NoticeCal. Super. - 6th Dist.July 7, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV385347 Santa Clara - Civil SEYFARTH SHAW LLP Michael J. Burns (SBN 172614) mbums@seyfarth.com 560 Mission Street, Suite 3 100 San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 SEYFARTH SHAW LLP Eric W. May (SBN 264733) emay@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (3 10) 277-7200 Facsimile: (3 10) 201-5219 Attorneys for Defendant INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC (incorrectly sued as “IHG RESOURCES, LLC”) Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/23/2021 11:28 AM Reviewed By: L. Quach-Marcell Case #21 CV385347 Envelope: 7326136 SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA VANESSA LIPSTEIN, an individual Plaintiff, V. INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC; and IHG RESOURCES, LLC; and DOES 1 through 25, inclusive, Defendants. Case No. 21CV385347 Hon. Christopher G. Rudy, Dept. 7 NOTICE TO CLERK OF SUPERIOR COURT AND TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION Complaint Filed: Trial Date: July 7, 2021 None Set ana NOTICE TO CLERK OF SUPERIOR COURT AND PLAINTIFF OF REMOVAL OF CIVIL ACTION TO N.D. CAL. 75261582v.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA, AND TO PLAINTIFF VANESSA LIPSTEIN AND HER COUNSEL OF RECORD: PLEASE TAKE NOTICE that 0n September 22, 2021, Defendant INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC (incorrectly sued as “IHG RESOURCES, LLC”) filed a Notice 0fRemoval under 28 U.S.C. sections 1132 and 1441(b) in the United States District Court for the Northern District 0f California, San Jose Division, located at 280 South lst Street, San Jose, CA 951 13. This action now bears Federal Case N0. 5:21-CV-07382-NC. A true and correct copy 0f the Notice 0f Removal, without exhibits, is attached hereto and served herewith as Exhibit A. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. Section 1446, the filing of the Notice ofRemoval in the United States District Court effectuates the removal of this action. Accordingly, no further proceedings should take place in this Court unless and until the case has been remanded. DATED: September 23, 2021 SEYFARTH SHAW LLP By a0/ Michael J. Burns Eric W. May Attorneys for Defendant INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC (incorrectly sued as “IHG RESOURCES, LLC”) NOTICE TO CLERK OF SUPERIOR COURT AND PLAINTIFF OF REMOVAL OF CIVIL ACTION TO N.D. CAL. 75261582v.1 EXHIBIT A \OOOQQUI#UJNr-‘ NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKDOOQONUI-RUJNHO Case 5:21-cv-07382-NC Document 1 Filed 09/22/21 Page 1 of 50 SEYFARTH SHAW LLP Mlchael J. Burns (SBN 172614) mburns@.seyfarth.com. 560 M15519n Street? Surge 3 100 San Franmsco, Callfornla 94105 Telephone: 415 397-2823 Fa031mile: 415 397-8549 SEYFARTH SHAW LLP Erlc W. Ma (SBN 264733) emag@sey arth.com _ 202 entury Par_k East, Sulte 3500 Los Angeles, Cahfornla 90067-3021 Telephone: 3 10 277-7200 Fac51mlle: 310 201-5219 Attorne s for Defendant INTER ONTINENTAL HOTELS GROUP RESOURCES, LLC glncorrectly sued as “IHG Resources, LLC ’) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION VANESSA LIPSTEIN, an individual Plaintiff, V. INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC; and IHG RESOURCES, LLC; and DOES 1 through 25, 1nclus1ve, Defendants. Case N0. 5:21 -CV-7382 DEFENDANT INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT PURSUANT TO DIVERSITY OF CITIZENSHIP JURISDICTION Remqved from Santa Clara County ugerlor Court, Case No. 21 V385347) Complaint Filed: July 7, 2021 Trlal Date: None Set DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 2 of 50 TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HER COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that Defendant InterContinental Hotels Group Resources, LLC (incorrectly sued as “IHG Resources, LLC”)1 (“Defendant” or “IHGR”) hereby files this Notice of Removal, pursuant to 28 United States Code sections 1332, 1441, and 1446, t0 effectuate the removal of the above-captioned action from the Superior Court for the County of Santa Clara t0 the United States District Court for the Northern District of California. This Court has original jurisdiction over this action based 0n diversity 0f citizenship under 28 United States Code section 1332. Removal is proper for the following reasons: I. PLEADINGS. PROCESSES AND ORDER 1. On July 7, 2021, Vanessa Lipstein (“Plaintiff’) filed an unverified Complaint For Damages in the Superior Court of California, County 0f Santa Clara, entitled: VANESSA LIPSTEIN, Plaintifif v. INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC; [HG RESOURCES, LLC; andDOES I through 25, inclusive, Case Number 21CV385347 (the “Complaint”). A true and correct copy of the Complaint is attached hereto as Exhibit 1. 2. The Complaint purports t0 allege five (5) causes of action against Defendant for: (1) disability discrimination in Violation of the Fair Employment and Housing Act (“FEHA”), (2) failure to accommodate in Violation of FEHA, (3) failure t0 engage in interactive process in Violation 0fFEHA, (4) failure t0 prevent discrimination in Violation ofFEHA, and (5) wrongful termination in Violation of public policy. 1 Defendant IHG Resources, LLC, named as a defendantz is.not a legal entity and does not eX1st. Moreover, IHG Resources, LLC was never Plalntlff” s employer and 1s therefore not a proper defendant 1n thls case. DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 3 0f 50 3. On August 23, 2021, Plaintiff served Defendant’s agent for service 0f process with the Complaint (Exhibit 1), as well as the Summons and all of the court documents attached hereto as Exhibit 2. 4. On September 20, 2021, Defendant timely filed their Answer t0 Plaintiff s Complaint in the Superior Court of California, County 0f Santa Clara. A true and correct copy of Defendant’s Answer to the Complaint is attached hereto as Exhibit 3. 5. Exhibits 1-3 constitute all pleadings, processes and orders served on, 0r filed by, Defendant in this action. (See Declaration of Eric W. May (“May Decl.”) 115.) 6. The Superior Court scheduled a Case Management Conference for 2:15 pm. 0n November 16, 2021, in Department 7 at the Santa Clara County Superior Court, located at 191 North First Street, San Jose, California 951 13. (See EXh. 2.) Other than the Case Management Conference, there are no other proceedings scheduled in the Superior Court. II. TIMELINESS OF REMOVAL 7. The time for filing a Notice of Removal does not begin t0 run until a party has been formally served with the summons and complaint under the applicable state law “setting forth the claim for reliefupon Which such action or proceeding is based” 0r, if the case stated by the initial pleading is not removable, after receipt of any “other paper from Which it may be first ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446; Murphy Bros., Inc. v. Michetti Pipe Stringing, Ina, 526 U.S. 344, 347-48 (1999) (holding that “a named defendant’s time to remove is triggered by simultaneous service of the summons and complaint”); accord Kenny v. Wal-Mart Stores, Ina, 881 F.3d 786, 791 (9th Cir. 2018) (“We have also emphasized that ‘a defendant does not have a duty 0f inquiry if the initial pleading 0r other document is ‘indeterminate’ with respect to removability.”’) (citing Roth v. CHA Hollywood Med. Cm, L.P., 720 F.3d 1121, 1125 (9th Cir. 2013); Harris v. Bankers Life & Cas. C0,, 425 F.3d 689, 693-94 (9th Cir. 2005)). Accordingly, “‘even if a defendant could have discovered grounds for removability through investigation, it 3 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 4 of 50 does not lose the right t0 remove because it did not conduct such an investigation and then file a notice of removal Within thirty days of receiving the indeterminate d0cument.”’ Kenny, 881 F.3d at 791. 8. The service of process which triggers the 30-day period to remove is governed by state law. City ofClarksdale v. BellSouth Telecomms., Ina, 428 F.3d 206, 210 (5th Cir. 2005) (“Although federal law requires the defendant t0 file a removal motion Within thirty days 0f service, the term ‘service of process’ is defined by state law”). 9. This Notice 0f Removal is timely because it is filed Within thirty (30) days 0f personal service of the Summons and Complaint on Defendant, Which was on August 23, 2021. 28 U.S.C. § 1446(b); Cal. CiV. Proc. Code § 415.10 (“A summons may be served by personal delivery of a copy of the summons and 0f the complaint to the person to be served. Service 0f a summons in this manner is deemed complete at the time of such delivery”). III. JURISDICTION BASED ON DIVERSITY OF CITIZENSHIP 10. The Court has original jurisdiction of this action under 28 United States Code section 1332(a)(1). As set forth below, this action is removable pursuant to the provisions 0f 28 United States Code section 1441(a) as the amount in controversy is in excess 0f $75,000, exclusive 0f interest and costs, and is between citizens of different states. A. Plaintiff Is A Citizen Of California 11. Plaintiff is, and at all times since the commencement of this action has been, a resident of the State of California. For diversity purposes, a person is a “citizen” 0f the state in Which he or she is domiciled. Kantor v. Wellesley Galleries, Ltd, 704 F.2d 1088, 1090 (9th Cir. 1983). A person’s domicile is the place he 0r she resides With the intent t0 remain indefinitely. Kanter v. Warner-Lambert C0., 265 F.3d 853, 857 (9th Cir. 2001). Residence is primafacie evidence of domicile. State Farm 4 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 5 0f 50 Mut. Auto Ins. C0. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994) (holding that “the place 0f residence is primafacie [evidence of] domicile”). 12. Plaintiff alleges in the Complaint that, “[a]t all times relevant to this complaint, [Defendants] employed Plaintiff in the County 0f Santa Clara, State 0f California.” (Exh. 1, Complaint 112; see also id. 116 (“Defendants employed Plaintiff and the wrongful acts herein alleged occurred in the County of Santa Clara, State of California.”). Specifically, Plaintiff alleges that, “[i]n approximately 2015, IHG hired Plaintiff Vanessa Lipstein as a General Manager and placed her at Candlewood Suites Silicon Valley in San Jose, California.” (Exh. 1, Complaint 117.) Moreover, Plaintiff listed her home address in San Jose, California (Santa Clara County), and maintained a California address 0n file during the period 0f her employment With Defendant. (See Declaration ofW. Clif Deaton (“Deaton Decl.”) 114.) 13. Similarly, on May 17, 2021 , in her Complaint of Employment Discrimination with the Department Of Fair Employment And Housing, Plaintiff states that she “resides in the City 0f Larkspur, State of California.” (Exh. 2 at p. 9.) 14. Further, a LexisNeXis public records search reflects only California addresses for Plaintiff in Santa Clara County and San Joaquin County, going back t0 November 2014. (May Decl., Exh. 1.) 15. Accordingly, Plaintiffwas at all relevant times, and still is, a citizen 0f the State of California. B. Defendant Is Not A Citizen of California 16. Defendant is now, and was at the time 0f the filing 0f this action, a citizen of a State other than California within the meaning 0f 28 United States Code section 1332(c)(1). i. InterContinental Hotels Group Resources. LLC 17. Defendant is a limited liability company organized under the laws of Delaware. (Declaration 0fW. Clif Deaton (“Deaton Decl.”) at 115.) Limited liability companies are citizens 0f all of the states ofWhich its members are citizens. Johnson v. 5 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 6 0f 50 Columbia Props. Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006) (“[A]n LLC is a citizen of every state ofWhich its owners/members are citizens.”); NewGen LLC v. Safe Cig., LLC, 840 F.3d 606, 612 (9th Cir. 2016). Moreover, for removal purposes, diversity is determined at the time the lawsuit is filed. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567 (“[t]his Court has long adhered to the rule that subject- matter jurisdiction in diversity cases depends on the state of facts that existed at the time 0f filing”). 18. Defendant’s sole member company is Six Continents Hotels, Inc. (“SCH”). (Deaton Decl. 115.) Under 28 United States Code section 1332(c)(1) “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and 0f the State Where it has its principal place of business. . .” The United States Supreme Court held that when determining a corporation’s principal place of business for diversity purposes, the appropriate test is the “nerve center” test. Hertz Corp. v. Friend, 559 U.S. 77, 80-81, 92-93 (2010). Under the “nerve center” test, the “principal place of business” means the corporate headquarters Where a corporation’s high-level officers direct, control, and coordinate its activities 011 a day-to-day basis. Id. (“We conclude that ‘principal place of business’ is best read as referring t0 the place Where a corporation’s officers direct, control, and coordinate the corporation’s activities”). 19. SCH is incorporated under the laws of the State of Delaware, and maintains its corporate headquarters-its “nerve center”-in the State of Georgia. (Deaton Decl. 11115-6.) Both Defendant and SCH’S principal place of business is and has been in Atlanta, Georgia. (Deaton Decl. 11115-6.) From the time Plaintiffwas employed through the present, the majority 0f Defendant and SCH’s corporate and administrative functions, including corporate finance and accounting, were performed in Georgia, where Defendant and SCH’S corporate headquarters is located. (Deaton Decl. 116.) Both Defendant and SCH’s corporate officers maintain offices in Georgia, and a maj ority 0f Defendant and SCH’s corporate officers and directors work from 6 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUIALHNt-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 7 of 50 their headquarters in Atlanta, Georgia. (Deaton Decl. 116.) Accordingly, Defendant has been, at all relevant times, a citizen 0f the States of Delaware and Georgia. See Hertz Corp, 559 U.S. at 92. Defendant is not now, and was not at the time 0f the filing 0f the Complaint, a citizen of the State 0f California. ii. IHG Resources, LLC 20. Defendant IHG Resources, LLC, named as a defendant, is not a legal entity and does not exist. Moreover, IHG Resources, LLC was never Plaintiff” s employer and is therefore not a proper defendant in this case. Therefore, for purposes 0f diversity of citizenship, IHG Resources, LLC’s citizenship should not be considered. IV. AMOUNT IN CONTROVERSY 21. While Defendant denies any liability as to Plaintiff’s claims, the amount in controversy requirement is satisfied because “it is more likely than not” that the amount exceeds the jurisdictional minimum 0f $75,000.00. 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 quotations and citations omitted). 22. As explained by the Ninth Circuit, “the amount-in-controversy inquiry in the removal context is not confined t0 the face of the complain .” Valdez v. Allstate Ins. C0,, 372 F.3d 1115, 1117 (9th Cir. 2004) (finding that the Court may consider facts presented in the removal petition). When the amount in controversy is not apparent from the face of the complaint, a defendant may state underlying facts supporting its assertion that the amount in controversy exceeds the jurisdictional threshold. Gaus v. Miles, Ina, 980 F.2d 564, 566-67 (9th Cir. 1992). 23. In determining the amount in controversy, the Court must consider the aggregate of general damages, special damages, punitive damages, attorneys’ fees, and penalties. Galt G/S v. JSS Scandinavia, 142 F. 3d 1150, 1156 (9th Cir. 1998) (claims 7 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 8 0f 50 for statutory attorneys’ fees t0 be included in amount in controversy, regardless of Whether such an award is discretionary or mandatory); Davenport v. Mut. Benefit Health & Accident Ass ’n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages must be taken into account Where recoverable under state law); Conrad Assocs. v. Hartford Accident & Indem. C0., 994 F. Supp. 1196, 1198 (ND. Cal. 1998) (“amount in controversy” includes claims for general and special damages, including attorneys’ fees and punitive damages). 24. Further, in determining the amount in controversy at the time of removal, the Court is not limited to the amount 0f damages incurred as of the time 0f removal, but may 100k forward in time t0 damages that can be recovered in the future. Chavez v. JP Morgan Chase & C0., 888 F.3d 413, 417-18 (9th Cir. 2018) (“That the amount in controversy is assessed at the time 0f removal does not mean that the mere futurity 0f certain classes 0f damages precludes them from being part 0f the amount in controversy. In sum, the amount in controversy includes all relief claimed at the time 0f removal t0 Which the plaintiff would be entitled if she prevails”). 25. Here, considered together, the general and special damages sought by Plaintiff, along with the attorneys’ fees, punitive damages that might be awarded if Plaintiff prevails, establishes by a preponderance of the evidence that the amount in controversy exceeds $75,000.00, exclusive 0f interest and costs, as required by 28 United States Code section 1332(a). A. Alleged Lost Wages And Benefits 26. Plaintiff alleges that her employment was terminated 0n November 30, 2020. (Exh. 1, Complaint 1113.) For each of her five (5) causes 0f action against Defendant, Plaintiff alleges that she has “suffered damages as set forth in this complaint.” (Exh. 1, Complaint 1W 19, 23, 27, 32, 37.) Specifically, Plaintiff alleges that she “has been harmed in that Plaintiff has suffered loss 0f wages, benefits, and additional damages.” (Exh. 1, Complaint 1138; see also id., Prayer For Relief 111 8 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-07382-NC Document 1 Filed 09/22/21 Page 9 of 50 (Plaintiff seeks judgment against Defendant for “compensatory damages including lost wages, earnings, retirement benefits and other employee benefits[.]”).) 27. Plaintiff was an exempt employee of Defendant. (Deaton Decl. 114.) At the time 0f her termination, Plaintiff’s annual salary was approximately $96,234.84, in addition t0 the value 0f benefits she received from Defendant. (Deaton Decl. 114.) 28. Given that Plaintiff alleges that she was discriminated against and wrongfully terminated on November 30, 2020, Plaintiff is currently seeking nine-and- one-half (9.5) months of compensation, benefits, etc., 0r approximately $76,185.92? Assuming that this matter goes t0 trial one (1) year after the date of this filing, and Plaintiff remains unemployed for the nineteen (1 9) month period, Plaintiff’ s potential lost income, etc. could amount to at least $152,371.83.3 29. In addition t0 back pay, a plaintiffWho prevails on a claim for wrongfifl termination 0r discriminatory discharge of employment may be entitled t0 either reinstatement or an award of “front pay” in lieu of reinstatement. See, e.g., Cassino v. Reichhold Chemicals, Ina, 817 F.2d 1338, 1346 (9th Cir. 1997) (stating that a court has discretion to award front pay in lieu of reinstatement); Chavez v. JPMorgan Chase & C0., 888 F.3d 413, 417 (9th Cir. 2018) (stating that future wages are “at stake” in the litigation and must be considered in assessing amount in controversy); Secru v. Laboratory Corp. ofAmerica, No. 3:09-cv-0619-LRH-RAM, 2009 WL 3755763, at * 2, n.3 (D. Nev. Nov. 9, 2009) (holding that future lost wages alone can satisfy amount in controversy); James v. Childtz'me Childcare, Ina, N0. CiV. 8-06-2676 DFL DAD, 2007 WL 1589543, at *2 n.1 (E.D. Cal. June 1, 2007) (holding that, While courts evaluate the amount in controversy at the time of removal, future lost wages are properly considered in that calculation); see also Crum v. Circus Circuit Enters, 231 2 76 18$598é23484 annually, divided by 12 months, multiplied by 9.5 months = § ’ $96,234.84 annually, divided by 12 months, multiplied by 19 months = $152,371.83. 9 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 10 0f 50 F.3d 1129, 1131 (9th Cir. 2000) (holding that future damages are properly considered in determining amount in controversy). 30. An award 0f three years’ front pay would entitle Plaintiff to more than $288,704.52 in additional recovery.4 See Traxler v. Multnomah C132,, 569 F.3d 1007, 1015 (9th Cir. 2010) (upholding district court’s decision to award nearly four years’ front pay in a wrongful termination suit); see also Glenn-Davis v. City oankland, N0. C 02-2257 SI, 2008 WL 410239, *4 (ND. Cal. 2008) (finding three years of front pay “appropriate” in a discrimination suit); Ackermcm v. Western Elec. C0., Ina, 643 F. Supp. 836, 856 (ND. Cal. 1986) (same). 31. Thus, Plaintiff’s allegations 0f lost wages alone exceed $441,076.35. B. Alleged Emotional Distress Damagg 32. In addition t0 lost wages, Plaintiff also alleges emotional distress damages, including that “she has suffered humiliation, emotional and physical distress, and has been injured in mind and b0dy[.]” (EXh. 1, Complaint 1B9; see also id., Prayer For Relief 112 (Plaintiff seeks judgment against Defendant for “mental pain and anguish and emotional distress”). 33. In Thompson v. Big Lots Stores, Ina, No. 1:16-CV-01464-LJO-JLT, 2017 WL 590261, *4 (E.D. Cal. Feb. 13, 2017), the Eastern District of California made clear that “[i]n determining the amount in controversy, a court may assess likely emotional distress damages by reference to damages awards in similar discrimination cases.” Applying that rule, the Thompson court found the defendant met its burden 0f showing that damages awards for emotional distress in analogous cases are often substantial, Where the defendant pointed t0 a jury award of $122,000 in emotional distress damages to an employee Who sued for discrimination and wrongful termination. Id. 34. In cases alleging discriminatory discharge, the emotional distress damages alone often exceed the $75,000 amount in controversy requirement. See, e.g., Aguilar v. LA Metro BP Holding C0., LLC, et al., N0. BC65 1278, 2018 WL 7286562 (Los 4 $96,234.84 annually, multiplied by 3 = $288,704.52. 10 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 11 of 50 Angeles Sup. Ct., NOV. 20, 2018) (jury awarded $265,000 in general damages for claims 0f discrimination, harassment, retaliation, failure to prevent harassment and discrimination, and wrongful termination); Meadowcroft, et al. v. Silverton Partners, Inc, et al., N0. BC633239, 2018 WL 7635472 (Los Angeles Sup. Ct., Sep. 11, 2018) (jury awarded two plaintiffs $2.5 million each in damages for claims of harassment, retaliation, wrongful termination and failure to prevent harassment); Silverman v. Stuart F. Cooper Ina, No. BC467464, 2013 WL 5820140 (Los Angeles Sup. Ct., July 19, 2013) (jury awarded $157,001 for emotional distress damages in discrimination case); Vasquez v. Los Angeles Cnty. Metro. Transp. Auth, N0. BC484335, 2013 WL 7852947 (Los Angeles Sup. Ct., Oct. 25, 2012) (award of $1,250,000 for pain and suffering to employee for disability discrimination action); Aboulafia v. GACNInc., N0. BC469940, 2013 WL 81 15991 (Los Angeles Sup. Ct, Sept. 23, 201 1) (pain and suffering award 0f $250,000, $250,000, $250,000, and $250,267 t0 four employees in discrimination action); Welch v. Ivy Hill Corp, No. BC414667, 2011 WL 3293268 (Los Angeles Sup. Ct, Mar. 8, 201 1) (award of $1,270,000 in pain and suffering t0 employee in a discrimination action); Leimandt v. Mega RV Corp, N0. 30-2010- 00388086, 2011 WL 2912831 (Orange County Sup. Ct., Feb. 4, 201 1) (jury awarded $385,000 in pain and suffering t0 employee in a discrimination case); Kell v. AutoZone Inc, N0. 07ASO4375, 2010 WL 1347162 (Sacramento Sup. Ct., Jan. 21, 2010) (jury awarded $1,368,675 in damages for wrongful termination and retaliation claims); see also Simmons v. PCR Tech, 209 F. Supp. 2d 1029, 1034 (ND. Cal. 2002) (recognizing that “emotional distress damages in a successful employment discrimination case may be substantial”); Kroske v. US Bank Corp, 432 F.3d 976, 980 (9th Cir. 2005) (“In determining the amount in controversy, the district court properly considered emotional distress damage awards in similar age discrimination cases ....”). These awards demonstrate that, for diversity purposes, the value of Plaintiff s claimed emotional distress damages exceeds the $75,000 amount in controversy requirement on its own. 11 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUIAMNt-‘OKOOOQONUI-RUJNHO Case 5:21-cv-07382-NC Document 1 Filed 09/22/21 Page 12 of 50 C. Alleged Punitive Damages 1. Plaintiff also seeks punitive damages against Defendant. (Exh. 1, Complaint 1140; see also id., Prayer For Relief 1B (Plaintiff seeks judgment against Defendant for “an award of punitive damages”). For purposes of calculating the amount in controversy, the Court must assume that Plaintiff will prevail on his claim for punitive damages. See Davenport v. Mut. Benefit Health & Accident Ass ’n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages must be taken into account where recoverable under state law); Richmond v. Allstate Ins. C0., 897 F. Supp. 447, 449-50 (S.D. Cal. 1995) (amount in controversy includes potential recovery of punitive damages award). 35. Verdicts in similar cases show that, When awarded, punitive damages in discrimination and wrongful termination cases typically exceed $75,000. See Aguilar, 2018 WL 7286562, supra (jury awarded $145,000 in punitive damages for claims of discrimination, harassment, retaliation, failure to prevent harassment and discrimination, and wrongful termination); Meadowcroft, 2018 WL 7635472, supra (jury awarded plaintiffs $3 million each in punitive damages for claims 0f harassment, retaliation, wrongful termination and failure t0 prevent harassment); Olivas-Dean v. American Meizhou Dongpo Group, Ina, et al., N0 BC581538, 2017 WL 3531353 (Los Angeles Sup. Ct., April 24, 2017) ($250,000 awarded in punitive damages for harassment, discrimination, retaliation, wrongful termination). Aboulida v. GACNIna, N0. BC469940, 2013 WL 81 15991 (Los Angeles Sup. Ct, Dec. 17, 2013) (award 0f $1,000,000 in punitive damages in discrimination case); Ward v. Cadbury Schweppes Bottling Grp., No. 09CV03279(DMG), 2011 WL 7447633 (C.D. Cal., Dec. 7, 201 1) (jury awarded $9,687,400 in punitive damages t0 six employees in discrimination and retaliation action). D. Alleged Attornevs’ Fees and Costs 2. Plaintiff also seeks judgment against Defendant for “an award 0f appropriate attomeys’ fees pursuant to FEHA and any other applicable law[.]” 12 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 13 of 50 (Exh. 1, Complaint, Prayer For Relief 114.) Requests for attorneys’ fees are properly considered in calculating the amount in controversy for purposes 0fremoval on grounds 0f diversity jurisdiction. See Gait, supra, 142 F.3d at 1156 (statutory attorneys’ fees included in amount in controversy, regardless whether fees discretionary or mandatory). The amount of attorneys’ fees for purposes 0f amount in controversy calculations is the expected reasonable attorneys’ fees through trial. Fritsch v. Swift Tramp, 899 F. 3d 785, 794 (9th Cir. 2018) (“a court must include future attorneys’ fees recoverable by statute or contract When assessing whether the amount-in-controversy requirement is met”). The reasonable amount of attorneys’ fees may be based upon fee awards in similar cases. Lyon v. W. W. Grainger Ina, 2010 WL 1753 194, at *5 QLD. Cal. Apr. 29, 2010) (“Defendant’s use of similar cases to estimate the cost 0f attorney’s fees is sufficient to establish that its estimate is more likely than not correct”); Brady v. Mercedes-Benz USA, Ina, 243 F. Supp. 2d 1004, 1010-11 (relying 0n evidence 0f fee awards in similar cases t0 determine a reasonable estimate of attorneys’ fees). 3. Verdicts in similar cases show that attorneys’ fees in discrimination and wrongful termination cases typically exceed $75,000. See Begazo v. Passages Silver Strand, LLC, N0. BC595150, 2017 WL 2402841 (Los Angeles Sup. Ct., Mar. 3, 2017) (court awarded $375,568 in attorneys’ fees to Plaintiff after prevailing 0n claims for retaliation and wrongful termination); Jaffe v. UHS-Corona Ina, N0. RIC-543 130, 2013 WL 8509821 (Riverside Sup. Ct., May 7, 2013) (court awarded $169,1 12 in attorneys’ fees and costs in wrongful termination action after jury verdict for plaintiff); Mootz v. State ofCaZz'form'a, Dkt. No. 05ASO4214, 2008 WL 2414817 (Sacramento Sup. Ct., March 27, 2008) (attorneys’ fees awarded of $442,400 for plaintiff claiming retaliation for complaining about harassment); Denenberg v. California Dep ’t 0f Trans, 2007 WL 2827715 (San Diego Sup. Ct., Sept. 14, 2006) (attorneys’ fees award 0f $490,000 in case alleging discrimination, sexual harassment, and retaliation); McMillan v. City ofLos Angeles, 2005 WL 3729094 (Los Angeles Sup. Ct, Mar. 21, 13 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 14 of 50 2005) (attorneys’ fees award 0f $504,926 in case alleging discrimination and retaliation for filing lawsuit to redress discrimination); Gallegos v. Los Angeles City College, 2003 WL 23336379 (Los Angeles Sup. Ct., Oct. 16, 2003) (attorneys’ fees award 0f $159,277 for claim 0f wrongful discharge). 36. While Defendant denies any liability as to Plaintiff’s claims, for each of the foregoing reasons, it is “more likely than not” that the amount in controversy exceeds $75,000, exclusive 0f interest and costs, as required by 28 United States Code section 1332(a). V. VENUE AND INTRADISTRICT ASSIGNMENT 37. Venue lies in the United States District Court, Northern District 0f California, San Jose Division, pursuant t0 28 United States Code sections 84(c)(2), 1441 and 1446(a), and Civil Local Rule 3-2(c). Plaintiff originally filed this action in the Superior Court 0f the State of California, County 0f Santa Clara, which is located Within the jurisdiction of the United States District Court, Northern District of California, San Jose Division. Thus, Without waiving Defendant’s right to challenge, among other things, personal jurisdiction and/or venue by way 0f a motion 0r otherwise, venue lies in this Court, San Jose Division, pursuant to 28 United States Code sections 1391(a) and 1441(a), and Civil Local Rule 3-2(c). VI. NOTICE OF REMOVAL 38. Pursuant to 28 United States Code section 1446(d), written notice of the filing 0f this Notice of Removal will be given promptly t0 Plaintiff and, together With a copy 0f the Notice 0f Removal, Will be filed with the Clerk of the Superior Court 0f the State of California, County 0f Santa Clara, in the State Court Action. 39. This Notice 0f Removal Will be served 0n counsel for Plaintiff. A copy of the Proof 0f Service regarding the Notice 0f Removal will be filed shortly after these papers are filed and served. 14 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 Case 5:21-cv-O7382-NC Document 1 Filed 09/22/21 Page 15 of 50 40. In compliance With 28 U.S.C section 1446(a), true and correct copies 0f all process, pleadings, and orders filed and/or served in this action are attached as Exhibits 1-3. VII. PRAYER FOR REMOVAL 4 1. WHEREFORE, Defendant prays that this civil action be removed from the Superior Court 0f the State of California, County of Santa Clara, to the United \OOOflmUthuNr- NNNNNNNNNHHHHHHr-AHHr-A OOQONUl-wat-‘OKOOOQONUI-RUJNHO States District Court for the Northern District 0f California. DATED: September 22, 2021 SEYFARTH SHAW LLP By /s/Eric W. MaV Mlchael J. Bums Eric W. May Attorne s for Defendant INTER ONTINENTAL HOTELS GROUP RESOURCES, LLC {Egyectly sued as “IHG Resources, 15 DEFENDANT’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT 74399398V.2 \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-07382-NC Document l Filed 09/22/21 Page 50 of 50 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss COUNTY 0F Los ANGELEs ) I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 2029 Century Park East, Suite 3500, Los Angeles, California 90067-3021. On September 20, 2021, I served the Within document(s): DEFENDANT INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California, addressed as set forth below. D by personally delivering the document(s) listed above to the person(s) at the address(es) set forthbelow. by placing the document(s) listed above, together with an unsigned copy 0f this declaration, in aD sealed envelope or package provided by an overnight delivery carrier With postage paid on account and deposited for collection With the overnight carrier at Los Angeles, California, addressed as set forth below. by transmitting the document(s) listed above, electronically, Via the e-mail addresses set forth below. Bryan J. McCormack, Esq. Phone: (415) 925-5 1 61 MCCORMACK LAW FIRM Fax: (415) 65 1 -7837 80 E. Sir Francis Drake BlVd., Suite 3G Email: bryan@bmcclaw.com Larkspur, CA 94939 Attorneys for Plaintiff Vanessa Lipstein I am readily familiar with the firm's practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service 0n that same day With postage thereon fully prepaid in the ordinary course of business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws 0f the State 0f California that the above is true and correct. Executed on September 20, 2021, at Los Angeles, California. fi I. I‘M Rebecca Garner PROOF OF SERVICE \CD CXD '\J C3\ LII -P> (aJ bx) r-a bJ b9 b) bJ b9 b) bJ b9 b) h-d b-d b-A r-d r-A r-A r-d r-A p-A ha OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-O7382-NC Document 6 Filed 09/22/21 Page 1 of 3 SEYFARTH SHAW LLP Mlchael J. Burns (SBN 172614) mburns@.seyfarth.com. 560 M15519n Street? Surge 3 100 San Franmsco, Callfornla 94105 Telephone: 415 397-2823 Fa031mile: 415 397-8549 SEYFARTH SHAW LLP Erlc W. Ma (SBN 264733) emag@sey arth.com _ 202 entury Par_k East, Sulte 3500 Los Angeles, Cahfornla 90067-3021 Telephone: 3 10 277-7200 Fac51mlle: 310 201-5219 Attorne s for Defendant INTER ONTINENTAL HOTELS GROUP RESOURCES, LLC glncorrectly sued as “IHG Resources, LLC ’) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION VANESSA LIPSTEIN, an individual Plaintiff, V. INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC; and IHG RESOURCES, LLC; and DOES 1 through 25, inclusive, Defendants. Case N0. 5:21 -CV-7382 CERTIFICATE OF SERVICE FOR CASE INITIATION DOCUMENTS Remqved from Santa Clara County ugerlor Court, Case N0. 21 V385347) Complaint Filed: July 7, 2021 Trial Date: None Set CERTIFICATE OF SERVICE FOR CASE INITIATION DOCUMENTS 74399696VJ \CD CXD '\J C3\ LJI -P> (ad bx) r-a bJ b9 b) bJ b9 b) bJ b9 b) h-d b-d b-A r-d r-A r-A r-d r-A p-A ha OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-07382-NC Document 6 Filed 09/22/21 Page 2 of 3 PROOF OF SERVICE I am a resident of the State of California, 0V_er the 21%6 of eighteen ears, a_nd not a arty t0 the w1th1n acuon. My busmess address ls 2029 entu Park ast, Sulte 3 00, Los Angeles, Cahforma 90067. On September 22, 2021, served the below document(s): ~SEE DOCUMENT LIST BELOW~ by placing the document(s) liste_d above in a scaled envelopg with O_stagqE thereon fully pre ald, 1n the Unlted States mall at San Franmsco, ahforma, addressed as set orth below. by transmitting the document(s) listed above, electronically, Via the e-mailE address set for below. Bryan J. McCormack Telephone: (4 1 5) 925-5 161 MCCORMACK LAW FIRM Facsimile: (41 5) 65 1 -7837 80 E. Sir Francis Drake Blvd, Ste. 3G Larkspur, California 94939 Email: bryan@bmcclaw.com Attorneys for Plaintiff Vanessa Lipstein I am readil familiar with the firm's praptiqe of collection and procpssing correspond¢nce or malllng. Unde_r that practlce 1t would be deposyted Wlth the U.S. Postal Serv1c¢ 0n that same day Wlth postage thereon fully prepald 1n the oydlnary course 0f busmess. I am aware that on motlon of the party served, serv1ce ls presumed invalid if postal cancellation date or postage meter date is more than one day after date 0f depOSIt for mallmg 1n affidav1t. I declare under penalty of perjury under the laws 0f the State of California that the above ls true and correct. Executed on September 22, 2021, at San Francisco, California. \ (W‘ Rebecca Garner 2 CERTIFICATE OF SERVICE FOR CASE INITIATION DOCUMENTS 74399696VJ \CD CXD '\J C3\ LJI -P> (ad bx) r-a bJ b9 b) bJ b9 b) bJ b9 b) h-d b-d b-A r-d r-A r-A r-d r-A p-A ha OOQONUl-wat-‘OKOOOQONUI-RUJNHO Case 5:21-cv-07382-NC Document 6 Filed 09/22/21 Page 3 of 3 DOCUMENT LIST DEFENDANT INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT PURSUANT TO DIVERSITY OF CITIZENSHIP JURISDICTION CIVIL COVER SHEET DECLARATION OF ERIC W. MAY IN SUPPORT OF DEFENDANT INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT PURSUANT TO DIVERSITY OF CITIZENSHIP JURISDICTION DECLARATION OF W. CLIF DEATON IN SUPPORT OF DEFENDANT INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT PURSUANT TO DIVERSITY OF CITIZENSHIP JURISDICTION DEFENDANT INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC’S CORPORATE DISCLOSURE STATEMENT DEFENDANT INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC’S CERTIFICATION OF INTERESTED ENTITIES OR PERSONS CERTIFICATE OF SERVICE FOR CASE INITIATION DOCUMENTS 3 CERTIFICATE OF SERVICE FOR CASE INITIATION DOCUMENTS 74399696VJ \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS COUNTY OF LOS ANGELES ) I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 2029 Century Park East, Suite 3500, Los Angeles, California 90067-3021. On September 23, 2021, I served the Within document(s): NOTICE TO CLERK OF SUPERIOR COURT AND TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California, addressed as set forth below. by personally delivering the document(s) listed above t0 the person(s) at the address(es) set forth below. by placing the document(s) listed above in a sealed envelope 0r package provided by an overnight delivery carrier With postage paid 0n account and deposited for collection With the overnight carrier at Los Angeles, California, addressed as set forth below. by transmitting the document(s) listed above, electronically, Via the e-mail addresses set forth below. Bryan J. McCormack Phone: 4 1 5-925-5 1 61 McCormack Law Firm Fax: 4 1 5-65 1 -7837 80 E. Sir Francis Drake BlVd., Ste. 3G Email: bryan@bmcclaw.com Larkspur, California 94939 Attorneysfor Plaintiff Vanessa Lipstein I am readily familiar with the firm's practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service 0n that same day With postage thereon fully prepaid in the ordinary course of business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws 0f the State 0f California that the above is true and correct. Executed on September 23, 2021, at Los Angeles, California. 1 tl-MM Rebecca Garner PROOF OF SERVICE 75261582v.1
