Pemberton v. Longs Drug Stores Cal., L.L.C., Case No. 1:20-cv-00568-NONE-EPG

PAMELA PEMBERTON, Plaintiffs, v. LONGS DRUG STORES CALIFORNIA, L.L.C., Defendant.

Case No. 1:20-cv-00568-NONE-EPG

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 24, 2020

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S MOTION TO REMAND BE DENIED

(ECF No. 6)

Before the Court on referral from the District Judge (ECF No. 7) is plaintiff Pamela Pemberton's motion to remand this action to the Stanislaus County Superior Court. (ECF No. 9.) For the reasons that follow, the Court will recommend that the motion be denied.¹

BACKGROUND

Plaintiff's complaint alleges the following: Plaintiff was hired by Defendant, Longs Drug Stores of California, currently doing business as CVS Pharmacy, in 1975. Her last-held title with Defendant was Operations Manager. (ECF No. 3-1 at 11.) Plaintiff injured her back while at work in one of Defendant's stores located in Oakdale, California. This injury limited Plaintiff's ability to work, and she was prescribed lifting restrictions for the injury, which Defendant granted.

In April 2015, Plaintiff was assigned to oversee a store remodel in Tracy, California. This assignment ended in July 2015. Plaintiff was not required to do any heavy lifting during thisassignment. (Id.) Plaintiff was then transferred to a store in Modesto, California, where she worked for approximately one year. During this time, her lifting restrictions were generally accommodated. (Id.)

In around November 2016, Plaintiff was transferred to a store in Riverbank, California. She was initially supervised by the store manager, Howard Hanes, and her disability was accommodated. However, Hanes left after about six months and was replaced by Joe Esquivel. While Esquivel was store manager, Plaintiff was routinely compelled to lift heavy objects and otherwise violate her work restrictions. This exacerbated Plaintiff's disability such that she was taken off work by her doctor in October 2017. (Id.)

Plaintiff applied for and was granted leave under the Family Medical Leave Act/California Family Rights Act. She also continued to request accommodation for her disability and supplied medical certification from her health care provider. This certification specified Plaintiff's work restrictions and noted that Defendant was not complying with the restrictions. (ECF No. 3-1 at 12.) Defendant continued to refuse to accommodate Plaintiff and failed to engage in a timely, good faith interactive process to determine reasonable accommodations. (Id.)

In April 2019, Plaintiff spoke with Tracy Sullivan, Defendant's Reasonable Accommodation Partner. Sullivan informed Plaintiff that Defendant would not extend her leave of absence. Plaintiff pointed out that her work restrictions were previously accommodated, emphasizing her desire for reasonable accommodations and not a continued leave of absence.

Plaintiff's employment was terminated May 2, 2019. (ECF No. 3-1 at 12.) On December 20, 2019, Plaintiff requested that Defendant provide copies of her payroll and personnel records. Defendant did not comply with this records request. (Id.)

On January 24, 2020, Plaintiff filed her complaint in Stanislaus County Superior Court. (ECF No. 3-1 at 9.) In the complaint, Plaintiff raises state law claims against Defendant, including claims for disability discrimination, retaliation, failure to accommodate, failure to prevent discrimination and retaliation, and failure to produce personnel and payroll records upon request, all in violation of state law. (Id.) The complaint does not specify a particular amount of damages, but seeks compensatory, special, and general damages; punitive and/or exemplary damages;statutory penalties; injunctive relief; statutory attorneys' fees and costs; prejudgment and postjudgment interest; and "such other and further relief as the Court deems just and proper." (ECF No. 3-1 at 17-18.)

The summons and complaint were served on Defendant on March 19, 2020. (ECF No. 3-1 at 3.) On April 20, 2020, Defendant removed the case to federal court pursuant to 28 U.S.C. § 1446(b) on the basis of diversity jurisdiction, 28 U.S.C. § 1332. (ECF No. 1.) On May 18, 2020, Plaintiff filed the pending motion to remand. (ECF No. 6.) Defendant filed an opposition on June 12, 2020. (ECF Nos. 8, 9.) Plaintiff filed a reply in support of remand on June 19, 2020. (ECF No. 11.)

LEGAL STANDARD

A defendant in state court may remove a civil action to federal court so long as that case could originally have been filed in federal court. 28 U.S.C. § 1441(a); City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997). Thus, removal of a state action may be based on either diversity jurisdiction or federal question jurisdiction. City of Chicago, 522 U.S. at 163; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Here, removal is based on diversity jurisdiction.

In a diversity action, the removing defendant has the burden of establishing the amount in controversy by a preponderance of the evidence. Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 977 (9th Cir. 2013). Jurisdiction is analyzed based upon the pleadings filed at the time of removal without reference to any subsequent pleadings filed in the action. Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998).

The removal statute is strictly construed, and removal jurisdiction is to be rejected in favor of remand to the state court if there are doubts as to the right of removal. Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012); Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) ("The removal statute is strictly construed against removal jurisdiction."). The district court must remand the case "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c); see also Smith v. Mylan, Inc., 761 F.3d 1042, 1044 (9th Cir. 2014); Bruns v. Nat'l Credit Union Admin.,122 F.3d 1251, 1257 (9th Cir. 1997) (holding that remand for lack of subject matter jurisdiction "is mandatory, not discretionary").

ANALYSIS

Plaintiff does not dispute that she and Defendant are citizens of different states but contends that the case must be remanded because Defendant has not met its burden of demonstrating that the amount in controversy exceeds the $75,000 threshold of 28 U.S.C. § 1332(a). Plaintiff does not affirmatively state that the amount in controversy is less than $75,000. Rather, Plaintiff asserts that remand is appropriate because Defendant has provided a "mere averment" that the amount in controversy exceeds $75,000, and that this is insufficient. Plaintiff contends that, to meet its burden, Defendant is required to provide summary judgment-type evidence demonstrating by a preponderance of the evidence that the amount in controversy exceeds $75,000. (ECF No. 6 at 2; ECF No. 11 at 2.)

To the extent Plaintiff is challenging Defendant's petition for removal, the challenge fails as Defendant was not required to submit evidence at that stage of the proceedings. Rather, "a defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold," and "the defendant's amount-in-controversy allegation should be accepted when not contested by plaintiff or questioned by the court." Dart Cherokee Basin Operating, Co. v. Owens, 574 U.S. 81, 87, 89 (2014).

Here, the petition and notice of removal alleges that the complaint, on its face, "contemplates a matter in controversy that exceeds the sum or value of $75,000, exclusive of interest and costs." (ECF No. 1.) The petition and notice goes on to set forth the basis of this assertion, stating that if plaintiff prevailed, lost wages alone would be more than $144,000 based on the case taking 25 months from the date of removal to resolve. (ECF No. 1 at 6-7.) This is sufficient for purposes of the removal petition.

Once a plaintiff contests the defendant's allegations in support of removal, "removal ... is proper on the basis of an amount in controversy asserted" by the defendant only "if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the jurisdictional threshold." Dar Cherokee, 574 U.S. at 88;28 U.S.C. § 1446(c)(2)(B). "In such acase, both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied." Id. "Discovery may be taken with regard to that question. In case of a dispute, the district court must make findings of jurisdictional fact to which the preponderance standard applies." Id. at 88-89.

Here, Plaintiff is contesting Defendant's allegations regarding the amount in controversy. Thus, the question before the Court is whether Defendant has submitted evidence sufficient to demonstrate it is more likely than not that, if Plaintiff prevails on all of her claims, total damages and attorneys' fees will exceed $75,000. See Narayan v. Compass Grp. USA, Inc., 284 F. Supp. 3d 1076, 1089-90 (E.D. Cal. 2018) ("Defendant must prove that the amount in controversy is 'more likely than not' to exceed the jurisdictional minimum.") (citation omitted).

"Wholly conclusory allegations as to the amount in controversy are insufficient, and the court cannot base [its] jurisdiction on a [d]efendant's speculation and conjecture." Id. at 1090 (citations and quotation marks omitted) (alterations in original). "Nonetheless, [t]he burden is not daunting, and 'a removing defendant is not obligated to research, state, and prove the plaintiff's claims for damages." Id. (citations and quotation marks omitted) (emphasis and alteration in original).

In Narayan v. Compass Grp. USA, Inc, as here, the plaintiff contested the defendant's allegations that the amount in controversy was met. Thus, the burden was on the defendant to establish by a preponderance of the evidence that the amount-in-controversy requirement...