defendant abc phones of north carolina inc doing business as victra no

Cal. Super. - 1st Dist.October 22, 2019

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Robert L. Shipley, CA State Bar No. 109420) rshipley@shipleylaw.com Brandon S. Gray, CA State Bar No. 279881 bgray@shipleylaw.com ROBERT L. SHIPLEY, APLC 2784 Gateway Road, Suite 104 Carlsbad, CA 92009 Telephone: +1760438 5199 Attorneys for Defendant ABC PHONES OF NORTH CAROLINA, INC. , DOING BUSINESS AS VICTRA SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO CIVIC CENTER COURTHOUSE BRANDON GLASGOW, an individual; Plaintiff, v. ABC PHONES OF NORTH CAROLINA, INC., DOING BUSINESS AS VICTRA, a Nmih Carolina Corporation; and DOES 1 through 50, inclusive, Defendants. Case No. CGC-19-576510 [Unlimited Jurisdiction] DEFENDANT ABC PHONES OF NORTH CAROLINA, INC., DOING BUSINESS AS VICTRA'S NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1331, 1441 & 1446 Filed: 6/4/19 Trial Date: Not Yet Assigned TO PLAINTIFF AND TO HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on July 8, 2019, Defendant, ABC PHONES OF NORTH CAROLINA, INC. doing business as Victra by its undersigned counsel filed a Notice of Removal of this action from the Superior Court of California in and for the County of San Francisco, Civic Center Courthouse to the United States District Court for the Northern District of California. A true and c01Tect copy of said Notice of Removal ( without exhibits) is attached hereto as Exhibit "A" and is served and filed herewith. \\\ 1 DEFENDANT ABC PHONES OF NORTH CAROLINA, INC.DEA VICTRA'S NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1331, 1441, & 1446 Glasgow v. ABC Phones o(North Carolina, I11c. 1 et al. SFSC Case No. CGC-19-576510 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/09/2019 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk 1 PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. § 1446, the filing of said Notice 2 affects the removal of this ·action to the Federal Court, and this Court is directed to "proceed no further 3 unless and until the case is remanded." 28 U.S.C. § 1446(d). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Dated: July 9, 2019 ROBER~~-L.C. By: __ ~--~-------- Robert L. Shipley, Esq. Email: rshipley@shipleylaw.com Brandon S. Gray, Esq. bgray@shipleylaw.com Attorneys for Defendant ABC PHONES OF NORTH CAROLINA, INC, dba VICTRA 2 DEFENDANT ABC PHONES OF NORTH CAROLINA, INC.DEA VICTRA'S NOTICE OF REMOVAL OF ACTION PURSUANTTO28 U.S.C. §§ 1331, 1441, & 1446 Glasgow v. ABC Phones o(North Caro/111a, I11c., et al. SFSC Case No. CGC-19-576510 EXHIBIT ''A'' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 1 of 8 Robe1i L. Shipley, CA State Bar No. 109420) rshipley@shipleylaw.com Brandon S. Gray, CA State Bar No. 279881 bgray@shipleylaw.com ROBERT L. SHIPLEY, APLC 2784 Gateway Road, Suite 104 Carlsbad, CA 92009 Telephone: +1760438 5199 Attorneys for Defendant ABC PHONES OF NORTH CAROLINA, INC. , DOING BUSINESS AS VICTRA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BRANDON GLASGOW, an individual; Plaintiff, v. ABC PHONES OF NORTH CAROLINA, INC., DOING BUSINESS AS VICTRA, a North Carolina Corporation; and DOES 1 through 50, inclusive, Defendants. Case No. 3:19-CV-3897 [Unlimited Jurisdiction] DEFENDANT ABC PHONES OF NORTH CAROLINA, INC., DOING BUSINESS AS VICTRA'S NOTICE OF REMOVAL OF STATE COURT ACTION TO FEDERAL COURT [Filed concurrently with Defendant's Civil Case Cover Sheet; Declaration of Ryan Herrick in Support of Defendant's Notice of Removal and Declaration of Robert L. Shipley in Support of Defendant's Notice of Removal] State Court Case No. CGC-19-576510 State Action Filed: June 6, 2019 State Action Served: June 7, 2019 TO THE CLERI( OF THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: PLEASE TAKE NOTICE that Defendant ABC Phones of North Carolina, Inc. doing business as Victra ("ABC Phones" or "Defendant"), contemporaneously with the filing of this Notice, hereby effects removal of the below referenced action from the Superior Court in the State of California, County I -DEFENDANT ABC'S NOTICE OF REMOVAL-CASE NO. 3:19-CV-3897 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 2 of 8 of San Francisco to the United States District Court for the Northern District of California pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. In support of this Notice, Defendant states as follows: I. FACTUAL BACKGROUND 1. Complaint. On or around June 6, 2019, Plaintiff Brandon Glasgow ("Plaintiff') commenced a wrongful termination action against Defendant, Case No. CGC-19-576510, Brandon Glasgow v. ABC Phones of North Carolina, Inc. dba Victra, et al, in the Superior Court of California, County of San Francisco. In his Complaint, Plaintiff alleges claims for: wrongful termination in violation of public policy See generally Complaint ("Compl.) attached as Exhibit "2" to the Declaration of Robe1i L. Shipley ("Shipley Deel.") filed concurrently herewith. 2. Papers Served to Date. On June 7, 2019, Defendant received service of process of the Summons and Complaint, along with other related court documents. Shipley Deel. ,r 3. Attached to the Shipley Declaration are the Summons (Exhibit "1"); the Complaint (Exhibit "2"); and Civil Case Cover Sheet (Exhibit "3"). Id. ,r 4. On July 2, 2019, Defendant filed its Answer by way of General Denial and Affirmative Defenses to the Complaint (attached hereto as Exhibit "4". Exhibits "1" through "4" constitute all process, pleadings, and orders served on and/or by Defendant.) Id. ,r,r 5-6. II. DIVERSITY OF CITIZENSHIP JURISDICTION 3. This Comi has original subject matter jurisdiction over this action pursuant to 28 U.S.C §§ 1332(a) and 1441(a) because it is a civil action between citizens of different states, in which the amount in controversy exceeds $75,000, exclusive of interest and costs. A. 4. Diversity of Citizenship Is Met Plaintiff's Citizenship. Plaintiff alleges that he "is an adult male and was employed within the county of San Francisco at the time the illegal acts transpired" in the State of California. 2 - DEFENDANT ABC'S NOTICE OF REMOVAL - CASE NO. 3: 19-CV-3897 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 3 of 8 Compl. ,r 7. Defendant believes, consistent with Plaintiff's allegations, that Plaintiff was at the time of the filing of the Complaint, and remains at the time of this removal, a citizen of California. Moreover, Defendant has reviewed Plaintiff's personnel file for contact information and found nothing that suggests Plaintiff is currently, or ever has been, a citizen of North Carolina. Declaration of Adam Reed ("Reed Deel.") at ,r 4. 5. Defendant's Citizenship. Defendant is a corporation organized under the laws of North Carolina with its principal place of business in North Carolina. See Reed Deel ,r 2. Its principal place of business, headquarters, and center of direction, control, and coordination are also located in N01ih Carolina. Ibid. Defendant's corporate decisions are made in N01ih Carolina, including its operational, executive, administrative, and policymaking decisions. Ibid. The majority of Defendant's executive officers conduct their business in N01ih Carolina. Ibid at ,r 3. The majority of administrative functions crucial to Defendant's day-to-day operations are conducted in North Carolina. Ibid. The respective officers responsible for developing policies and protocols for Defendant's nationwide operations are in Raleigh, N01ih Carolina. Ibid. Accordingly, Defendant is a citizen of the state of North Carolina, not California. 6. The United States Supreme Court has concluded that a corporation's "principal place of business" is "where a corporation's officers direct, control, and coordinate the corporation's activities," or its "nerve center." Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010). "[I]n practice," a corporation's "nerve center" should "normally be the place where the corporation maintains its headquarters." Id. 3 DEFENDANTABC'SNOTICEOFREMOVAL-CASENO. 3:19-CV-3897 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 4 of 8 7. The diversity requirements of 28 U.S.C §§ 1332(a) are met given that Plaintiff is a citizen of California and Defendant is a citizen of North Carolina. 1 B. 8. The Amount in Controversy Is Met Amount in Controversy Exceeds $75,000. Plaintiff did not disclose in his Complaint the amount of damages he seeks. At the time of removal, however, Defendant contends the amount in controversy in this action exceeds $75,000, exclusive of interest and costs. Comp. ,r 3. Generally, "notice of removability ... is determined through examination of the four corners of the applicable pleadings, ,not through subjective knowledge or a duty to make further inquiry." Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). The calculation of the amount in controversy may include common law and statutory damages, exemplary, and punitive damages, attorneys' fees when authorized by statute, and back pay. Guglielmina, 506 F.3d at 700-701. "The notice of removal 'need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold,' and need not contain evidentiary submissions." Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 788 (2018). 9. Defendant alleges that the amount in controversy exceeds the jurisdictional threshold for the following reasons: a. Plaintiff was a salaried employee earning $70,000 per year plus an average monthly commission of approximately $765. Reed Deel.~ 5. 1 The citizenships of the Doe Defendants are irrelevant to the diversity of citizenship analysis. Because they are unidentified, the Court and the Parties have no information as to who they are or where they live. Thus, it is proper for the Court to disregard them. See McCabe v. Gen. Foods Corp., 811 F .2d 1336, 1339 (9th Cir. 1987). 4-DEFENDANT ABC'S NOTICE OF REMOVAL-CASE NO. 3:19-CV-3897 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 5 of 8 Plaintiff prays for, among other things, general damages, special damages, and punitive damages. Compl., Prayer ,r,r 1-9. 10. Plaintiff need only seek one year's wages in damages resulting from his alleged wrongful termination to meet the amount in controversy minimum. But Plaintiff goes fu1iher than that and seeks punitive damages, which are often significant in employment cases. Defendant plausibly alleges that the amount in controversy exceeds $75,000. In the event Plaintiff disputes Defendant's plausible allegation, Defendant reserves its right to produce evidence in support of its allegation. See Dart Cherokee Basin Operating Co., LLC v. Owens, 13 5 S. Ct. 54 7, 5 54 (2014 )("Of course, a dispute about a defendant's jurisdictional allegations cannot arise until after the defendant files a notice ofremoval containing those allegations."). 11. Defendant denies Plaintiff's substantive allegations and denies causing them or any putative class member any damage. Nonetheless, the right of removal is based on the amount at issue in the lawsuit, and Plaintiff, by his claims, seeks more than $75,000, satisfying the amount in controversy requirement. III. PROCEDURAL MATTERS 12. Removal is Timely. A notice of removal may be filed within 30 days after the defendant receives a copy of the initial pleading, motion, or other paper from which it may be ascertained that the case is removable. 28 U.S.C. § 1446(b). Here, Defendant did not receive any pleading, motion, or other paper from which it could asce1iain that Plaintiff sought damages exceeding $75,000. Shipley Deel. ,r 3. Even Plaintiff's Complaint, served on June 7, 2019, does not expressly disclose the amount Plaintiff seeks to recover. Accordingly, Defendant's thhiy-day deadline to file a Notice of Removal began to run, at the absolute earliest, on June 7, 2019, and 5 - DEFENDANT ABC'S NOTICE OF REMOVAL- CASE NO. 3:19-CV-3897 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 6 of 8 expires, at the absolute earliest, on July 8, 2019. 2 Because this Notice of Removal is being filed on or prior to July 8, 2019, it is timely. 13. Removal to Proper Court. This Court is part of the "district and division embracing the place where" Plaintiffs' state court action was filed, which is San Francisco County, California. 28 U.S.C. § 1446(a). Accordingly, removal to this Court is proper. 14. Venue. Venue is proper in this Action under 28 U.S.C § 1391(6)(2) because a substantial part of the alleged events or omissions giving rise to Plaintiff's claims occurred in San Francisco County, California, given that Plaintiff was employed and terminated by Defendant in San Francisco County, California. See Compl. ,r 4. 15. Filing and Service. A copy of this Notice of Removal is being filed with the Clerk of the Superior Court of the State of California for the County of San Francisco, and is being served on all counsel of record, consistent with 28 U.S.C. §1446(d). The Superior Court of the State of California for the County of San Francisco is located within this district. Pursuant to 28 U.S.C. § 1446( d), Defendant is also filing in the Superior Court for the County of San Francisco and serving upon Plaintiff a separate document entitled "Notice of Filing of Notice of Removal to Federal Court." 16. Non-Waiver of Claims. By removing this action to this Court, Defendant does not waive any defenses available to it, including but not limited to, defenses based on defects in or inadequacy of service of process and/or lack of personal jurisdiction. 2 Thirty days from June 6, 2019 is July 6, 2019, which is a Saturday. Therefore, the deadline was extended to July 8, 2019. See Fed. R. Civ. Proc. 6(a)(l)(C). 6-DEFENDANT ABC'S NOTICE OF REMOVAL CASE NO. 3:19-CV-3897 Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 7 of 8 17. Pleadings and Process. In compliance with 28 U.S.C. § 1446(a), a "copy of all 2 process, pleadings, and order served upon" Defendant prior to the filing of this Notice of Removal 3 are attached to the Shipley Declaration, collectively as Exhibits "1" through "4". 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. WHEREFORE, Defendant respectfully requests that this action be removed in its entirety from the California Superior Court for the County of San Francisco to this Court pursuant to 28 U.S.C. § 1441. A Notice of Notice of Removal will be filed with the California Superior Court. Dated: July 8, 2019 ROBERT L. SHIPLEY, APLC By: ls/Robert L. Sh;pley Robert L. Shipley rshipley@shipleylaw.com Brandon S. Gray bgray@shipleylaw.com Attorneys for Defendant ABC PHONES OF NORTH CAROLINA, INC., doing business as Victra 7 -DEFENDANT ABC'S NOTICE OF REMOVAL-CASE NO. 3:19-CV-3897 1 2 3 4 5 6 7 8 Case 3:19-cv-03897 Document 1 Filed 07/08/19 Page 8 of 8 CERTIFICATE OF SERVICE I, Robert L. Shipley, an attorney admitted to practice before this Comi, do hereby ce1iify that on July 8, 2019, I caused a copy of the foregoing DEFENDANT ABC Phones Of North Carolina, Inc.'s Notice of Removal to be served through the Court's Case Management/Electronic Case Files (CM/ECF) system upon all persons and entities registered and authorized to receive such service. ROBERT L. SHIPLEY, APLC 9 Dated: July 8, 2019 By: ls/Robert L. Shiplev 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Robert L. Shipley rshipley@shipleylaw.com Brandon S. Gray bgray@shipleylaw.com Attorneys for Defendant ABC PHONES OF NORTH CAROLINA, INC. Doing business as Victra 8 DEFENDANT ABC'S NOTICE OF REMOVAL- CASE NO. 3:19-CV-3897 POS-050/EFS-050 ATTORNEY OR PARTY IMTHOUT ATTORNEY: STATE BAR NO: FOR COURT USE ONLY NAME: Robert L. Shipley, CA State Bar No. 109420 FIRM NAME: Robert L. Shipley, APLC STREET ADDRESS: 2784 Gateway Road Suite 104 CITY: Carlsbad STATE: CA ZIP CODE: 92009 TELEPHONE NO.: 760.438,5199 FAX NO.: E-MAIL ADDRESS: rshipley@shipleylaw.com; bgray@shipleylaw.com ATTORNEY FOR (name): Defendant ABC Phones of North Carolina, Inc. dba Victra SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco STREET ADDRESS: 400 McAllister Street MAILING ADDRESS: CITY AND ZIP CODE: San Fancisco, CA 94102-4514 BRANCH NAME: Civil Center Courthouse PLAINTIFF/PETITIONER: Brandon Glasgow DEFENDANT/RESPONDENT: ABC Phones of North Carolina, Inc. dba Victra et al PROOF OF ELECTRONIC SERVICE 1. I am at least 18 years old. a. My residence or business address is (specify): Robert L. Shipley, APLC, 2784 Gateway Road, Suite 104, Carlsbad, CA 92009 b. My electronic service address is (specify): mhallcy@shipleylaw.com 2. I electronically served the following documents (exact titles): CASE NUMBER: CGC-19-576510 JUDICIAL OFFICER: Hon. Garrett L. Wong DEPARTMENT: 206 Defendant ABC Phones of North Carolina, Inc., dba Victra's Notice of Removal of Action Pursuant to 28 U.S.C. §§ 1331, 1441, & 1446 D The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.) 3. I electronically served the documents listed in 2 as follows: a. Name of person served: Anthony Ruggieri, Patrick J.S. Nellies, John R. Goffar On behalf of (name or names of parties represented, if person served is an attorney): Plaintiff Brandon Glasgow b. Electronic service address of person served : aruggieri@advantagelawgroup.com; pnellies@advantagelawgroup.com; jgoffar@advantagelawgroup.com c. On (date): July 9, 2019 D The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment. (Form POS-050(P)IEFS-050(P) may be used for this purpose.) Date: July 9, 2019 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Amelia Halley ► •··(.Zen_: -~ I',~- ... ·· l/4; )! () ( 1/z .. { (TYPE OR PRINT NAME OF DECLARANT) .. ' (<>IGNATURE.7FoicLARANT) \ Form Approved for Optional Use Judicial Council of California POS-050/EFS-050 (Rev. February 1, 2017] PROOF OF ELECTRONIC SERVICE (Proof of Service/Electronic Filing and Service) M/ ,j -,_\ ( \ \Page 1 of 1 \cal. Rules of Gou)\ rule 2.251 ·· • www.Co1/rts.ca.gov