Airoldi v. United Parcel Service, Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 MIKE AIROLDI, Case No. 24-cv-00429-EMC 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION TO REMAND 10 UNITED PARCEL SERVICE, INC., Docket No. 14 11 Defendant. [13] 14 The instant case is related to Benter v. United Parcel Service, Inc., No. C-24-0375 EMC 15 (N.D. Cal.). Like the plaintiff in Benter, Mr. Airoldi has made a single claim of failure to 16 reimburse business expenses, specifically, cell phone expenses ($50/month). Like the plaintiff in 17 Benter, Mr. Airoldi initiated proceedings against UPS before the California Department of 18 Industrial Relations, Labor Commissioner’s Office (“DIR”) and lost, after which he filed an 19 appeal with the Contra Costa Superior Court. UPS removed the case from state court to this 20 Court, as it did in Benter. Mr. Airoldi now moves for a remand. The Court finds this matter 21 suitable for disposition without oral argument and thus VACATES the hearing on the motion. 22 In Benter, the Court granted the plaintiff’s motion to remand. The Court does so here as 23 well. First, UPS did not timely remove. Mr. Airoldi served UPS with notice of his state court suit 24 on December 20, 2023. UPS had 33 days to remove: (1) the 30 days afforded by the removal 25 statute, see 28 U.S.C. § 1446 , plus (2) 3 more days under Federal Rule of Civil Procedure 6(d) 26 because service was effectuated by mail. In other words, UPS had until January 22, 2024, to [27] 1 remove. Because UPS did not remove until January 24, 2024, its removal was not timely.! 2 Second, even if UPS did timely remove, it has failed to prove by a preponderance of the 3 evidence that the amount in controversy has been met for purposes of diversity jurisdiction. The 4 analysis in Benter is equally applicable here. 5 Accordingly, the Court GRANTS Mr. Airoldi’s motion to remand. However, as in Benter, 6 || it denies the request for attorneys’ fees because UPS’s removal was not unreasonable. See 28 7 U.S.C. § 1447 (c). That is, it was not unreasonable for UPS to argue that the amount in 8 controversy could be met. UPS also did not act unreasonably in arguing that its removal was 9 timely based on § 1013 (e., instead of Rule 6). See note 1, supra. ccordingly, the Clerk of the Court is instructed to remand this case back to Contra Costa 10 Accordingly, the Clerk of the C is i d d thi back to C C 11 Superior Court and close the file in this case. a 12 This order disposes of Docket No. 14. IT IS SO ORDERED. 14 || Dated: May 13, 2024 [16] EDWARB&&#. CHEN 17 United States District Judge [19] 20 ' UPS argues its removal was timely based on a provision in the California Code of Civil Procedure (and not Rule 6). See Cal. Code Civ. Proc. § 1013(a) (“Service is complete at the time 21 of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is 99 || prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California . . . .”) (emphasis 23 added). 24 The Court agrees with Mr. Airoldi that Rule 6, not § 1013(a), is applicable. See Student A v. Metcho, 710 F. Supp. 267, 268 (N.D. Cal. 1989) (rejecting defendants’ contention that § 25 1013(a) was applicable because, “although state law determines when service is made, federal law defines the procedure for the federal removal statute,” and Rule 6 “governs computation of time 26 || for purposes of that statute”); Owens v. Gen. Dynamics Corp., 686 F. Supp. 827 (S.D. Cal. 1988) (stating that “‘[t]he time limitations in Section 1446 are mandatory and must be strictly construed 07 in accordance with the computation principles in Federal Rule of Civil Procedure 6’”). But see Duran v. DHL Express (USA), Inc., No. CV 15-09965-BRO (Ex), 2016 U.S. Dist. LEXIS 23331 , 28 at *11 n.6 (C.D. Cal. Feb. 24, 2016) (suggesting that § 1013 would give the defendant an additional 5 days).