Motion for Judicial Notice in Dennis Tony Dutra, on behalf of himself and all others similarly situated vs J.R. Simplot Company, a Nevada Corporation| Trellis.Law

On May 25, 2021 a Request,Application was filed involving a dispute between Dennis Tony Dutra, On Behalf Of Himself And All Others Similarly Situated, and J.R. Simplot Company, A Nevada Corporation, for Unlimited Civil Other Employment in the District Court of San Joaquin County.

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JAMES WKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
AE
oy Me noon
(949) 387-7200 ad
TEL
FAX: (949) 387-6676
Attorneys for Plaintiff, DENNIS TONY DUTRA.
on behalf of himself and in his representative
capacity as private attorney general

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN

10
DENNIS TONY DUTRA, an individual, on Case No. STK-CV-UOE-2021-4841
i
behalf of himself and in his representative
12 capacity as private attorney general: Assigned for All Purposes to:
Hon. Robert T. Waters
13
Plaintiff, REQUEST FOR JUDICIAL NOTICE
14 IN SUPPORT OF PLAINTIFF’S
OPPOSITION TO DEFENDANT’S
15 VS.
DEMURRER OR MOTION TO
STAY
16
J.R. SIMPLOT COMPANY, a Nevada
17 corporation; and DOES | through 50 inclusive, September 28, 2021
Date
18 Time: 9:00 a.m.
Defendants Dept. 11B
19
Complaint Filed: May 25, 2021
20

21
TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD
22 Pursuant to Evidence Code §452(d), Plaintiff Dennis Tony Dutra (“Mr. Dutra”) hereby
23
requests that the Court take judicial notice of the following matters:
24 1. A true and correct copy of Defendant J.R. Simplot Company’s Notice of Removal of
25 Civil Action dated June 6, 2021, filed in Dennis Tony Dutra v. J.R. Simplot Company, E. D
26 Cal., No. STK-CV-UOE-2021-0002402, removing Mr. Dutra’s State Action Complaint
to
27 federal court. Attached hereto as Exhibit 1
28 2. A copy of the Minute Order dated July 20, 2021 filed in Justin Grant, et al. v. T-Mobile

1
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT”
DEMURRER OR MOTION TO STAY
USA, Inc., et al., Los Angeles Superior Court, No. 21ST-CV-08376, incorporating the court’s

order denying defendant T-Mobile USA’s motion to stay proceedings related to plaintiff Justin

Grant’s Private Attorneys General Act (“PAGA”) action. A true and correct copy of the Minute
Order is attached hereto as Exhibit 2.

The above documents are judicially noticed pursuant to Evidence Code § 452(d),

judicial notice may be taken of “records of (1) any court of this state or (2) any court of record

of the United States or of any state of the United States. Judicial notice is also proper pursuant

to Evidence Code § section 452(c), allowing courts to judicially notice “[o]fficial acts of the...
judicial departments of the United States and of any state of the United States.”
10
Dated: September 15, 2021
1
JAMES HAWKINS APLC
12
By
13 hes R. lawkins
Christina M. Lucio
14

15 Attorneys for Plaintiff Dennis Tony Dutra,
individually and in his representative
16 capacity as a private attorney general

18
19

20
21

26
27
28

2
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT'S
DEMURRER OR MOTION TO STAY
EXHIBIT 1
-

Case 2:21-at-00541 Document1 Filed 06/14/21 Page 1 of 19

MICHAEL J. NADER, CA Bar No. 200425
michael.nader@ogletree.com
RABIA Z. REED, CA Bar No. 317288
rabia.reed@ogletree.com
OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
500 Capitol Mail
Suite 2500
Sacramento, CA 95814
Telephone: 916-840-3150
Facsimile: 916-840-3159

Attorneys for Defendant JR. SIMPLOT
COMPANY

UNITED STATES DISTRICT COURT
10
EASTERN DISTRICT OF CALIFORNIA
IL

12
DENNIS TONY DUTRA, on behalf of Case No.
himself and al! others similarly situated,
13 DEFENDANT J. R. SIMPLOT COMPANY’S
Plaintiff, NOTICE OF REMOVAL OF CIVIL
14 ACTION TO FEDERAL COURT
Vv. PURSUANT TO 28 U.S.C. §§ 1332, 1441,
15 1446, 1453
J.R. SIMPLOT COMPANY, a Nevada
16 corporation; and DOES 1 through 50 [Filed concurrently with Civil Cover Sheet,
inclusive, Certification of Interested Parties and Disclosure
17 Statement; Declarations of Rabia Z. Reed, Eric
Defendant. Hartvigsen, Jennifer Goodman, and Ariel
18 Kumpinsky in Support of Removal]
19
Complaint Filed: March 18, 2021
20 State Court Case No.: STK-CV-UOE-2021-
0002402
21

22
23

24
25

26
27
sm20870 200 9g

DEFENDANT J.R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT
PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 145:
Case 2:24-at-00541 Document 1 Filed 06/14/21 Page 2 of 19

TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

CALIFORNIA, PLAINTIFF DENNIS TONY DUTRA AND HIS ATTORNEYS OF

RECORD:

PLEASE TAKE NOTICE THAT defendant J.R. Simplot Company (“Defendant”), by and
through the undersigned counsel, hereby removes the above-entitled action from the Superior

Court of the State of California for the County of San Joaquin to the United States District Court

for the Eastern District of California pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453. As

discussed below, this Court has original jurisdiction over this matter pursuant to the Class Action
9 Fairness Act (“CAFA”). In support of such removal, Defendant states as follows:

10 1 THE STATE COURT ACTION

1 On March 18, 2021, plaintiff Dennis Tony Dutra (“Plaintiff”) filed a Class Action

12 Complaint (“Complaint”) in the Superior Court of the State of California, County of San Joaquin,

13 entitled Dennis Tony Dutra y. J.R. Simplot Company, which was assigned case number STK-CV-

14 UOE-2021-002402 (the “Complaint” or “State Court Action”). The Complaint is the operative

15 complaint in this matter.
16 The Complaint alleges claims for: (1) Failure to Pay Minimum Wages; (2) Failure to Pay
17 Wages, Including Overtime; (3) Failure to Provide Meal Periods; (4) Failure to Provide Rest
18 Periods; (5) Failure to Timely Pay Wages During Employment; (6) Failure to Timely Pay Wages at

19 Separation; (7) Failure to Comply with Itemized Employee Wage Statement Provisions, and (8)
20 Violations of the California Unfair Competitions Laws.
21 On May 14, 2021, Defendant was served with the Summons and Complaint, as well as

22 other documents filed in the State Court Action. Declaration of Rabia Z. Reed (“Reed Decl.”) {[ 2.
23 A true and correct copy of the Complaint is attached as Exhibit A, to this Notice of Removal. /d.

24 As further required by 28 U.S.C. § 1446(a), Defendant provides this Court with copies of

25 all process, pleadings, and orders received by Defendant in this action. True and correct copies of

26 these documents are attached as Exhibit B to this Notice of Removal. Defendant has not been

27 served with any pleadings, process, or orders besides those attached. Reed Deecl., 4 3.
473209702. doe
28 Mt
I
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
os -
1

Case 2:21-at-00541 Document 1 Filed 06/14/21 ‘Page 3 of 19

Plaintiff has not yet identified any of the fictitious “Doe” defendants identified in the
Complaint, and the citizenship of “Doe” defendants is disregarded for the purposes of removal. 28

U.S.C. § 1441 (a); McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).

This Notice is Timely. This Notice of Removal is timely filed as it is filed less than one

year from the date this action was commenced and within 30 days of the service upon Defendant.

28 U.S.C. § 1446(b); Murphy Bros., Inc v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (30-

day deadline to remove commences upon service of the summons and complaint).

t. THIS COURT HAS JURISDICTION UNDER THE CLASS ACTION FAIRNESS

ACT

10 This action is one over which this Court has original jurisdiction under CAFA and is one

11 which may be removed by Defendant pursuant to 28 U.S.C. §§ 1441 and 1453, because the number

12 of potential class members exceeds 100, the parties are citizens of different states, and the amount

13 in controversy exceeds the aggregate value of $5,000,000. See 28 U.S.C. §§ 1332(d)(2) and (d)(6).

14 There is no antiremoval presumption for cases invoking the CAFA. Arias v. Residence Inn

15 by Marriott, 936 F.3d 920, 922 (9th Cir. 2019). Three principles must apply to CAFA removals.
16 First, a removing defendant’s notice of removal “need not contain evidentiary submissions” but

17 only plausible allegations of the jurisdictional elements. Jd. (quoting Ibarra v. Manheim
18 Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 2015)). “Second, when a defendant’s allegations

19 of removal jurisdiction are challenged, the defendant’s showing on the amount in controversy may

20 rely on reasonable assumptions. Jd. “Third, when a statute or contract provides for the recovery of

21 attorneys’ fees, prospective attorneys’ fees must be included in the assessment of the amount in

22 controversy.” Arias, 936 F.3d at 922, In assessing the amount in controversy, a removing

23 defendant is permitted to rely on “a chain of reasoning that includes assumptions.” Jd. at 925. An

24 assumption may be reasonable if it is founded on the allegations of the complaint. Jd. Assumptions

25 made part of the defendant’s chain of reasoning need not be proven; they instead must only have

26 ‘some reasonable ground underlying them.”” Jd. at 927 (quoting Jbarra, 775 F.3d at 1199). “The
27 amount in controversy is simply an estimate of the total amount in dispute, not a prospective
ATI20TTO_2.d0cx.
28 assessment of defendant’s liability.” Jd. at 927 (quoting Lewis v. Verizon Comme’ns, Inc., 627
2
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
aN os

Case 2:21-at-00541 Document 1 Filed 06/14/21 Page 4 of 19

F.3d 395, 400 (9th Cir. 2010)). “In that sense, the amount in controversy reflects the maximum

recovery the plaintiff could reasonably recover.” Id. at 927 (citing Chavez v. JPMorgan Chase &
Co., 888 F.3d 413, 417 (9th Cir. 2018) (explaining that the amount in controversy includes all
amounts “at stake” in the litigation at the time of removal, “whatever the likelihood that [the

plaintiff] will actually recover them”)).

A. The Size of the Putative Class Exceeds 100
In the Complaint, Plaintiff defines the proposed class as: “[a]l] of Defendants’ California-

based drivers who are employed or have been employed by Defendants in the State of California

during the relevant time period who have performed work within California within four (4) years
10 prior to the filing of the complaint in this action (as properly tolled by Emergency Rule 9) until

ll resolution of this lawsuit.” Exh. A, 735. Plaintiff also repeatedly describes the putative class more
12 broadly as “Non-Exempt Drivers or equivalent positions with similar job duties, however titled,

13 throughout the state of California.” Jd. {J 16, 21, 76 and 80.

14 Defendant’s employment records show that there are hundreds of current and former

15 employees who fall within Plaintiffs proposed class. Even if the proposed class is strictly limited

16 to only non-exempt employees who worked in the same employment position as Plaintiff, there

17 would be at least 387 putative class members. Declaration of Ariel Kumpinsky (“Kumpinsky
18 Decl.”), 15, 7. As such, the putative class size exceeds 100 individuals.
19 B. The Parties Are Diverse
20 Citizenship of Defendant. Pursuant to 28 U.S.C. § 1332(c), “a corporation shall be deemed
21 to be a citizen of any State by which it has been incorporated and of the State where it has its

22 principal place of business.” The United States Supreme Court established the proper test for

23 determining a corporation’s principal place of business for purposes of diversity jurisdiction in The

24 Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010). The Supreme Court concluded that the “‘principal

25 place of business’ is best read as referring to the place where a corporation’s officers direct,

26 control, and coordinate the corporation’s activities.” Jd. at 1184. The Court further clarified that

27 the principal place of business is the place where the corporation “maintains its headquarters —
47320970_2.docx
28 provided that the headquarters is the actual center of direction, control, and coordination.” Id.
3 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
‘OURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
- -
'

Case 2:21-at-00841 Document 1 Filed 06/14/21 Page 5 of 19

At all times on or after the date this action was filed, Defendant J.R. Simplot Company has
been a citizen of the states of Idaho and Nevada. Defendant has its principal place of business in

Boise, Idaho, as that is the location of its headquarters from which its officers direct, coordinate,

and control its business operations. Declaration of Eric Hartvigsen (“Hartvigsen Decl.”), {| 2-3.
In addition, Defendant is incorporated in the State of Nevada. i/d., { 2. Defendant is neither

incorporated in California, nor does it have a principal place of business in California. Id., 2-3.

Accordingly, for purposes of determining diversity, Defendant is regarded as a citizen of Nevada

and Idaho, and not a citizen of California

Citizenship of Plaintiff. For diversity purposes, an individual is a “citizen” of the state in

10 which he is domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983).

I An individual’s domicile is the place he resides with the intention to remain or to which he intends

12 to return. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

13 The Complaint alleges that “[Plaintiff] is a resident of City of Tracy, County of San

14 Joaquin, California.” Exh. B, { 9. Likewise, Defendant’s employment records confirm that

15 throughout his employment with Defendant, Plaintiff lived in the State of California, including the

16 home address that Plaintiff provided for payroll purposes. Thus, Plaintiff is a citizen of the State of
17 California.

18 Accordingly, the minimal diversity of citizenship requirements under 28 U.S.C. §
19 1332(d)(2) are met because Defendant is a citizen of Idaho and Nevada while Plaintiff, a putative
20 class member, is a citizen of California.

21 Cc The Amount in Controversy Exceeds an Aggregate of $5,000,000
22 The Complaint alleges, unsupported by any factual allegations or evidence, that “the

23 aggregate claim, including attorneys’ fees, is under the five million dollar ($5,000,000.00)

24 threshold ...” (Ex. A, 7.) But Supreme Court and Ninth Circuit precedent expressly requires
25 district courts to “look beyond the four corners of the complaint” when the complaint seeks to bind
26 absent class members by including allegations to avoid federal jurisdiction. Rodriguez v. AT & T

27
AT320970_J.doex L The citizenship of fictitiously named “Doe” defendants is disregarded for purposes of removal. 28 U.S.C. §
28 1441(a); MeCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).
4 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
oe a
1

Case 2:21-at-00541 Document 1 Filed 06/14/21 Page 6 of 19

Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir. 2013) (citing Standard Fire Ins. Co. v. Knowles,

133 8. Ct. 1345, 185 L. Ed. 2d 439 (2013).
Pursuant to Standard Fire and Rodriguez, the plaintiff is no longer “master of the
complaint” such that he or she can “avoid federal jurisdiction by forgoing a portion of the recovery

on behalf of the putative class.” Rodriguez, 728 F.3d at 981. For the same reason, Plaintiff's
conclusory and erroneous amount-in-controversy allegation cannot defeat federal jurisdiction.

Defendants seeking removal of a putative class action pursuant to CAFA need only to demonstrate

by a preponderance of the evidence that the jurisdictional thresholds are met. Id.
In order to remove a class action pursuant to CAFA, the amount in controversy must exceed

10 $5,000,000, and it is the removing party’s burden to establish “by a preponderance of evidence,

{I that the aggregate amount in controversy exceeds the jurisdictional minimum.” Rodriguez v.
12 AT&T Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir. 2013). To do so, the removing defendant
13 must “produce underlying facts showing only that it is more likely than not that the amount in

14 controversy exceeds $5,000,000.00, assuming the truth of the allegations plead in the Complaint.”

15 Muniz v. Pilot Travel Ctrs. LLC, No. CIV. $-07-0325 FCD EFB, 2007 WL 1302504, at *5 (E.D.
16 Cal. May 1, 2007) (emphasis in original).

17 In considering the evidence submitted by the removing defendant, the Court must “look

18 beyond the complaint to determine whether the putative class action meets the [amount in
19 controversy] requirements,” adding “the potential claims of the absent class members” and

20 attorneys’ fees. Rodriguez, 728 F.3d at 981 (citing Standard Fire Ins. Co. v. Knowles, 133 S.Ct.

21 1345, 185 L.Ed. 2d 439 (2013)); Guglielmino v. McKee Foods Corp., 506 F.3d 696, 705 (9th Cir.

22 2007). Furthermore, “[iJn considering whether the amount in controversy is clear from the face of

23 the complaint, a court must assume that the allegations of the complaint are true and that a jury will
24 return a verdict for the plaintiff on all claims made in the complaint.” A/tamirano v. Shaw Indus.,
25 Inc., C-13-0939 EMC, 2013 WL 2950600, at *4 (N.D. Cal. June 14, 2013) (citing Korn v. Polo
26 Ralph Lauren Corp., 536 F. Supp. 2d 1199, 1205 (E.D. Cal. 2008)); see also Muniz, 2007 WL
27 1302504, at *3.
47320970,2.doce
28 Hl
5 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
~ ~
\
Case 2:21-at-00541 Document 1 Filed 06/14/21 Page 7 of 19

Defendant denies the validity of Plaintiff's claims and requests for relief, and does not
concede in any way that the allegations in the Complaint are accurate, or that Plaintiff’s claims are

amenable to classwide treatment, or that Plaintiff or the purported class are entitled to any of the
requested relief. Instead, Defendant establishes that the allegations in the Complaint show that it is
more likely than not that the amount in controversy exceeds the jurisdictional minimum. See

Guglielmino, 506 F.3d at 700.
As described further below, as well as in the concurrently filed declaration from Ariel

Kumpinsky, an economist and Senior Manager of the Claro Group, LLC,? the amount in

controversy exceeds the jurisdictional minimum of $5,000,000.3

10 1 Defendant’s Estimate of the Amount in Controversy
Il In determining the amount in controversy to support its Notice of Removal, Defendant

12 relies here on a very conservative estimate of the amount in controversy based only on damages
13 sought by Plaintiff as a result of the alleged: (1) failure to provide meal periods; (2) failure to
14 authorize and permit rest periods; (3) unpaid overtime; (4) unpaid off the clock wages; (5) failure
15 to pay all wages owed at termination; (6) failure to pay wages in a timely manner; and (7) failure to

16 provide accurate wage statements. For these claims, Plaintiff seeks, on his own behalf and on
17 behalf of the alleged putative class members, “unpaid wages, unpaid rest and meal period
18 compensation, unreimbursed expenses, penalties, injunctive and other equitable relief, and

19 reasonable attorneys’ fees and costs.” Exh. A. J 3.

20
2 For purposes of effecting removal pursuant to 28 U.S.C. § 1332(d), declarations from defendants and their
21
counsel constitute sufficient evidence to establish the amount in controversy. See, e.g., Muniz, 2007 WL 1302504, at
22 #2, *5 (relying on the evidence submitted by the defendant in the form of a declaration from its employee relations
manager, which “set forth the underlying facts needed to calculate the amount in controversy,” and a declaration from
23 its counsel, which calculated the amount in controversy based on the underlying facts and in light of the laws
governing the plaintiffs claims, and finding that the defendant had shown that “it is more likely than not that the
24 jurisdictional threshald of $5,000,000,00 is met”); Jasso v. Money Mart Express, Inc., No. 11-CV-5500 YGR, 2012
WL 699465, at *4 (N. D. Cal. Mar. 1, 2012) (finding there was “adequate foundation” for the declaration submitted by
25 the defendant’s human resources director regarding “the numbers of employees, payperiods [sic] and average rates of
pay during the applicable limitations periods,” which was derived from a compilation of “information that is kept in the
26 normal course of business,” and relying on the declaration to find that the defendant had met its burden to establish the
amount in controversy in excess of CAFA’s jurisdictional threshold).
27 3 The declaration of Ariel Kumpinsky is supplemented by two declarations from employees of Defendant whom
478209702 docx directly worked to pull raw data used in his calculations. See e.g. concurrently filed Declaration of Eric Hartvigsen and
28 Declaration of Jennifer Goodman.
6 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
s os

Case 2:21-at-00541 Document 1 Filed 06/14/21 Page 8 of 19

(a) Amount Placed in Controversy by the Failure to Provide Meal
Periods Claim
In his third Cause of Action, Plaintiff alleges that “[flor the four (4) years preceding the
filing of this lawsuit (as tolled by Emergency Rule 9), Defendants failed to provide Plaintiff and

Class Members in their roles as Non-Exempt Drivers, or equivalent positions with similar job
duties, however titled, first and sometimes second meal breaks of not less than thirty (30) minutes.”
Exh. A. § 76. Additionally, Plaintiff alleges that “Plaintiff and, upon information and belief, the

Class Members were required to carry work cell phones with them during purported meal and rest
breaks, and were frequently interrupted as a result.” Exh. A. { 73. Plaintiff also alleged that he

“and the Class Members were required to remain on call during meal and rest breaks, and were
10
required to carry work cell phones or other communications devices while on purported breaks.”
ll
Exh. A. {22 (emphasis added), Plaintiff further alleges that putative class members were
12
“systematically” required to be on call during meal breaks ({| 22) and that this illegal practice was
13
“consistently maintained and enforced” against putative class members ({ 2). As such, without any
14
exception, Plaintiff alleges that for each and every meal and rest break instance, he and other
15
putative class members were “required to carry work cell phones with them” and were “frequently”
16
interrupted as a result.
17
The California Supreme Court has provided that employers must relieve their employees of
18
all duties during their meal and rest breaks, including relinquishing any control over how
19
employees spend their break time. Augustus v. ABM Security Services, Inc. 2 Cal. 5 257 (2016).
20
Employees who are not provided meal periods are entitled to one hour of premium pay for each
21
day that a meal period is not provided. See Marlo v. United Parcel Serv., Inc., No. CV 03-04336
22
DDP 2009 WL 1258491, at *7 (C.D. Cal. May 5, 2009). Meal period claims are properly
23
considered in determining the amount in controversy. See, e.g., Muniz, 2007 WL 1302504, at *4;
24
Helm y. Alderwoods Grp., Inc., No. C 08-01184 SI, 2008 WL 2002511, at *8 (N.D. Cal. May 7,
25
2008).
26
When determining the amount placed in controversy by a plaintiff's allegations regarding a
27
common “policy or practice of’ and “routine” meal period violation, a 20% violation rate that is
47320970_2.doex
28
7 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
~

Case 2:21-at-00541 Document 1 Filed 06/14/21 Page 9 of 19

uniformly applied across all members of the putative class period is both reasonable and

conservative. Danielsson y. Blood Centers of Pac., No. 19-CV-04592-JCS, 2019 WL 7290476, at

*6 (N.D. Cal. Dec. 30, 2019); Chavez y. Pratt (Robert Mann Packaging), LLC, No. 19-CV-00719-

NC, 2019 WL 1501576, at *3 (N.D. Cal. Apr. 5, 2019) (finding that a 20% violation rate for meal

and rest period was reasonable where the plaintiff alleged a “pattern or practice” of violations);
Mendoza v. Savage Servs. Corp., No. 2:19-CV-00122-RGK-MAA, 2019 WL 1260629, at *2 (C.D.
Cal. Mar. 19, 2019) (finding that a 20% violation rate for meal and rest breaks was reasonable

where the complaint alleged a “pattern and practice” of violations, and noting that courts in the

9 Central District of California “routinely apply a 20% violation rate ... for meal and rest period

10 premiums” and citing cases). Defendant could, for this matter, justify a much higher meal period

ll violation rate given the unique allegations made by Plaintiff, that each and every meal and rest

12 break was worked time as employees were required to remain on call during their breaks by
13 carrying their cellphones, and were “frequently” interrupted. Exh. A { 81. Plaintiff specifically
14 provides that “Plaintiff and Class Members are entitled to recover one (1) hour of premium pay for

15 each day in which a meal period was not provided.” Exh. A. § 77. In the interest of the most

16 conservative calculations for the purposes of this removal, Defendant will assume only a 20%

17 violation rate for this allegation.

18 Based on a review of Defendant’s business records, putative class members worked at least

19 276,101 shifts with more than five hours of shift time recorded. Kumpinsky Decl., { 18.

20 Assuming a 20% violation rate, and utilizing the lowest hourly wage rate paid to putative class

21 members, the total number of alleged meal period violations would be 55,465, and the amount of

22 total missed period premiums would be $665,580.00. Jd. at | 20-21. Defendant conservatively
23 estimates that the amount placed into controversy by Plaintiffs claim for failure to provide legally

24 compliant meal periods is at least $665,580.00.

25 (b) The Amount Placed in Controversy by the Failure to
Authorize and Permit Rest Breaks Claim
26
27 Plaintiff's Fourth Cause of Action also alleges rest break violations on a classwide basis.
ATAN9TO_2 dock
28 Plaintiff alleges that “Defendants failed and refused to authorize and permit Plaintiff and Class
8 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 145.
- oo

Case 2:24-at-00541 Document1 Filed 06/14/21 Page 10 of 19

Members, in their roles as Non-Exempt Drivers, or equivalent positions with similar job duties,

however titled, to take ten (10) minute rest periods for every four (4) hours worked, or major

fraction thereof.” Exh. A. 80. Plaintiff also alleges that this claim is predicated “upon
information and belief, the Class Members were required to carry work cell phones with them
during purported meal and rest breaks, and were frequently interrupted as a result.” Exh. A. J 81.

Plaintiff also alleges that putative class members were “systematically” required to be on call
during rest breaks ({ 22) and that this illegal practice was “consistently maintained and enforced”
against putative class members ({ 2). As such, without any exception, Plaintiff alleges that for

each and every rest break instance, he and other putative class members were “required to carry

10 work cell phones with them” and were “frequently” interrupted as a result (Exh. A at { 81).

Il Under California law, employers must provide at least one 10-minute rest period for shifts
12 3.5 hours or greater. Brinker Rest. Corp. v. Sup. Ct., 53 Cal. 4th 1004, 1029 (2012). Employees

13 who are not provided the opportunity to take a rest period are entitled to one hour of premium pay
14 for each day that the opportunity to take a rest period is not provided. United Parcel Serv. Wage &
15 Hour Cases, 196 Cal. App. 4th 57, 63 (2011). Rest period claims are properly considered in
16 determining the amount in controversy. See, e.g., Olson v. Becton, Dickinson & Co., 19-cv-865-

17 MMA, 2019 WL 4673329, *4-5 (S.D. Cal. Sept. 25, 2019); Arias v. Residence Inn by Marriott,

18 936 F.3d 920, 926-27 (9th Cir. 2019).

19 As with the meal period violations, an estimated 20% violation rate is both reasonable and

20 conservative where the Plaintiff contends that Defendant’s policies, practices or routines caused

21 Plaintiff and other employees to miss their rest breaks. Danielsson, 2019 WL 7290476, at *6;
22 Chavez, 2019 WL 1501576, at *3; Mendoza, 2019 WL 1260629, at #2. Here, as with Plaintiff's

23 meal period allegations, Plaintiff alleges that he and other putative class members were subject to a

24 violation for each and every rest period where a premium was not provided. Exh. A. § 83. This

25 argument is based on Plaintiff’s allegation that each and every putative class member was required

26 to remain on call or on duty for their rest period. Exh. A. J 80.
27 The computation of the amount in controversy is based on conservative estimate that there
$7320870_2doce
28 was a rest break violation for only 20% of the rest break eligible shifts. Kumpinsky Decl., J 23.
9 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
‘OURT PURSUANT TO 28 U.S.C. §§ 1332, 1441, 1446, 1453
1 1

Case 2:21-at-00541 Document 1 Filed 06/14/21 ‘Page 11 of 19

Based on a review.of Defendant’s business records, there were 288,033 days with more than 3.5

hours recorded. Jd. at 22. The total number of potential rest break violations would be 57,861,

and the total missed rest break premiums would be $694,332.00 at a pay rate of $12.00 per hour

and a 20% violation rate. Jd. at { 24. Defendant conservatively estimates that the amount placed

into controversy by Plaintiff's claim for failure to provide legally compliant rest periods is at least
$694,332.00.
(©) The Amount Placed in Controversy by Unpaid Overtime
In his Complaint, Plaintiff alleges that Defendant failed to pay overtime compensation to

Plaintiff and other putative class members. Specifically, Plaintiff alleges that “Plaintiff and Class

Members consistently worked in excess of eight (8) hours in a day and/or forty (40) hours in a
10
week.” Exh. A. 961. This allegation includes that “Defendants failed to pay Plaintiff and, upon
ll
information and belief, failed to pay Class Members properly for overtime hours worked, as
12
Defendant failed to include all forms of remuneration, including incentives, bonuses, and
13
differentials when calculating the regular rate for overtime purposes.” Exh. A. J 26. Additionally,
14
Plaintiff alleges that “Defendants failed to pay regular wages and overtime wages to Plaintiff and
15
Class Members by failing to pay for hours worked off the clock by deducting time for meal periods
16
which were never lawfully provided but deducted by Defendants.” Exh. A. { 62. As set forth
17
above, Plaintiff alleges that putative class members were “consistently” and “systematically”
18
required to carry their cell phones during meal breaks, and “frequently” interrupted during meal
19
break time.
20
While Plaintiff does not provide a clear number of overtime alleged, an estimate of one
21
hour of unpaid overtime for every week of work has been accepted by the federal courts as a
22
reasonable and conservative figure where the plaintiff fails to provide specific allegations
23
concerning the frequency of which he worked overtime without being provided the requisite
24
compensation. See Byrd v. Masonite Corp., No. EDCV 16-35 JGB (KKX), 2016 WL 2593912, at
25
*5 (C.D, Cal. May 5, 2016). See Jasso v. Money Mart Express, Inc., No. 11-CV-5500 YGR, 2012
26
WL 699465, at *5-6 (N. D. Cal. Mar. 1, 2012) (holding that calculating at least one violation per
27
47920970 docx week was a “sensible reading of the alleged amount in controversy”); Ray v. Wells Fargo Bank,
28
10 Case No.
DEFENDANT J. R. SIMPLOT COMPANY’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT PURSUANT TO 28 U.S.C, §§ 1332, 1441, 1446, 1453
=~
1

Case 2:21-at-00544 Document 1 Filed 06/14/21 Page 12 of 19

N.A., No. CV 11-01477 AHM (JCx), 2011 WL 1790123, at *6-7 (C.D. Cal. May 9, 2011). Where,
as here, the plaintiff alleges specific daily amounts of unpaid time, such allegations can also be

used to form the basis of a reasonable figure. Ex. A, J 21-23; Altamirano, 2013 WL 2950600, at

‘IL.

Based on a review of Defendant’s business records, there were 249,5050 days where

putative class members recorded more than eight hours worked. .Kumpinsky Decl., 125. Applying

an extremely conservative ten minutes of overtime for each shift worked that was recorded as eight

hours or more in length, the number of potential allegedly unpaid overtime hours would be
41,584.17. Id. at { 28. Multiplying this number of overtime hours by the overtime rate of $18
10 equates to $748,515.00. fd. Consequently, the amount placed in controversy by the failure to pay
MW overtime is at least $748,515.00.

12 @ The Amount Placed in Controversy by Off The Clock Allegation
13 Plaintiff also alleges in his Complaint that Plaintiff and putative class members

14 “consistently worked hours for which they were not paid” because they were required to work “off

15 the clock, including without limitation for time spent during purportedly provided meal periods.”

16 Exh. A. 54
17 Although Plaintiff alleges that he and putative class members “consistently” worked off the
18 clock, Defendant’s removal is based on a conservative estimate of only 10 minutes of unpaid
19 straight time for off the clock work, which has been held reasonable by the Federal courts. See

20 Byrd y. Masonite Corp., No. EDCV 16-35 JGB (KKX), 2016 WL 2593912, at *5 (C.D. Cal. May

21 5, 2016). See Jasso v. Money Mart Express, Inc., No. 11-CV-5500 YGR, 2012 WL 699465, at *5-

22 6 (N. D. Cal. Mar. 1, 2012) (holding that calculating at least one violation per week was a “sensible

23 reading of the alleged amount in controversy”); Ray v. Wells Fargo Bank, N.A., No. CV 11-01477

24 AHM (JCx), 2011 WL 1790123, at *6-7 (C.D, Cal. May 9, 2011). When a Plaintiff alleg

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Waters, Robert T. Track Judge’s New Case

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Document Filed Date

September 16, 2021

Case Filing Date

May 25, 2021

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Dennis Tony Dutra, on behalf of himself and all others similarly situated Plaintiff
J.R. Simplot Company, a Nevada Corporation Defendant
Christina Lucio Attorneys for Plaintiffs
Michael Nader Attorneys for Defendants
Rabia McFall Attorney
Evan Moses Attorneys for Defendants
Alexander Chemers Attorneys for Defendants
Melis Atalay Attorneys for Defendants
Joseph Lam Attorney
Jordan Bello Attorney

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