Skipple v. PepsiCo Beverage Sales, LLC ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 RYAN SKIPPLE, an individual, No. 2:24-cv-01046 WBS CKD 13 Plaintiff, 14 v. ORDER RE: MOTION TO REMAND 15 PEPSICO BEVERAGE SALES, LLC, a limited liability company; and 16 DOES 1 through 20, inclusive, 17 Defendants. 18 19 ----oo0oo---- 20 Plaintiff Ryan Skipple brought eight state law claims 21 against defendant Pepsico Beverage Sales, LLC in Sutter County 22 Superior Court, all of which center on allegations that defendant 23 failed to accommodate and unlawfully terminated plaintiff for a 24 shoulder injury that he sustained while performing his work 25 duties. (Compl. (Docket No. 1 Ex. 1).) Defendant then removed 26 to this court based on diversity jurisdiction. (Notice of 27 Removal (Docket No. 1).) Plaintiff now seeks to remand back to 28 state court. (Mot. (Docket No. 10).) 1 Specifically, plaintiff contends that defendant failed 2 to establish that the $75,000 amount-in-controversy requirement 3 is satisfied. See 28 U.S.C. § 1332. (See generally Mot.) The 4 Ninth Circuit has held that “the amount in controversy is 5 determined by the complaint operative at the time of removal and 6 encompasses all relief a court may grant on that complaint if the 7 plaintiff is victorious.” Chavez v. JPMorgan Chase & Co., 888 8 F.3d 413, 414-15 (9th Cir. 2018). “[W]hen the defendant’s 9 assertion of the amount in controversy is challenged by 10 plaintiffs in a motion to remand, the Supreme Court has said that 11 both sides submit proof and the court then decides where the 12 preponderance lies.” Ibarra v. Manheim Invs., Inc., 775 F.3d 13 1193, 1198 (9th Cir. 2015) (citing Dart Cherokee Basin Operating 14 Co., LLC v. Owens, 574 U.S. 81, 88-89 (2014)). Proof “includes 15 affidavits, declarations, or ‘other summary-judgment-type 16 evidence relevant to the amount in controversy at the time of 17 removal.’” Sifuentes v. Roofline, Inc., No. 2:20-CV-00052 WBS 18 KJN, 2020 WL 1303796, at *1 (E.D. Cal. Mar. 19, 2020) (citing 19 Ibarra, 775 F.3d at 1197). See also Gonzales v. CarMax Auto 20 Superstores, LLC, 840 F.3d 644, 648-49 (9th Cir. 2016) (amount in 21 controversy includes “damages (compensatory, punitive, or 22 otherwise) and the cost of complying with an injunction, as well 23 as attorneys’ fees awarded under fee shifting statutes”). 24 Back pay. Plaintiff alleges that he was a full-time 25 employee and is entitled to past lost wages. (Compl. ¶¶ 16, 28- 26 29.) Defendant asserts potential back pay of $46,740, derived as 27 follows: (i) construing “full-time” to mean roughly 40 hours 28 worked per week; (ii) there being roughly 50 weeks between the 1 date of plaintiff’s allegedly wrongful termination (id. ¶ 16 2 (April 25, 2023)) and the date of removal (Not. of Removal (April 3 8, 2024)); and (iii) plaintiff’s hourly wage at the time of his 4 termination being $23.37 (Sun Decl. (Docket No. 4) ¶ 8). 5 Accordingly, $23.37 per hour x 40 hours per week x 50 weeks = 6 $46,740. 7 Plaintiff does not seriously challenge this estimated 8 amount of back pay. (See Mot. at 10.) Instead, plaintiff merely 9 argues in reply, without supporting evidence, that the amount is 10 “speculative” because plaintiff “was on medical leave and had 11 relocated to Tennessee during his recovery.” (Reply (Docket No. 12 17) at 3.) However, this runs contrary to the allegations in 13 plaintiff’s complaint that he is and was at all relevant times a 14 Yuba County resident (Compl. ¶ 2) and is entitled to back pay 15 without qualification (id. ¶¶ 28-29). 16 Taking together the allegations on the face of the 17 complaint and the preponderance of the evidence submitted by 18 defendant in relation to the instant motion, the court concludes 19 that at least $46,740 in back pay is in controversy here. 20 Attorneys’ fees. The Ninth Circuit has held that “the 21 amount in controversy includes all relief claimed at the time of 22 removal to which the plaintiff would be entitled if she 23 prevails.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 418 24 (9th Cir. 2018). This includes claimed relief in the form of 25 attorneys’ fees. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 26 1156 (9th Cir. 1998) (“where an underlying statute authorizes an 27 award of attorneys' fees, either with mandatory or discretionary 28 language, such fees may be included in the amount in 1 controversy”); see also Fritsch v. Swift Transportation Co. of 2 Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 2018) (“[A] court must 3 include future attorneys’ fees recoverable by statute or contract 4 when assessing whether the amount-in-controversy requirement is 5 met.”). 6 For claims brought under brought under the Fair 7 Employment and Housing Act (“FEHA”), Cal. Gov. Code §§ 12900- 8 12996, the court may award attorneys’ fees to the prevailing 9 party at its discretion. Cal. Gov. Code § 12965(b). Plaintiff 10 asserts several claims under FEHA and requests attorneys’ fees 11 under FEHA’s fee provision seven different times. (See Compl. ¶¶ 12 46, 58, 64, 76, 84, 92, 101.) In addition, plaintiff brings no 13 evidence, authority, or arguments on why, despite his request for 14 attorneys’ fees in the complaint, the court’s discretion would 15 nonetheless be better exercised by declining to award him 16 attorneys’ fees under FEHA were he to prevail at trial. 17 Accordingly, the court will include attorneys’ fees in its 18 calculation of the amount in controversy. 19 The next question is: how much? As this court has 20 previously noted, “[c]ourts have ‘held that a reasonable rate for 21 employment cases is $300 per hour’ and ‘100 hours is an 22 appropriate and conservative estimate’ of the number of hours 23 expended through trial for an employment action.” Adkins v. J.B. 24 Hunt Transp., Inc., 293 F. Supp. 3d 1140, 1148 (E.D. Cal. 2018) 25 citing Sasso v. Noble Utah Long Beach, LLC, No. CV 14-09154-AB 26 AJWX, 2015 WL 898468, at *6 (C.D. Cal. Mar. 3, 2015)). 27 Accordingly, the court concludes that at least $30,000 in 28 attorneys’ fees is in controversy here, and that plaintiff’s nnn nnn en oon nn on nn on nn NO II EEO 1 requested back pay and attorneys’ fees alone exceed the $75,000 2 amount-in-controversy threshold.! 3 IT IS THEREFORE ORDERED that plaintiff’s motion to 4 remand (Docket No. 10) be, and the same hereby is, DENIED.?2 5 Dated: June 11, 2024 Ved ak. 2 6 WILLIAM B. SHUBB 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 The court therefore need not consider the parties’ arguments regarding the amounts in controversy as to front pay, 24 emotional distress damages, or punitive damages. 2 ° 2 The hearing on this motion, currently scheduled on June 26 24, 2024, is hereby VACATED, and plaintiff’s request for a telephonic/remote appearance (Docket No. 18) is accordingly 27 DENIED as moot. Defendant’s request for judicial notice (Docket No. 14) is also DENIED as moot. 28