be considered 21 in determining the amount in controversy. See Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th 22 Cir. 2005). To estimate emotional distress damages, a defendant may introduce evidence of jury 23 verdicts from cases with analogous facts. Id. In its opposition to the pending motion, defendant 24 highlights several cases involving pregnancy discrimination and wrongful termination in which 25 emotional distress awards far exceeded $15,000. (Doc. Nos. 8 at 9–10; 9.) Defendant asks the 26 court to take judicial notice of the verdict and settlement summaries in each case. (Doc. No. 9.) 27 “Judicial notice under Rule 201 permits a court to notice an adjudicative fact if it is ‘not subject to 28 reasonable dispute.’” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) 1 (quoting Fed. R. Evid. 201(b)). “A fact is ‘not subject to reasonable dispute’ if it is ‘generally 2 known,’ or ‘can be accurately and readily determined from sources whose accuracy cannot 3 reasonably be questioned.’” Id. (quoting Fed. R. Evid. 201(b)(1)–(2)). The court “must take 4 judicial notice if a party requests it and the court is supplied with the necessary information.” 5 Fed. R. Evid. 201(c)(2). 6 Defendant’s unopposed request for judicial notice requests that the court take notice of the 7 following four documents: (1) Verdict and Settlement Summary published by the Jury Verdict 8 Reporter in Cabellero v. Manchester Manor Convalescent Hospital et al., Case No. 8097452, 9 2005 WLC 6272817 (Cal. Super. Ct. 2005); (2) Verdict and Settlement Summary published by 10 the Jury Verdict Reporter in Noone v. Jason Michael Paul Productions Inc., Case No. 586768, 11 2016 WL 4426564 (Cal. Super. Ct. 2016); (3) Verdict and Settlement Summary published by the 12 Jury Verdict Reporter in Burton v. Pulmocare Respiratory Services, Case No. 1509192, 2016 WL 13 6962191 (Cal. Super. Ct. 2016); and (4) Verdict and Settlement Summary published by the Jury 14 Verdict Reporter in Lopez v. Bimbo Bakeries USA, Inc., Case No. 05445104, 2007 WL 1765192 15 (Cal. Super. Ct. 2007). The court will grant defendant’s unopposed request for judicial notice of 16 all four documents, which are properly the subject of judicial notice as court documents of public 17 record. See Lemoon v. Cal. Forensic Med. Grp., Inc., 575 F. Supp. 3d 1212, 1230 (N.D. Cal. 18 2021) (“[A] court may judicially notice court documents that are already in the public record or 19 have been filed in other courts.”) (citing Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002)). 20 While the facts alleged in this case are not identical to the facts in those cases relied upon 21 by defendant, they are sufficiently similar to serve as benchmarks for determining potential jury 22 awards in the category of emotional distress damages for plaintiffs who prevail in pregnancy 23 discrimination wrongful termination suits. See Doc. No. 9-1 at 3 (jury award of $173,425 in 24 damages for pain and suffering); Doc. No. 9-2 at 3 (jury award of $378,000 in damages for 25 emotional distress); Doc. No. 9-3 at 5 (jury award of $275,000 in damages for emotional 26 distress); Doc. No. 9-4 at 2 (jury award of $122,000 in damages for non-economic losses); see 27 also Hankins v. Am. Med. Response Ambulance Serv., Inc., No. 1:16-cv-01046-LJO-MJS, 2018 28 WL 339062, at *4 (E.D. Cal. Jan. 9, 2018) (analogizing to other discrimination cases and noting 1 in “cases alleging similar harassment and retaliation claims, emotional distress damages alone 2 often well exceed $75,000”); Owuor, 2022 WL 1658738, at *3 (taking judicial notice of 3 pregnancy discrimination cases with jury awards of $117,000 and $600,000 for non-economic 4 and pain-and-suffering damages). Based on the above figures, defendant has shown that it is 5 more likely than not that the amount in controversy for the emotional distress damages were 6 plaintiff to prevail in this case would be far more than $15,000. 7 D. Penalties 8 Plaintiff’s additional requests for punitive damages and civil penalties further confirm that 9 the amount in controversy here exceeds the $75,000 threshold. See Gonzales v. CarMax Auto 10 Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016) (noting that the amount in controversy 11 includes “damages (compensatory, punitive, or otherwise)”). Punitive damages may be 12 considered when they are recoverable under one or more of plaintiff’s claims for relief. See 13 Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001). At least seven of plaintiff’s claims 14 are brought under FEHA, and punitive damages are recoverable for FEHA violations. See 15 Commodore Home Sys., Inc. v. Superior Court, 32 Cal. 3d 211, 220–21 (1982) (“[I]n a civil 16 action under the FEHA, all relief generally available in noncontractual actions, including punitive 17 damages, may be obtained.”); see also Ochoa v. Costco Wholesale Corp., No. 2:22-cv-02287- 18 KJM-AC, 2023 WL 2861906, at *3 (E.D. Cal. Apr. 10, 2023) (considering punitive damages 19 towards the amount in controversy in a FEHA case). Again, when specific amounts are not 20 alleged by the plaintiff, “courts look to cases and jury awards with sufficiently similar claims.” 21 Id. The same pregnancy discrimination and wrongful termination cases that defendant has cited 22 likewise suggest that punitive damages sought in this case will amount to more than $15,000. See 23 Doc. No. 9-2 at 3 (jury award of $120,000 in punitive damages); Doc. No. 9-3 at 3 (jury award of 24 $50,000 in punitive damages); Doc. No. 9-4 at 2 (jury award of $2,000,000 in punitive damages); 25 see also Owuor, 2022 WL 1658738, at *3 (taking judicial notice of pregnancy discrimination 26 cases with jury awards of $3,854,320 and $450,000 for punitive damages). Further, even apart 27 from a punitive damages award for FEHA violations, plaintiff also seeks civil penalties for two 28 different alleged Labor Code violations. (Doc. No. 1-3 at 21, 27.) Under Labor Code 1 § 1102.5(f), plaintiff seeks a penalty of up to $10,000, and under Labor Code § 1198.5, plaintiff 2 | seeks a penalty of $750. Id. These penalties further increase the amount in controversy, above 3 | and well beyond the $75,000 threshold. 4 In sum, defendant has shown that it is more likely than not that emotional distress 5 | damages and penalties in the form of punitive damages and civil penalties amount to more than 6 | $15,000 in controversy. Taken together with the $60,000 from plaintiffs claims for lost wages 7 | and attorneys’ fees, defendant has met its burden of establishing by a preponderance of the 8 || evidence that the amount in controversy in this case exceeds the jurisdictional threshold. The 9 | court need not address the other categories of damages (medical expenses, psychological 10 | counseling, bonuses, benefits, etc.) that plaintiff seeks in this case to reach that conclusion. 11 CONCLUSION 12 For the reasons set forth above: 13 1. Defendant’s request for judicial notice (Doc. No. 9) is granted; and 14 2. Plaintiff's motion to remand (Doc. No. 6) is denied. 15 IT IS SO ORDERED. '6 Dated: _ November 22, 2023 Dak A. 2d, aryek 17 DALE A. DROZD UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 10