Supplement (Motion related), Scott v. Gate Gourmet, No. 2:20-cv-11033 (C.D. Cal.), Doc. 26 (February 5, 2021)

Summary

Plaintiffs' Supplemental Brief, Document 26 filed 02/05/21, in Charles Scott, Brenda McCoy and Dominique Ferdinand v. Gate Gourmet, Inc., No. 2:20-cv-11033, in the Central District of California, responding to the Court's Order Re: Supplemental Briefing Regarding Jurisdiction, which asked why Plaintiffs contend the total amount in controversy is less than $5 million. Plaintiffs contend the maximum amount at issue is no more than $2,566,429.60, reached by subtracting $17,310,000.00 in unemployment-benefit mitigation from $19,876,429.60 based on Defendant's figures for 1,500 full-time employees laid off on May 20, 2020. They add that the commonly assumed 25% for attorney's fees would be an additional $641,607.40, and ask that the case be remanded to the Los Angeles County Superior Court. The signature line reads /s/ Heather K. Cox.

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“Supplement (Motion related), Scott v. Gate Gourmet, No. 2:20-cv-11033 (C.D. Cal.), Doc. 26 (February 5, 2021).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/supplement-motion-related-scott-v-gate-gourmet-no-2-20-cv-11033-c-d-ca-675fec7614/, SHA-256 8ba63aefb4dc94e50e9010ee58d20e8780f40a6d117b0d8e47a50e480270906d.

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Case 2:20-cv-11033-CAS-JPR Document 26 Filed 02/05/21 Page 1 of 6 Page ID #:313

1 GREGORY P. WONG (SBN: 204502)
HEATHER K. COX (SBN: 278898)
2 BARKHORDARIAN LAW FIRM, PLC
6047 Bristol Parkway, Second Floor
3 Culver City, CA 90230
Telephone: (323) 450-2777
4 Email: Heather@barklawfirm.com
5 Attorneys for Plaintiff
Charles Scott, Brenda McCoy, Dominique
6 Ferdinand, and on behalf of themselves and all
others similarly situated
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11 CHARLES SCOTT, an individual; CASE NO.: 2:20-cv-11033
BRENDA MCCOY, an individual;
12 DOMINIQUE FERDINAND, an
individual, on behalf of themselves PLAINTIFFS’ SUPPLEMENTAL
13 and all others similarly situated,
BRIEF
14 Plaintiff,
[Los Angeles Superior Court Case No.
15 vs. 20STCV41416]
16 GATE GOURMET, INC., a Hearing Date: February 22, 2021
Delaware Corporation; and DOES Time: 10:00 a.m.
17 1 through 100, inclusive, Dept: 8D
Judge: Hon. Christina A. Snyder
18 Defendants.
19 Complaint Filed: October 27, 2020
Removal Date: December 4, 2020
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0
PLAINTIFFS’ SUPPLEMENTAL BRIEF
Case 2:20-cv-11033-CAS-JPR Document 26 Filed 02/05/21 Page 2 of 6 Page ID #:314

1
2 I. INTRODUCTION
3 Plaintiff Charles Scott, Plaintiff Brenda McCoy, Plaintiff Dominique
4 Ferdinand, on behalf of themselves and all others similarly situated (“Plaintiffs”)
5 Motion to Remand should be granted as Defendant Gate Gourmet Inc.
6 (“Defendant”) has not and cannot support by a preponderance of the evidence that
7 the total amount in controversy exceeds the threshold $5 million dollars as is
8 required for diversity jurisdiction under the Class Action Fairness Act (“CAFA”).
9 This supplemental brief is being provided in response to the Court’s January
10 14, 2021 Order Re: Supplemental Briefing Regarding Jurisdiction Pursuant to 28
11 U.S.C. 1332, which directed Plaintiffs to address the following issue: “Plaintiffs are
12 requested to explain why they contend that the total amount in controversy is less
13 than $5 million.”
14 For the reasons set forth below, Plaintiffs contend that the maximum amount
15 at issue in this matter is no more than $2,566,429.60, based on the relevant legal
16 authority and the class statistics asserted by Defendant in both its removal of this
17 action from state court and its opposition to Plaintiffs’ remand motion,
18 II. BASED ON THE INFORMATION PROVIDED BY DEFENDANT,
19 THE AMOUNT IN CONTROVERSY DOES NOT EXCEED $5,000,000
20 The Ninth Circuit has established the following framework for determining
21 the amount in controversy on removal. First, “[t]he district court may consider
22 whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is
23 in controversy. If not, the court may consider facts in the removal petition, and may
24 ‘require parties to submit summary-judgment-type evidence relevant to the amount
25 in controversy at the time of removal.’ ”Singer v. State Farm Mut. Automobile Ins.
26 Co., 116 F.3d 373, 377 (9th Cir.1997). The amount in controversy is not facially
27 apparent from the Complaint, beyond Plaintiff stating that it has not been met. See
28
1
PLAINTIFFS’ SUPPLEMENTAL BRIEF
Case 2:20-cv-11033-CAS-JPR Document 26 Filed 02/05/21 Page 3 of 6 Page ID #:315

1 Complaint ¶ 1. Thus, further information may be considered by the Court to
2 determine the amount in controversy.
3 When a defendant's allegations of removal jurisdiction are challenged, the
4 defendant's showing on the amount in controversy may rely on reasonable
5 assumptions. Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197-99 (9th
6 Cir. 2015). Defendant does not state what assumptions, if any, went into its single
7 calculation which was only for back pay to support the amount in controversy. The
8 information provided to support that the amount in controversy is met includes
9 merely that there are 1,500 full-time employees laid off on May 20, 2020 with an
10 average hourly rate of $17.91 who would have earned a combined total of
11 $19,876,429.60 had they continued to be employed through September 30, 2020 (a
12 period of 19 weeks). See Defendant’s Opposition to Motion For An Order
13 Remanding Action to State Court , page 9, lines 4-12. Therefore, Plaintiffs will use
14 this minimal information as the basis for their analysis regarding the amount in
15 controversy.
16 The Ninth Circuit has determined that when it comes to back pay “even in the
17 context of the more demanding “legal certainty” test … this Court should engage in
18 an inquiry into the facts with respect to mitigation of damages under the
19 preponderance of the evidence test… This is especially appropriate since, in
20 assessing a motion to remand in a removal case, the Court is directed to examine
21 summary-judgment type evidence.” Lamke v. Sunstate Equipment Co. LLC, 319 F.
22 Supp. 2d 1029, 1033 (N.D. Cal. 2004) (citing Riggins v. Riggins, 415 F.2d 1259
23 (9th Cir.1969) and finding that the court “should engage in an inquiry into the facts
24 with respect to mitigation of damages” in evaluating the amount in controversy in
25 the context of removal); See also Melendez v. HMS Host Family Restaurants, Inc.,
26 2011 WL 3760058 *2 (C.D. Cal. 2011) (remanding case where amount in
27 controversy was not met after reducing potential lost wages by the amount of
28 disability benefits plaintiff received). Therefore, it is reasonable for calculating the
2
PLAINTIFFS’ SUPPLEMENTAL BRIEF
Case 2:20-cv-11033-CAS-JPR Document 26 Filed 02/05/21 Page 4 of 6 Page ID #:316

1 amount in controversy to incorporate assumptions regarding Plaintiffs’ mitigation
2 of damages, including the receipt of unemployment benefits.
3 Here, assuming a laid-off worker earned at least California minimum wage of
4 $13.00 an hour working full-time, they would be entitled to approximately $260.00
5 per week in unemployment benefits according to the Unemployment Insurance
6 Benefit Table which is based on the highest quarterly earnings of approximately
7 $6,760.00 ($13.00 an hour multiplied by 2080 hours per year divided by 4 quarters
8 in a year). This is a conservative estimate for the basis of an employee’s mitigation
9 of damages as Defendant asserts a class-wide average rate of pay ($17.91 per hour)
10 that exceeds the minimum wage.
11 While other mitigation efforts in general may be difficult to ascertain in a
12 class action, this is not the case here within the context of the Coronavirus 2019
13 pandemic. The calculation becomes more manageable due to the additional
14 $600.00 each week in unemployment benefits allowed for by the Coronavirus Aid,
15 Relief and Economic Security Act (“CARES Act”). Further, it is reasonable to
16 assume that each laid-off employee received this $600.00 each week until it expired
17 on August 1, 2020.
18 It is not unreasonable to consider this additional government assistance
19 during this unique time where there was, and still is, significant unemployment and
20 the Federal government has provided multiple levels of assistance to the
21 unemployed. In fact, additional unemployment benefits assistance of $300.00 a
22 week was implemented beginning December 26, 2020 by the Continued Assistance
23 for Unemployed Workers Act of 2020 and further assistance continues to be
24 discussed by Congress.
25 As summarized in the table below, taking the unemployment benefits into
26 account as minimum mitigation efforts which would include the weekly benefit of
27 $600.00 from May 20, 2020 to August 1, 2020 (11 weeks) and the minimum
28 weekly unemployment benefit of $260.00 for the entire time period asserted by
3
PLAINTIFFS’ SUPPLEMENTAL BRIEF
Case 2:20-cv-11033-CAS-JPR Document 26 Filed 02/05/21 Page 5 of 6 Page ID #:317

1 Defendant, the total value of the class members’ mitigation during this period is
2 $17,310,000.00.
3 Weeks COVID Total
# of In Total Relief UI Weekly Total
4 Time Period Employees Period Workweeks Benefit Benefit Benefit Mitigation
5/20/20 -
5 8/1/20 1,500 11 16,500 $600.00 $260.00 $860.00 $14,190,000.00
8/2/20 -
6 9/30/20 1,500 8 12,000 $0.00 $260.00 $260.00 $3,120,000.00
Total $17,310,000.00
7
Taking this into account with Defendant’s assertion results in a maximum amount
8
at issue of $2,566,429.60 ($19,876,429.60 - $17,310,000.00 = $2,566,429.60).
9
Beyond the consideration of mitigation, there are other reasonable
10
assumptions which would further reduce the amount calculated by Defendant,
11
including considering the percentage of employees that would not be paid due to
12
various leaves of absences. Another reasonable assumption would be the
13
anticipated retirements or other employment reduction actions such as planned
14
terminations. Defendant has failed to provide any information regarding these
15
reasonable assumptions which would impact its amount in controversy calculation.
16
Therefore, the amount in controversy is even less than the amount calculated by
17
Plaintiffs above which is already well below the CAFA threshold of $5,000,000.
18
As for the other categories of damages asserted in Plaintiffs’ Complaint, such
19
as punitive damages and emotional distress, Plaintiffs contend that no other
20
damages should be considered here as Defendant has failed to: (1) assign any value
21
to these specific categories; (2) provide any summary-judgment-type evidence as is
22
required to support its removal; or (3) cite to any standard or case to support any
23
amount assigned to these other damages. See Burk v. Med. Sav. Ins. Co., 348 F.
24
Supp. 2d 1063, 1069 (D. Ariz. 2004) (a removing defendant “must present evidence
25
that punitive damages will more likely than not exceed the amount needed to
26
increase the amount in controversy ….”) (citing McCaa v. Mass. Mut. Life Ins. Co.,
27
330 F. Supp. 2d 1143, 1149 (D. Nev. 2004)); Fisher v. HNTB Corp., 2018 WL
28
4
PLAINTIFFS’ SUPPLEMENTAL BRIEF
Case 2:20-cv-11033-CAS-JPR Document 26 Filed 02/05/21 Page 6 of 6 Page ID #:318

1 6323077, at *6 (C.D. Cal. Dec. 3, 2018) (To establish punitive damages as part of
2 the amount in controversy calculation, “a party asserting federal diversity
3 jurisdiction may ... introduce evidence of jury verdicts in cases involving analogous
4 facts.”); Daley v. Walmart Stores, Inc., 2018 WL 3104630, at *5 (C.D. Cal. June
5 21, 2018) (establishing probable emotional distress damages is done by introducing
6 evidence of jury verdicts from cases with analogous facts); Aguilar v. Wells Fargo
7 Bank, N.A., 2015 WL 6755199, at *5 (C.D. Cal. Nov. 4, 2015) (“While settlements
8 and jury verdicts in similar cases can provide evidence of the amount in
9 controversy, the cases must be factually identical or, at a minimum, analogous to
10 the case at issue.”)
11 Finally, in response to Defendant’s contention that attorneys’ fees and costs
12 contribute to reaching the CAFA threshold, Defendant has failed to come forward
13 with facts to support the inclusion of such items into the amount in controversy.
14 See Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 796 (9th Cir. 2018)
15 (rejecting a per se rule of 25% of recovery and holding “the defendant must prove
16 the amount of attorneys’ fees at stake by a preponderance of the evidence”).
17 Nonetheless, even if Plaintiffs include the commonly assumed 25% of the alleged
18 recovery for attorney’s fees in their calculation, this would only be an additional
19 $641,607.40 which is not enough to confer jurisdiction under the CAFA.
20 III. CONCLUSION
21 Based on the above, Plaintiffs submit that this case should be remanded back
22 to the Los Angeles County Superior Court.
23 Respectfully Submitted
DATED: February 5, 2021 BARKHORDARIAN LAW FIRM, PLC
24
25 /s/ Heather K. Cox ________________
Gregory P. Wong
26 Heather K. Cox
27 Attorneys for Plaintiffs

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PLAINTIFFS’ SUPPLEMENTAL BRIEF

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