Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 1 of 8 Page ID #:1
`
`VENABLE LLP
`Daniel S. Silverman (SBN 137846)
` DSSilverman@venable.com
`Bryan J. Weintrop (SBN 307416)
` BJWeintrop@venable.com
`2049 Century Park East, Suite 2300
`Los Angeles, CA 90067
`Telephone: (310) 229-9900
`Facsimile: (310) 229-9901
`Attorneys for Defendants
`Welch Foods Inc., A Cooperative, and
`The Promotion In Motion Companies, Inc.
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION
`DARREN CLEVENGER on behalf of
`CASE NO. 2:20-cv-8799
`himself and all others similarly situated,
`Plaintiff,
`
`v.
`WELCH FOODS INC., A
`COOPERATIVE, THE PROMOTION IN
`MOTION COMPANIES, INC., a
`Delaware corporation and DOES 1
`through 25, inclusive;
`
`Defendants.
`
`DEFENDANTS’ WELCH FOODS
`INC., A COOPERATIVE, AND
`THE PROMOTION IN MOTION
`COMPANIES, INC.’S NOTICE OF
`REMOVAL
`[Orange County Superior Court Case
`No. 30-2020-01145532-CU-BT-CXC]
`Action Filed: June 29, 2020
`First Amended Complaint Served:
`August 28, 2020
`Removed: September 24, 2020
`
`22198183-v1909177
`
`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
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`

`

`
`
`Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 2 of 8 Page ID #:2
`
`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 ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that, Defendants Welch Foods Inc., A
`Cooperative (“Welch’s”), and The Promotion In Motion Companies, Inc. (“PIM”
`and collectively with Welch’s, “Defendants”) hereby remove the above-captioned
`case pending in the Superior Court of the State of California, for the County of
`Orange, as Case No. 30-2020-01145532-CU-BT-CXC. This putative class action
`is properly removed pursuant to the Class Action Fairness Act (“CAFA”), as: (1)
`the putative class size exceeds 100 persons; (2) there is “minimal diversity between
`plaintiffs and defendants; and (3) the amount in controversy exceeds $5,000,000.
`The grounds for removal are as follows:
`CAFA grants district courts original jurisdiction over civil class action
`1.
`lawsuits filed under Federal or State law in which any member of a class of
`plaintiffs is a citizen of a State different from any defendant; the number of
`members of all proposed plaintiff classes in the aggregate is over 100; and where
`the matter in controversy exceeds the sum or value of $5,000,000, exclusive of
`interests and costs. 28 U.S.C. § 1332(d). CAFA authorizes removal of such
`actions under 28 U.S.C. § 1446.
`This action is properly removed to the United States District Court for
`2.
`the Central District of California because this matter was filed in the Superior
`Court of the State of California for the County of Orange, which lies within this
`District and Division. See 28 U.S.C. § 84(c)(3).
`PROCEDURAL BACKGROUND
`On June 29, 2020, Plaintiff filed the above captioned action in the
`3.
`Superior Court of the State of California, County of Orange, under Case No. 30-
`2020-01145532-CU-BT-CXC. The original complaint named only defendant
`Welch’s. The original Complaint alleged claims against Welch’s under the
`California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (the
`“UCL”) and the California Consumer Legal Remedies Act, Cal. Civ. Code § 1750,
`
`22198183-v1750396
`
`
`
`1
`
`
`NOTICE OF REMOVAL
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`

`

`
`
`Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 3 of 8 Page ID #:3
`
`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
`
`
`
`et seq. (the “CLRA”) on behalf of a putative class based on Welch’s purported use
`of packaging containing non-functional slack fill to sell its Welch’s® Reduced
`Sugar Fruit Snacks (“Reduced Sugar”) and Fruit ‘n Yogurt™ Snacks (“Fruit ‘n
`Yogurt”). See Compl. generally.
`4. Welch’s was served with the original Complaint on July 2, 2020. See
`Declaration of Daniel S. Silverman (“Silverman Decl.”) ¶ 4.
`Before Welch’s deadline to respond to the original Complaint expired,
`5.
`Plaintiff filed a First Amended Complaint (“FAC”) on August 25, 2020, which
`added PIM as a defendant. Plaintiff also added additional products to the
`Complaint in addition to Reduced Sugar and Fruit n’ Yogurt, specifically adding
`claims relating to 90 count boxes of Welch’s® Fruit Snacks sold at Costco stores
`(the “Costco Fruit Snacks” and with Reduced Sugar and Fruit n’ Yogurt the
`“Products”), but asserting the same causes of action under the UCL and CLRA, on
`behalf of a putative class.
`6. Welch’s and PIM were served with the FAC via a Notice and
`Acknowledgment of Receipt on August 28, 2020. See Silverman Decl. ¶ 5.
`THE REMOVAL IS TIMELY
`28 U.S.C. § 1446(b) identifies two initial 30-day windows for
`7.
`removal: (1) where the complaint’s removability is clear from the face of the
`pleading; and (2) where the initial pleading does not reveal a basis for removal but
`the defendant “receives an amended pleading, motion, or other paper from which it
`can be ascertained from the face of the document that removal is proper.”
`Gallegos v. Costco Wholesale Corp., 2020 U.S. Dist. LEXIS 96911, at *5 (C.D.
`Cal. June 2, 2020).
`This removal is timely because the FAC revealed facts indicating for
`8.
`the first time that the action was removable. Specifically, Plaintiff’s addition of the
`Costco Fruit Snacks as products upon which his claims are based reveal that the
`
`22198183-v1750396
`
`
`
`2
`
`
`NOTICE OF REMOVAL
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`

`

`
`
`Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 4 of 8 Page ID #:4
`
`action is subject to removal because the amount in controversy exceeds
`$5,000,000. See Declaration of Scott Yales (“Yales Decl.”) ¶ 5.
`The removal is, thus, timely because this removal is being filed within
`9.
`30 days of Defendants being served with the FAC. See Silverman Decl. ¶ 5.
`CAFA’S MINIMAL DIVERSITY OF CITIZENSHIP REQUIREMENT IS
`SATISFIED
`10. This Court has original jurisdiction over the action under CAFA
`because it is a civil class action in which at least one member of the proposed
`putative class of plaintiffs is a citizen of a state different from any defendant. See
`28 U.SC. § 1332(d)(2)(A).
`11. The FAC establishes that there is minimal diversity of citizenship
`between the class and Defendants under CAFA. See id. A class need not be
`certified before a court may assert federal jurisdiction over the action under CAFA.
`See 28 U.S.C. § 1332(d)(8).
`12. Specifically, and by the allegations of the FAC, Plaintiff Darren
`Clevenger is an individual residing in Orange County, California, while Welch’s is
`a cooperative corporation incorporated in Michigan with its principal place of
`business in Massachusetts and PIM is a corporation incorporated in Delaware with
`its principal place of business in New Jersey. See FAC ¶¶ 3-5; see also Johnson v.
`Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“a
`corporation is a citizen only of (1) the state where its principal place of business is
`located, and (2) the state in which it is incorporated.”) Because Plaintiff himself is
`diverse from both Defendants and purports to also represent a class of California
`consumers, minimal diversity is satisfied.1
`
`
` Although the FAC fictitiously names Doe defendants, their citizenship is
`disregarded for purposes of determining whether minimal diversity is satisfied.
`See 28 U.S.C. § 1441(b)(1).
`
` 1
`
`22198183-v1750396
`
`
`
`3
`
`
`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
`
`
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`

`

`
`
`Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 5 of 8 Page ID #:5
`
`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
`
`
`
`CAFA’S CLASS SIZE REQUIREMENTS ARE SATISFIED
`13. CAFA grants district courts original jurisdiction over civil class action
`lawsuits filed under federal or state law in which members of all proposed plaintiff
`classes in the aggregate is over 100. 28 U.S.C. § 1332(d).
`14. Plaintiff’s FAC alleges a putative class comprised of himself and all
`similarly situated consumers who made retail purchases of the Products from June
`30, 2016 to present.
`15. From June 30, 2016 to present, far more than 100 consumers have
`made retail purchases of the Products. See Yales Decl. ¶ 5.
`16. CAFA’s class size requirement is, thus, satisfied.
`CAFA’S AMOUNT IN CONTROVERSY REQUIREMENT IS SATISFIED
`17. CAFA authorizes the removal of class action cases in which the
`amount in controversy for all class members exceeds $5,000,000. 28 U.S.C. §
`1332(d).
`18. Plaintiff has not alleged a specific amount in controversy in the FAC.
`However, the failure of the FAC to specify the total amount of monetary relief
`sought by Plaintiff does not deprive this Court of jurisdiction. Banta v. Am. Med.
`Response Inc., No. CV 11-03586 GAF (RZx), 2011 U.S. Dist. LEXIS 77558, at *
`3 (C.D. Cal. Jul. 15, 2011) (observing that even where a pleading is indefinite on
`its face, a defendant can possess “sufficient information allowing it to ascertain
`that the amount in controversy exceeds the jurisdiction minimum” and thus may
`remove the action on that basis).
`19. To remove a class action pursuant to CAFA, the removing party
`merely needs to file a “short and plain statement of the grounds of removal.” Dart
`Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 83 (2014). The court
`must accept the removing party’s amount in controversy allegation as long as the
`allegation is made in good faith. Id. at 87. The removing party’s notice of removal
`
`22198183-v1750396
`
`
`
`4
`
`
`NOTICE OF REMOVAL
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`

`

`
`
`Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 6 of 8 Page ID #:6
`
`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
`
`
`
`only needs to include a plausible allegation that the amount in controversy exceeds
`the jurisdictional threshold. Id. at 89.
`In considering whether the amount in controversy exceeds
`20.
`$5,000,000, the Court must “look beyond the complaint to determine whether the
`putative class action meets the [amount in controversy] requirements” adding “the
`potential claims of the absent class members” and attorneys’ fees. Rodriguez, 728
`F.3d at 981 (citing Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345 (2013));
`Guglielmino v. McKee Foods Corp., 506 F.3d 696, 705 (9th Cir. 2007).
`21. Furthermore, “[i]n considering whether the amount in controversy is
`clear from the face of the complaint, a court must assume that the allegations of the
`complaint are true and that a jury will return a verdict for the plaintiff on all claims
`made in the complaint.” Altamirano v. Shaw Indus., Inc., C-13-0939 EMC, 2013
`WL 2950600, at *4 (N.D. Cal. June 14, 2013) (citing Korn v. Polo Ralph Lauren
`Corp., 536 F. Supp. 2d 1199, 1205 (E.D. Cal. 2008)); see also Muniz, 2007 WL
`1302504, at *3.
`22. Here, Plaintiff seeks, on behalf of himself and the putative class:
`“restitution and/or disgorgement” under the UCL, “damages” under the CLRA,
`attorneys’ fees and costs of suit. See FAC at 14 (prayer for relief).
`23. Since June 30, 2016, sales of the Products have far exceeded
`$5,000,000. See Yales Decl. ¶ 5. Therefore, the amount in controversy, based on
`restitution alone, far exceeds $5,000,000. See id.
`It is, thus, apparent that the combination of restitution and/or
`24.
`disgorgement and actual damages sought will satisfy the $5,000,000 threshold for
`CAFA removal, especially once attorney’s fees are also taken into consideration.
`See id.
`THE OTHER REQUIREMENTS FOR REMOVAL ARE SATISFIED
`25. Consent of other parties is not required for removal under CAFA’s
`class action jurisdiction. See 28 U.S.C. § 1453(b). Additionally, there are no
`
`22198183-v1750396
`
`
`
`5
`
`
`NOTICE OF REMOVAL
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`

`

`
`
`Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 7 of 8 Page ID #:7
`
`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
`
`
`
` parties other than Plaintiff and the proposed class and removing Defendants.
`26. Defendants are filing herewith true and correct copies of the state
`court filings with which it has been served, including copies of all process,
`pleadings, and orders. See Silverman Decl. Exs. 1-14 (Exhibit 1 (Complaint);
`Exhibit 2 (Civil Case Cover Sheet); Exhibit 3 (Summons); Exhibit 4 (Notice of
`Case Assignment); Exhibit 5 (Proof of Service of Summons of Complaint); Exhibit
`6 (Proof of Service of Personal Service of Summons of Complaint); Exhibit 7
`(Minute Order); Exhibit 8 (Clerk’s Certificate of Mailing); Exhibit 9 (First
`Amended Complaint); Exhibit 10 (Summons); Exhibit 11 (Notice of Appearance);
`Exhibit 12 (Proposed Order Granting Stipulation to Continue CMC); Exhibit 13
`(Stipulation to Continue Case Management Conference); Exhibit 14 (Order
`Granting Stipulation to Continue Case Management Conference)).
`27. Pursuant to 28 U.S.C. § 1446(d), Defendants are filing with the clerk
`of the Superior Court of the State of California for the County of Orange, and
`serving upon plaintiff, a Notice to Adverse Party and State Court of Removal of
`Action to Federal Court. Proof of same will be filed with this Court. See
`Silverman Decl., Ex. 15.
`28. No previous application has been made for the relief requested herein.
`29. This Notice of Removal has been signed pursuant to Fed. R. Civ. P.
`
`11.
`
`30. Defendants reserve the right to amend or supplement this Notice of
`Removal.
`///
`///
`///
`
`
`
`22198183-v1750396
`
`
`
`6
`
`
`NOTICE OF REMOVAL
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`

`

`Case 2:20-cv-08799 Document 1 Filed 09/24/20 Page 8 of 8 Page ID #:8
`
`Accordingly, Defendants respectfully request that this action be removed to
`this Court.
`
`Dated: September 24, 2020
`
`VENABLE LLP
`Daniel S. Silverman
`Bryan J. Weintrop
`/s/ Daniel S. Silverman
`By:
`Daniel S. Silverman
`Attorneys for Defendants,
`Welch Foods Inc., A Cooperative, and
`The Promotion In Motion Companies,
`Inc.
`
`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
`
`310-229-9900
`
`LOS ANGELES, CA 90067
`
`2049 CENTURY PARK EAST, SUITE 2300
`
`VENABLE LLP
`
`22198183-v1750396
`
`7
`
`NOTICE OF REMOVAL
`
`