notice to state court of removalCal. Super. - 1st Dist.August 11, 2020NOTICE TO STATE COURT OF REMOVAL 63635066v.1 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 SEYFARTH SHAW LLP Justin Curley (SBN 233287) jcurley@seyfarth.com Parnian Vafaeenia (SBN 316736) pvafaeenia@seyfarth.com 560 Mission Street, 31st Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendant LENOVO (UNITED STATES), INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO MARK FEW, Plaintiff, v. LENOVO (UNITED STATES), INC., a Delaware Corporation, and DOES 1 through 100, inclusive, Defendants. Case No. CGC-20-583941 NOTICE TO STATE COURT OF REMOVAL Complaint Filed: March 25, 2020 Complaint First Served: April 6, 2020 TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO, AND TO PLAINTIFF MARK FEW AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 6, 2020, Defendant Lenovo (United States), Inc. filed with the United States District Court for the Northern District of California a Notice of Removal of the above-captioned action from the Superior Court of the State of California for the County of San Francisco. Attached hereto as Exhibit A is a true and correct copy of that Notice of Removal, without its exhibits. /// /// /// ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 05/07/2020 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk 2 NOTICE TO STATE COURT OF REMOVAL 63635066v.1 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 The Superior Court of the State of California for the County of San Francisco is hereby advised to proceed no further with this matter unless and until the case is remanded. DATED: May 7, 2020 SEYFARTH SHAW LLP By: Justin Curley Parnian Vafaeenia Attorneys for Defendant Lenovo (United States), Inc. EXHIBIT A EXHIBIT A DEFENDANT’S NOTICE OF REMOVAL 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 SEYFARTH SHAW LLP Justin Curley (SBN 233287) jcurley@seyfarth.com Parnian Vafaeenia (SBN 316736) pvafaeenia@seyfarth.com 560 Mission Street, 31st Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendant LENOVO (UNITED STATES), INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MARK FEW, Plaintiff, v. LENOVO (UNITED STATES), INC., a Delaware Corporation, and DOES 1 through 100, inclusive, Defendants. Case No. ___________________ NOTICE OF REMOVAL [DIVERSITY JURISDICTION] (San Francisco Superior Court Case No. CGC- 20-583941) Complaint Filed: March 25, 2020 Complaint Served: April 6, 2020 TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendant Lenovo (United States), Inc. (“Lenovo” or “Defendant”) hereby removes the above-referenced action from the Superior Court of the State of California for the County of San Francisco to the United States District Court for the Central District of California, pursuant to 28. U.S.C. sections 1441 and 1446, asserting original federal jurisdiction on the basis of diversity, codified in relevant part at 28 U.S.C. section 1332, and state that the removal is proper for the following reasons: /// Case 3:20-cv-03115 Document 1 Filed 05/06/20 Page 1 of 6 2 DEFENDANT’S NOTICE OF REMOVAL 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 PROCEEDINGS IN STATE COURT 1. On March 25, 2020, Plaintiff Mark Few (“Plaintiff’) filed an unverified Complaint for Damages (“Complaint”) in the Superior Court of California for the County of San Francisco entitled Mark Few v. Lenovo (United States), Inc.., designated as San Francisco County Superior Court Case No. CGC-20-583941 (the “State Court Action”). The Complaint alleges 13 causes of action: (1) race discrimination (Cal. Gov. Code § 12940(a)); (2) disability discrimination (Cal. Gov. Code § 12940(a)); (3) racial harassment (Cal. Gov. Code § 12940(j)); (4) failure to accommodate disability (Cal. Gov. Code § 12940(m)); (5) failure to engage in interactive process (Cal. Gov. Code § 12940(n)); (6) failure to prevent discrimination and harassment (Cal. Gov. Code § 12940(k)); (7) retaliation (Cal. Gov. Code § 12940(a)); (8) retaliation (Cal. Labor Code § 1102.5, et seq.); (9) retaliation in violation of the California Family Rights Act (“CFRA”); (10) retaliation in violation of the Family Medical Leave Act (“FMLA”); (11) wrongful termination in violation of public policy; (12) intentional infliction of emotional distress; (13) unfair business practices (Cal. Bus. & Prof. Code § 17200, et seq.). 2. On April 6, 2020, Plaintiff served Lenovo with the Complaint. A true and correct copy of the Summons, Civil Case Cover Sheet, Complaint, Alternative Dispute Resolution Information Package, Stipulation to Alternative Dispute Resolution (ADR) and Notice to Plaintiff that were received by Lenovo are attached hereto as Exhibit 1. 3. On May 5, 2020, Lenovo filed and served its Answer to the Complaint. A true and correct copy of Lenovo’s Answer is attached hereto as Exhibit 2. 4. A Case Management Conference has been scheduled for August 26, 2020 at 10:30 a.m. in Department 610 of the San Francisco County Superior Court. A true and correct copy of the Court’s Notice is attached hereto at Exhibit 1. 5. Exhibits 1 and 2 constitute all of the pleadings or other process served on or filed or received by Lenovo with respect to the State Court Action prior to the filing and service of this Notice of Removal. TIMELINESS OF REMOVAL 6. In cases where removability appears on the face of the state court complaint, a notice of removal must be filed within 30 days of service of the initial pleading from which removability can be Case 3:20-cv-03115 Document 1 Filed 05/06/20 Page 2 of 6 3 DEFENDANT’S NOTICE OF REMOVAL 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 ascertained. 28 U.S.C § 1446(b)(1). See also Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). This Notice of Removal is timely because it is being filed within thirty (30) days after Lenovo’s initial receipt of the Summons and Complaint, through service on April 6, 2020, and within one year of the commencement of this action. 18 U.S.C. § 1446(b)(1). DIVERSITY JURISDICTION 7. The Court has original jurisdiction of this action under 28 U.S.C. section 1332(a)(1). As set forth below, this action is removable pursuant to the provisions of 28 U.S.C. section 1332(a)(1) as the amount in controversy is in excess of $75,000, exclusive of interest and costs, and is between citizens of different states. Diverse Citizenship 8. Plaintiff’s Citizenship. Plaintiff is, and at all times since the commencement of this action has been, a resident and citizen of the State of California. (See Exh. 1, Complaint, ¶2 (“Plaintiff Mark Few is, and at all times mentioned in this Complaint was, a resident of the County of San Francisco, California.”).) For diversity purposes, a person is a “citizen” of 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 or she resides with the intent to remain indefinitely. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Residence is prima facie evidence of domicile. State Farm Mut. Auto Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994). The Complaint alleges that Plaintiff is a resident of the State of California. Plaintiff, therefore, is, and at all times since the commencement of this action has been, a resident and citizen of the State of California. 9. In addition, as part of his application with Lenovo, Plaintiff listed a California address, and maintained a California address on file for purposes of his personnel file, payroll checks, state payroll, and tax withholdings during the entire period of his employment with Lenovo. (See Declaration of Shannon Frazier (“Frazier Decl.”), ¶ 2.) Lenovo is informed and believes, and on that basis alleges, that Plaintiff’s last known address is in the city of San Francisco, California. (Id.) 10. Accordingly, Plaintiff was at all relevant times, and still is, a citizen of the State of California. Case 3:20-cv-03115 Document 1 Filed 05/06/20 Page 3 of 6 4 DEFENDANT’S NOTICE OF REMOVAL 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 Lenovo’s Citizenship. Pursuant to 28 U.S.C. § 1332(c), “a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business . . . .” Lenovo is now, and ever since this action commenced has been, incorporated under the laws of the State of Delaware, with its principal place of business in Morrisville, North Carolina. (Frazier Decl., ¶ 3.) 11. Lenovo’s principal place of business is in Morrisville, North Carolina because, as the U.S. Supreme Court has held, the appropriate test to determine a corporation’s principal place of business is the “nerve center” test. See Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010). Under the “nerve center” test, the principal place of business is the state where the “corporation’s officers direct, control, and coordinate the corporation’s activities” and where the corporation maintains its headquarters. Id. As Morrisville, North Carolina is the site of where Lenovo’s high-level officers direct, control, and coordinate its activities, Lenovo’s “nerve center” is in Morrisville, North Carolina. (See Frazier Decl., ¶ 3.) Accordingly, Lenovo is, and has been at all times since this action commenced, a citizen of North Carolina. 12. Doe Defendants. Pursuant to 28 U.S.C. § 1441(a), the residence of fictitious and unknown defendants should be disregarded for purposes of establishing removal jurisdiction under 28 U.S.C. section 1332. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1213 (9th Cir. 1980) (unnamed defendants are not required to join in a removal petition). Thus, the existence of Doe defendants 1 through 100 does not deprive this Court of diversity jurisdiction. 13. Accordingly, pursuant to 28 U.S.C. § 1332(c), Plaintiff and Lenovo have diverse citizenship. Amount in Controversy 14. While Lenovo denies any liability as to Plaintiff’s claims, the amount in controversy requirement is satisfied because, based on a preponderance of the evidence, the amount in controversy in this action, exclusive of interest and costs, easily exceeds the sum of $75,000 based on the allegations, claims, and prayer for relief set forth in the Complaint. 15. Plaintiff has failed to allege an amount in controversy. However, an action may be removed if the defendant establishes by a preponderance of the evidence that the amount in controversy Case 3:20-cv-03115 Document 1 Filed 05/06/20 Page 4 of 6 5 DEFENDANT’S NOTICE OF REMOVAL 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 exceeds the jurisdictional amount. See Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007). To establish by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount, the defendant must provide evidence establishing that it is “more likely than not” that the amount in controversy exceeds that amount. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). 16. In determining the amount in controversy, the Court must consider the aggregate of general damages, special damages, punitive damages and attorneys’ fees. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (holding that claims for statutory attorneys’ fees are to be included in the amount in controversy, regardless of whether such an award is discretionary or mandatory); Davenport v. Mutual Benefit Health & Accident Ass’n, 325 F.2d 785, 787 (9th Cir. 1963) (holding that punitive damages may be taken into account where recoverable under state law); Conrad Associates v. Hartford Accident & Indemnity Co., 994 F. Supp. 1196, 1198 (N.D. Cal. 1998) (holding that the amount in controversy includes claims for general and special damages, including statutory attorneys’ fees and punitive damages). 17. Here, Plaintiff asserts thirteen causes of action for (1) race discrimination (Cal. Gov. Code § 12940(a)); (2) disability discrimination (Cal. Gov. Code § 12940(a)); (3) racial harassment (Cal. Gov. Code § 12940(j)); (4) failure to accommodate disability (Cal. Gov. Code § 12940(m)); (5) failure to engage in interactive process (Cal. Gov. Code § 12940(n)); (6) failure to prevent discrimination and harassment (Cal. Gov. Code § 12940(k)); (7) retaliation (Cal. Gov. Code § 12940(a)); (8) retaliation (Cal. Labor Code § 1102.5, et seq.); (9) retaliation in violation of the California Family Rights Act (“CFRA”); (10) retaliation in violation of the Family Medical Leave Act (“FMLA”); (11) wrongful termination in violation of public policy; (12) intentional infliction of emotional distress; (13) unfair business practices (Cal. Bus. & Prof. Code § 17200, et seq.). (Exh. 1, Complaint.) In addition to lost wages and benefits since her termination, Plaintiff is seeking emotional distress damages, punitive damages, and statutory attorneys’ fees. (See, e.g., id., ¶¶69-156, and Prayer for Relief.) Plaintiff alleges Lenovo terminated his employment on January 13, 2020. (Id., ¶60.) 18. Plaintiff was compensated by Lenovo at the time of his employment termination based on an annual base salary of $131,401.67 and was eligible for a commission plan. (Frazier Decl., ¶ 4.) Case 3:20-cv-03115 Document 1 Filed 05/06/20 Page 5 of 6 6 DEFENDANT’S NOTICE OF REMOVAL 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 Therefore, given that Plaintiff is seeking, at a minimum, lost wages for the time period from approximately January 13, 2020 (his date of termination) through trial, Plaintiff is claiming approximately $240,897 in lost wages alone, conservatively assuming an October 2021 trial date (18 months after the filing of the complaint) ($131,401 per year x 1.8333 years). Moreover, conservatively estimating that Plaintiff is seeking emotional distress damages at twice is claimed economic damages, that would add an additional $481,794 ($240,897 x 2) to the amount in controversy. Lastly, on top of his claimed compensatory damages, Plaintiff is seeking punitive damages and statutory attorneys’ fees, each of which significantly raises the amount in controversy. For example, even conservatively estimating that Plaintiff is seeking punitive damages at an amount equal to his compensatory damages, that would add an additional $722,691 ($240,897 + 481,794) to the amount in controversy. Moreover, Plaintiff’s attorneys’ fees alone will easily exceed $75,000. (See Declaration of Justin Curley, ¶ 2.) 19. As such, given the nature and extent of Plaintiff’s claims, they easily satisfy the $75,000 amount in controversy requirement. 20. For the foregoing reasons, while Lenovo denies any liability as to Plaintiff’s claims, it is “more likely than not” that the amount in controversy in this action exceeds $75,000, exclusive of interest and costs, as required by 28 U.S.C. § 1332(a). VENUE 21. Venue lies in this Court pursuant to 28 U.S.C. § 1441(a), as this action originally was brought in the Superior Court of the State of California for the County of San Francisco. NOTICE OF REMOVAL 22. This Notice of Removal will be promptly served on Plaintiff and filed with the Clerk of the Superior Court of the State of California for the County of San Francisco. DATED: May 6, 2020 SEYFARTH SHAW LLP By: /s/ Parnian Vafaeenia Justin T. Curley Parnian Vafaeenia Attorneys for Defendant LENOVO (UNITED STATES), INC. Case 3:20-cv-03115 Document 1 Filed 05/06/20 Page 6 of 6 PROOF OF SERVICE 63739127v.1 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 PROOF OF SERVICE 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 560 Mission Street, 31st Floor, San Francisco, California 94105. On May 7, 2020, I served the within document(s): NOTICE TO STATE COURT OF REMOVAL by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California, addressed as set forth below. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by placing the document(s) listed above, together with an unsigned copy of this declaration, in a sealed envelope or package provided by an overnight delivery carrier with postage paid on account and deposited for collection with the overnight carrier at San Francisco, California, addressed as set forth below. by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth below. electronically by using the Court’s ECF/CM System. Ayse Kent AK EMPLOYMENT LAW OFFICE 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel: (415) 638-9471 E-mail: ayse@aklaw.co I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of 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 of the State of California that the above is true and correct. Executed on May 7, 2020, at San Francisco, California.
