Removal to Federal Court

Cal. Super. - 6th Dist.December 3, 2018

Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/4/2019 3:41 PM Reviewed By: R. Tien Case #18CV338732 Envelope: 2338645UI$U3N OCOONQ 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 SEYFARTH SHAW LLP Alexandra V. Drury (SBN 291920) adrury@seyfanh.com 560 Mission Street, 3lst Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 SEYFARTH SHAW LLP Frederick T. Smith (t0 be admittedpro hac vice) fsmith@seyfarth.com Esther Slater McDonald (t0 be admittedpro hac vice) emcdonald@seyfarth.com 1075 Peachtree Street, N.E., Suite 2500 Atlanta, Georgia 30309-3958 Telephone: (404) 885-1500 Facsimile: (404) 892-7056 Attorneys for Defendant FIRST ADVANTAGE BACKGROUND SERVICES CORP. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA NICK MILETAK, Case No. 18CV338732 Plaintiff, DEFENDANT FIRST ADVANTAGE BACKGROUND SERVICES CORP.’S v. NOTICE TO SUPERIOR COURT OF REMOVAL TO FEDERAL COURT FIRST ADVANTAGE BACKGROUND SERVICES CORR, Defendant. TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA AND TO PLAINTIFF: PLEASE TAKE NOTICE that 0n January 3, 2019, Defendant FIRST ADVANTAGE BACKGROUND SERVICES CORP. filed a Notice 0f Removal in the United States District Court for the Northern District of California. A true and correct copy of that Notice ofRemoval is attached hereto as Exhibit 1. DEFENDANT’S NOTICE TO STATE COURT OF REMOVAL/ CASE N0. 18CV338732 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. § 1446, the filing of that notice effects the removal of this action to the federal court, and this Court is directed to “proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446(d). DATED: January 3, 2019 Respectfully submitted, SEYFARTH SHAW LLP By: (WFrederiM Smith* Esther Slater McDonald* Alexandra V. Drury Attorneys for Defendant FIRST ADVANTAGE BACKGROUND SERVICES CORP. *to be admitted pro hac vice 2 DEFENDANT’S NOTICE TO STATE COURT OF REMOVAL / CASE NO. 18CV338732 EXHIBIT 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:19-cv-00055-SVK Document 1 Filed 01/03/19 Page 1 of 6 SEYFARTH SHAW LLP Alexandra V. Drury (SBN 291920) . adrury@seyfarth.com 560 Mission Street, 3 lst Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 SEYFARTH SHAW LLP Frederick T. Smith (to be admittedpro hac vice) fsmitthljseyfartchom Esther Slater McDonald (t0 be admittedpro hac vice) emcdonaldfémeyfarthcom 1075 Peachtree Street, N.E., Suite 2500 Atlanta, Georgia 30309-3958 Telephone: (404) 885-1500 Facsimile: (404) 892-7056 Attorneys for Defendant FIRST ADVANTAGE BACKGROUND SERVICES CORP. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NICK MILETAK, Plaintiff, v. FIRST ADVANTAGE BACKGROUND SERVICES CORR, Defendant. DEFENDANT FIRST ADVANTAGE BACKGROUND SERVICES CORP.’S NOTICE OF REMOVAL REMOVED FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA CASE NO. TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF: PLEASE TAKE NOTICE that Defendant FIRST ADVANTAGE BACKGROUND SERVICES CORP. hereby removes the above-referenced action from the Superior Court 0f the State of California, County of Santa Clara, to the United States District Court for the Northern District of California DEFENDANT’S NOTICE OF REMOVAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:19-cv-00055-SVK Document 1 Filed 01/03/19 Page 2 of 6 pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. In support of this Notice of Removal, First Advantage states the following: BACKGROUND 1. On December 3, 2018, Plaintiff filed his Complaint and Civil Case Cover Sheet in the Superior Court for the State of California, County of Santa Clara, titled Nick Miletak v. First Advantage Background Services Corp, Case No. 18CV338732. In his Complaint, Plaintiff alleges that First Advantage twice willfully violated the California Investigative Consumer Reporting Agencies Act (“ICRAA”), Cal. CiV. Code § 1786 et seq., by furnishing background reports to his prospective employers without timely sending him copies 0f the reports. Plaintiff seeks actual damages or $20,000 in statutory damages, whichever is greater, as well as punitive damages and reasonable costs and attorneys’ fees under Cal. CiV. Code § 1786.50. 2. A copy 0f all process, pleadings, and orders served upon First Advantage are attached as Exhibit A to the Declaration 0f Alexandra V. Drury (“Drury Declaration”). TIMELINESS OF REMOVAL 3. The Notice of Removal is timely pursuant to 28 U.S.C. § 1446(b) because it has been filed within thirty days of service of the Complaint upon First Advantage. See 28 U.S.C. § 1446(b); Drury Dec. 1] 4 (stating that the Complaint was served on December 4, 201 8). DIVERSITY JURISDICTION 4. This action is removable under 28 U.S.C. § 1441 because it is a civil action over which the Court has diversity jurisdiction under 28 U.S.C. § 1332(a). The rbquirements 0f 28 U.S.C. § 1332(a) have been met because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. 5. Upon information and belief and according to the allegations in the Complaint, Plaintiff is a citizen of the State of California. (Compl. 1] 13.) 6. For diversity purposes, “a corporation is a citizen of (1) the state under whose laws it is organized or incorporated; and (2) the state of its ‘principal place of business.” Davis v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 (9th Cir. 2009) (citing 28 U.S.C. 1332 (c)(1)). As Plaintiff implicitly acknowledges, First Advantage is'not a California citizen. (Id. 1] 14.) First Advantage is 2 DEFENDANT’S NOTICE OF REMOVAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:19-cv-00055-SVK Document 1 Filed 01/03/19 Page 3 of 6 incorporated in Florida and has its principal place of business in Atlanta, Georgia. Attached as Exhibit B t0 the Drury Declaration is a copy of the California Department of State’s “Entity Detail” report on First Advantage and the associated State of Information filed by First Advantage in the office of the Secretary of’State of the State 0f California on May 28, 2017 and reaffirmed on May 3, 2018, listing First Advantage’s state of incorporation and principal place of business.‘ 7. While First Advantage denies any liability as to Plaintiffs claims, the amount in controversy requirement is satisfied because “it is more likely than not” that the amount exceeds the jurisdictional minimum of $75,000. See Sanchez v. Monumental Life Ins., 102 F.3d 398, 403-04 (9th Cir. 1996) (“[T]he defendant must provide evidence establishing that it is ‘more likely than not’ that the amount in controversy exceeds [the threshold] amount”) (internal citation omitted). As explained by the Ninth Circuit, “the amount-in-controversy inquiry in the removal context is not confined to the face of the complaint.” Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (finding that a court may consider facts presented in the removal petition). In determining the amount in controversy, the Court must consider the aggregate of general damages, special damages, punitive damages, and attorneys’ fees. Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (holding that claims for statutory attomeys’ fees are included in amount in controversy, regardless of whether such an award is discretionary or mandatory); see also Bank ofCalif Nat'l Ass'n v. Twin Harbors Lumber C0., 465 F.2d 489, 491 (9th Cir. 1972). 8. Plaintiff seeks the greater of his alleged actual damages 0r statutory damages 0f $20,000 ($10,000 for each of the two alleged Violations); punitive damages; and attorneys’ fees and costs. (Compl. 1H] 38-39 & Wherefore Clause.) See also Cal. CiV. Code § 1786.50 (permitting recovery of actual damages 0r $10,000, whichever sum is greater, punitive damages, and attorneys’ fees and costs). 9. Based 0n these allegations, Plaintiff’s alleged actual damages, statutory damages, punitive damages, and attorneys’ fees and costs for the four counts asserted in the Complaint are likely to exceed $75,000. 1 The report, which is available at https://businesssearch.sos.ca.gov, includes corporate filings made by First Advantage in the State of California that confirm the information in the report. "\ .3 DEFENDANT’S NOTICE OF REMOVAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:19-cv-00055-SVK Document l Filed 01/03/19 Page 4 0f 6 10. Demands for punitive damages are appropriately considered when considering the amount in controversy. See, e.g., Chabner v. United Omeaha Life Ins. Ca, 225 F.3d 1042, 1046 n.3 (9th Cir. 2000) (holding that a court may consider punitive damages in determining Whether the amount in controversy meets the jurisdictional minimum) (citing Davenport v. Mutual Ben. Health & Acc. Ass ’n, 325 F.2d 785, 787 (9th Cir. 1963)). In cases involving background reports under the federal Fair Credit Reporting Act} jury awards for punitive damages are typically many times over the statutory damages. See, e.g., Saunders v. BB&T C0. of Va., 526 F.3d 142, 154 (4th Cir. 2008) (affirming $1,000 statutory damages award and $80,000 punitive damages award for FCRA violations including misleading reporting); Ramirez v. Trans Union, LLC, No. 12-cv-00632-JSC, 2017 WL 3 136149 (ND. Cal. June 21, 2017) (judgment awarding punitive damages 0f more than six times the statutory damages amount); Judgment, ECF No. 80, Naill v. Lincoln Mort., LLC, No. 3:09-cv-00039-BWC (W.D. Va. Apr. 12, 2010) (judgment awarding $1,000 in statutory damages and $25,000 in punitive damages for a single violation for failure to provide notice) (attached as Exhibit C to the Drury Declaration). 11. Similarly, in consumer reporting cases Without any economic loss, punitive damages awards commonly are several times more than the non-economic damages award. See, e.g., Miller v. Equifax Info. Servs., LLC, No. 3:11-CV-01231-BR, 2014 WL 2123560, at *1 (D. Or. May 20, 2014) (remitting punitive damages award to $1,620,000 where jury awarded $180,000 in non-economic damages for FCRA violations); Brim v. Midland Credit Mgmt., Ina, 795 F. Supp. 2d 1255, 1262 (N.D. Ala. 201 1) (affirming $100,000 non-economic damages award and $623,180 punitive damages award for FCRA Violation). 12. Given past awards in consumer reporting cases awarding punitive damages of 6 t0 80 times the statutory damages, it is more likely than not that Plaintiff can recover punitive damages of at least 3 times ($60,000) the statutory damages he seeks. Indeed, in light of the somewhat unpredictable nature of punitive damages awards, the Third Circuit has explained that “[i]f appropriately made, . . . a request for punitive damages will generally satisfy the amount in controversy requirement because it 2 See, e.g., Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir. 2010) (“[T]he CCRAA ‘is substantially based on the Federal Fair Credit Reporting Act.”’) (quoting Olson v. Six Rivers Nat’l Bank, 111 Cal. App. 4th 1, 3 (2003)); Cunha v. IntelliCheck, LLC, 254 F. Supp. 3d 1124, 1137 (N.D. Cal. 2017) (referring to the FCRA as ICRAA’s “federal4counterpart”). DEFENDANT’S NOTICE OF REMOVAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:19-cv-00055-SVK Document l Filed 01/03/19 Page 5 0f 6 cannot be stated to a legal certainty that the value of the plaintiff’s claim is below the statutory minimum.” Huber v. Taylor, 532 F.3d 237, 244 (3d Cir. 2008) (quotation marks omitted). 13. Because this action is between citizens of different states and the amount in controversy exceeds the sum or value 0f $75,000, exclusive of interest and costs, this Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1332(a). Accordingly, this action is removable to this Court pursuant to 28 U.S.C. § 1441(b). VENUE 14. Because this action originally was brought in the Superior Court of the State of California, County of Santa Clara, the action is properly removed to the Northern District of California pursuant to 28 U.S.C. §§ 1441(a) and 1446(a). INTRADISTRICT ASSIGNMENT 15. Assignment to the San Jose divisions ofthis Court is proper under Local Rule 3-2 because Plaintiff filed her Complaint in the Superior Court of the State of California, County of Santa Clara. NOTICE 0F REMOVAL 16. Notice of this Notice of Removal will promptly be served on Plaintiff and the Clerk of the Superior Court of the State of California, County of Santa Clara. PRAYER WHEREFORE, First Advantage prays that this civil action be removed from the Superior Court of the State of California, County of Santa Clara, to the United States District Court for the Northern District of California. 5 DEFENDANT’S NOTICE OF REMOVAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:19-cv-00055-SVK Document 1 Filed 01/03/19 Page 6 of 6 DATED: January 3, 2019 6 Respectfully submitted, SEYFARTH SHAW LLP By: /S/Alexandra V. Drum! Frederick T. Smith * Esther Slater McDona1d* Alexandra V. Drury Attorneys for Defendant FIRST ADVANTAGE BACKGROUND SERVICES CORP. *to be admitted pro hac vice DEFENDANT’S NOTICE OF REMOVAL