Castro v. Maxim Healthcare Servs., Inc., No. 2:11-cv-02839-JHN-FFM, 2011 WL 2461930 (C.D. Cal. June 20, 2011).

In this case, a District Court in California remanded the action to state court holding that information furnished in an email concerning the class size did not trigger removal clock because identical allegations could be found in the face of the complaint.

On January 6, 2009, the plaintiff ,Teresa Castro, brought a class action comprising of six sub-classes of care givers alleging violation of California wage and hour laws.  On March 6, 2009, before serving the complaint on the defendant, Maxim Healthcare Services, Inc., Castro filed the First Amended Complaint (“FAC”) to add a claim for failure to reimburse expenses. The FAC’s putative class was comprised of seven sub-classes of care givers.

Thereafter, on January 29, 2010, in the course of discovery, the defendant provided the contact information of 14,625 potential class members based on the FAC’s allegations.  

On July 8, 2010, Castro filed the Second Amended Complaint (“SAC”), which added claims for improper deductions, out of state check violations, and statutory penalties.  The SAC also added Belinda Allen as a named plaintiff and increased the size of the putative class by broadening the scope of potential class members.  

The putative class under the SAC included both (1) care givers (“Care Giver Class”), who were already accounted for as potential class members in the prior complaints, and (2) the class Allen sought to represent: All Registered Nurses, LVNs, Case Managers, Home Care Nurses, Home Health Aides, Care Givers and/or other similarly situated positions (“Allen Class”).  Under the SAC, the first cause of action, which is based on the defendant’s alleged failure to provide meal and rest periods, was brought on behalf of the Care Giver Class only.  Likewise, the remaining causes of action are brought on behalf of all classes, i.e., both the Care Giver Class and the Allen Class.

On February 18, 2011, the defendant, through its new counsel, purportedly sought “to clarify” the alleged members in each of the various subclasses contained in the SAC. (Editors’ Note: In light of all the various claims and subclasses, the defendant’s request made sense. We had a pretty tough time trying to figure it out ourselves). 

Accordingly, on March 3, 2011, consistent with the allegations in the SAC, the plaintiffs’ counsel apprised the defendant’s counsel in an email that the first cause of action in the SAC was brought on behalf of the Caregiver Class only, and that the remaining causes of action were brought on behalf of both the Care Giver Class and the Allen Class.  

In another email, dated March 7, 2011, consistent with the allegation in the SAC, the plaintiffs’ counsel stated that the Allen Class included “RNs, LVNs, and Case Managers” from the “Homecare Service area” and nurses in the Wellness Division who “staff various immunization and screening clinics, such as flu clinics.”  

On April 4, 2011, more than two years after the plaintiffs filed the initial complaint in state court, the defendant removed the action on the basis of CAFA asserting that the removal was based on the: (1) March 3, 2011 email, which purportedly informed the defendant “for the first time” that “every cause of action, except for the first cause of action, was being brought on behalf of all the classes added by Allen”; and (2) the March 7, 2011email, which purportedly “provided the first information from which it could be ascertained that the amount in controversy exceeded the jurisdictional minimum and was thus removable.”  The defendant asserted that removal was timely under second part of 28 U.S.C. § 1446(b) because it was filed within thirty days of March 3, 2011, the date the defendant allegedly first ascertained the removability of the action.

In response, the plaintiffs sought remand on the ground that the removal was untimely, and the District Court granted the motion.

The Court found that although emails may be deemed “other papers” within the meaning of § 1446(b), the March 2011 emails did not contain any new information for removal. The Court stated that the information the plaintiffs’ counsel furnished in the emails was not new because an identical allegation could be found in the face of the SAC. 

The Court also rejected the defendant’s contention that the emails allowed it to ascertain the number of class members included in the plaintiffs’ third cause of action for waiting time penalties and to estimate the amount in controversy on that claim. Again, the Court remarked that this purported ‘new’ information was not new at all as the SAC unequivocally alleged that the third cause of action was brought “on behalf of all Classes” and the scope of the Allen Class was clearly defined to include, inter alia, RNs, LVNs, Case Managers, and nurses.

The Court accordingly found that the 30-day clock for removal was triggered upon the defendant’s receipt of the SAC, and not upon the receipt of March 2011 emails; thus, the removal was untimely.