Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 1 of 82 Page ID #:1
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`JOSEPH C. LIBURT (STATE BAR NO. 155507)
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, California 94025
`Telephone: (650) 614-7400
`Facsimile:
`(650) 614-7401
`jliburt@orrick.com
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`JULIE A. TOTTEN (STATE BAR NO. 166470)
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`400 Capitol Mall, Suite 3000
`Sacramento, CA 95814-4497
`Telephone: (916) 447-9200
`Facsimile:
`(916) 329-4900
`jatotten@orrick.com
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`
`Attorneys for Defendant
`SPOTIFY USA, INC.
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`MATTHEW ELIAS, an individual on
`behalf of himself and all others similarly
`situated and aggrieved,
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`Plaintiff,
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`v.
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`SPOTIFY USA INC., a Delaware
`Corporation; and DOES 1 to 100,
`inclusive,
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`Case No. 2:20-cv-01854
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`DEFENDANT SPOTIFY USA,
`INC.’S NOTICE OF REMOVAL
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`Defendants.
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`DEFENDANT SPOTIFY USA, INC.’S NOTICE OF REMOVAL
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 2 of 82 Page ID #:2
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`TO UNITED STATES DISTRICT COURT FOR THE CENTRAL
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`DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HIS COUNSEL OF
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`RECORD:
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`PLEASE TAKE NOTICE that Defendant Spotify USA, Inc. (“Spotify”) files
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`this Notice of Removal pursuant to 28 U.S.C. sections 1332, 1441, 1446 and 1453
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`to effect the removal of the above-captioned action, which was commenced in the
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`Superior Court in the State of California for the County of Los Angeles. The
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`removal is proper for the reasons stated below.
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`I.
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`BACKGROUND
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`1.
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`On January 22, 2020, Plaintiff Matthew Elias (“Plaintiff” or “Elias”),
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`on behalf of himself and purportedly all others similarly situated and allegedly
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`aggrieved, filed a complaint in the Superior Court of California for the County
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`Los Angeles, entitled Matthew Elias v. Spotify USA, Inc., Case No. 20STCV02605
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`(hereinafter, the “Complaint”).
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`2.
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`The Complaint asserts the following causes of action: (1) Failure to
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`Provide Meal Periods [Cal. Lab. Code §§ 226.7, 512 and IWC Wage Order
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`12-2001, § 11]; (2) Failure to Provide Rest Breaks [Cal. Lab. Code §§ 226.7, 512,
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`1194 and IWC Wage Order 12-2001, § 12]; (3) Failure to Pay Minimum Wage
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`[Cal. Lab. Code §§ 510, 1194, 1194.2, 1197, and IWC Wage Order 12-2001, § 4];
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`(4) Failure to Pay Overtime Wages [Cal. Lab. Code §§ 510, 1194 and IWC Wage
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`Order 12-2001, § 3]; (5) Failure to Furnish Timely and Accurate Itemized Wage
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`Statements [Cal. Lab. Code § 226]; (6) Failure to Pay All Wages Owed Upon
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`Separation [Cal. Lab. Code §§ 201-203]; (7) Failure to Reimburse All Necessary,
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`Business-Related Expenses [Cal. Lab. Code §§ 2802]; (8) Violation of California’s
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`Unfair Competition Law (“UCL”) [Cal. Bus. & Prof. Code §§ 17200, et seq.]; and
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`(9) Private Attorneys’ General Act of 2004 (PAGA) [Cal. Lab. Code §§ 2698, et
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`seq.]. Plaintiff, on behalf of himself and the class members he seeks to represent,
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`seeks relief in the form of allegedly unpaid wages, restitution, injunctive relief,
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`DEFENDANT SPOTIFY USA, INC.’S NOTICE OF REMOVAL
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 3 of 82 Page ID #:3
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`declaratory relief, penalties under the Labor Code, compensatory damages,
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`attorneys’ fees, costs, and interest. See Complaint, Prayer for Relief.
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`3.
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`Specifically, Plaintiff alleges that he was employed by Spotify as a
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`nonexempt employee in California from approximately July 6, 2016 through
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`approximately July 1, 2018. Complaint ¶ 12. Plaintiff alleges that approximately
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`one year into his employment Spotify reclassified – thereby misclassified – him
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`from nonexempt employee to independent contractor while his compensation,
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`duties, role, title and everything else remained unchanged. Id. Plaintiff thus
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`contends that Spotify intentionally misclassified him and other employees as
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`independent contractors. Id. ¶ 2. He alleges that as a result of this
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`misclassification, Spotify failed to provide off-duty meal and rest breaks to these
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`contractors; failed to pay them all wages owed including minimum wage, overtime
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`wage, and premium pay; failed to reimburse all necessary, business-related
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`expenses; failed to issue timely and accurate wage statements; and violated
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`California’s UCL. Id. ¶ 2.
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`4.
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`Plaintiff further contends that Spotify similarly failed to provide off-
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`duty meal periods and rest breaks to its California nonexempt employees; failed to
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`pay them all wages owed including minimum wage, overtime wage, and premium
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`pay; failed to reimburse all necessary, business-related expenses; failed to issue
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`timely and accurate wage statements; and violated California’s UCL. Id. ¶ 2.
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`Plaintiff alleges that Spotify’s policy and practice is to deny earned wages,
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`including premium and overtime pay, to nonexempt employees and to require them
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`to work off the clock, including, but not limited to performing work during meal
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`periods and rest breaks and after their shifts end. Id. ¶ 4. Plaintiff further alleges
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`that Spotify’s policy and practice is to require nonexempt employees to incur
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`necessary, business-related expenses to purchase streaming services and cellular
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`data services, which are not reimbursed. Id. ¶ 6. As a result of these alleged
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`violations, Plaintiff alleges that Spotify failed to provide accurate itemized wage
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`DEFENDANT SPOTIFY USA, INC.’S NOTICE OF REMOVAL
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 4 of 82 Page ID #:4
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`statements; failed to pay all wages due upon termination; and violated the
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`California UCL. Id. ¶¶ 32, 85-110.
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`5.
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`Spotify, through its agent for service of process, was served with the
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`Summons and Complaint and other papers on February 1, 2020 via certified mail.
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`The Summons and Complaint are attached hereto together with all other pleadings,
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`process and orders served on Spotify as Exhibit A. The Notice of Removal is
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`timely under any removal period. See 28 U.S.C. § 1446(b); Fed. R. Civ.
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`P. 6(a)(1)(C); SteppeChange LLC v. VEON Ltd., 354 F. Supp. 3d 1033, 1041
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`(N.D. Cal. 2018) (Formal service of process, measured from the service date
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`according to state law, is a prerequisite for triggering the 30-day removal period);
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`Kuxhausen v. BMW Financial Services NA LLC, 707 F.3d 1136 (2013) (30-day
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`removal period not triggered by indeterminate complaint that “does not make clear
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`whether the required jurisdictional elements are present”).
`II.
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`FIRST BASIS FOR REMOVAL JURSIDICTION: DIVERSITY
`JURSIDICATION
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`6.
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`A civil action may be removed from a state court to a federal district
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`court where the action is pending if the district court has original jurisdiction over
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`the action. 28 U.S.C. § 1441(a). The action is a civil action over which this Court
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`has original jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) because it is a civil
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`action between citizens of different states and the matter in controversy for the
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`named Plaintiff exceeds $75,000, exclusive of interest and costs. As such, the
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`action is removable to this Court under 28 U.S.C. § 1441(a)(1).
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`Complete Diversity of Citizenship
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`7.
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`Section 1332 requires complete diversity, i.e., that “the citizenship of
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`each plaintiff is diverse from the citizenship of each defendant.” Caterpillar Inc. v.
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`Lewis, 519 U.S. 61, 67-68 (1996). Only the citizenship of the named parties in a
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`proposed class action (the named plaintiff and defendant) is considered for diversity
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`purposes. Snyder v. Harris, 394 U.S. 332, 339-340 (1969).
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 5 of 82 Page ID #:5
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`8.
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`Plaintiff’s Citizenship. Plaintiff alleges that he was at the time this
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`action was commenced, and still is, a resident of the State of California, and was
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`employed in California from approximately July 6, 2016 through July 1, 2018.
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`Complaint ¶ 12. For diversity purposes, a person is a “citizen” of the state in which
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`he or she is domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088 (9th Cir.
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`1983). A person’s domicile is the place he or she resides with the intention to
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`remain or to which he or she intends to return. Kanter v. Warner-Lambert Co.,
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`265 F.3d 853, 857 (9th Cir. 2001). Residence is prima facie the domicile. See
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`Ayala v. Cox Automotive, Inc., 2016 WL 6561284, at *4 (C.D. Cal. 2016)
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`(allegation that Plaintiff “is, and at all times mentioned in the Complaint was,” a
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`California resident “gives rise to a presumption that Plaintiff is a California
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`citizen”); State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir.
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`1994). Spotify therefore alleges that Plaintiff is a citizen of California.
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`9.
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`Defendant Spotify’s Citizenship. For diversity purposes, a corporation
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`“shall be deemed a citizen of any State by which it has been incorporated and of the
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`State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). Spotify
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`is now, and was at the time of the filing of the Complaint, a corporation
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`incorporated under the laws of the State of Delaware. Complaint ¶ 13; Declaration
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`of Katie Christiansen (“Christiansen Decl.”) ¶ 3. Spotify’s principal place of
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`business is now, and as of the time of filing of the Complaint, in the state of New
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`York. Id. Therefore, Spotify is deemed a citizen of Delaware and New York for
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`the purposes of determining diversity of citizenship. 28 U.S.C. § 1332(c)(1).
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`10. Doe Defendants’ Citizenship. The citizenship of fictitious defendants
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`is disregarded for purposes of establishing removal jurisdiction under 28 U.S.C.
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`section 1332. See 28 U.S.C. § 1441(a); see also Bryant v. Ford Motor Co.,
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`886 F.2d 1526 (9th Cir. 1989), cert. denied, 493 U.S. 1076 (1990).
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`///
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`///
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 6 of 82 Page ID #:6
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`Amount in Controversy as to Plaintiff Exceeds $75,000
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`11. Spotify avers – without admitting that it engaged in any improper
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`conduct, that Plaintiff’s claims have any merit, or that Plaintiff is entitled to recover
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`from Spotify any relief requested – that the amount in controversy in this action
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`exceeds $75,000.00 for Plaintiff’s individual claims. 28 U.S.C. § 1332(a). Spotify
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`denies Plaintiff’s claims in their entirety but provides the following analysis of
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`potential damages (without admitting liability) based on the allegations in
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`Plaintiff’s Complaint in order to demonstrate that Plaintiff’s individual claims, as
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`alleged in the Complaint, puts a sufficient amount “in controversy” to warrant
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`removal under 28 U.S.C. § 1332(a).
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`12.
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`In considering the amount in controversy, what matters is the amount
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`put in controversy from the allegations or prayer of the complaint, not what amount
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`the defendant will actually owe (if anything). See St. Paul Mercury Indem. Co. v.
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`Red Cab Co., 303 U.S. 283, 289 (1938) (inability to recover an amount adequate to
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`give court jurisdiction does not show bad faith or oust court of jurisdiction); Rippee
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`v. Boston Market Corp., 408 F. Supp. 2d 982, 986 (S.D. Cal. 2005). “[T]he amount
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`in controversy is simply an estimate of the total amount in dispute, not a
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`prospective assessment of defendant's liability.” Lewis v. Verizon Comm., Inc.,
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`627 F.3d 395, 400 (9th Cir. 2010); Korn v. Polo Ralph Lauren, 536 F. Supp. 2d
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`1199, 1205 (E.D. Cal. 2008) (“Where a statutory maximum is specified, courts may
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`consider the maximum statutory penalty available in determining whether the
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`jurisdictional amount in controversy requirement is met”). Consequently, the
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`existence of a defense that may apply to some or all of the claims is irrelevant.
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`“[A]ffirmative defenses, counterclaims, and potential offsets may not be invoked to
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`demonstrate the amount-in-controversy is actually less than the jurisdictional
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`minimum.” Lara v. Trimac Transp. Servs. (W.) Inc., No. CV 10-4280-GHK (JCx),
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`2010 WL 3119366 at *3 (C.D. Cal. Aug. 6, 2010) (citing St. Paul Mercury
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`Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938) (“[T]he fact that it appears
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 7 of 82 Page ID #:7
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`from the face of the complaint that the defendant has a valid defense, if asserted, to
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`all or a portion of the claim . . . will not justify remand.”)). If the rule were
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`otherwise, then a court would need to decide the merits before deciding the
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`jurisdictional issue, which is plainly untenable. Lara, 2010 WL 3119366 at *3,
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`quoting Larsen v. Hofman, 444 F. Supp. 245 (D.D.C. 1977) (“Jurisdictional
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`determinations would otherwise have to await the outcome of trial on the merits in
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`which counterclaims, set-offs, etc. may or may not be raised and, even if raised,
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`may ultimately be demonstrated to be invalid”).
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`13. Plaintiff seeks to recover on behalf of himself, among many things,
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`unpaid wages, interest, penalties, and attorneys’ fees and costs based on the
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`allegations that Spotify violated various wage-and-hour laws. See Complaint,
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`Prayer for Relief.
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`14. Plaintiff’s Complaint is silent as to the total amount of damages
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`claimed. When the amount in controversy is not readily apparent from a complaint,
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`“the court may consider facts in the removal petition” to determine the potential
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`damages at issue. Kroske v. US Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005)
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`(quoting Singer v. State Farm Mut. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). A
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`defendant must provide “a plausible allegation that the amount in controversy
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`exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co. v.
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`Owens, 574 U.S. 81, 89 (2014); see also Ibarra v. Manheim Invs., Inc., 775 F.3d
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`1193, 1197-98 (9th Cir. 2015) (“[A] defendant can establish the amount in
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`controversy by an unchallenged, plausible assertion of the amount in controversy in
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`its notice of removal.”). The defendant’s amount in controversy allegation should
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`be accepted when not contested by the plaintiff or questioned by the court.
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`Dart, 574 U.S. at 87. Thus, Spotify is only required to establish that it is plausible
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`that the amount in controversy exceeds $75,000.
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`15. Assuming that Plaintiff were to prevail on each and every one of his
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`claims, the amount in controversy exceeds $75,000 exclusive of interest and costs.
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 8 of 82 Page ID #:8
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`See Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 993,
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`1001 (C.D. Cal. 2002), citing Burns v. Windsor Ins. Co., 31 F. 3d 1092, 1096
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`(11th Cir. 1994) (the amount in controversy analysis presumes that “plaintiff
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`prevails on liability.”)
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`16. Alleged Unpaid Overtime Wages. Plaintiff’s fourth cause of action
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`alleges that Spotify was required to, but failed to, compensate Plaintiff for overtime
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`hours and double time hours worked as required under the Wage Orders and
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`California Labor Code. Complaint ¶¶ 78-81. The Complaint seeks compensatory
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`damages for work performed during the four (4) year period preceding the filing of
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`the Complaint, which is from January 22, 2016 through present. Id. ¶ 81.
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`17. Plaintiff alleges in his Complaint that he was employed by Spotify
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`from approximately July 6, 2016 to July 1, 2018 and worked approximately
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`103 workweeks. See id. ¶ 12. During this time period, Plaintiff alleges that he
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`earned a salary of $2,850 per week. Id. As alleged, Plaintiff’s converted hourly
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`rate per hour is equal to $71.25. ($2,850 per week ÷ 40 hours per week = $71.25).
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`This means that based on the allegations in Plaintiff’s Complaint, Plaintiff’s
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`premium overtime rate of pay would be approximately $106.88 per hour. ($71.25 x
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`1.5 = $106.88).
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`18. Plaintiff alleges that during the pertinent time period, he “typically
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`worked five (5) days per week for eight (8) or more hours per day and about fifty
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`(50) or more hours per week.” Id. ¶ 5. Plaintiff alleges that he “consistently
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`worked five (5) days per week for shifts of eight (8) hours or more” yet Spotify
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`failed to compensate him for overtime hours worked. Id. ¶ 80.
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`19. For purposes of calculating the amount in controversy, an employer
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`may make a “reasonable extrapolation from the plaintiff’s allegations suffic[ient] to
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`establish the amount in controversy.” Patel, 58 Supp. 3d at 1041; see also,
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`e.g., Lippold v. Godiva Chocolatier, Inc., No. C 10-00421 SI, 2010 WL 1526441,
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`at *3 (N.D. Cal. Apr. 15, 2010) (finding it reasonable for defendant to assume that
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 9 of 82 Page ID #:9
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`plaintiff worked “13 hours a day every day that plaintiff worked” for defendant
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`because plaintiff alleged that he “regularly and/or consistently worked in excess of
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`12 hours per day.”) Based on Plaintiff’s allegations, Spotify makes the reasonable
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`assumption that Plaintiff worked 50 hours a week, totaling approximately 10 hours
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`of overtime for each workweek from July 6, 2016 to July 1, 2018. Complaint ¶ 12.
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`This is a conservative estimate based on Plaintiff’s allegations, which does not
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`consider any double time Plaintiff alleges that he is owed. Id. ¶¶ 79-81.
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`20. Based on the assumption that Plaintiff worked approximately 10 hours
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`of overtime for each workweek, Plaintiff is claiming he is entitled to approximately
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`$110,086.40 in unpaid wages. ($106.88 Overtime Premium Rate x 103 workweeks
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`x 10 hours Overtime worked = $110,086.40). Accordingly, Plaintiff’s claim for
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`overtime wages alone puts at least $110,086.40 in controversy.
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`21. Alleged Unpaid Meal Premiums. Plaintiff’s first cause of action
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`alleges that Plaintiff was “routinely” required to work without a timely,
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`uninterrupted meal period at the direction of Spotify and/or with Spotify’s
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`knowledge and acquiescence. Complaint ¶ 49. Plaintiff further alleges that Spotify
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`had a uniform adoption of a chronically understaffed staffing model – or
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`assignment of too much work to be completed by one person in a workday – which
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`prevented Plaintiff and class members from being relieved of all duties to take meal
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`periods. Id. Plaintiff alleges that he “frequently worked a majority of his eight
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`(8) hour shifts with no one to relieve [him] for a meal period,” and “[b]ecause too
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`few employees were staffed to handle the demand of … large volumes of work,
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`Plaintiff had to perform his duties throughout the majority of his shift and therefore
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`was not relieved of his duties to take compliant meal periods.” Id. Additionally,
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`Plaintiff alleges that during his employment, he occasionally worked over 10 hours
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`in a day but did not receive a second compliant meal period on those days nor did
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`he consent to waiving them. Id. ¶ 50. Plaintiff also alleges that Spotify engaged in
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`a systematic, companywide policy not to pay meal period premiums. Id. ¶ 51.
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 10 of 82 Page ID #:10
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`22. Based on Plaintiff’s allegation, Spotify conservatively estimates that
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`Plaintiff contends he did not receive, at least one compliant first or second meal
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`period per workweek. Plaintiff alleges that he worked approximately 103
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`workweeks during the pertinent time period. See id. ¶ 12. Using the alleged
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`number of workweeks and Plaintiff’s hourly rate of pay, the total amount of meal
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`premiums that Plaintiff is alleging would result in potential liability of
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`approximately $7,338.75 for his meal period claim. (103 workweeks x $71.25 meal
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`period premium for one missed meal period each workweek = $7,338.75). Thus,
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`Plaintiff’s claim for non-compliant meal periods puts an additional $7,338.75 in
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`controversy.
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`23. Alleged Unpaid Rest Premiums. Plaintiff’s second cause of action
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`alleges that Plaintiff was “routinely” required to work through rest breaks at the
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`direction of Spotify and/or with Spotify’s knowledge and acquiescence. Complaint
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`¶ 58. Plaintiff further alleges that as with meal periods, Spotify’s scheduling
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`policies, chronically understaffed staffing model, and workloads assigned prevented
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`Plaintiff from being relieved of all duty in order to take compliant rest breaks.
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`Id. ¶ 59. Plaintiff also alleges that “throughout his employment, during 8-hour or
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`longer shifts, Plaintiff regularly worked without receiving at least one of his
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`10-minute rest breaks.” Id. ¶ 60. Additionally, Plaintiff alleges that Spotify
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`implemented a companywide policy not to pay rest break premiums. Id. ¶ 61.
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`24. Based on Plaintiff’s allegation, Spotify conservatively estimates that
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`Plaintiff contends he did not receive at least one compliant first or second rest break
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`every workweek. As explained above, Plaintiff alleges that he worked
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`approximately 103 workweeks. See id. ¶ 12. Using the alleged number of
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`workweeks and Plaintiff’s hourly rate of pay, the total amount of one rest break
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`premium per workweek would result in potential liability of approximately
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`$7,338.75 for his rest break claim. (103 workweeks x $71.25 rest break premium
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`///
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 11 of 82 Page ID #:11
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`for one missed rest break each workweek = $7,338.75). Thus, Plaintiff’s claim for
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`non-compliant rest breaks puts an additional $7,338.75 in controversy.
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`25. Alleged Waiting Time Penalties. Plaintiff’s sixth cause of action is for
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`failure to pay all final wages on time. Complaint ¶¶ 91-98. Plaintiff is therefore
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`alleging waiting time penalties under Labor Code Section 203. Id. ¶ 98.
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`Section 203 provides for up to 30 days’ wages as a “waiting time” penalty for
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`employers who willfully fail to pay (or under pay) final wages in a timely manner.
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`Id. Plaintiff alleges that he last worked for Spotify on July 1, 2018. Id. ¶ 12. More
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`than 30 days have passed since Plaintiff alleges he last performed work for Spotify.
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`Id. Given Plaintiff’s allegations about unpaid overtime and the denial of his meal
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`periods and rest breaks, Plaintiff thus claims he is entitled to recover penalties for
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`up to 30 days of wages. Id. ¶ 98. Estimating that Plaintiff worked an average of
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`10 hours per day based on his allegation that he typically worked five (5) days per
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`week and approximately fifty (50) hours per week, Plaintiff’s daily rate of pay for
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`purposes of calculating waiting time penalties is approximately $783.76. ([8 hours
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`x $71.25 hourly rate of pay] + [2 hours x ($106.88 Overtime Premium Rate] =
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`$783.76). Id. ¶ 12. Assuming 30-days’ worth of penalties, Plaintiff’s allegations
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`would result in potential liability of approximately $23,512.80. (30 days x $783.76
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`daily rate of pay = $23,512.80.)
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`26. Adding together these amounts in controversy for the claims discussed
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`above, a conservative approach to Plaintiff’s first, second, fourth and sixth causes
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`of action puts at least $148,276.70 in controversy ($110,086.40 unpaid overtime +
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`$7,338.75 meal period premiums + $7,338.75 rest break premiums + $23,512.80
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`waiting time penalties = $148,276.70), which is well over the jurisdictional amount
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`of $75,000 for traditional diversity. This amount is satisfied even without
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`addressing Plaintiff’s additional third cause of action for failure to pay minimum
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`wage, fifth cause of action for failure to furnish timely and accurate wage
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`///
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 12 of 82 Page ID #:12
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`statements, seventh cause of action for failure to reimburse all necessary, business-
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`related expenses and ninth cause of action for PAGA penalties.
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`27. The calculations above are also conservative because they do not
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`include potential attorneys’ fees for Plaintiff’s claims which are properly
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`considered when determining the amount in controversy if recoverable by statute or
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`contract. Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 1998)
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`(“We hold that where an underlying statute authorizes an award of attorneys’ fees,
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`either with mandatory or discretionary language, such fees may be included in the
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`amount in controversy.”) Accordingly, the $75,000 amount-in-controversy
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`requirement under traditional diversity is easily satisfied.
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`Supplemental Jurisdiction over the Putative Class’s Claims
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`28. Because the Court has original jurisdiction over Plaintiff’s claims, and
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`because the claims of the putative class members arise out of the same Article III
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`case and controversy, the Court has supplemental jurisdiction over the claims of the
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`putative class pursuant to 28 U.S.C. § 1367. See Exxon Mobil Corp. v. Allapattah
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`Servs., Inc., 545 U.S. 546, 549 (2005) (“[W]here the other elements of jurisdiction
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`are present and at least one named plaintiff in the action satisfies the amount-in-
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`controversy requirement, § 1367 does authorize supplemental jurisdiction over the
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`claims of other plaintiffs in the same Article III case or controversy, even if those
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`claims are for less than the jurisdictional amount specified in the statute setting
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`forth the requirements for diversity jurisdiction”); Gibson v. Chrysler Corp.,
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`261 F.3d 927, 940 (9th Cir. 2001) (concluding that “there is supplemental
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`jurisdiction over the claims of unnamed class members when the claim of an
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`individual named plaintiff satisfies the amount-in-controversy requirement”);
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`Alexander v. FedEx Ground Package Sys., Inc., No. C 05-0038 MHP, 2005
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`WL 701601, at *3 (N.D. Cal. Mar. 25, 2005) (“If there is original jurisdiction over
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`the named plaintiff based on diversity, then supplemental jurisdiction will attach to
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`the claims of all other plaintiffs”). Thus, removal of the putative class’s claims is
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 13 of 82 Page ID #:13
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`appropriate. See Alexander, 2005 WL 701601, at *5 (permitting removal of the
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`unnamed putative class plaintiffs’ claims based on supplemental jurisdiction, where
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`one named plaintiffs’ claims satisfied the amount in controversy requirement for
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`original diversity jurisdiction).
`III. SECOND BASIS FOR REMOVAL JURISDICTION: CLASS ACTION
`FAIRNESS ACT
`29.
`In addition to being removable under traditional diversity jurisdiction,
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`this action is also removable under CAFA, codified in 28 U.S.C. section 1332(d).
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`As set forth below, this action is removable pursuant to 28 U.S.C. section 1441(a)
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`because it is a class action in which at least one class member is a citizen of a state
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`different from that of any one defendant, the proposed class exceeds 100 members,
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`and the amount in controversy exceeds $5,000,000, exclusive of interest and costs.
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`28 U.S.C. § 1332(d)(2)(A). Further, no defendant identified in the Complaint is a
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`state, officer of a state, or a governmental agency. 28 U.S.C. § 1332(d)(5).
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`Diversity of Citizenship
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`30. CAFA’s diversity requirement is satisfied when at least one plaintiff is
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`a citizen of a state in which none of the defendants are citizens. 28 U.S.C.
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`§§ 1332(d)(2), 1332(d)(5)(B), 1453(a). This action satisfies the diversity
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`requirements of CAFA, as there is complete diversity between the Plaintiff and
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`Spotify. See ¶¶ 8-11, supra.
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`Proposed Class Size
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`31. CAFA’s requirement that the proposed class members be no less than
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`100 under 28 U.S.C. section 1332(d)(5)(B) is satisfied here because the alleged
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`putative class has more than 100 members. Christiansen Decl. ¶ 4.
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`32. Plaintiff seeks to represent the following classes:
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`(a) “All current and former nonexempt employees who have worked
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`for [Spotify] at any time during the period beginning four years
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`prior to the filing of this Complaint through the present;” and
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`Case 2:20-cv-01854 Document 1 Filed 02/26/20 Page 14 of 82 Page ID #:14
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`(b) “All current and former nonexempt employees who have worked
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`as ‘independent contractors’ in California for [Spotify] at any time
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`during the period beginning four years prior to the filing of this
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`Complaint through the present.” Complaint ¶ 38.
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`33. Plaintiff alleges that “the proposed Classes include hundreds of current
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`and former employees, misclassified or not, at [Spotify’s] locations in California.”
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`Id. ¶ 40. While Plaintiff’s defined classes are quite vague and the exact number of
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`putative class members is not readily ascertainable, a preliminary analysis of
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`Spotify’s records based on a conservative reading of the proposed class defined in
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`the Complaint suggests that there are at least approximately 187 California
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`nonexempt employees and independent contractors who provided services between
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`January 22, 2016 to the present. Christiansen Decl. ¶ 4.
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`The Amount in Controversy Exceeds $5 Million
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`34. Pursuant to CAFA, the claims of the individual members in a class
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`action are aggregated to determine if the amount in controversy exceeds the sum or
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`value of $5 million dollars, exclusive of interest and costs. 28 U.S.C. § 1332(d)(6).
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`35. As set forth above, in considering the amount in controversy, what
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`matters is the amount put in controversy by plaintiff’s complaint, not what amount
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`the defendant will actually owe (if anything). See St. Paul Mercury Indem. Co. v.
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`Red Cab Co., 303 U.S. 283, 289 (1938). Further, the defendant need only provide
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`“a plausible allegation that the amount in controversy exceeds the jurisdictional
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`threshold.” Dart, 574 U.S. at 89; see also Ibarra, 775 F.3d at 1197-98 (“[A]
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`defendant can establish the amount in controversy by an unchallenged, plausible
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`assertion of the amount in controversy in its notice of removal.”). Thus, Spotify is
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`only required to establish that it is plausible that the amount in controversy exceeds
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`$5,000,000.
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`36. Spotify avers – without admitting that it engaged in any improper
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`conduct, that Plaintiff’s claims have any merit, or that Plaintiff or any member of
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