Crockett v. Wal-Mart Associates, Inc.

[6] 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA [10] 11 PATRICIA ANN CROCKETT, an No. 2:23-cv-01562-TLN-KJN individual, [12] Plaintiff, 13 ORDER v. [14] WAL-MART ASSOCIATES, INC., a 15 Delaware corporation and DOES 1 through 20, inclusive, [16] Defendants. [18] 19 This matter is before the Court on Plaintiff Patricia A. Crockett’s (“Plaintiff”) Motion to 20 Remand. (ECF No. 9.) Defendant Wal-Mart Associates, Inc. (“Defendant”) filed an opposition. 21 (ECF No. 11.) Plaintiff did not file a reply. For the reasons set forth below, the Court DENIES 22 Plaintiff’s motion. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This action concerns an employment dispute between the parties. On or about June 28, 3 2016, Defendant employed Plaintiff as a cashier at Defendant’s Wal-Mart store in Fairfield, 4 California. (ECF No. 1-2 at 10, 13.) In 2021, Plaintiff was injured while working and then 5 placed on modified work duty. (Id. at 13.) In November 2021, Plaintiff moved to temporary 6 disability status and remained on disability leave until her alleged wrongful termination on or 7 about September 15, 2022. (Id.) 8 On June 20, 2023, Plaintiff filed this action in Solano County Superior Court and asserted 9 the following seven causes of action: (1) discrimination in violation of California’s Fair 10 Employment and Housing Act, Cal. Gov’t Code § 12490, et seq. (“FEHA”); (2) retaliation in 11 violation of FEHA; (3) failure to prevent discrimination and retaliation in violation of FEHA; (4) 12 failure to provide reasonable accommodations in violation of FEHA; (5) failure to engage in a 13 good-faith interactive process in violation of FEHA; (6) wrongful termination in violation of 14 public policy; and (7) for declaratory judgment. (ECF No. 1-2 at 9.) 15 On July 28, 2023, Defendant removed this action to this Court based on diversity 16 jurisdiction pursuant to 28 U.S.C. § 1332 (a). (ECF No. 1.) On August 25, 2023, Plaintiff filed 17 the instant motion to remand this action to the Superior Court of Solano County. (ECF No. 9.) 18 II. STANDARD OF LAW 19 A civil action brought in state court, over which the district court has original jurisdiction, 20 may be removed by the defendant to federal court in the judicial district and division in which the 21 state court action is pending. 28 U.S.C. § 1441 (a). The district court has original jurisdiction 22 over civil actions between citizens of different states in which the amount in controversy exceeds 23 $75,000. 28 U.S.C. § 1332 (a)(1). The party asserting federal jurisdiction bears the burden of 24 proving diversity. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (citing Resnik v. La Paz Guest 25 Ranch, 289 F.2d 814, 819 (9th Cir. 1961)). 26 Diversity requires the citizenship of each plaintiff to be diverse from the citizenship of 27 each defendant (i.e., complete diversity). Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). For 28 purposes of diversity, a corporation is a citizen of any state in which it is incorporated and any 1 state in which it maintains its principal place of business. 28 U.S.C. § 1332 (c)(1). 2 The amount in controversy is determined by reference to the complaint and includes the 3 amount of damages in dispute, as well as attorneys’ fees, if authorized by statute or contract. 4 Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005). Where the complaint does not 5 pray for damages in a specific amount, the defendant must prove by a preponderance of the 6 evidence that the amount in controversy exceeds $75,000. Singer v. State Farm Mut. Auto. Ins. 7 Co., 116 F.3d 373, 376 (9th Cir. 1997). If the amount is not facially apparent from the complaint, 8 the court may “require parties to submit summary-judgment-type evidence relevant to the amount 9 in controversy at the time of removal.” Id. at 377 . 10 Removal statutes are to be strictly construed against removal. Gaus v. Miles, Inc., 980 11 F.2d 564 , 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to 12 the right of removal in the first instance.” Id. The strong presumption against removal 13 jurisdiction means the defendant always has the burden of establishing removal is proper, and the 14 court resolves all ambiguity in favor of remand to state court. Hunter v. Philip Morris USA, 582 15 F.3d 1039, 1042 (9th Cir. 2009). “If at any time before final judgment it appears that the district 16 court lacks subject matter jurisdiction, the case shall be remanded” to state court. 28 U.S.C. 17 § 1447(c). 18 III. ANALYSIS 19 In the instant motion, Plaintiff does not argue removal is inappropriate based upon 20 diversity of citizenship. (ECF No. 9 at 6.) Instead, Plaintiff contends this case must be remanded 21 because: (1) Defendant did not provide sufficient evidence within its Notice of Removal to 22 support its amount in controversy allegation; and (2) Defendant’s calculations fail to demonstrate 23 that Plaintiff’s damages exceed $75,000. (Id.) In opposition, Defendant argues it has sufficiently 24 demonstrated the amount in controversy in this action exceeds $75,000. (ECF No. 11 at 17.) The 25 Court will address Plaintiff’s arguments in turn. 26 /// 27 /// 28 /// 1 A. Removal Pleading Standard 2 Plaintiff argues Defendant’s removal is deficient because Defendant did not provide 3 sufficient evidence to support how Plaintiff’s potential damages exceed $75,000. (ECF No. 9 at 4 10–12.) Defendant disagrees and argues its “Notice of Removal satisfies the Dart pleading 5 standard.” (ECF No. 11 at 7.) 6 The Court agrees with Defendant. “[A] defendant’s notice of removal need include only a 7 plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart 8 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81 , 89 (2014). In Defendant’s Notice of 9 Removal, Defendant stated it “conservatively estimates the amount in controversy to be at least 10 $59,408.64 in economic damages, $50,000 in emotional stress damages, and $30,000 in 11 attorney’s fees — totaling $139,408.64 which is well in excess of $75,000 . . . .” (ECF No. 1 at 12 14.) Moreover, for each for alleged damages, Defendant provides a brief description of how it 13 arrived at its calculation and legal authority it argues supports its calculation. (See id.) The Court 14 finds these allegations are more than sufficient for the purposes of the removal petition. See Dart 15 Cherokee, 574 U.S. at 88–89 (“Defendants do not need to prove to a legal certainty that the 16 amount in controversy requirement has been met.”). Thus, the Court DENIES Plaintiff’s motion 17 on the grounds that Defendant’s Notice of Removal is deficient because it did not include 18 evidence of the amount in controversy. 19 B. Amount in Controversy 20 Plaintiff also argues removal is improper because the amount in controversy in this action 21 does not exceed $75,000. (ECF No. 9 at 12.) In opposition, Defendant argues the amount in 22 controversy exceeds $75,000 based on Plaintiff’s individual damages for: (1) $27,626.24 of back 23 pay; (2) $31,782.40 of future pay; (3) $30,000 of attorneys’ fees; and (4) $25,000 of emotional 24 distress, which amounts to $114,408.64. (ECF No. 11 at 17.) 25 When “a defendant's assertion of the amount in controversy is challenged . . . both sides 26 submit proof and the court decides, by a preponderance of the evidence, whether the amount-in27 controversy requirement has been satisfied.” Dart Cherokee, 574 U.S. at 89. The parties may 28 submit evidence outside the complaint including affidavits or declarations or other “summary1 judgment-type evidence relevant to the amount in controversy at the time of removal.” Singer, [2] 116 F.3d at 376 . When the defendant relies on a chain of reasoning that includes assumptions to 3 satisfy its burden of proof, the chain of reasoning and the underlying assumptions must be 4 reasonable, and not constitute mere speculation and conjecture. Ibarra v. Manheim Investments, 5 Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). Then, “the district court must make findings of 6 jurisdictional fact to which the preponderance standard applies.” Dart Cherokee, 574 U.S. at 89 7 (internal citation and quotation marks omitted). If “the evidence submitted by both sides is 8 balanced, in equipoise, the scales tip against federal-court jurisdiction.” Ibarra, 775 F.3d at 1199 . 9 i. Lost Wages 10 In the Complaint, Plaintiff alleges “as a result of Defendants’ actions, Plaintiff has 11 suffered and will continue to suffer general and special damages, including . . . past and future 12 lost wages and benefits.” (ECF No. 1-3 at 11.) Defendant asserts “a reasonably conservative 13 calculation of Plaintiff’s lost wages claim exceeds the jurisdictional minimum of $75,000.” (ECF 14 No. 11 at 8.) Specifically, Defendant “estimates Plaintiff’s back-pay claim, from the date of 15 termination to the date of removal, to be $27,626.24, with front-pay (one year only) to be 16 $31,782.40, or alternatively (four years) to be $127,129.60.” (Id.) 17 Damages for lost wages can include both back and front pay. Arauz v. MAC Cosms., Inc., 18 No. 2:22-cv-01663-MCE-KJN, 2023 WL 3293336 , at *2 (E.D. Cal. May 5, 2023) (citing 19 Andrade v. Arby’s Rest. Grp., Inc., 225 F. Supp. 3d 1115, 1140 (N.D. Cal. 2016)). Back pay is 20 lost wage damages through the time of trial, while front pay is a measure of damages for loss of 21 future income. Id. 22 In the instant case, Defendant calculates Plaintiff’s potential back pay damages to be 23 $27,626.24 based upon “Ms. Crockett alleg[ing] she was a full-time employee” who “was earning 24 $15.28 per hour” for “40 hours a week” until she was terminated on September 15, 2022. (ECF 25 No. 1 at 9–10.) Plaintiff claims “Defendant fails to provide any evidence whatsoever as to how it 26 determined that Plaintiff would reasonably have been expected to work full-time 40-hour weeks 27 during that time period.” (ECF No. 9 at 12–13.) 28 / / / 1 Plaintiff’s arguments are contradicted by a declaration from Defendant’s Human 2 Resources Manager who confirmed Plaintiff worked “on average 40 hours per week” while 3 employed with Defendant. (ECF No. 13 at 2.) Additionally, within the Complaint, Plaintiff 4 concedes she was a “full-time” employee. (ECF No. 1-2 at 13.) Based upon this evidence, the 5 Court finds it is more likely than not true that Plaintiff worked on average 40 hours per week for 6 Defendant and her average monthly wage was $2,444.80.1 7 To calculate the relevant period for Plaintiff’s back pay damages, district courts in this 8 Circuit find plaintiffs are entitled to back pay from the date of termination to trial. Id. “[W]hen 9 the date of trial is not set, courts have found one year from the date of removal to be a 10 conservative trial date estimate.” See, e.g., Beltran v. Procare Pharmacy, LLC, No. 2:19-cv11 08819-ODW (RAOx), 2020 WL 748643 , at *3 (C.D. Cal. Feb. 14, 2020). In the instant case, the 12 relevant period would be twenty-two months.2 (See ECF No. 1.) Multiplying Plaintiff’s monthly 13 wage of $2,444.80 by twenty-two months results in a total of $55,785.60 for Plaintiff’s back pay 14 damages. 15 With regards to Plaintiff’s alleged damages for front pay, when a “plaintiff claims at the 16 time of removal that her termination caused her to lose future wages, and if the law entitles her to 17 recoup those future wages if she prevails, then there is no question that future wages are at stake 18 in the litigation.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 417 (9th Cir. 2018). In the 19 Complaint, Plaintiff alleges she is entitled to future wages. (ECF No. 1-2 at 14.) Defendant 20 calculates Plaintiff’s front pay damages to be $127,129.60. (ECF No. 11 at 9.) To reach this 21 figure, Defendant estimated Plaintiff would have continued working for an additional four years 22 until she reached retirement at 65. (ECF No. 11 at 9.) 23 However, given Plaintiff does not expressly seek four years of front pay damages in her 24 Complaint — nor any amount for that matter — Defendant’s conjecture that Plaintiff could seek 25 1 $15.28 (per hour) x 160 hours = $2,444.80. [26] 2 Pursuant to Beltran, an estimated trial date would be 12 months from the date of removal, 27 which falls on July 28, 2024. 2020 WL 748643 , at *3; (ECF No. 1.) The time between Plaintiff’s last day of work on September 15, 2022, and the estimated trial date of July 28, 2024, is 28 approximately 22 months. 1 or would be entitled to four years of front pay damages is insufficient to meets its burden. Paris 2 v. Michael Aram, Inc., No. 2:18-cv-00067-PA (SKx), 2018 WL 501560 , at *2 (C.D. Cal. Jan. 22, 3 2018); Adkins v. J.B. Hunt Transp., Inc., 293 F. Supp. 3d 1140, 1144 (E.D. Cal. 2018) (holding 4 front pay to be “speculative and insufficient” because the complaint did not “expressly seek two 5 years of front pay”). Thus, the Court will not consider front pay in determining the amount in 6 controversy in this action. 7 ii. Attorneys’ Fees 8 Defendant also argues the Court should include future attorneys’ fees in the amount in 9 controversy. (ECF No. 11 at 14.) Plaintiff disagrees and argues future attorneys’ fees should not 10 be included in the amount in controversy because they are inherently speculative. (ECF No. 9 at 11 15.) However, in the Ninth Circuit, where an underlying statute authorizes an award of attorneys’ 12 fees, “such future attorneys’ fees are at stake in the litigation, and must be included in the amount 13 in controversy.” Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 14 2018). In the instant case, Plaintiff seeks attorneys’ fees pursuant to the FEHA. (ECF No. 1-2 at 15 27.) The FEHA provides “in actions brought under this section, the court, in its discretion may 16 award to the prevailing party reasonable attorneys’ fees and costs.” Cal. Gov’t Code § 2965(b). 17 Any reasonable calculation of attorneys’ fees must comport with the preponderance of the 18 evidence standard. See Coleman v. Estes Express Lines, Inc., 730 F. Supp. 2d 1141, 1148 (C.D. 19 Cal. 2010 ). District courts in the Ninth Circuit “have held that a reasonable rate for employment 20 cases is $300 per hour and 100 hours is an appropriate and conservative estimate of the number of 21 hours expended through trial for an employment action.” Adkins, 293 F. Supp. 3d at 1148 (citing 22 Sasso v. Noble Utah Long Beach, LLC, Civ. No. 14-9154-AB AJWX, 2015 WL 898468 , at *6 23 (C.D. Cal. Mar. 3, 2015)). 24 Applying Adkins, the Court finds a reasonable rate for the instant action is $300 per hour 25 and 100 hours to be an appropriate estimate of hours. Therefore, a reasonable estimate of 26 Plaintiff’s attorneys’ fees is $30,000 (100 hours [hours estimate] × $300 [rate per hour]). 27 Because the awards for back pay and attorneys’ fees are sufficient, the Court need not 28 address any additional amounts for compensatory and punitive damages. Accordingly, the Court 1 | finds Defendant has shown by a preponderance of the evidence that the amount in controversy in 2 | this action exceeds $75,000 ($53,785.60 in back pay + 30,000 in attorneys’ fees = $83,785.60) 3 | and thus, the Court has subject matter jurisdiction over this matter. 4 IV. CONCLUSION 5 For the foregoing reasons, the Court hereby DENIES Plaintiff's Motion to Remand. (ECF 6 | No. 9.) 7 IT IS SO ORDERED. 8 | Date: February 8, 2024 9 /) 10 “ \/ of bw 11 ZN NL Troy L. Nunley } 12 United States District Judge