United States District Court, S.D. New York
MONICA RAMIREZ, individually and on behalf of other persons similarly situated who were employed by Oscar De La Renta, LLC, or any other entities affiliated with or controlled by Oscar De La Renta, LLC, Plaintiff,
OSCAR DE LA RENTA, LLC, or any other entities affiliated with or controlled by Oscar de la Renta, LLC, Defendant.
OPINION AND ORDER
ABRAMS, United States District Judge.
2009, Plaintiff Monica Ramirez worked as an unpaid intern for
Defendant Oscar De La Renta ("ODLR"), a fashion and
apparel firm based in New York. Ramirez filed a putative
class action against ODLR in the Supreme Court of New York,
claiming that ODLR violated various provisions of the New
York Labor Law. ODLR removed the action to this Court under
the Class Action Fairness Act of 2005 ("CAFA").
Ramirez moves to remand the action to state court. For the
reasons set forth below, Ramirez's motion is denied.
September 3, 2014, Ramirez filed a complaint in the Supreme
Court of New York. See Notice of Removal Ex. A
(Compl.) (Dkt. 1). In the complaint, Ramirez alleges that,
from approximately August 2008 through the date on which she
filed her complaint, ODLR "wrongfully withheld wages
from her and similarly situated individuals who worked for
[ODLR]." Id. ¶2. Ramirez alleges that she
worked at ODLR's Manhattan office "from
approximately January of 2009 through April of 2009."
Id. ¶ 7. During this period, Ramirez
"typically worked five days each week, and on occasion
six days a week, " and "routinely worked eight and
one half hours each day." Id. ¶ 33.
Ramirez claims that she was "not paid any wages."
Id. ¶ 35. She asserts three claims under the
New York Labor Law: (1) failure to pay minimum wage, (2)
failure to pay wages, and (3) failure to provide wage notices
and statements. See Id. ¶¶ 36-60. She
seeks to recover unpaid wages, statutory penalties, interest,
attorney's fees, and costs. See Id.
¶¶45, 53, 60; see also Id. at 12.
October 7, 2016, ODLR removed the action to this Court under
CAFA. ODLR's notice of removal alleges that it
"learned that this action satisfies the CAFA
requirements" for removal "only after commencing
its own independent investigation." Notice of Removal
¶ 7. The notice of removal further alleges that
Ramirez's proposed class contains approximately 600
individuals, see Id. ¶ 8, and that the amount
in controversy "exceeds $5 million, " id.
November 7, 2016, Ramirez moved to remand this action to
state court. See Mot. to Remand (Dkt. 16). On
November 21, 2016, ODLR filed a brief in opposition to the
motion. See Def. Opp'n Mem. (Dkt. 20). On
December 2, 2016, Ramirez filed a reply. See Pl.
Reply Mem. (Dkt. 26).
gives federal courts jurisdiction over certain class actions,
defined in [28 U.S.C.] § 1332(d)(1), if the class has
more than 100 members, the parties are minimally diverse, and
the amount in controversy exceeds $5 million." Dart
Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct.
547, 552 (2014) (citing 28 U.S.C. § 1332(d)(2), (5)(B));
see also Standard Fire Ins. Co. v. Knowles, 133
S.Ct. 1345, 1348 (2013). "In CAFA cases, the defendant
bears the burden of establishing federal subject matter
jurisdiction." Cutrone v. Mortg. Elec. Registration
Sys., Inc., 749 F.3d 137, 142 (2d Cir. 2014). The
defendant must demonstrate a "reasonable
probability" that CAFA's jurisdictional requirements
are satisfied. Blockbuster, Inc. v. Galeno, 472 F.3d
53, 58 (2d Cir. 2006) (quoting Mehlenbacher v. Akzo Nobel
Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000)).
"[O]nce the general requirements of CAFA jurisdiction
are established, plaintiffs have the burden of demonstrating
that remand is warranted on the basis of one of the
enumerated exceptions." Greenwich Fin. Servs.
Distressed Mortg. Fund 3 LLC v. Countrywide Fin. Corp.,
603 F.3d 23, 26 (2d Cir. 2010).
first argues that ODLR's notice of removal is untimely.
See Pl. Mem. at 3-5 (Dkt. 18). Under 28 U.S.C.
§ 1446, removal is timely if it occurs within one of two
30-day periods. First, Section 1446(b)(1) requires a
defendant to file a notice of removal within 30 days of
service or receipt of a copy of the initial pleading.
See2S U.S.C. § 1446(b)(1). Second, Section
1446(b)(3) provides that, "[i]f the case stated by the
initial pleading is not removable, " the defendant may
file a notice of removal within 30 days of receiving "a
copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable." Id. §
1446(b)(3); see Cutrone, 749 F.3d at 142.
CAFA context, the Second Circuit has adopted a "bright
line rule, " under which "the removal clocks of 28
U.S.C. § 1446(b) are not triggered until the plaintiff
serves the defendant with an initial pleading or other
document that explicitly specifies the amount of monetary
damages sought or sets forth facts from which an amount in
controversy in excess of $5, 000, 000 can be
ascertained." Cutrone, 749 F.3d at
"[D]efendants have no independent duty to investigate
whether a case is removable." Id. at 143;
accord Moltner v. Starbucks Coffee Co., 624 F.3d 34,
37 (2d Cir. 2010); Whitaker v. Am. Telecasting,
Inc., 261 F.3d 196, 206 (2d Cir. 2001). "Thus, a
defendant is not required to consider material outside of the
complaint or other applicable documents for facts giving rise
to removability, and the removal periods of 28 U.S.C.
§§ 1446(b)(1) and (b)(3) are not triggered until
the plaintiff provides facts explicitly establishing
removability or alleges sufficient information for the
defendant to ascertain removability." Cutrone,
749 F.3d at 145.
a defendant must "apply a reasonable amount of
intelligence in ascertaining removability." Id.
at 143 (quoting Moltner, 624 F.3d at 37). While the
Second Circuit has not precisely delineated the scope of the
"reasonable amount of intelligence" standard, it
has explained that "[a] pleading enables a defendant to
intelligently ascertain removability when it provides the
necessary facts to support the removal petition, "
including "the amount in controversy and the address of
each party" in the diversity context. Moltner,
624 F.3d at 36 (quoting Whitaker, 261 F.3d at 206).
Other circuits have determined that this standard may require
a defendant to perform simple calculations based on figures
found in pleadings or other papers served by the plaintiff.
See, e.g., Romulus v. CVS Pharmacy, Inc., 770 F.3d
67, 75 (1st Cir. 2014) (holding that Section 1446's
removal periods are triggered when the plaintiff provides
"sufficient facts from which the amount in controversy
can easily be ascertained by the defendant by simple
calculation"); Kuxhausen v. BMW Fin. Servs. NA
LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) (holding that
while "defendants need not make extrapolations or engage
in guesswork" in ascertaining removability,
"[multiplying figures clearly stated in a complaint is
an aspect of [their] duty" to apply a reasonable amount
of intelligence (internal quotation marks omitted)). But
"intelligence" should not be confused with
"investigation": a defendant may be required to
take out a calculator while reading a complaint, but he has
no duty to review his files to uncover facts not alleged in a
pleading or other paper served by the plaintiff.
Ramirez did not serve ODLR with an initial pleading or other
document that would trigger the removal periods of 28 U.S.C.
§§ 1446(b)(1) and (b)(3). There is no dispute that
neither Ramirez's complaint nor any other document served
upon ODLR "explicitly specifies" the amount of
damages she seeks. Cutrone, 749 F.3d at 145. Nor
does Ramirez's complaint "set forth facts from
which an amount in controversy in excess of $5, 000, 000 can
be ascertained" with a reasonable amount of
intelligence. Id. In particular, the complaint does
not allege a number of proposed class members that would
yield an amount in controversy approaching $5 million. The
complaint alleges only that "[t]he size of the putative
class is believed to be in excess of 40 individuals."
Compl. ¶ 17. With just 40 class members, the amount in
controversy would not approach $5 million-indeed, using the
methodology discussed below, the amount in controversy would
fall below $500, 000. Thus, even if ODLR had applied a
"reasonable amount of intelligence" by
"[multiplying figures clearly stated in [the] complaint,
" it would not have ascertained that the amount in
controversy meets CAFA's jurisdictional minimum.
Kuxhausen, 707 F.3d at 1140. Accordingly, the 30-day
removal periods of Section 1446 were not triggered. See
Cutrone, 749 F.3d at 145.
opposes this conclusion with three arguments. First, Ramirez
argues that ODLR failed to apply a "reasonable amount of
intelligence" in ascertaining removability because it
did not investigate the size of her proposed class. All ODLR
had to do, Ramirez argues, was review its records to
determine the number of interns it employed during the
relevant period, then perform some straightforward
calculations to ascertain the amount in controversy. Ramirez
may be correct that determining the amount in controversy
would not have required extensive effort on ODLR's part,
but she is mistaken in arguing that ODLR had an obligation to
look beyond her pleadings and other papers to ascertain
removability. See Intelligen Power Sys., LLC v. dVentus
Techs. LLC, 73 F.Supp.3d 378, 381 (S.D.N.Y. 2014)
("It is well-settled that a defendant has no independent
duty to investigate whether a case is removable.").
Here, it was only through "independent
investigation" that ODLR discovered that Ramirez's
proposed class contains approximately 600 individuals-15
times more than Ramirez alleged in her complaint.
Compare Compl. ¶ 17, with Notice of
Removal ¶¶ 7, 8. However straightforward this
investigation might have been, ODLR's failure to conduct
it earlier provides no basis for concluding that removal was
Ramirez argues that ODLR should have ascertained removability
on the basis of her interrogatories and other discovery
requests. See Pl. Mem. at 4. Ramirez notes, for
example, that her first set of interrogatories asked ODLR to
"[i]dentify each current and former individual
classified as an intern" during the relevant period.
Decl. in Supp. of Mot. to Remand Ex. C at 6 (Dkt. 17). To
trigger the removal periods of Section 1446, however, Ramirez
needed to provide ODLR information from which it could
ascertain that the amount in controversy exceeds $5
million-not to ask for it. On the present record, it is not
clear whether ODLR provided information responsive to
Ramirez's interrogatories, and Ramirez does not argue
that she ever obtained a document specifying the size of her
proposed class. If Ramirez had obtained such a document,
she could fairly argue that the 30-day removal period of
Section 1446(b)(3) would begin to run once ODLR was served.
See, e.g., Romulus, 770 F.3d at 78-79 (holding that
an employer's receipt of an e-mail from employees
estimating the number of unpaid meal breaks for which the
employees sought compensation triggered the removal period of
Section 1446(b)(3)); Maguire v. A.C. & S, Inc.,
73 F.Supp.3d 323, 326 (S.D.N.Y. 2014) (holding that a
defendant could reasonably ascertain removability on the
basis of the plaintiffs interrogatory responses). Here,
however, Ramirez's interrogatories and other document
requests did not contain facts from which ODLR could
reasonably determine that the amount in controversy meets
CAFA's jurisdictional minimum.
Ramirez argues that a defendant should be required to
investigate the amount in controversy earlier in the
litigation than ODLR did here. See Pl. Mem. at 4. In
Ramirez's view, a defendant should not be permitted to
stall an action for an extended period-in this case, two
years-by failing to review its own records and determine
whether the action is removable. This is particularly true
where, as here, the defendant may be in a better position to
uncover facts necessary to ascertain removability. While this
argument is not without force, "[t]here are contrary
policy arguments that Congress could have considered" in
enacting CAFA. Romulus, 770 F.3d at 75. In
particular, the "bright line" rule governing the
timeliness of removal encourages plaintiffs to estimate
damages early in a case and avoids "fact-intensive
mini-trials" into "what the defendant should have
investigated, or what the defendant should have discovered
through that investigation." Id. at 75-76.
Congress may also have found it appropriate to assign the
task of identifying facts relevant to determining
removability to the plaintiff, who generally serves as
"master of the complaint" and bears the burden of
investigating the facts underlying her claims. In any event,
as the Ninth Circuit has explained, "plaintiffs are in a
position to protect themselves." Roth v. CHA
Hollywood Med. Or., L.P., 720 F.3d 1121, 1126 (9th Cir.
2013). "If plaintiffs think that their action may be
removable and think, further, that the defendant might delay
filing a notice of removal until a strategically advantageous
moment, they need only provide to the defendant a document
from which removability may be ascertained."
Id. Thus, Ramirez's policy arguments may well be
contrary to those Congress considered in enacting CAFA, and
in any event provide no basis to depart from the "bright
line rule" governing removal under Section 1446.
Cutrone, 749F.3d at 145.
Amount in Controversy
next argues that ODLR has not satisfied CAFA's