notice to state court of removal

Cal. Super. - 1st Dist.February 4, 2021

NOTICE TO STATE COURT OF REMOVAL 66958747v.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 Kristina M. Launey (SBN 221335) klauney@seyfarth.com 400 Capitol Mall, Suite 2350 Sacramento, California 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 Eden Anderson (SBN 233464) eanderson@seyfarth.com 560 Mission Street, Suite 3100 San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendants AUTOMATIC DATA PROCESSING, INC. and ADP TOTALSOURCE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO LIGHTHOUSE FOR THE BLIND AND VISUALLY IMPAIRED OF SAN FRANCISCO, a California non-profit corporation; and ERIN LAURIDSEN and FRANK WELTE, individuals, Plaintiffs, v. AUTOMATIC DATA PROCESSING, INC., a Delaware corporation; ADP TOTALSOURCE, INC., a Florida corporation; and DOES 1-5, Defendants. Case No. CGC-20-586626 NOTICE TO STATE COURT OF REMOVAL Complaint Filed: September 17, 2020 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 12/16/2020 Clerk of the Court BY: BOWMAN LIU Deputy Clerk ncez/f.4-e9-0 2 NOTICE TO STATE COURT OF REMOVAL 66958747v.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 TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO, AND TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 16, 2020, Defendants Automatic Data Processing, Inc. and ADP TotalSource, 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. 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: December 16, 2020 Respectfully submitted, SEYFARTH SHAW LLP By: Kristina M. Launey Eden Anderson Attorneys for Defendants AUTOMATIC DATA PROCESSING, INC. and ADP TOTALSOURCE, INC. EXHIBIT A DEFENDANTS’ 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 Kristina M. Launey (SBN 221335) klauney@seyfarth.com 400 Capitol Mall, Suite 2350 Sacramento, California 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 Eden Anderson (SBN 233464) eanderson@seyfarth.com 560 Mission Street, Suite 3100 San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendants AUTOMATIC DATA PROCESSING, INC. and ADP TOTALSOURCE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LIGHTHOUSE FOR THE BLIND AND VISUALLY IMPAIRED OF SAN FRANCISCO, a California non-profit corporation; and ERIN LAURIDSEN and FRANK WELTE, individuals, Plaintiffs, v. AUTOMATIC DATA PROCESSING, INC., a Delaware corporation; ADP TOTALSOURCE, INC., a Florida corporation; and DOES 1-5, Defendants. Case No. ______________ NOTICE OF REMOVAL (San Francisco Superior Court No. CGC-20-586626) Complaint Filed: September 17, 2020 Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ï ±º çé 2 DEFENDANTS’ 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 TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendants Automatic Data Processing, Inc. and ADP TotalSource, Inc. (together “Defendants”), hereby remove 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 Northern District of California, pursuant to 28 U.S.C. §§ 1441 and 1446, asserting original federal jurisdiction on the basis of diversity, codified in relevant part at 28 U.S.C. § 1332. Defendants state that removal is proper for the following reasons: I. PROCEEDINGS IN STATE COURT 1. On September 17, 2020, a verified Complex Case Complaint (“Complaint”) was filed on behalf of LightHouse for the Blind and Visually Impaired of San Francisco (“LightHouse”), Erin Lauridsen (“Lauridsen”), and Frank Welte (“Welte”) (collectively “Plaintiffs”), in the Superior Court of the State of California, County of San Francisco entitled, “LIGHTHOUSE FOR THE BLIND AND VISUALLY IMPAIRED OF SAN FRANCISCO, a California non-profit corporation; and ERIN LAURIDSEN and FRANK WELTE, individuals, v. AUTOMATIC DATA PROCESSING INC., a Delaware corporation; ADP TOTALSOURCE, INC., a Florida corporation; and DOES 1-5, Defendants, and designated Case No. CGC-20-586626 (“Superior Court Action”). 2. The Complaint alleges claims for: (1) Violation of Civil Code § 51; (2) Violation of Civil Code § 51.5; and (3) Unfair and Unlawful Business Practices (Bus. & Prof. Code § 17200). A true and correct copy of the Complaint is attached hereto as Exhibit 1. 3. Defendants both accepted service of the Summons and Complaint on November 16, 2020. A copy of the Summons and its accompanying documents (i.e., Civil Case Cover Sheet, Notice and Acknowledgment of Receipt, ADR Information Packet, and Notice to Plaintiff setting Case Management Conference), Proof of Service of Summons, and signed Notice and Acknowledgment of Receipt are attached hereto as Exhibit 2. 4. Exhibits 1-2 constitute all the process, pleadings, and orders served on any party in the Superior Court Action. Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» î ±º çé 3 DEFENDANTS’ 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 II. TIMELINESS OF REMOVAL 5. This Notice of Removal is being filed within thirty (30) days of November 16, 2020, the date Defendants executed the Notice and Acknowledgment of Receipt of the Summons and Complaint and within one (1) year of the commencement of the action. Thus, removal is timely pursuant to 28 U.S.C. § 1446(b) and Federal Rule of Civil Procedure 6(a). (See Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011) (If the initially served defendant chooses to remove within the 30-day window from service, it may do so (and obtain the joinder of all defendants who have been served as of that time; 28 U.S.C. § 1446(b)(2)(B).) All Defendants are filing this Notice of Removal and all Defendants join in seeking removal of this action. III. DIVERSITY OF CITIZENSHIP JURISDICTION 6. This action may be properly removed on the basis of diversity of citizenship jurisdiction, in that it is a civil action between citizens of different states and the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. (28 U.S.C. §§ 1332(a)(1), 1441(a).) A. Plaintiffs’ Citizenship 7. Pursuant to 28 U.S.C. § 1332(c)(1), “a corporation shall be deemed to be a citizen of any State . . . by which it has been incorporated and of the State . . . where it has its principal place of business.” The United States Supreme Court’s decision in The Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181 (2010) clarified the meaning of § 1332(c)(1). Specifically, the Supreme Court held that a corporation’s “principal place of business” for determining its citizenship is the corporation’s “nerve center”: We conclude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters -- provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center” …. Id. at 1192. Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» í ±º çé 4 DEFENDANTS’ 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 8. LightHouse is a non-profit corporation incorporated under the laws of the State of California with its principal place of business in San Francisco. (Ex. 1, Complaint at caption and ¶ 11.) Therefore, LightHouse is a citizen of the State of California. 9. To establish citizenship for diversity purposes, a natural person must be both: (a) a citizen of the United States; and (b) a domiciliary of one particular state. (See Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983).) A party’s residence is prima facie evidence of his or her domicile. (State Farm Mut. Auto Ins. Co. v. Dyer, 29 F.3d 514, 520 (10th Cir. 1994)). Plaintiffs Lauridsen and Welte work and reside in California and are and were at the institution of this civil action citizens of the State of California. (See Ex. 1, Complaint ¶¶ 12-13.) B. Defendants’ Citizenship 10. Defendant Automatic Data Processing, Inc. is now, and at all relevant times was, incorporated under the laws of the State of Delaware. (Ex. 1, Complaint at ¶ 14.) Automatic Data Processing, Inc.’s principal place of business is in Roseland, New Jersey, which is where its corporate headquarters and executive offices are located and where its high-level officers direct, control, and coordinate its activities. Therefore, Automatic Data Processing, Inc. is not a citizen of the State of California. 11. Defendant ADP TotalSource, Inc. is now, and at all relevant times was, incorporated under the laws of the State of Florida. (Ex. 1, Complaint at ¶ 15.) ADP TotalSource, Inc.’s principal place of business is in Miami, Florida, which is where its corporate headquarters and executive offices are located and where its high-level officers direct, control, and coordinate its activities. Therefore, Defendant ADP TotalSource, Inc. is not a citizen of the State of California. C. Doe Defendants’ Citizenship 12. The presence of Doe defendants in this case has no bearing on diversity of citizenship for removal. (28 U.S.C. § 1441(a) (“For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.”); 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 one through five does not deprive this Court of jurisdiction. Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ì ±º çé 5 DEFENDANTS’ 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 IV. AMOUNT IN CONTROVERSY A. Plaintiffs’ Allegations and the LightHouse/ADP TotalSource, Inc. Agreement 13. LightHouse employs over 100 people, around 55 of whom are blind or have low vision. (Complaint ¶¶ 1, 24.) ADP TotalSource, Inc. (hereinafter “ADP”) is a professional employer organization (“PEO”) and provides associated products and services to clients. (Complaint ¶ 20.) In September 2017, LightHouse and ADP executed a Client Services Agreement (“Agreement”). (Complaint ¶¶ 2, 23.) 14. Under the Agreement, ADP committed to providing LightHouse the following products and services: payroll and tax filing; unemployment claims administration; human resources services and products (through a secure human resources website); human resources guidance; leave administration, an employee telephonic service center; an employee assistance program; EEO-1 Filing; workplace safety guidance; workers’ compensation claims administration; certain managerial and employee training programs; and benefits administration. Pursuant to the Agreement, LightHouse pays a “Service Fee” to ADP for the foregoing products and services. The Service Fee is based on a percentage of the gross payroll total for certain of LightHouse’s employees. The total annual gross payroll for LightHouse’s employees, upon which the Service Fee is calculated, is over $5.5 million. 15. In addition to the products and services set forth above, the Agreement also provides that, at LightHouse’s election, it can pay additional fees to have access to Time and Labor Management, an ADP product which assists LightHouse in tracking its employees’ hours worked, provides a time and attendance program, and time labor reporting. 16. Under the Agreement, between 2017-2020, LightHouse has paid well over $500,000 in total fees to ADP. 17. LightHouse’s employees use ADP’s web and application based products to, among other things, punch in and out to record their hours worked, make benefits elections, list and maintain emergency contact information, access pay, tax, and direct deposit information, and view annual holidays. (Complaint ¶ 21.) Managerial employees use ADP’s products to, among other things, approve time off requests, review and correct timesheets, for employee onboarding, hiring, workers’ compensation, and tracking company property. (Complaint ¶ 22.) Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ë ±º çé 6 DEFENDANTS’ 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 18. LightHouse alleges that the web and mobile application based products that it contracted for are not accessible to its visually impaired employees. (Complaint ¶¶ 3-4.) Given the products’ inaccessibility, LightHouse’s visually impaired employees “cannot independently” “submit[] and aprov[e] time off requests”; “view[] tax, compensation and benefits information”; and log and approve hours worked. (Complaint ¶ 4.) 19. According to LightHouse, “ADP’s failure to make its products . . . accessible to [visually impaired] individuals who use assistive devices has rendered those products and services all but unusable.” (Complaint ¶ 43.) Indeed, LightHouse has been “fully denied access to the privileges and services of ADP’s product[s].” (Complaint ¶ 9.) 20. In addition to paying for “unusable” products, LightHouse alleges it has also suffered other losses because its employees-both visually impaired and sighted-are not as productive. The approximately 55 visually impaired employees all allegedly suffer productivity losses as described in the following paragraphs. 21. “The product’s inaccessibility prevents managers from doing their jobs and causes LightHouse to have to overstaff certain roles as a result; and managers, non-managers, and administrative staff are all forced to waste valuable time and resources to accomplish basic HR functions.” (Complaint ¶ 4.) “[T]hese barriers [to product accessibility] significantly extend the amount of time it takes for staff to complete simple tasks.” (Complaint ¶ 26.) “Accessibility barriers have multiplied the amount of time that LightHouse staff must spend on basic payroll and human resources tasks.” (Complaint ¶ 43.) Visually impaired employees are “unable to, or spend unreasonable amounts of time to, perform basic tasks like logging or reviewing hours [worked] or requesting or approving time off.” (Complaint ¶¶ 7, 9.) 22. “LightHouse employees who use screen readers cannot reliably use [the products] to clock in and out of work.” (Complaint ¶ 44.) Thus, employees must “spend additional time reviewing their time sheets and contacting their supervisor and sighted staff in the finance department to make manual adjustments to correct issues.” (Id.) This cuts into the “time to perform their substantive work tasks, reduces their focus by creating frustration, and can result in incorrect payments being issued to them for their hourly work.” (Complaint ¶ 44.) Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ê ±º çé 7 DEFENDANTS’ 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 23. Supervisorial employees with visual impairments suffer productivity losses because they cannot access the products to review and approve timesheets, and time off requests and balances. (E.g., Complaint ¶ 53.) “[I]f there are errors on a supervisee[’s] timesheet that are not discovered during the pay period, [a supervisor] must review every single time stamp entry in order to find the missing punch in or out on the timesheet.” (Complaint ¶¶ 54-55.) 24. LightHouse alleges its sighted employees also suffer productivity losses. “[B]arriers in ADP’s products mean screen reader users must rely on sighted colleagues to access sensitive and private information related to their employment and compensation.” (Complaint ¶ 43.) Because they cannot properly record their hours worked given accessibility problems, employees with visual impairments at times send their work hours to their supervisor, who then must “spend[] additional time entering the employee’s hours.” (Complaint ¶ 44.) 25. LightHouse’s sighted Director of Finance also allegedly loses productivity. He “receives approximately ten requests per pay period from hourly employees to fix time punches that were entered incorrectly because of the inaccessibility of ADP’s app and website.” (Complaint ¶ 45.) “The finance director must manually fix each error and document their entry into the system to do so. The finance director also reviews and approves approximately twenty employee time sheets on behalf of their direct supervisors who are blind or low vision who are unable to do so themselves . . . . This often requires individual follow-up with those twenty employees regarding irregularities in their timecards . . .. Similarly the finance director spends excessive time printing, scanning, and sending W2s to employees who are unable to access them . . ..” (Complaint ¶ 45.) 26. When employees with visual impairments rely on their sighted colleagues to access compensation and benefits information, in addition to productivity and efficiency loss, their privacy is also compromised. (Complaint ¶ 46.) “For example, for the past three years, during open enrollment LightHouse Staff have had to compromise their privacy and rely on assistance from their sighted colleagues or ADP representatives in order to make personal and private decisions about their benefits and compensation . . . .” (Complaint ¶¶ 4, 9.) 27. The COVID-19 pandemic has “exacerbated the impact of the functional unavailability of [the products] . . ..” (Complaint ¶ 47.) Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» é ±º çé 8 DEFENDANTS’ 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 28. Both Plaintiffs Lauridsen and Welte have been employees of LightHouse throughout the entire period that LightHouse has contracted with ADP. (Complaint ¶¶ 12-13.) 29. Lauridsen is LightHouse’s Director of Access Technology. (Complaint ¶¶ 12, 49.) She has a visual impairment. (Id.) Lauridsen alleges that she has been unable to use ADP’s products “to perform necessary tasks related to her own employment as well as in her role as a manager. She has been unable to update her emergency contact information; view and approve her supervisees’ time off requests; or review and approve supervisee timesheets . . . .” (Complaint ¶ 51.) Additionally, the inaccessibility of ADP’s products has made her less efficient in her work performance. (Complaint ¶¶ 53, 55.) Because Lauridsen cannot independently perform her supervisorial duty to correct employees’ timesheets, she must instead ask LightHouse’s finance director to do so. (Complaint ¶ 54.) 30. Additionally, Lauridsen has been “unable to participate independently in open enrollment” in 2018, 2019, and 2020. (Complaint ¶ 52.) Consequently, she failed to timely make benefits elections and was “enrolled in default options.” (Id.) 31. Welte is LightHouse’s Senior Accessible Media and Braille Specialist. (Complaint ¶ 13.) He also has a visual impairment. (Complaint ¶ 57.) Because of the inaccessibility of ADP’s products, Welte has been “unable to . . . perform tasks necessary to his employment, including selecting benefits or requesting time off, viewing personal financial or tax information, and viewing time off balances” and “unable to participate independently in open enrollment.” (Complaint ¶¶ 59-61.) B. Available Remedies and Plaintiffs’ Prayer for Relief 32. If Plaintiffs prevail on their claims under the Unruh Civil Rights Act, California Civil Code §§ 51 and 51.5 (“Unruh Act”), the following remedies are available to each: “actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage, but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto . . . .” (Civil Code § 52.) Thus, each of the three Plaintiffs potentially could recover trebled actual damages and attorneys’ fees. 33. If Plaintiffs’ prevail on their claim under California’s Business and Professions Code § 17200 et. seq. (“UCL”), available relief is “generally limited to injunctive relief and restitution.” (Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1144 (2003).) “[I]f a plaintiff prevails in an Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» è ±º çé 9 DEFENDANTS’ 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 unfair competition law claim, it may seek attorney fees as a private attorney general pursuant to Code of Civil Procedure section 1021.5.” (Walker v. Countrywide Home Loans, Inc., 98 Cal.App.4th 1158, 1179 (2002).) 34. Plaintiffs’ Prayer for Relief seeks all of these remedies. (Complaint at p. 29.) The statute of limitations on claims under the Unruh Act is two years. The statute of limitations on a UCL claim is four years. (Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 754-60 (2002) (two year limitations period on Unruh Act claims); Bus. & Prof. Code § 17208.) 35. Plaintiffs’ Prayer for Relief also includes a demand for declaratory and injunctive relief. Specifically, Plaintiffs seek an “order and finding that ADP’s acts and practices . . . are unlawful and unfair” and an “order requiring ADP comply with state law and provide full and equal independent access to its website and mobile application for people who are blind and have low vision and/or who use screen reader technology.” (Complaint at p. 29.) C. With or Without Aggregation, the $75,000 Jurisdictional Threshold Is Met 36. As a general rule, the claims of multiple plaintiffs may not be aggregated to meet the amount in controversy required for federal jurisdiction. (Troy Bank of Troy, Ind., v. G.A. Whitehead & Co., 222 U.S. 39, 40 (1911) (“When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount”); Gibson v. Chrysler Corp., 261 F.3d 927, 943 (9th Cir. 2001).) An exception to this rule exists, however, “when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest.” (Id. at 41.) In such a case, it is enough that the plaintiffs’ interests collectively meet the jurisdictional minimum. (Id.) Whether a claim is common and undivided does not turn on the commonality of the law or facts presented; rather, it is the nature of the underlying claim itself that must be examined. (Potrero Hill Comty. Action Comm. v. Hous. Auth. of S.F., 410 F.2d 974, 977-78 (9th Cir. 1969).) The Ninth Circuit has stated that “the character of the interest asserted depends on the source of plaintiffs’ claims. If the claims are derived from rights that they hold in group status, then the claims are common and undivided. If not, the claims are separate and distinct.” (Eagle v. Am. Tel. & Tel. Co., 769 F.2d 541, 546 (9th Cir. 1985).) A claim is “common and undivided” when Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ç ±º çé 10 DEFENDANTS’ 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 the plaintiffs cannot bring their claims without involving one another. (Gibson v. Chrysler Corp., 261 F.3d 927, 944, 946 (9th Cir. 2001).) 37. Plaintiffs’ claims here all derive from a common source, i.e., the alleged inaccessibility of products purchased under the Agreement. Plaintiffs could not bring their claims without involving one another. Indeed, the claims of Lauridsen and Welte are tied to their employer LightHouse’s contractual relationship with ADP. As such, Plaintiffs’ claims should be aggregated in determining the amount in controversy. However, even if not aggregated, the amount in controversy is satisfied as to each Plaintiff alone, as set forth infra. Moreover, in an action involving multiple plaintiffs, a federal court may exercise supplemental jurisdiction over a co-plaintiff's claims that fail to meet the jurisdictional amount in controversy if (1) at least one plaintiff satisfies the amount in controversy, (2) the other elements of diversity jurisdiction are satisfied, and (3) the plaintiff's claims are part of the same “case or controversy.” (See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549 (2005) (“We hold that, where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies the amount-in-controversy requirement, § 1367 does authorize supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or controversy, even if those claims are for less than the jurisdictional amount specified in the statute setting forth the requirements for diversity jurisdiction.”).) D. General Principles 38. While Defendants deny any liability on 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 either in the aggregate or per Plaintiff, as set forth in the analysis below. (See Sanchez v. Monumental Life Ins., 102 F.3d 398, 404 (9th Cir. 1996) (“[D]efendant must provide evidence establishing that it is ‘more likely than not’ that the amount in controversy exceeds [the threshold] amount.”).) The jurisdictional amount may be determined from the face of the complaint. (Singer v. State Farm Mutual Automobile Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997).) However, 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 the Court may consider facts presented in the removal petition).) Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïð ±º çé 11 DEFENDANTS’ 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 39. In determining whether a complaint meets the $75,000 threshold of 28 U.S.C. § 1332(a), a court may consider the value of claims for compensatory and punitive damages, as well as attorneys’ fees. (See, e.g., Bell v. Preferred Life Ass. Soc’y, 320 U.S. 238, 240 (1943) (“Where both actual and punitive damages are recoverable under a complaint each must be considered to the extent claimed in determining jurisdictional amount.”) (footnote omitted); Goldberg v. CPC Int’l, Inc., 678 F.2d 1365, 1367 (9th Cir. 1982) cert. denied, 459 U.S. 945 (1982) (attorneys’ fees may be taken into account to determine jurisdictional amount).) 40. Emotional distress damages may also be considered when calculating the amount in controversy, even where not clearly pled in the complaint. (Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1034 (N.D. Cal. 2002); Richmond v. Allstate Ins. Co., 897 F. Supp. 447, 450 (S.D. Cal. 1995) (“the vagueness of plaintiffs’ pleadings with regard to emotional distress damages should not preclude this Court from noting that these damages are potentially substantial”).) E. Amount in Controversy Calculations 1. Plaintiff LightHouse a. Actual Damages Under the Unruh Act 41. LightHouse’s actual damages include not receiving the “full value” of the products it purchased and also the lost “value of staff time spent working around the inaccessibility of the product it pays for.” (Complaint ¶ 98.) i. Damages (or Restitution) for “Unusable” Products 42. As to LightHouse’s prayer for restitution, it seek “the amount of the difference between what LightHouse paid for ADP’s product[s] and the value it actually obtained.” (Id.) Plaintiffs would arguably also be entitled to recover this amount as damages under the Unruh Act. The total amount paid under the Agreement dating back to the first provision of products in October 2017 is well in excess of $500,000. Although the fees paid were for a variety of products and services, and not just those that Plaintiffs allege are inaccessible, assuming just 10% of the fees paid are attributable to unusable products, that equates well over $50,000. Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïï ±º çé 12 DEFENDANTS’ 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 ii. Damages for Lost Productivity of 55 Visually Impaired Employees 43. The total annual gross payroll for LightHouse’s employees, upon which the Service Fee is calculated, is over $5.5 million. Fifty-five percent of LightHouse’s 100 employees are visually impaired, and thus gross payroll for these individuals is reasonably estimated to exceed $3 million. Assuming each such employee lost just 1% of their productivity each year due to the inaccessibility of ADP’s products-a reasonable inference based on the above allegations-that would translate to a loss of $30,000 annually, or $60,000 during the two year limitations period applicable to the Unruh Act claims. Of course, recovery of both (a) the above-noted contract damages, as well as (b) for lost employee productivity, would be excessive, but the Complaint seeks to recover both, which is what matters in determining the amount in controversy. iii. Damages for Lost Productivity of Sighted Employees 44. As to the remaining approximately 45 sighted employees, LightHouse alleges that its supervisorial employees, as well as the Director of Finance, have also lost productivity. The Director of Finance’s lost productivity, as set forth in Paragraph 45 of the Complaint, appears substantial. Assuming an annual salary of $100,000, and a 3% annual productivity loss for the Director of Finance, that would translate to $6,000 in lost value of the Director of Finance’s time during over the two year statutory period. This figure does not include amounts attributable to lost productivity of sighted supervisorial employees. 45. In sum, LightHouse seeks to recover damages that exceed the $75,000 jurisdictional minimum. b. The Value of Declaratory and Injunctive Relief 46. In actions seeking declaratory relief or injunctive relief, the amount in controversy is measured by the value of the object of the litigation. (Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977).) Here, that value can be measured by the costs that ADP will incur in having to comply with Plaintiffs’ requested injunction. (See, e.g., Simmons v. PCR Technology, 209 F.Supp.2d 1029, 1034 (N.D. Cal. 2002) (“Plaintiff seeks an injunction commanding reinstatement to his former Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïî ±º çé 13 DEFENDANTS’ 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 position. The amount in controversy may include the cost of complying with such an injunction.”); Stelzer v. CarMax Auto Superstores Cal., LLC, 2013 WL 6795615, at *5 (S.D. Cal. 2013) (same). 47. Here, Plaintiffs ask for an injunction requiring ADP to make all its products accessible to all its clients. While doubtful Plaintiffs could obtain such broad relief, the cost of compliance for just making products fully accessible to LightHouse employees is estimated to be well in excess of $100,000. c. Attorneys’ Fees 48. As the Complaint alleges, the parties engaged in structured negotiations between October 2018 and April 2020 in an effort to resolve this dispute before Plaintiffs commenced litigation. (Complaint ¶ ¶¶ 67-68.) Thus, at this juncture, sizeable attorneys’ fees have already been incurred. Fee awards in similar disability access cases establish that, if the case is litigated and if Plaintiffs’ prevailed, a fee recovery could be sizeable. (Rivera v. Crema Coffee Company LLC, 2020 WL 4701131, at *8 (N.D. Cal. 2020) (in Unruh Act disability access case involving inaccessible facilities, granting plaintiffs’ motion for attorneys' fees in the amount of, awarding $68,650.88 in attorney’s fees); Hernandez v. Lucky Fortune, Inc., 2018 WL 317841, at *4 (N.D. Cal. 2018) (same, and awarding plaintiff $98,005 in attorneys' fees); Rodriguez v. Barrita, Inc., 53 F.Supp.3d 1268, 1296 (N.D. Cal. 2014) (same and awarding plaintiff $584,805.60 in attorneys’ fees).) 2. Lauridsen and Welte a. Damages for Intentional Discrimination 49. While both Lauridsen and Welte allege they have suffered “intentional discrimination” in their capacity as employees of LightHouse and that their work performance has been adversely impacted, they do not allege employment related claims for disability discrimination, failure to accommodate, or failure to engage in the interactive process against their employer LightHouse. They instead seek to hold Defendants liable under the Unruh Act. The claims that Lauridsen and Welte allege are best analogized to those more traditionally asserted in the employment context under the Fair Employment and Housing Act (“FEHA”). Indeed, Plaintiffs allege that the performance of their jobs has been impaired because the systems they use to perform their duties have not been accessible to them, and that they are not as productive, must seek assistance from their sighted colleagues, and have suffered Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïí ±º çé 14 DEFENDANTS’ 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 frustration and privacy violations as a result. Whether looking at jury verdicts under the FEHA, or under the Unruh Act, it is clear a damages award could be sizeable. 50. Without any admission that Plaintiffs could prevail on their claims, it is appropriate to consider jury verdicts in cases with similar claims when determining the amount in controversy. (Simmons, supra, 209 F. Supp. 2d at 1033.) California jury verdicts under the FEHA or Unruh Act often exceed $75,000. (See, e.g., Peacock v. Quest Diagnostics, C.D. Cal. Case No. 09CV09206(JHN), 27 Trials Digest 14th 10 (2010) (employee awarded $229,638 in compensatory damages on claims of disability discrimination, violation of CFRA, failure to accommodate, and failure to engage in the interactive process); Spaulding v. Shannon Diversified, Inc., San Bernardino Superior Court Case No.CIVDS-16-09525, JVR No. 1910040037, 2019 WL 4918279 (verdict for $128,762 on plaintiff’s claim that his employer failed to accommodate him after a shoulder injury and terminated his employment due to his disability); Toth v. Bartow Unified Sch. Dist., C.D. Cal. Case No. 5:12CV02217, JVR No. 1505270035, 2014 WL 9859298 (verdict for $289,244 where plaintiff alleged he was unable to type and that his employer refused to provide him with administrative assistance with typing and instead ultimately providing him with voice recognition software but failed to provide him with training or support to use the software, thereby causing him to fall behind in his work and ultimately his constructive termination); Dov vs. Ascot Hotel LLC, 9 Trials Digest 11th 2, 2007 WL 4946166 (San Francisco Superior Court May 22, 2007 verdict in housing discrimination case under the Unruh Act where mentally disabled plaintiff alleged his landlord failed to accommodate his need for a companion cat; verdict for $50,400 compensatory damages, trebled pursuant to Civil Code § 52(a) plus $26,987 attorney fees); Curry v. Academy Pointe, Inc., 40 Trials Digest 21st 20, 2018 WL 4810695 (Los Angeles Superior Court February 26, 2018 verdict awarding $750,000 in damages under the Unruh Act and FEHA on plaintiff-tenant’s claims that his landlord failed to properly maintain the buildings elevators, hence requiring him four to nine times in a four month period to seek assistance from neighbors or the fire department to carry him up and down the stairs).) True and correct copies of this verdict information are attached hereto as Exhibit 3. 51. Cases under the Unruh Act involving allegations of a lone occasion of access denial have also settled for amounts exceeding the $75,000 jurisdictional threshold. (Potter vs. CVS Pharmacy Inc., Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïì ±º çé 15 DEFENDANTS’ 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 6 Trials Digest 14th 5, 2010 WL 5659023 (N.D. Cal. August 17, 2010 Settlement) (settlement for $89,000 where plaintiff, who used a wheelchair for mobility, alleged he was unable to access hich defendant’s pharmacy and left without his medication, and also encountered access barriers in the parking lot); Dalton v. City of Oakland, 28 Trials Digest 18th 7, 2014 WL 10098124 (N.D. Cal. 2014) ($95,000 settlement reached on plaintiff’s claims that disabled parking spaces adjacent to ‘Fairyland’ had no unloading zones, were improperly configured, had no curb cuts and had no accessible paths of travel to the Fairyland entrance).) Here, by contrast, Plaintiffs Lauridsen and Welte allege that they encounter difficulties with the accessibility of ADP’s products routinely in connection with the performance of their work duties. True and correct copies of this settlement information are attached hereto as Exhibit 4. b. Damages for Violation of Privacy Rights 52. The Complaint alleges that “for the past three years, during open enrollment LightHouse Staff have had to compromise their privacy and rely on assistance from their sighted colleagues or ADP representatives in order to make personal and private decisions about their benefits and compensation . . . .” (Complaint ¶¶ 4, 9.) 53. Jury verdicts and settlements in employee privacy rights cases are also sizeable. (Hoving v. San Luis Obispo County, C.D. Cal. Case No. 2:07-cv-06853-GW-CT, JVR No. 494036 (September 2008 settlement for $660,000 where plaintiff alleged his employer video recorded him during a private meeting); Boller v. Placer Union High School Dist., JVR No. 485001 (April 2000 verdict for $158,575 for employee who alleged violation of her privacy rights when she was stripped searched after she was accused of theft from a vending machine); Zamora vs. Escondido Union School Dist., 34 Trials Digest 3d 11 (jury verdict on invasion of privacy claim for $240,000 where plaintiff/employee’s prior felony conviction was disclosed); Tran vs. Lehrer Management Co., Inc., N.D. Cal. Case No. C033601JF, 40 Trials Digest 7th 6 ($100,000 settlement where employee asserted her privacy rights were violated when her employer installed a program to track her computer use).) True and correct copies of these verdicts and settlement information are attached hereto as Exhibit 5. Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïë ±º çé 16 DEFENDANTS’ 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 c. Declaratory and Injunctive Relief and Attorneys’ Fees 54. The same analysis set forth above with respect to the value of declaratory and injunctive relief and potential attorneys’ fees exposure applies to the claims of Lauridsen and Welte. 55. For all of the above reasons, the amount in controversy in this matter as to each of the individual Plaintiffs, and also in the aggregate, exceeds $75,000. V. VENUE 56. Plaintiffs filed this action in the Superior Court of California, County of San Francisco. 57. The County of San Francisco lies within the jurisdiction of the United States District Court, Northern District of California. 58. Therefore, without waiving Defendants’ right to challenge, among other things, personal jurisdiction and/or venue by way of a motion or otherwise, venue lies in the Northern District of California pursuant to 28 U.S.C. §§ 84(c), 1441(a), and 1446(a). This Court is the United States District Court for the district within which the State Court Action is pending. Thus, venue lies in this Court pursuant to 28 U.S.C. § 1441(a). VI. SERVICE OF NOTICE OF REMOVAL ON STATE COURT 59. A true and correct copy of this Notice of Removal will be promptly served on Plaintiff and filed with the Clerk of the Superior Court of the State of California, County of San Francisco, as required under 28 U.S.C. § 1446(d). 60. WHEREFORE, Defendants pray that this civil action be removed from the Superior Court of the State of California, County of San Francisco, to the United States District Court for the Northern District of California. DEMAND FOR JURY TRIAL 61. Defendants demand a jury trial pursuant to the Seventh Amendment of the United States Constitution. Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïê ±º çé 17 DEFENDANTS’ 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 DATED: December 16, 2020 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ Eden Anderson Kristina M. Launey Eden Anderson Attorneys for Defendants AUTOMATIC DATA PROCESSING, INC. and ADP TOTALSOURCE, INC. Ý¿-» íæîðó½ªóðçðîð Ü±½«³»²¬ ï Ú·´»¼ ïîñïêñîð Ð¿¹» ïé ±º çé (1/\f ;,L (aNc),-Q.__ 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 Seyfarth Shaw LLP, 560 Mission Street, 31st Floor, San Francisco, California. On December 16, 2020, I served the within documents: 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 in a sealed envelope or package provided by Federal Express with postage paid on account and deposited for collection with FedEx at San Francisco, California, addressed as set forth below.  by transmitting the document(s) listed above, via File & Serve Xpress, to the e-mail addresses set forth below. Disability Rights Advocates Stuart Seaborn Meredith J . Weaver Melissa Riess Shira Tevah 2001 Center Street, Fourth Floor Berkeley, CA 94704-1204 Telephone: (510) 665-8644 Facsimile: (510) 665-8511 sseaborn@dralegal.org; mweaver@dralegal.org; mriess@dralegal.org; stevah@dralegal.org Attorneys for Plaintiffs 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 the 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 December 16, 2020, at San Francisco, California. ______________________________ Shari O’Brien 67197432v.1 x