Leon v. Gordon Trucking, Inc., 76 F.Supp.3d 1055 (2014).

The District Court for the Central District of California remanded a case for the second time to the state court finding that the defendant’s second removal was not based on grounds that were different from those considered in the initial remand order.

The plaintiff brought a putative class of action in the state court alleging violation of the FLSA, failure to provide meal periods and rest periods, failure to reimburse business expenses and purchases, failure to timely pay wages and provide wage statements in violation of California Labor Code, and violation of UCL.

The defendant filed its first notice of removal on July 25, 2013, invoking the court’s federal question jurisdiction based on plaintiff’s claim of violation of the FLSA.  Because plaintiff subsequently dropped the FLSA claim, the Court declined to exercise supplemental jurisdiction over plaintiff’s state law claims and issued an order directing defendant to show cause why the action should not be remanded to state court.

The defendant continued to assert that the Court had federal question jurisdiction because the plaintiff had alleged FLSA violations as one of the predicates for his UCL claim.  The defendant also asserted that the Court had diversity jurisdiction under the CAFA.  The Court, however, remanded the action to state court noting that the mere fact that a UCL claim was predicated on a violation of federal law did not convert the claim into one arising under federal law, and defendant failed to demonstrate that it met CAFA’s minimal diversity requirement.

Sixty-two days after remand, the defendant filed a second notice of removal, this time, asserting that removal was proper under CAFA because the amount in controversy exceeded $5,000,000 and the citizenship of the parties was minimally diverse.  The defendant argued that the “new and different” evidence upon which it relied concerned the amount in controversy.

The Court, however, found that the evidence was neither new nor different.  The Court noted that the defendant’s second removal was nothing more than an impermissible attempt to offer additional evidence to prove what should have been proved in the first notice of removal.  Because the Court had earlier remanded the action finding that the defendant failed to show either that it had federal question jurisdiction or that it had CAFA jurisdiction, and because the defendant had once again asserted CAFA as a ground for removal, the Court concluded that it lacked jurisdiction to entertain the successive removal.

The Court also noted that, even if it had entertained the defendant’s successive notice of removal, the defendant had again failed to meet its burden of establishing the Court’s jurisdiction over the action.   The Court agreed with the plaintiff that the defendant failed to carry its burden of showing by a preponderance of the evidence that the amount in controversy exceeded $5,000,000 because it proffered no evidence other than the damages assessment based on a “bold optimistic conclusion”.  Accordingly, the Court granted the plaintiff’s motion to remand.