Bill Taylor v. Cox Communications California

FILED
NOT FOR PUBLICATION
DEC 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BILL TAYLOR, No. 16-56661

Plaintiff-Appellant, D.C. No.
2:16-cv-01915-CJC-JPR
v.

COX COMMUNICATIONS MEMORANDUM*
CALIFORNIA, LLC, Erroneously Sued
As: CoxCom, Inc., and CoxCom, LLC; et
al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding

Argued and Submitted December 5, 2016
Pasadena, California

Before: REINHARDT, W. FLETCHER, and PAEZ, Circuit Judges.

Defendants-Appellees Cox Communications, Inc. and Cox Communications

California, LLC (“Defendants” or “Cox”) have removed this class action, pursuant

to the Class Action Fairness Act (“CAFA”). Plaintiff moved to remand on two

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
grounds. First, Plaintiff contended that Defendants had no basis to justify a

successive removal petition. Second, Plaintiff contended that Defendants’ second

Notice of Removal was untimely because it fell outside of one of CAFA’s thirty-

day filing windows. The district court denied Plaintiff’s Motion to Remand. We

affirm.

We have appellate jurisdiction under 28 U.S.C. § 1453(c), and review the

remand order de novo. Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1196 (9th

Cir. 2015). Factual findings, however, are reviewed for clear error. Rea v.

Michaels Stores Inc., 742 F.3d 1234, 1237 (9th Cir. 2014) (per curiam) (citing Fed.

R. Civ. Pro. 52(a)(6)). “Under CAFA, we have 60 days from the time we accept

the appeal to complete all action on such appeal, including rendering judgment[.]”

Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 996 (9th Cir. 2007), abrogated

on other grounds by Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013)

(internal quotation marks omitted).

We hold that Defendants’ second removal petition was permissible given

that there had been a “relevant change of circumstances” in the three years since

their first petition. Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th Cir.

2015) (quoting Kirkbride v. Cont’l Cas. Co., 933 F.2d 729, 732 (9th Cir. 1991)).

At the time of Defendants’ first Notice of Removal, the “legal certainty” test

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described in Lowdermilk applied. Two months after the district court granted

Plaintiff’s Motion to Remand, the Supreme Court in Standard Fire held that a

would-be class representative cannot stipulate on behalf of the would-be class that

the class will seek less than the CAFA jurisdictional amount. 133 S. Ct. at 1349.

Later that same year, we held that the Standard Fire rule fatally undermined our

“legal certainty” test in Lowdermilk. Our new (and now governing) rule is that “[a]

defendant seeking removal of a putative class action must demonstrate, by a

preponderance of the evidence, that the aggregate amount in controversy exceeds

the jurisdictional minimum.” Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d

975, 981 (9th Cir. 2013); see also Rea, 742 F.3d at 1239. “Because the first remand

was on ‘grounds that subsequently became incorrect,’ the successive removal [i]s

permissible.” Reyes, 781 F.3d at 1189 (quoting Rea, 742 F.3d at 1238). We need

not reach the question of whether the California Superior Court’s certification

order also qualified as a relevant “change in circumstance” permitting a successive

petition.

We also hold that Defendants’ second Notice of Removal was timely. “A

CAFA case may be removed [by a defendant] at any time, provided that neither of

the two thirty-day periods under § 1446(b)(1) and (b)(3) has been triggered.” Roth

v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1126 (9th Cir. 2013). Both

3
parties admit that the first thirty-day clock was never triggered. 28 U.S.C.

§ 1446(b)(1). We agree. “[N]otice of removability under §1446(b)[1] is

determined through examination of the four corners of the applicable pleadings[.]”

Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). Neither the

initial complaint nor the First Amended Complaint (“FAC”) “reveals on its face the

facts necessary for federal court jurisdiction.” Rea, 742 F.3d at 1238 (quoting

Harris, 425 F.3d at 691-92).

We also agree with the district court’s finding that Plaintiff never provided

the Defendants “other paper” sufficient to trigger the second thirty-day clock. 28

U.S.C. § 1446(b)(3). Though we accept arguendo Plaintiff’s argument that

Plaintiff’s deposition in combination with other documents could have triggered

the second thirty-day clock, it did not do so here. Defendants’ first Notice of

Removal alleged certain figures that were supported by only an unsworn

declaration by Cox employee Susan Irwin. The district court determined that those

figures were unreliable and contradictory, even aside from the problem stemming

from the lack of a sworn declaration. The declaration provided no support for

Defendants’ assumption that “class members worked four shifts per week or fifty

weeks per year.” Further, “Defendants assume[d] that all 600 class members

worked for the entire class period. This is contradicted by Defendants’ own

4
evidence, which demonstrates that Plaintiff left his employment in May 2012,

approximately five months before the end of the class period [and] . . . evidence

that 138 of the 600 individuals separated from employment with the Defendants”

before the class period ended. The court found similar deficiencies in assumptions

made to calculate potential waiting time penalties.

Plaintiff’s subsequent deposition provided insufficient additional

information to cure the defects in the initial removal. We conclude that

information already contained in the record, combined with information in the

deposition, was insufficient to establish an amount in controversy exceeding five

million dollars. The second thirty-day clock was therefore not triggered by

Plaintiff’s deposition. Defendants were thus free to remove at any time after the

“change in circumstances.”

Plaintiff does not independently contest that the amount in controversy

exceeds $5 million, nor does he contest any of the other jurisdictional requirements

for removal under CAFA.

Each party shall bear its own costs associated with this appeal.

AFFIRMED.

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 FILED
Taylor v. Cox Communications; 16-56661
DEC 23 2016
REINHARDT, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

Cox Communications represented to the court in its first removal petition

that the case was removable under a preponderance of the evidence standard. The

court remanded the case to state court, however, because Cox had not proven

removability to a legal certainty, which it held to be the applicable standard. Thus,

when the law changed and the preponderance of the evidence standard was held to

govern removability disputes, Cox was put on notice that the case was newly

removable. The change in the law therefore triggered a 30-day removal period

under 28 U.S.C. § 1446(b)(3). I would hold that the second removal was untimely

and grant Taylor’s petition for remand.