Frank v. Golden Gate Bell, LLC, No. 5:2018cv06297 - Document 45 (N.D. Cal. 2019)
Court Description: ORDER GRANTING PLAINTIFFS' MOTION TO REMAND. Re: Dkt. Nos. 16 , 38 in 18-cv-06442 NC. Plaintiff's motion to seal supplemental brief is GRANTED IN PART AND DENIED IN PART. Plaintiff should file a new version of the motion and exhibits in ECF by 7/3/2019. The Clerk of Court is ordered to remand these cases promptly, Collins to the Santa Clara County Superior Court, and Frank to the Alameda County Superior Court. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 6/19/2019)
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Frank v. Golden Gate Bell, LLC Doc. 45 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 ETHAN COLLINS, 11 United States District Court Northern District of California Plaintiff, and 12 MAURICE FRANK, 13 Plaintiff, 14 Case No. 18-cv-06442-NC Related Case: 18-cv-06297-NC ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND Re: Dkt. Nos. 16, 38 v. 15 GOLDEN GATE BELL, LLC, 16 Defendant. 17 In these class action employment cases brought by Taco Bell workers, plaintiffs 18 Ethan Collins and Maurice Frank move to remand back to state court. The central issue is 19 20 whether, under CAFA’s home state and local controversy exceptions, more than two-thirds of the proposed class members are citizens of California. 28 U.S.C. § 1332(d)(4)(A)–(B). 21 Because the Court finds that the evidence presented shows that more than two-thirds of the 22 proposed class members are citizens of California, the motion to remand is GRANTED. 23 I. Background 24 A. Procedural History 25 Plaintiff Ethan Collins filed his case in Santa Clara County Superior Court in 26 August 2018. Dkt. No. 1 (Notice of Removal), at 1. It was one of four similar cases filed 27 in Northern California, including a related case brought by plaintiff Maurice Frank in 28 Dockets.Justia.com United States District Court Northern District of California 1 Alameda County Superior Court. Id.; see also Dkt. No. 1 in Case No. 18-cv-06297. 2 Defendant Golden Gate Bell removed the cases to this court. Dkt. No. 1. Collins and 3 Frank moved to remand. Dkt. No. 16. The parties fully briefed the matter and the Court 4 held a hearing. Dkt. Nos. 16, 19–24, 29, 34. The Court ordered jurisdictional discovery 5 and supplemental briefing specifically targeted at the question of the citizenship of the 6 members of the proposed class. Dkt. Nos. 34, 37. The parties submitted supplemental 7 briefing, including evidentiary objections. Dkt. Nos. 39, 43, 44, 46. 8 B. Evidence Presented 9 In support of the motion to remand, plaintiffs requested and this Court granted 10 jurisdictional discovery from Golden Gate Bell. Dkt. No. 24. Golden Gate Bell produced 11 a data set containing identifying information for the putative class members, including 12 those individuals’ names, addresses, employment dates, U.S. citizenship status, driver’s 13 license or other identification (such as municipal or school ID cards) information. Dkt. 14 No. 38, Ex. 1 (Declaration of Jenny Yu). The data set included records for 11,626 people. 15 Id. at ¶ 3. 16 17 18 19 20 1. Addresses 11,613 (99.98%) of the employees in the data set provided California addresses; 13 (0.11%) provided addresses in another state. Id. at ¶¶ 4, 5, 9. 2. Identification Employees provided identification documentation to Golden Gate Bell via their I-9 21 forms. Dkt. No. 38 at 4. 9,134 (78.57%) individuals provided ID documentation from a 22 California entity (state government, local government, or school); 374 (3.22%) provided 23 ID documentation from another state; and 2,118 (18.22%) provided IDs that were not 24 state-specific. Yu Decl. at ¶¶ 6, 7, 8, 10. The 9,134 employees with California 25 identification included 7,129 (78.05%) with documents issued by the State of California 26 (e.g. driver’s licenses). Id. at ¶ 11. The 9,134 employees with California identification 27 also included 2,003 (21.93%) with documents issued by California schools (e.g. school 28 IDs, records, and report cards). Id. at ¶ 12. The 9,134 employees with California 2 1 identification finally included 2 (0.02%) with documents issued by local municipalities 2 (the City and County of San Francisco and from Santa Rosa). Id. at ¶ 13, 14. 3. Citizenship 3 The data set indicates that 9,656 of the 11,626 employees (83%) are U.S. citizens 4 5 and 1,970 (17%) are not U.S. citizens. Id. at ¶ 16. 4. Declaration of Andrew Forrester 6 Defendant Golden Gate Bell does not dispute that its I-9 hiring process resulted in United States District Court Northern District of California 7 8 recording the numbers above, but in support of its opposition to the motion to remand 9 provided a declaration from an econometric analyst to interpret the data set. Dkt. No. 43, 10 Ex. 1 (Declaration of Andrew Forrester). The expert’s declaration suggests that 11 inaccuracies in the I-9 verification system, E-Verify, result in Golden Gate Bell’s hiring of 12 many non-U.S. citizens who are unauthorized to work in the country. Id. Forrester 13 includes with his declaration his curriculum vitae and a report from July 2012 about the 14 accuracy of E-Verify.1 15 II. Legal Standard 16 The Class Action Fairness Act provides that U.S. district courts have original 17 jurisdiction over class actions when (1) the proposed class has more than 100 members; (2) 18 the parties are minimally diverse; and (3) the amount in controversy in the aggregate 19 exceeds $5 million. 28 U.S.C. § 1332(d)(2); see also Ibarra v. Manheim Invs., Inc., 775 20 F.3d 1193, 1195 (9th Cir. 2015). When a defendant seeks removal from state to federal 21 court under CAFA, it must file a notice containing a short and plain statement of the 22 grounds for removal. 28 U.S.C. § 1446(a). There is no antiremoval presumption in cases 23 invoking CAFA. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 24 (2014). 25 26 27 28 Forrester repeatedly refers to this report as dated “December 2009” but the first page of the report itself says “July 2012.” See Forrester Decl. at ¶¶ 7, 18, 25, 28, 36. The report appears to contain data through at least June 2010, so the Court assumes that the title page’s July 2012 date is most accurate even though its findings are based primarily on data from fiscal year 2009. 3 1 The “home state exception” to CAFA requires a district court to decline jurisdiction United States District Court Northern District of California 1 2 over a class action case if “two-thirds or more of the members of all proposed plaintiff 3 classes in the aggregate, and the primary defendants, are citizens of the State in which the 4 action was originally filed.” 28 U.S.C. § 1332(d)(4)(B). The “local controversy” 5 exception to CAFA is similar. This rule requires the district court to decline jurisdiction 6 over a class action if (1) greater than two-thirds of the members of all proposed plaintiff 7 classes are citizens of the state in which the action was originally filed; (2) the principal 8 injuries resulting from the alleged conduct were incurred in that state; (3) at least one 9 significant defendant is a citizen of that state; and (4) no other class action was filed 10 asserting similar factual allegations against the defendant during the three preceding years. 11 28 U.S.C. § 1332(d)(4)(A). 12 Under either exception, two-thirds citizenship in the original state must have existed 13 at the time the action was filed. Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 14 (9th Cir. 2013). Citizenship is defined as a person’s domicile, that is, the place where an 15 individual “has established a fixed habitation or abode” and intends to remain permanently 16 or indefinitely. Santoyo v. Consol. Foundries, Inc., 2016 LEXIS 142112, at *6 (C.D. Cal. 17 Oct. 13, 2016). For jurisdictional purposes, to be a citizen of a state, a person must first be 18 a citizen of the United States. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 19 2001). 20 A party seeking to remand bears the burden of proving that an exception to CAFA 21 applies by a preponderance of the evidence. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 22 1024 (9th Cir. 2007); King v. Great Am. Chicken Corp., 903 F.3d 875, 878 (9th Cir. 2018). 23 To do so, the parties may present “summary judgment-type evidence.” Vasserman v. 24 Henry Mayo Newhall Mem. Hosp., 65 F. Supp. 3d 932, 980 (C.D. Cal. 2014) (citing 25 Lowdermilk v. United States Bank Nat’l Assoc., 479 F.3d 994, 1002 (9th Cir. 2007)). 26 III. 27 28 Discussion The issue before the Court is whether at least two-thirds of the members of the putative class are citizens of California. If so, the Court must decline jurisdiction over 4 United States District Court Northern District of California 1 these cases under both the home state and local controversy exceptions to CAFA.2 2 A. Employment Location 3 Employment in a state is evidence of domicile in that state. Lew v. Moss, 797 F.2d 4 747, 750 (1986). Here, the employees in the data set were all employed by Golden Gate 5 Bell in California because the plaintiffs’ complaints define the class as “hourly employees 6 in California.” Compl. at ¶ 3. This fact suggests that all of Golden Gate Bell’s California 7 employees are domiciled in California. 8 B. Address 9 Residence in a state is “prima facia evidence of a person’s domicile.” Mondragon, 10 736 F.3d at 886. Residency alone is not sufficient to show domicile. King, 903 F.3d at 11 879. District courts in this Circuit have used residence plus another factor, such as 12 employment, as sufficient proof of domicile. See, e.g., Saldana v. Home Depot USA, Inc., 13 2016 LEXIS 80064, at 5 (E.D. Cal. June 20, 2016). Golden Gate Bell’s data shows that 99.98%, or 11,613, putative class members have 14 15 addresses in California. About one-tenth of one percent, or 13 individuals, provided 16 addresses in another state. Id. at ¶¶ 4, 5, 9. While this evidence of residence in California 17 is not dispositive of these employees’ domicile, the Court finds that it is prima facie 18 evidence of domicile in California. This evidence is particularly strong given that all of 19 Golden Gate Bell’s restaurants are located in California, and that the class is made up of 20 restaurant employees. 21 C. Identification 22 Holding a driver’s license or other identification issued by a state is strong evidence 23 of domicile that state. Lew, 797 F.2d at 750; Simpson v. Fender, 445 Fed. Appx. 268, 269 24 (11th Cir. 2011) (finding that state-issued ID was evidence of domicile in the state of 25 26 27 28 2 The parties do not dispute that the other elements of the local controversy exception (that the principal injuries resulting from the alleged conduct were incurred in California, that Golden Gate Bell is a citizen of California, and that no other class action was filed asserting similar factual allegations against Golden Gate Bell in the last three years) apply here. 28 U.S.C. § 1332(d)(4)(A); see Dkt. Nos. 39, 43. 5 1 United States District Court Northern District of California 2 issuance). Here, 9,134 (78.57%) individuals provided ID documentation from a California 3 entity (either the state government, a school, or a local municipality). Yu Decl. at ¶¶ 6, 7, 4 8, 10. The Court finds that this, too, is strong evidence of domicile in California. 5 D. U.S. Citizenship 6 The data set provided by Golden Gate Bell that plaintiffs rely upon states that 9,656 7 of the 11,626 putative class members (83%) are U.S. citizens and that 1,970 (17%) are not 8 U.S. citizens. Yu Decl. at ¶ 16. Golden Gate Bell’s only argument that at least one-third 9 of the putative class members are not California citizens is that at least one-third of the 10 putative class members are not United States citizens. Dkt. No. 43. Golden Gate Bell 11 explicitly argues that its own hiring processes result in its employment of thousands of 12 what it calls “illegal immigrants” who are unauthorized to work in the United States. 13 Forrester Decl. at ¶¶ 15, 35, 36. 14 15 1. Objections to the Forrester Declaration Golden Gate Bell supports this argument with the declaration of an “econometrics 16 expert,” Andrew Forrester. Dkt. No. 43. Plaintiffs object to the declaration as improper 17 new evidence on reply, irrelevant, and unsupported expert testimony. Dkt. No. 44. 18 Golden Gate Bell objects to plaintiffs’ objections. Dkt. No. 46. The Court agrees with 19 most of the plaintiffs’ objections to the Forrester declaration. Though the declaration was 20 not improperly submitted on reply under Civil Local Rule 7-3(d)(1) because it was 21 attached to an opposition rather than a reply brief, it is largely irrelevant under Federal 22 Rule of Evidence 402 and is not well supported scientific evidence under Federal Rule of 23 Evidence 702. 24 The declaration’s conclusions are based on a report prepared by Westat for the U.S. 25 Department of Homeland Security entitled “Evaluation of the Accuracy of E-Verify 26 Findings.” Forrester Decl., Ex. 2. Forrester identifies Westat as a “well-known research 27 firm.” Forrester Decl. at ¶ 4. E-Verify is a web-based system that enables employers to 28 confirm employees’ eligibility to work in the United States by matching information 6 1 provided on I-9 forms with records from other agencies like the Social Security 2 Administration and Department of Homeland Security to facilitate compliance with U.S. 3 immigration law. Id. at ¶ 5. Golden Gate Bell uses E-Verify in its hiring processes. Id. 4 The Westat report and Mr. Forrester’s discussion of it describe inaccuracies with the E- 5 Verify system based mostly on data from fiscal year 2009. Forrester Decl., Ex. 2 at x. The 6 report discusses national trends. Id. Mr. Forrester’s declaration also draws on a 2016 Pew 7 Research Center article about rates of unauthorized immigrants in various major industry 8 groups. Forrester Decl. at ¶ 15, n. 1. Because Mr. Forrester relies so heavily on the Westat report, the contents of the United States District Court Northern District of California 9 10 declaration are only loosely connected to the facts of this case. Forrester does not analyze 11 the accuracy of Taco Bell’s E-Verify system or describe how Taco Bell’s I-9 hiring 12 process works. Forrester does not even have data about E-Verify’s accuracy from the time 13 period relevant to this case, because the Westat report is from 2009 and the putative class 14 members were not all hired during that year. His discussion of immigration trends in 15 California and in the hospitality industry more generally are not particularized to the 16 putative class members here. With such little bearing on the data presented, Mr. 17 Forrester’s conclusions do little to aid the Court in its determination. Furthermore, the declaration fails under Rule 702 because it is not the product of 18 19 reliable principles and methods applied to the facts of the case.3 The Court is unsure 20 whether the principles and methods underlying the Westat report are reliable because the 21 Court has no information about how it was created, funded, reviewed, or published. 22 Moreover, as plaintiffs point out in their objection to the declaration, Forrester’s 23 calculations involve statistics that appear to be mis-cited from the Pew research study. 24 Dkt. No. 44 at 4–5 (noting that Mr. Forrester relies upon a 12.6% rate of unauthorized 25 workers in the hospitality industry, cited to the Pew Research Center article, but the article 26 27 28 3 The Court also has concerns that the declaration is inadmissible under Rule 702(a), which requires that the expert have scientific, technical, or other specialized knowledge; according to his attached CV, Mr. Forrester received his bachelor’s degrees in 2017 and his professional experience on the topics related to his declaration is limited. 7 1 itself reports an 8% rate and does not appear to mention a 12.6% rate anywhere). Finally, despite these concerns about unreliability, Forrester’s calculations result in 2 3 an ultimate conclusion that hardly helps defendant’s case. Forrester estimates that based 4 on E-Verify inaccuracy rates, a plausible range for the share of Golden Gate Bell 5 workforce that is unauthorized is approximately 34.3 percent, or “between 28.1 and 41.8 6 percent.” Forrester Decl. at ¶ 34. This estimate barely hovers around the one-third amount 7 that Golden Gate Bell hopes to show are not United States citizens (and therefore not 8 California citizens). The Court finds that the Forrester declaration is unpersuasive and that its United States District Court Northern District of California 9 10 conclusions do little to rebut the strong prima facie showing made by the plaintiffs that at 11 least two-thirds of the putative class are California citizens. The plaintiffs’ evidence, all 12 combined, make a strong showing that more than two-thirds of the class are citizens of 13 California. Indeed, the evidence shows that 74.82% of the putative class are (1) identified 14 as U.S. citizens, (2) have a California address, and (3) have a California identification 15 card, on top of working at a Taco Bell in California. Yu Decl. at ¶ 17. The defendants’ 16 only evidence in opposition is largely irrelevant and unreliable. The Court therefore finds 17 that the plaintiffs have shown, by a preponderance of the evidence, that at least two-thirds 18 of the class members are United States and California citizens. 19 IV. 20 Motion to Seal Plaintiff moved to seal his supplemental brief in support of remand and its exhibits. 21 Dkt. No. 38. The Court applies a good cause standard to the motion to seal because the 22 materials sought to be sealed are only tangentially related to the merits of this case. Ctr. 23 for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). The Court 24 finds that the parties have established good cause to seal the entirety of Exhibit 1 to the 25 declaration of Jenny Yu (the “Data Set”) because this exhibit includes personal identifying 26 information of the putative class members. The motion to seal the entire Data Set is 27 GRANTED. However, the Court finds that the parties have not shown good cause as to 28 why any other portion of the motion or its exhibits should be sealed. The motion to seal as 8 United States District Court Northern District of California 1 to all other exhibits and portions of the motion is DENIED. Plaintiff should file a new 2 version of the motion and exhibits in the ECF system reflecting this holding by July 3, 3 2019. 4 V. Conclusion 5 The Court finds that, by preponderance of the evidence, plaintiffs have proven that 6 more than two-thirds of the putative class members are California citizens. As such, both 7 the local controversy and home state exceptions to CAFA apply to these cases. 28 U.S.C. 8 § 1332(d)(4)(A)–(B). Therefore, the motion to remand is GRANTED and the Court 9 declines jurisdiction over these cases. The Clerk of Court is ordered to remand these cases 10 promptly, Collins to the Santa Clara County Superior Court, and Frank to the Alameda 11 County Superior Court. 12 13 IT IS SO ORDERED. 14 15 16 Dated: June 19, 2019 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 9
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