Notice of Removal (Attorney Civil Case Opening), Scott v. Gate Gourmet, No. 2:20-cv-11033 (C.D. Cal.), Doc. 1 (December 4, 2020)

Summary

Defendant Gate Gourmet, Inc.'s Notice of Removal of Civil Action, filed December 4, 2020 as Document 1 in Charles Scott, Brenda McCoy and Dominique Ferdinand, on behalf of themselves and others similarly situated v. Gate Gourmet, Inc., Case No. 2:20-cv-11033, in the Central District of California. It states that the plaintiffs filed a class action complaint on October 27, 2020, in Los Angeles County Superior Court (Case No. 20STCV41416), purporting to allege wrongful termination in violation of public policy, violation of the Unfair Competition Law and breach of fiduciary duty, premised on an alleged violation of the CARES Act in a layoff. Gate Gourmet asserts removal under the Class Action Fairness Act and under the CARES Act, and states that the alleged amount in controversy exceeds $5,000,000.

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“Notice of Removal (Attorney Civil Case Opening), Scott v. Gate Gourmet, No. 2:20-cv-11033 (C.D. Cal.), Doc. 1 (December 4, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/notice-of-removal-attorney-civil-case-opening-scott-v-gate-gourmet-no-4c48ea8a1c/, SHA-256 86952168227ed56d4e06c83c8be71eeb5da33dae02bcd0d65fdec983c586d4a8.

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Case 2:20-cv-11033-CAS-JPR Document 1 Filed 12/04/20 Page 1 of 18 Page ID #:1

1 Diana Tabacopoulos (SBN 128238)
dtabacopoulos@seyfarth.com
2 Jill A. Porcaro (SBN 190412)
jporcaro@seyfarth.com
3 SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
4 Los Angeles, California 90067-3021
Telephone: (310) 277-7200
5 Facsimile: (310) 201-5219
6 Nolan R Theurer (SBN 323563)
ntheuer@seyfarth.com
7 SEYFARTH SHAW LLP
560 Mission Street, Suite 3100
8 San Francisco, California 94105-2930
Telephone: (415) 397-2823
9 Facsimile: (415) 397-8549
10 Attorneys for Defendant
GATE GOURMET, INC.
11

12
UNITED STATES DISTRICT COURT
13
CENTRAL DISTRICT OF CALIFORNIA
14

15
CHARLES SCOTT, an individual; Case No. 2:20-cv-11033
16 BRENDA MCCOY, an individual;
DOMINIQUE FERDINAND, an DEFENDANT GATE GOURMET,
17 individual, on behalf of themselves and INC.’ S NOTICE OF REMOVAL OF
all others similarly situated, CIVIL ACTION TO THE UNITED
18 STATES DISTRICT COURT
Plaintiffs, PURSUANT TO 28 U.S.C. § 1331,
19 1332(a), 1441 and 1446
v.
20 [Filed concurrently with Certification of
GATE GOURMET, INC., a Delaware Interested Parties, Civil Cover Sheet,
21 Corporation; and DOES 1 through 100, Corporate Disclosure Statement and
inclusive, Declaration of William McGowan]
22
Defendants. [Los Angeles Superior Court Case No.
23 20STCV41416]
24
Complaint Filed: October 27, 2020
25 Trial Date: None
26

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1 TABLE OF CONTENTS
2 I. BACKGROUND ......................................................................................... 1
3 II. TIMELINESS OF REMOVAL ................................................................... 2
4 III. JURISDICTION UNDER THE CLASS ACTION FAIRNESS ACT........ 3
5 A. There Is Minimal Diversity For Removal Under CAFA. ................. 3
6 a. Plaintiffs Are Citizens of California. ...................................... 3
7 b. Defendant Is Not A Citizen of California. .............................. 4
8 c. Doe Defendants’ Citizenship Must Be Disregarded............... 5
9 d. Defendant Is Not A Governmental Entity. ............................. 6
10 B. The Number of Putative Class Members Exceeds 100..................... 6
11 C. The Amount in Controversy Exceeds $5,000,000.00. ...................... 6
12 a. Plaintiffs’ Claims for Recovery of Back Pay Easily Exceeds
$5,000,000............................................................................... 8
13
b. Plaintiffs’ Prayer for Emotional Distress, Punitive Damages,
14 Attorney’s Fees and Injunctive Relief Also Establish the
Amount in Controversy Exceeds $5,000,000. ........................ 9
15
IV. FEDERAL QUESTION JURISDICTION ................................................ 10
16
V. VENUE ...................................................................................................... 14
17
VI. NOTICE OF REMOVAL.......................................................................... 14
18
VII. PRAYER FOR REMOVAL ...................................................................... 14
19
20

28
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Federal Cases
4 Abada v. Charles Schwab & Co.,
300 F.3d 1112 (9th Cir. 2002) ............................................................. 13
5
Abrego v. Dow Chem. Co.,
6 443 F.3d 676 (9th Cir. 2006) ................................................................. 5
7 Adams v. American Family Mutual Insurance Company,
2013 WL 12058059 (S.D. Iowa Nov. 8, 2013.) .................................... 9
8
Armstrong v. Church of Scientology Int’l,
9 243 F.3d 546 (9th Cir. 2000) ................................................................. 3
10 Conrad Assocs. v. Hartford Accident & Indem. Co.,
994 F. Supp. 1196 (N.D. Cal. 1998) ...................................................... 9
11
Dart Cherokee Basin Operating Co., LLC v. Owens,
12 574 U.S. 81 (2014)................................................................................. 7
13 Davenport v. Mut. Benefit Health & Accident Ass’n,
325 F.2d 785 (9th Cir. 1963) ................................................................. 9
14
Empire HealthChoice Assur., Inc. v. McVeigh,
15 547 US 677 (2006)............................................................................... 13
16 Emrich v. Touche Ross & Co.,
846 F.2d 1190 (9th Cir. 1988) ............................................................... 5
17
Exxon Mobil Corp. v. Allapattach Servs., Inc.,
18 545 U.S. 546 (2005)............................................................................. 10
19 Fristoe v. Reynolds Metals Co.,
615 F.2d 1209 (9th Cir. 1980) ............................................................... 5
20
Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg.,
21 545 US 308 (2005)............................................................................... 12
22 Hertz Corp. v. Friend,
130 S.Ct. 1181 (2010)........................................................................ 4, 5
23
Kanter v. Warner-Lambert Co.,
24 265 F.3d 853 (9th Cir. 2001) ................................................................. 3
25 Kantor v. Wellesly Galleries, Ltd.,
704 F.2d 1088 (9th Cir. 1983) ............................................................... 3
26
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
27 526 U.S. 344 (1999)............................................................................... 2
28
ii
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1 Richmond v. Allstate Ins. Co.,
897 F. Supp. 447 (S.D. Cal. 1995) ........................................................ 9
2
Rivet v. Regions Bank of Louisiana,
3 522 U.S. 470 (1998)............................................................................. 13
4 United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. &
Serv. Workers Int'l Union, AFL-CIO, CLC v. Shell Oil Co.,
5 602 F.3d 1087 (9th Cir. 2010) ............................................................... 3
6 Vaden v. Discover Bank,
556 U.S. 49 (2009)............................................................................... 13
7
Zavala v. Deutsche Bank Trust Co. Americas,
8 2013 WL 3474760 (N.D. Cal. July 10, 2013) ....................................... 4
9 Federal Statutes
10 28 U.S.C. § 84(c)(2).................................................................................. 14
11 28 U.S.C. § 1331 ............................................................................. 1, 10, 12
12 28 U.S.C. § 1332 ................................................................................ passim
13 28 U.S.C. § 1367 ....................................................................................... 13
14 28 U.S.C. § 1441 ............................................................................. 1, 10, 14
15 28 U.S.C. § 1441(a) .............................................................................. 3, 10
16 28 U.S.C. § 1446 ................................................................................ passim
17 Class Action Fairness Act .................................................................. passim
18 State Statutes
19 Business and Professions Code § 17200 .............................................. 1, 12
20 CARES Act ........................................................................................ passim
21 CARES Act, Title IV, Subtitle B, section 4111 ....................................... 10
22 Second Cause of Action for Violation of the Unfair Competition Law ... 12
23 Unfair Competition Law ................................................................. 1, 7, 8, 9
24 Rules
25 Federal Rules of Civil Procedure Rule 23 .................................................. 6
26 Regulations
27 Sen. Jud. Comm. Rep, S. Rep. No. 109-14................................................. 7
28

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1 TO THE UNITED STATES DISTRICT COURT FOR THE CENTRAL
2 DISTRICT OF CALIFORNIA AND TO PLAINTIFFS AND THEIR COUNSEL
3 OF RECORD:
4 NOTICE IS HEREBY GIVEN that Defendant Gate Gourmet, Inc.
5 (“Defendant” or “Gate Gourmet”) hereby removes the above-captioned case from the
6 Superior Court of the State of California, County of Los Angeles to the United States
7 District Court for the Central District of California, asserting original jurisdiction
8 pursuant to 28 U.S.C. §§ 1331, 1332, 1441 and 1446, on the basis of: (1) original
9 jurisdiction under the Class Action Fairness Act (“CAFA”), codified in relevant part at
10 28 U.S.C. § 1332(d)(2) and; (2) original federal subject matter jurisdiction under the
11 Coronavirus Aid, Relief, and Economic Security (“CARES”) Act under 28 U.S.C.
12 § 1331. The removal is proper for the following reasons:
13 I. BACKGROUND
14 1. On October 27, 2020, Plaintiffs Charles Scott, Brenda McCoy and
15 Dominique Ferdinand (“Plaintiffs”) filed a class action complaint in the Los Angeles
16 County Superior Court in the State of California entitled CHARLES SCOTT, an
17 individual; BRENDA MCCOY, an individual; DOMINIQUE FERDINAND, an
18 individual, on behalf of themselves and all others similarly situated, Plaintiffs, v.
19 GATE GOURMET, INC., a Delaware Corporation; and DOES 1 through 100,
20 inclusive, Defendants (the “Complaint”). The Complaint was assigned Los Angeles
21 County Superior Court Case No. 20STCV41416.
22 2. The Complaint purports to allege causes of action for: (1) Wrongful
23 Termination in Violation of Public Policy, (2) Violation of Business and Professions
24 Code § 17200 et al. (the “Unfair Competition Law”), and (3) Breach of Fiduciary
25 Duty. All causes of action are premised upon Plaintiffs’ allegation that Gate Gourmet
26 violated the CARES Act in subjecting Plaintiffs and similarly-situated employees to a
27 layoff during the period of March 28, 2020 through the present.
28
1
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1 3. On November 5, 2020, Plaintiff served the Complaint on Gate Gourmet
2 and at that time also served a Summons, a Civil Case Cover Sheet and a Notice of
3 Case Assignment. True and correct copies of the Complaint, Summons, Civil Case
4 Cover Sheet and Notice of Case Assignment are attached hereto as Exhibit A. On
5 November 10, 2020, the Court issued an “Order Regarding Newly Filed Class Action”
6 setting an Initial Status Conference for January 22, 2021. A true and correct copy of
7 the Court’s Order obtained from the Los Angeles Superior Court’s file is attached
8 hereto as Exhibit B. Exhibit B was not served on Gate Gourmet. On December 3,
9 2020, Plaintiffs served a Notice of Continuance of Hearing and Order on counsel for
10 Gate Gourmet. Attached hereto as Exhibit C is a true and correct copy of the Notice of
11 Continuance of Hearing and Order.
12 4. The Complaint seeks to certify the following class: “all of Defendant's
13 former employees working in the state of California who were involved in a layoff
14 after March 27, 2020, when it would become clear that Congress intended to
15 implement a bill which would provide money for the airline industry, including
16 providing federal money to companies in need to continue to employ their employees.”
17 (Exhibit A, Complaint ¶ 25.)
18 5. Gate Gourmet has not filed any pleadings or papers in this action prior to
19 this Notice of Removal. Exhibits A and C constitutes all pleadings, processes, and
20 orders properly served on Defendant in this action.
21 II. TIMELINESS OF REMOVAL
22 6. Plaintiffs served their Summons and Complaint on Gate Gourmet on
23 November 5, 2020. This Notice of Removal is timely because it is being filed within
24 thirty (30) days of the service upon Defendant of a copy of the Summons and
25 Complaint, and within one (1) year of the commencement of this action. See 28 U.S.C.
26 § 1446(b); see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
27 354 (1999) (explaining the time for filing a notice of removal does not run until a party
28 has been formally served with the summons and complaint under applicable state law).
2
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1 III. JURISDICTION UNDER THE CLASS ACTION FAIRNESS ACT
2 7. This Court has original subject-matter jurisdiction over this action under
3 CAFA, codified in relevant part in 28 U.S.C. section 1332(d)(2). As set forth below,
4 this action is properly removable pursuant to 28 U.S.C. section 1441(a) because the
5 alleged amount in controversy exceeds $5,000,000, exclusive of interest and costs, and
6 is a purported class action in which a class member is a citizen of a State different from
7 that of Defendant (28 U.S.C. §§ 1332(d)(2) & (6)), and the number of putative class
8 members is greater than 100. See 28 U.S.C. § 1332(d)(5)(B).
9 A. There Is Minimal Diversity For Removal Under CAFA.
10 8. CAFA requires only minimal diversity for the purpose of establishing
11 federal jurisdiction. That is, at least one purported class member must be a citizen of a
12 state different from any named defendant. See 28 U.S.C. § 1332(d)(2)(A) (“any
13 member of a class of plaintiffs is a citizen of a State different from any defendant.”);
14 United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers
15 Int'l Union, AFL-CIO, CLC v. Shell Oil Co., 602 F.3d 1087, 1090-91 (9th Cir. 2010)
16 (explaining that to achieve its purposes CAFA provides expanded original diversity
17 jurisdiction for class actions meeting the minimal diversity requirement in 28 U.S.C.
18 § 1332(d)(2)). Here, such minimal diversity exists among the parties as Plaintiffs are
19 citizens of a state that is different from Defendant’s state of citizenship.
20 a. Plaintiffs Are Citizens of California.
21 9. For diversity purposes, a person is a “citizen” of the state in which he or
22 she is domiciled. See Kantor v. Wellesly Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.
23 1983). A person’s domicile is the place where he or she resides with the intent to
24 remain indefinitely. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001)
25 (“A person’s domicile is her permanent home, where she resides with the intention to
26 remain or to which she intends to return.”). Citizenship is determined by the
27 individual’s domicile at the time that the lawsuit is filed. Armstrong v. Church of
28 Scientology Int’l, 243 F.3d 546, 546 (9th Cir. 2000) (citing Lew v. Moss, 797 F.2d 747,
3
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1 750 (9th Cir. 1986)); see also Zavala v. Deutsche Bank Trust Co. Americas, 2013 WL
2 3474760, at *3 (N.D. Cal. July 10, 2013) (where a plaintiff’s complaint alleges he
3 resides in California, “in the absence of evidence to the contrary, [plaintiff] is a
4 California citizen for diversity purposes.”)
5 10. Here, Plaintiff Charles Scott (“Plaintiff Scott”) alleges that “[a]t all times
6 relevant …[he] was, and is, an individual residing in the City of Long Beach, County
7 of Los Angeles, State of California.” (Exhibit A, Complaint ¶ 5.) Plaintiff Brenda
8 McCoy (“Plaintiff McCoy”) alleges that “[a]t all times relevant …[she] was, and is, an
9 individual residing in the City of Los Angeles, County of Los Angeles, State of
10 California.” (Exhibit A, Complaint ¶ 6.) Plaintiff Dominique Ferdinand (“Plaintiff
11 Ferdinand”) alleges that “[a]t all time relevant … [he] was, and is, an individual
12 residing in the City of Los Angeles, County of Los Angeles, State of California.”
13 (Exhibit A, Complaint ¶ 7.)
14 11. At all times during their employment, Plaintiffs represented to Gate
15 Gourmet that their home addresses were in California. (See Declaration of William
16 McGowan (“McGowan Dec.”) ¶¶ 6-8.) Throughout their entire employment with Gate
17 Gourmet, Plaintiffs maintained a California address on file for purposes of their
18 personnel file, payroll checks, state payroll, and tax withholdings. (Id. at ¶ 9.)
19 Plaintiffs’ last known home addresses with Gate Gourmet are in California. (Id.)
20 Plaintiffs filed this lawsuit in California.
21 12. Accordingly, Plaintiffs are, and have been at all times since the institution
22 of this action, citizens of the State of California for the purposes of diversity.
23 b. Defendant Is Not A Citizen of California.
24 13. Gate Gourmet is a citizen of Delaware and Virginia and is not now, and
25 was not at the time of the filing of this action, a citizen of the state of California within
26 the meaning of 28 U.S.C. section 1332(c)(1). Pursuant to 28 U.S.C. section 1332(c)(1),
27 “a corporation shall be deemed to be a citizen of any State by which it has been
28 incorporated and of the State where it has its principal place of business.” The
4
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1 appropriate test to determine a corporation’s principal place of business is the “nerve
2 center” test. Hertz Corp. v. Friend, 130 S.Ct. 1181, 1192 (2010). Under the “nerve
3 center” test, the principal place of business is the state where the “corporation’s
4 officers direct, control, and coordinate the corporation’s activities” and where the
5 corporation maintains its headquarters. Id.
6 14. Gate Gourmet is incorporated under the laws of the State of Delaware,
7 with its principal place of business in Reston, Virginia. (McGowan Dec., ¶ 4.) Gate
8 Gourmet’s principal place of business is in Reston, Virginia because its “nerve center”
9 is located in Reston Virginia. Specifically, the Reston corporate office is where Gate
10 Gourmet’s senior management and high level officers manage its executive and
11 administrative operations, including operations relating to administering company-
12 wide policies and procedures, legal affairs, and general business operations. (Id. at ¶
13 5.)
14 15. At all relevant times, Gate Gourmet was a citizen of the State of Delaware
15 and Virginia. It is not now, and was not at the time of the filing of the Complaint, a
16 citizen of the State of California.
17 c. Doe Defendants’ Citizenship Must Be Disregarded.
18 16. The residence of fictitious and unknown defendants should be disregarded
19 for purposes of establishing removal jurisdiction under 28 U.S.C. section 1332. See
20 Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1213 (9th Cir. 1980) (unnamed
21 defendants are not required to join in a removal petition); see also Emrich v. Touche
22 Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (doe defendants need not join in
23 removal); Abrego v. Dow Chem. Co., 443 F.3d 676, 679-80 (9th Cir. 2006) (rule
24 applied in CAFA removal). Thus, Doe defendants 1 through 100 do not deprive this
25 Court of jurisdiction.
26 17. Accordingly, because Plaintiffs are citizens of California and Defendant is
27 not a citizen of California, diversity of citizenship exists between Plaintiffs and
28 Defendant for purposes of CAFA removal.
5
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1 d. Defendant Is Not A Governmental Entity.
2 18. Gate Gourmet is not a state, a state official, or some other governmental
3 entity.
4 B. The Number of Putative Class Members Exceeds 100.
5 19. CAFA requires that the aggregated number of members of all classes
6 proposed in a complaint be at least 100. 28 U.S.C. § 1332(d)(5)(B).
7 20. Plaintiffs seek relief on behalf of a putative class comprised of: “all of
8 Defendant's former employees working in the state of California who were involved in
9 a layoff after March 27, 2020, when it would become clear that Congress intended to
10 implement a bill which would provide money for the airline industry, including
11 providing federal money to companies in need to continue to employ their employees.”
12 (Exhibit A, Complaint ¶ 25.)
13 21. Plaintiffs allege in the Complaint that “the class is estimated to be greater
14 than one (100) individuals …”. (Complaint ¶ 26.) Further, on May 20, 2020, Gate
15 Gourmet laid off more than 600 full-time non-exempt employees in California.
16 (McGowan Dec., ¶ 10.)
17 22. Accordingly, the aggregated number of members of the putative class
18 proposed by Plaintiffs far outnumbers the 100 member requirement.
19 C. The Amount in Controversy Exceeds $5,000,000.00.
20 23. While Gate Gourmet specifically denies liability as to Plaintiffs’ claims
21 and the ability for this action to proceed on a class basis, the amount in controversy as
22 alleged in the Complaint exceeds $5,000,000, exclusive of interest and costs. All
23 calculations supporting the amount in controversy are based on the Complaint’s
24 allegations (along with other documents as identified herein), assuming, without any
25 admission, the truth of the allegations and assuming liability (which Gate Gourmet
26 disputes) is established. Likewise, these calculations are based on the putative class
27 alleged in the Complaint, and in no way indicate that class treatment is appropriate in
28 this case, or that Plaintiffs have standing to represent any such class, or that the class
6
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1 proposed would meet the requirements set forth in Rule 23 of the Federal Rules of
2 Civil Procedure. Gate Gourmet expressly reserves the right to challenge Plaintiffs’
3 claims, adequacy and standing to represent any class, class definitions, and calculation
4 of damages in all respects. However, for purposes of removal, Gate Gourmet bases its
5 calculations on the allegations, facts known to Gate Gourmet, and class definition
6 pleaded by Plaintiffs.
7 24. In calculating the amount in controversy under CAFA, the claims of the
8 individual members of a class are aggregated to determine if the amount in controversy
9 exceeds the sum or value of $5,000,000.00. 28 U.S.C. § 1332(d)(6). Congress intended
10 federal jurisdiction to be appropriate under CAFA “if the value of the matter in
11 litigation exceeds $5,000,000 either from the viewpoint of the plaintiff or the
12 viewpoint of the defendant, and regardless of the type of relief sought (e.g., damages,
13 injunctive relief, or declaratory relief).” Sen. Jud. Comm. Rep, S. Rep. No. 109-14, at
14 42 (2005). Moreover, the Senate Judiciary Committee’s Report on the final version of
15 CAFA makes clear that any doubts regarding the maintenance of interstate class
16 actions in state or federal court should be resolved in favor of federal jurisdiction. Id. at
17 42-43 (“[I]f a federal court is uncertain about whether ‘all matters in controversy’ in a
18 purported class action ‘do not in the aggregate exceed the sum or value of $5,000,000,’
19 the court should err in favor of exercising jurisdiction over the case … . Overall, §
20 1332(d) was intended to expand substantially federal court jurisdiction over class
21 actions. Its provisions should be read broadly, with a strong preference that interstate
22 class actions should be heard in a federal court if properly removed by any
23 defendant.”).
24 25. To establish that the amount in controversy exceeds the jurisdictional
25 amount, the defendant need only make a plausible claim that the amount in
26 controversy exceeds that amount. Dart Cherokee Basin Operating Co., LLC v. Owens,
27 574 U.S. 81 (2014).
28
7
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1 26. Here, Plaintiffs seek to assert three class claims including claims for
2 Wrongful Termination in Violation of Public Policy, violation of California’s Unfair
3 Competition Law and Breach of Fiduciary Duty. Plaintiffs seek to recover general
4 damages, restitution, special damages, back pay, punitive damages, attorneys’ fees and
5 costs, injunctive relief and disgorgement on behalf of themselves and the putative
6 class. Based on a review of Gate Gourmet’s termination records and payroll records
7 for layoffs occurring after March 27, 2020, the amount in controversy on Plaintiffs’
8 putative class claims exceeds the $5,000,000.00 jurisdictional amount.
9 a. Plaintiffs’ Claims for Recovery of Back Pay Easily Exceeds
10 $5,000,000.
11 27. Plaintiffs seek to recover damages including “lost wages for Plaintiffs and
12 the class members and benefits and other monetary relief” for the period of time after
13 their layoff, through the present. (See Exhibit A, Complaint Prayer for Damages as to
14 First Cause of Action ¶ 1 and Third Cause of Action ¶1 and Complaint ¶¶ 32, 52.)
15 28. Gate Gourmet’s records reflect that it laid off more than 600 full time (40
16 hours per week) non-exempt California employees in a reduction in force that occurred
17 on May 20, 2020, that have not been rehired. (McGowan Dec., ¶ 10.) Gate Gourmet’s
18 records further reflect that these employees earned at least $13.00 per hour as of the
19 date of their termination, although most were paid significantly higher hourly rates of
20 pay. (Id.) Had these employees continued to work full-time for Gate Gourmet during
21 the period of May 21, 2020, through September 30, 2020, they would have earned in
22 excess of $5,616,000.00 (600 [employees] x $13 [per hour] x 40 [hours per week] x
23 18 [weeks] = $5,616,000.00).1
24 29. Accordingly, the threshold $5,000,000 for CAFA removal is easily met
25 based solely on the amount in controversy as to Plaintiffs’ claims seeking to recover
26 1
Plaintiffs allege that “as part of the application to receive federal funds under the
27 CARES Act, GATE GOURMET was required to make several assurances including
28
that, … Defendant would …refrain from conducting involuntary layoffs or furloughs
until September 30, 2020.” (Exhibit A, Complaint ¶ 20, emphasis added.)
8
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1 wages (back pay) in their First Cause of Action for Wrongful Termination in Violation
2 of Public Policy and their Third Cause of Action for Breach of Fiduciary Duty.
3 b. Plaintiffs’ Prayer for Emotional Distress, Punitive Damages,
4 Attorney’s Fees and Injunctive Relief Also Establish the
5 Amount in Controversy Exceeds $5,000,000.
6 30. In addition to back pay, Plaintiffs further seek to recover emotional
7 distress damages on behalf of themselves and the putative class, as well as punitive
8 damages and attorneys’ fees and costs. Such damages in the aggregate and attorneys’
9 fees are properly included in calculating the amount in controversy and further
10 demonstrate that the amount in controversy has been met. See Davenport v. Mut.
11 Benefit Health & Accident Ass’n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages
12 must be taken into account where recoverable under state law); Conrad Assocs. v.
13 Hartford Accident & Indem. Co., 994 F. Supp. 1196, 1198 (N.D. Cal. 1998) (“amount
14 in controversy” includes claims for general and special damages, including attorneys’
15 fees and punitive damages); Richmond v. Allstate Ins. Co., 897 F. Supp. 447, 449-50
16 (S.D. Cal. 1995) (amount in controversy includes potential recovery of punitive
17 damages award).
18 31. Finally, in their Second Cause of Action for violation of the Unfair
19 Competition Law, Plaintiffs seek “a temporary, preliminary, and/or permanent order
20 from this Court prohibiting Defendant from continuing to engage in the unlawful,
21 unfair, and/or fraudulent business acts or practices set forth in this Complaint, in
22 addition to disgorgement and restitution by Defendant to all persons with a vested
23 interest therein who have been adversely affected by the practices at issue.” (Exhibit
24 A, Complaint ¶ 42.) Costs incurred in compliance with an injunction are properly
25 considered in the amount in controversy. See Adams v. American Family Mutual
26 Insurance Company, 2013 WL 12058059 (S.D. Iowa Nov. 8, 2013.) To the extent
27 Plaintiffs seek an order requiring Gate Gourmet to rescind the terminations of its
28 employees that were included in Gate Gourmet’s reduction in force and further seek to
9
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1 recover back pay as “restitution” the cost to Gate Gourmet of complying with such an
2 order would include paying back pay through September 30, 2020. (Exhibit A,
3 Complaint ¶ 20.)2
4 32. As set forth above, the minimum jurisdictional amount in controversy is
5 easily met by Plaintiff’s claims. Consideration of emotional distress damages, punitive
6 damages, injunctive relief, disgorgement, restitution and attorneys’ fees thus would
7 only extend the degree to which the amount in controversy minimum is exceeded.
8 33. Because diversity of citizenship exists, the putative class contains more
9 than 100 members, and the amount in controversy exceeds $5,000,000, this Court has
10 original jurisdiction of this action pursuant to 28 U.S.C. § 1332(d)(2). This action is
11 proper for removal to this Court pursuant to 28 U.S.C. § 1441(a).
12 IV. FEDERAL QUESTION JURISDICTION
13 34. Any civil action commenced in state court is removable if it might have
14 been originally brought in federal court. See 28 U.S.C. § 1441; Exxon Mobil Corp. v.
15 Allapattach Servs., Inc., 545 U.S. 546, 563-64 (2005) (“district court has original
16 jurisdiction of a civil action for purposes of section 1441(a) as long as it has original
17 jurisdiction over a subset of claims constituting the action”). This Court has original
18 jurisdiction of this action under 28 U.S.C. § 1331, and Gate Gourmet may remove the
19 lawsuit pursuant to the provisions of 28 U.S.C. § 1441, since Plaintiffs’ claims arise
20 under the CARES Act. Specifically, as a basis for their individual and class claims,
21 Plaintiffs allege:
22 “GATE GOURMET is a provider of airline catering and provisioning
23 services for airlines and so qualified as an "airline catering services"
24 under the CARES Act, Title IV, Subtitle B, section 4111. GATE
25 GOURMET in fact was awarded payroll support … under the CARES
26 program.”
27
2
28
See also Section C.(a.) supra., re amount in controversy as to Plaintiffs’ claim for
back pay.
10
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1 * * *
2 “…[A]s part of the application to receive federal funds under the
3 CARES Act, GATE GOURMET was required to make several
4 assurances including that, pursuant to sections 4113(b)(1)(A) and
5 4114 of the CARES Act, Defendant would use such payments
6 exclusively for the continuation of employee wages, salaries, and
7 benefits; and refrain from conducting involuntary layoffs or
8 furloughs until September 30, 2020.”
9 * * *
10 “[O]n March 28, 2020 and continuing on through the present, GATE
11 GOURMET began to layoff and/or furlough hundreds of employees
12 including Plaintiffs after the CARES Act had been signed into law. GATE
13 GOURMET was aware and put on notice that federal fund would be made
14 available to them with the purpose of protecting workers and helping to
15 retain employees. GATE GOURMET's actions are in direct contravention
16 to the purpose behind the financial bail-out GATE GOURMET applied
17 for and received under the CARES Act.”
18 (Exhibit A, Complaint ¶¶ 19-21.)
19 35. Plaintiffs’ First Cause of Action for purported Wrongful Termination in
20 Violation of Public Policy is expressly premised on Plaintiffs’ allegation that Gate
21 Gourmet violated the CARES Act:
22 “Plaintiffs and Class Members claim that they were discharged from
23 employment on March 28, 2020 after the passage of the CARES ACT and
24 have not been rehired by GATE GOURMET even after GATE
25 GOURMET received federal funding for the purpose of retaining
26 employees. This lay off is in violation of public policy in the GATE
27 GOURMET has accepted federal money and defied the purpose of the
28 money by proceeding with a layoff of hundreds of employees.”
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1 (Exhibit A, Complaint ¶ 31.)
2 36. In their Second Cause of Action for Violation of the Unfair Competition
3 Law, Plaintiffs allege: “Defendant's acts and practices, as detailed above, constitute
4 acts of unfair competition. Defendant has engaged in an unlawful, unfair, and/or
5 fraudulent business act and/or practices within the meaning of California Business and
6 Professions Code sections 17200, et seq.” (Exhibit A, Complaint ¶ 38.) As a remedy,
7 Plaintiffs seek “preliminary, and/or permanent order from this Court prohibiting
8 Defendant from continuing to engage in the unlawful, unfair, and/or fraudulent
9 business acts or practices set forth in this Complaint, in addition to disgorgement and
10 restitution by Defendant to all persons with a vested interest therein who have been
11 adversely affected by the practices at issue.”
12 37. In their Third Cause of Action for Breach of Fiduciary Duty, Plaintiffs
13 allege:
14 “The CARES Act establishes a fiduciary duty in Defendants to protect the
15 interest of GATE GOURMET employees due to the federal money
16 Defendants for the sole purpose of the continuation of payment of
17 employee wages, salaries, and benefits.
18 * * *
19 Defendants have violated and breached that fiduciary duty including a
20 breach of duties of due care, loyalty, and good faith by proceeding with a
21 mass lay off of the Class Members”
22 (Exhibit A, Complaint ¶¶ 44, 46.)
23 38. An action “arises under” federal law within the meaning of § 1331 if: (1)
24 federal law creates the cause of action and/or grants federal jurisdiction to hear the
25 case; or (2) plaintiff's right to relief necessarily depends on resolution of a substantial
26 question of federal law. When a state law claim necessarily raises a disputed federal
27 issue that is central to the case, the claim arises under federal law. See Grable & Sons
28
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1 Metal Products, Inc. v. Darue Engineering & Mfg., 545 US 308, 314 (2005); see also
2 Empire HealthChoice Assur., Inc. v. McVeigh, 547 US 677, 699 (2006).
3 39. The federal court may look beyond a plaintiff's pleadings to determine the
4 propriety of removal. In Rivet v. Regions Bank of Louisiana, the Supreme Court held:
5 “... an ‘independent corollary’ to the well-pleaded complaint rule is the
6 further principle that ‘a plaintiff may not defeat removal by omitting to
7 plead necessary federal questions.’ If a court concludes that a plaintiff
8 has ‘artfully pleaded’ claims in this fashion, it may uphold removal even
9 though no federal question appears on the face of plaintiff’s complaint.”
10 522 U.S. 470, 475 (1998). (citations omitted.)
11 40. Here, the Complaint raises a disputed federal issue as to whether Gate
12 Gourmet violated the CARES Act by allegedly laying off and furloughing its
13 employees with “aware[ness] … that federal funds would be made available to them
14 with the purpose of protecting workers and helping to retain employees.” (Exhibit A,
15 Complaint ¶ 21.) The trier of fact must therefore interpret the CARES Act to
16 determine if these alleged layoffs and furloughs violated public policy (1st Cause of
17 Action), constitute an “unlawful, unfair and/or fraudulent business act or practice”
18 (2nd Cause of Action) or breached a fiduciary duty allegedly owed by Gate Gourmet
19 to its employees as a result of its receipt of funds under the CARES Act (3rd Cause of
20 Action).
21 41. Consequently, this action is removable based on federal question
22 jurisdiction. See Vaden v. Discover Bank, 556 U.S. 49, 59-60 (2009) (a suit arises
23 under federal law when “the plaintiff’s statement of his own cause of action shows that
24 it is based upon [federal law]”); Abada v. Charles Schwab & Co., 300 F.3d 1112, 1118
25 (9th Cir. 2002) (“The presence or absence of federal-question jurisdiction is governed
26 by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists
27 only when a federal question is presented on the face of the plaintiff’s well-pleaded
28 complaint.”) (quoting Caterpillar, 482 U.S. at 392-93).
13
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1 42. To the extent any claims in the action arise under state law supplemental
2 jurisdiction over such claims exists pursuant to 28 U.S.C. § 1367.
3 V. VENUE
4 43. Venue lies in the United States District Court, Central District of
5 California pursuant to 28 U.S.C. §§ 84(c)(2), 1441 and 1446(a). This action was filed
6 originally in the Superior Court of the State of California, County of Los Angeles. The
7 County of Los Angeles is within the jurisdiction of the United States District Court,
8 Central District of California.
9 VI. NOTICE OF REMOVAL
10 44. A true and correct copy of this Notice of Removal will be promptly
11 served on Plaintiff and filed with the Clerk of the Superior Court of the State of
12 California, County of Stanislaus, pursuant to 28 U.S.C. §1446(d).
13 VII. PRAYER FOR REMOVAL
14 45. WHEREFORE, Gate Gourmet prays that this civil action be removed
15 from the Superior Court of the State of California, County of Los Angeles, to the
16 United States District Court for the Central District of California.
17 DATED: December 4, 2020 SEYFARTH SHAW LLP
18

19 By: /s/ Jill A. Porcaro
Diana Tabacopoulos
20 Jill A. Porcaro
Attorneys for Defendant
21 GATE GOURMET, INC.
22

28
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