Jones v. J.C. Penney Corp., Inc., No. CV 11–5631 PSG (SHx), 2011 WL 4529406 (C.D. Cal. Sept. 28, 2011).

While you are doing your holiday shopping at J.C. Penneys, check out the sales associates and see if they are sitting down. Let’s see if the plaintiff’s claims are accurate or not.

In this case, a District Court in California held that an order resolving a contested remand motion in which no new facts or pleadings are implicated cannot justify successive removal.

The plaintiff, Alyssa Jones, a former employee of J.C. Penney, filed a representative enforcement action in Los Angeles County Superior Court pursuant to California’s Private Attorneys General Act of 2004 (“PAGA”), Cal. Labor Code § 2698 et seq., alleging that the defendants, J.C. Penney Corporation, Inc. and J.C. Penney Company, Inc., violated (yes, you guessed it) California labor laws by refusing to allow the plaintiff and similarly situated aggrieved employees to sit, even when it would not have interfered with the performance of their duties. 

On January 26, 2011, J.C. Penney removed the case to the federal court under CAFA, 28 U.S.C. § 1332(d). 

The plaintiff subsequently moved to remand, arguing that the case was not a class action, but rather a representative action under PAGA.

The District Court agreed and, on June 9, 2011, issued an Order remanding the case to state court. In so holding, the Court relied on a declaration from the plaintiff’s counsel stating that he erred by including the language “First Amended Class Action Complaint” on the caption page of the pleading. It further reasoned that, beyond this erroneous statement, the pleading lacked any allegations supporting the defendants’ theory that the case was a class action under Fed. R. Civ. P. 23. Having thus concluded that the case was a representative action under PAGA rather than a class action, the Court accordingly held that removal under CAFA was improper and remanded the case.

Thirty days later, on July 8, 2011, J.C. Penney filed a second notice of removal, this time on grounds of diversity under 28 U.S.C. § 1332(a). According to J.C. Penney, the case was removable because “the existence of basic diversity of citizenship jurisdiction only became apparent through the Court’s prior remand order, which confirmed that the plaintiff was not asserting class claims, but was instead pursuing a non-class, representative PAGA claim.” 

The plaintiff, in response, filed her second motion to remand arguing that the Court should once again remand this case because J.C. Penney’s second notice of removal was untimely, and therefore improper. 

The Court agreed with the plaintiff, and remanded the case to state court.

The Court noted that under 28 U.S.C. § 1446(b), a defendant must file a notice of removal within 30 days after he objectively learns that the action is removable. A defendant may learn that an action is removable through either the four corners of the applicable pleading, or through receipt of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. Thus, the law is clear that successive removals must be based on new information. Specifically, successive removals are allowed only where the second notice of removal is based on newly discovered facts not available at the time of the first removal.

J.C. Penney asserted that its second notice of removal was timely because it was filed within thirty days of receipt of a “pleading” or “other paper” from which it could ascertain that removal was proper, namely, the Court’s June 2011 Remand Order. Specifically, it claimed that by reading this Order, it “learned for the first time that the plaintiff’s claims are not subject to CAFA, but that she is instead pursuing individual claims in connection with a representative action under the Private Attorney General Act.”

The Court, however, was not persuaded that its June 2011 Order constituted “a subsequent pleading or event revealing a new and different grounds for removal” as would trigger removeability under § 1446(b). 

In its June 2011 Order, the Court had held that the plaintiff’s pleading indicated that the case was a representative action under PAGA; and that PAGA actions are not encompassed by CAFA. Contrary to what J.C. Penney suggested, nothing in the Order transformed the operative pleading so as to effect a substantial change in the nature of the case. Nor had there been any subsequent pleading or paper bringing to light new facts which could provide a basis for a renewed removal petition, the Court remarked.

The Court observed that although the removal statute states that receipt of a “copy of an amended pleading, motion, order or other paper” can trigger removeability, J.C. Penney provided no authority supporting the notion that an order resolving a contested remand motion in which no new facts or pleadings are implicated can justify successive removal. 

Thus, the Court found that J.C. Penney failed to demonstrate that the Court’s June 2011 Order effected a substantial change in the case. Consequently, the Court concluded that that the jurisdictional basis asserted in J.C. Penney’s second notice of removal could have been raised in its first removal notice. As J.C. Penney’s second notice of removal was filed over six months after J.C. Penney first received notice that the action was potentially removeable, the Court concluded that its removal on July 8, 2011 was untimely and therefore improper.

Accordingly, the Court remanded the action to state court.