Opinion
Case No. CV09-0833 ODW JTLx, (Previously Removed and Remanded Under Case No.: CV 08-04259-GPS (FFMx).
February 3, 2009
SHEPPARD MULLIN RICHTER HAMPTON LLP, A Limited Liability Partnership, Including Professional Corporations, JENNIFER B. ZARGAROF, Cal. Bar No. 204382, JULIE WONG, Cal. Bar No. 247342, Los Angeles, California, Attorneys for Defendants J.C. PENNEY CORPORATION, INC. and J.C. PENNEY COMPANY, INC.
TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT, FOR THE CENTRAL DISTRICT OF CALIFORNIA, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT Defendants J.C. Penney Corporation, Inc. and J.C. Penney Company, Inc. (collectively "J.C. Penney" or "Defendants") hereby provide notice of the removal to the United States District Court for the Central District of California, Western Division of the following lawsuit filed on May 19, 2008 in the Los Angeles Superior Court: Munoz v. J.C. Penney Corp., Inc., et al., Case Number BC 391113. The following is a short, plain statement of the grounds for removal pursuant to 28 U.S.C. § 1446(a).
I. DESCRIPTION OF THE ACTION
On May 19, 2008, Plaintiff Joshua Munoz ("Plaintiff"), on behalf of himself and "all other persons similarly situated," filed a complaint against J.C. Penney in Los Angeles County Superior Court (the "State Court Action"). The claims asserted against J.C. Penney arise out of alleged wage and hour violations by J.C. Penney. Plaintiff purports to act on behalf of a putative class of "[a]ll non-exempt or hourly paid employees who have been employed by Defendants in the State of California within four years prior to the filing of this complaint until certification of the class in this lawsuit." J.C. Penney was served with the Complaint on May 29, 2008. A true and correct copy of the Summons and Complaint are attached hereto as Exhibit A.
The Complaint seeks wages, penalties, and injunctive relief from J.C. Penney for allegedly failing to: (1) pay wages upon termination; (2) pay wages earned pursuant to Labor Code Section 204; (3) provide meal periods; (4) authorize and permit rest periods; and (5) provide wage statements pursuant to Labor Code Section 226(a). Plaintiff, by his complaint, also seeks monetary relief from J.C. Penney in the form of restitution and disgorgement of funds wrongfully acquired as a result for allegedly violating California Business Professions Code §§ 17200 et seq. Further, Plaintiff seeks to recover his attorneys' fees and costs incurred in this action pursuant to California Code of Civil Procedure § 1021.5. J.C. Penney filed an Answer to Plaintiff's Unverified Complaint on June 26, 2008, a true and correct copy of which is attached as Exhibit B. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1332(d) (the 2005 Class Action Fairness Act, or "CAFA").
On June 27, 2008, J.C. Penney filed a Notice of Removal to the United States District Court for the Central District of California, Western Division. On July 15, 2008, the Honorable George P. Schiavelli remanded the action to state court because the face of the pleadings and papers to date were insufficient to establish that the amount in controversy exceeded the $5,000,000 minimum.
In the preceding months, the state court stayed formal discovery while the parties pursued resolution of Plaintiff's claims and conducted informal discovery. After several settlement discussions, J.C. Penney's counsel sent Plaintiff a letter confirming that Plaintiff believes the amount in controversy for the instant case is in excess of $5,000,000 on January 20, 2009, a true and correct copy is attached to the Declaration of Jennifer B. Zargarof as Exhibit C. On that same day, Plaintiff's counsel sent a detailed letter analyzing Plaintiff's claims and demanding $10,500,000 to settle the action on a class-wide basis, a true and correct copy of which is attached to the Declaration of Jennifer B. Zargarof as Exhibit D.
II. BASIS FOR REMOVAL (DIVERSITY JURISDICTION — CAFA)
A. Diversity Of Citizenship Exists.
This action is between citizens of different States. Plaintiff alleges that he is a resident of the State of California. (Complaint ¶ 5, Exh. A.) As of the time of filing this Notice of Removal, J.C. Penney is informed and believes that Plaintiff remains a citizen of the State of California. As of the time this action was filed, Defendants were and still are incorporated under the laws of the state of Delaware. J.C. Penney's principal place of business is and remains in the state of Texas. Id. ¶ 6-7; Declaration of Charlotte Thacker ¶¶ 2-3. As a result, pursuant to 28 U.S.C. § 1332(d)(2)(A), the first requirement for diversity jurisdiction exists because Plaintiff and Defendants are citizens of different States. See 28 U.S.C. §§ 1332(c)(1) and 1332(d)(2)(A).B. The Amount In Controversy Exceeds $5,000,000.
"[N]otice of removability under § 1446(b) is determined through examination of the four corners of the applicable pleadings, not through subjective knowledge or a duty to make further inquiry." Harris v. Bankers Life Cas. Co., 425 F.3d 689, 693 (9th Cir. 2005). Plaintiff does not specifically state the amount he seeks to claim on the face of his Complaint. Indeed, Plaintiff limited the amount in controversy applicable to himself, as class representative, to less than $75,000 "including claims for compensatory damages and pro rata share of attorneys' fees." (Complaint ¶ 1, Exh. A). Without more information, at the time of J.C. Penney's first removal filing, it was unable to state definitively the amount in controversy from the Complaint.Where grounds for removal do not appear on the face of the initial pleading, courts may look to "documents exchanged in the case by the parties to determine when the defendant had notice of the grounds for removal." See Lovern v. General Motors Corp., 121 F.3d 160, 161 (4th Cir. 1997). Settlement letters are relevant evidence of the amount in controversy when they reflect a reasonable estimate of the plaintiffs claim. Cohn v. Pet-smart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); Addo v. Globe Life Acc. Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000) (holding postcomplaint letter from plaintiff's attorney, offering to settle action for more than $75,000, gave notice that action was removable); Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) (holding that California's mediation privilege does not extend to settlement letters used to support federal removal).
On January 20, 2009, J.C. Penney's counsel sent Plaintiff a letter confirming that Plaintiff believes the amount in controversy for the instant case is in excess of $5,000,000. (Zargarof Decl., ¶ 2, Exh. C). J.C. Penney's letter invites Plaintiff's counsel to correct it if J.C. Penney misstated the amount. On that same day, Plaintiff's counsel sent J.C. Penney's counsel a letter outlining Plaintiff's claims and their respective values. (Zargarof Decl., ¶ 3, Exh. D). At the conclusion of the letter, Plaintiff demanded a total sum of $10,500,000. As such, these papers confirmed that the amount in controversy for the instant matter is far greater than the $5,000,000 minimum and gave J.C. Penney notice that the action was removable under CAFA.
III. THE NOTICE OF REMOVAL IS PROCEDURALLY PROPER
Based on the foregoing, this action is a civil action of which this Court has original jurisdiction pursuant to 28 U.S.C. § 1332(d), and is one that may be removed to this Court pursuant to 28 U.S.C. §§ 1441 and 1446.In accordance with the requirements of 28 U.S.C. § 1446(a), a copy of the Complaint and all other papers served in the State Court Action as of the filing of this Notice of Removal are attached hereto.
This Notice of Removal is filed within the time provided by 28 U.S.C. § 1446(b) (i.e., within 30 days of the effectuation of service on J.C. Penney of a paper from which amount in controversy may be determined and within one-year of the filing of the complaint). Specifically, J.C. Penney was served with Plaintiff's Complaint on May 29, 2008, Plaintiff's demand letter on January 20, 2009 and is filing this notice on February 3, 2009. Accordingly, J.C. Penney's removal is well within the 30-day as well as the one-year limit for removal. While J.C. Penney reserves all rights to dispute the allegations at issue, the predicates for diversity jurisdiction under 28 U.S.C. § 1332(d) — diversity of citizenship, more than $5,000,000 in controversy — exist.
IV. CONCLUSION AND REQUESTED RELIEF
For all of the reasons set forth above, J.C. Penney respectfully requests that this Court proceed with this matter as if it had been originally filed herein.Exhibit VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? [] No [X] Yes
If yes, list case number(s): CV 08-04259-GPS _______________________________________________
VIII(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? [X] No [] Yes
If yes, list case number(s): _________________________________________________________________
Civil cases are deemed related if a previously filed case and the present case: and
(Check all boxes that apply) [] A. Arise from the same or closely related transactions, happenings, or events; or [] B. Call for determination of the same or substantially related or similar questions of law and fact; or [] C. For other reasons would entail substantial duplication of labor if heard by different judges; or [] D. Involve the same patent, trademark or copyright, one of the factors identified above in a, b or c also is present. IX. VENUE: (When completing the following information, use an additional sheet if necessary.)(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides.
[] Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).
County in this District:* California County outside of this District; State, if other than California; or Foreign Country Los Angeles (b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.[] Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c).
County in this District:* California County outside of this District; State, if other than California; or Foreign Country Texas (c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose.Note: In land condemnation cases, use the location of the tract of land involved.
County in this District:* California County outside of this District; State, if other than California; or Foreign Country Los Angeles * Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties Note: In land condemnation cases, use the location of the traet of land involyedX. SIGNATURE OF ATTORNEY (OR PRO PER): Jennifer B. Zargarof Date February 3, 2009
Jennifer B. Zargarof
Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1974, is required pursuant to Local Rule 3-1 is not filed but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)
Key to Statistical codes relating to Social Security Cases: Nature of Suit Code Abbreviation Substantive Statement of Cause of Action 30 U.S.C. 923 42 U.S.C. 405 42 U.S.C. 405
861 HIA All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program. (42 U.S.C. 1935FF(b)) 862 BL All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. () 863 DIWC All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus all claims filed for child's insurance benefits based on disability. ((g)) 863 DIWW All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as amended. ((g)) 864 SSID All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as amended. 865 RSI All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42 U.S.C. (g))PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles; I am over the age of eighteen years and not a party to the within entitled action; my business address is 333 South Hope Street, 48th Floor, Los Angeles, California 90071-1448.On February 3, 2009, I served the following document(s) described as (1) CIVIL COVER SHEET on the interested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: BY MAIL: BY OVERNIGHT DELIVERY: BY HAND DELIVERY: FEDERAL:
Marc Primo, Esq. Attorneys for Plaintiff Joshua Munoz H. Scott Leviant, Esq. Matthew T. Theriault, Esq. Linh Hua, Esq. INITIATIVE LEGAL GROUP, LLP 1800 Century Park East, 2nd Floor Los Angeles, California 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 [X] I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [] I served such envelope or package to be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier. [] I caused such envelope(s) to be delivered by hand to the office of the addressee(s). [X] I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on February 3, 2009, at Los Angeles, California.NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge Otis D. Wright II and the assigned discovery Magistrate Judge is Jennifer T. Lum.
The case number on all documents filed with the Court should read as follows:
CV09-833 ODW (JTLx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge
NOTICE TO COUNSEL
A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).
Subsequent documents must be filed at the following location: [X] Western Division [__] Southern Division [__] Eastern Division 312 N. Spring St., Rm. G-8 411 West Fourth St., Rm. 1-053 3470 Twelfth St., Rm. 134 Los Angeles, CA 90012 Santa Ana, CA 92701-4516 Riverside, CA 92501
Failure to file at the proper location will result in your documents being returned to you.