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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 1 of 8
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`Michele Ballard Miller (SBN 104198)
` mbmiller@cozen.com
`Austin G. Dieter (SBN 305638)
` adieter@cozen.com
`COZEN O'CONNOR
`101 Montgomery Street, Suite 1400
`Fresno, CA 94104
`Telephone: (415) 644-0914
`Facsimile: (415) 644-0978
`
`Attorneys for Defendant
`CARGILL MEAT SOLUTIONS
`CORPORATION
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`
`
`Plaintiff,
`
`DELFINA SOTO DE CORTES, an individual,
`
`
`
`v.
`
`CARGILL MEAT SOLUTIONS
`CORPORATION, a corporation and DOES 1-
`10, Inclusive,
`
`
`
`
`
`Defendants.
`
`
`
`Case No.:
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`NOTICE OF REMOVAL OF ACTION
`FROM STATE COURT PURUSANT
`TO DIVERSITY JURISDICTION
`UNDER 28 U.S.C § 1441(b)
`
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`NOTICE OF REMOVAL OF ACTION FROM STATE COURT PURUSANT TO DIVERSITY
`JURISDICTION UNDER 28 U.S.C § 1441(b)
`Case No:
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`101 MONTGOMERY ST, SUITE 1400
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`COZEN O’CONNOR
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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 2 of 8
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`TO THE CLERK OF THE ABOVE-ENTITLED COURT:
`
`PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. §§ 1332, 1441(b) and 1446,
`Defendant CARGILL MEAT SOLUTIONS CORPORATION (“Defendant”), a Delaware
`corporation with its principal place of business in Wichita, Kansas, at 151 North Main Street,
`hereby removes the above-captioned action from the Superior Court of the State of California,
`County of Fresno, to the United States District Court for the Eastern District of California on the
`following grounds.
`
`I.
`
`INTRODUCTION AND PROCEDURAL HISTORY
`
`1.
`This Court has original jurisdiction over this action under the diversity
`jurisdiction statute. 28 U.S.C. § 1332. In relevant part, diversity jurisdiction grants district courts
`original jurisdiction over civil actions where the matter in controversy exceeds the sum or value
`of $75,000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C §
`1332. As set forth below, this case meets all of the diversity jurisdiction statutory requirements for
`removal and is timely and properly removed by the filing of this Notice.
`
`2.
`On November 24, 2020, an action was commenced in the Superior Court of
`the State of California in and for the County of Fresno, entitled DELFINA SOTO DE CORTES,
`Plaintiff, v. CARGILL MEAT SOLUTIONS CORPORATION, a corporation, and DOES 1-10,
`Defendants, as case number 20CECG03464 (“Complaint”). The Complaint alleged the following
`nine causes of action: 1) Disability discrimination in violation of the California Fair Employment
`and Housing Act (“FEHA”); 2) Failure to accommodate; 3) Failure to engage in interactive
`process; 4) Retaliation in violation of the FEHA; 5) Wrongful termination in violation of public
`policy; 6) Violation of Labor Code § 1102.5; 7) Violation of Labor Code §201; 8) Violation of
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`COZEN O’CONNOR
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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 3 of 8
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`Labor Code §203; and 9) Failure to allow inspection of personal file. A true and correct copy of
`the Summons and Complaint is attached to the Declaration of Austin Dieter as Exhibit A.
`
`3.
`On December 9, 2020, Plaintiff Delfina Soto De Cortes (“Plaintiff”), mailed
`a copy of the summons and complaint to the Defendant pursuant to California Code of Civil
`Procedure section 415.30 along with a Notice and Acknowledgment of Receipt. On December 28,
`2020, in compliance with Section 415.30, Defendant signed the Notice of Acknowledgment of
`Receipt, thereby starting the 30 day period in which Defendant could Answer. A true and accurate
`copy of the Notice and Acknowledgment of Receipt is attached to the Declaration of Austin Dieter
`as Exhibit B.
`
`4.
`On January 22, 2021, Defendant filed an Answer to Plaintiff’s Complaint
`in the Fresno County Superior Court. A true and correct copy of Defendant’s Answer has been
`attached to the Declaration of Austin Dieter as Exhibit C.
`
`5.
`The instant Notice of Removal has been timely filed, having been filed
`within 30 days after Defendant’s acknowledgement of receipt of a copy of Plaintiff’s civil
`Complaint setting forth removable claims. 28 U.S.C. § 1446(b).
`
`II.
`
`DIVERSITY JURISDICTION
`
`6.
`This Court has original jurisdiction over this civil action under 28 U.S.C. §
`1332, which provides that the federal district courts have original jurisdiction in actions “where
`the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs,
`and is between - (1) citizens of different states.” Accordingly, this action may be removed pursuant
`to 28 U.S.C. § 1441(b) because the amount in controversy exceeds $75,000 and Plaintiff and
`Defendant are citizens of different states.
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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 4 of 8
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`A.
`
`Diversity Jurisdiction Exists Because Plaintiff And Defendant Are Citizens Of
`Different States.
`
`7.
`This action satisfies the complete diversity of citizenship requirement of 28
`U.S.C. § 1332(a)(1). For diversity purposes, a person is a “citizen” of the state in which she is
`domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). Residence is
`prima facie evidence of domicile. State Farm Mut. Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir.
`1994). Upon information and belief, Plaintiff is a resident of California. (See Ex. A, ¶ 1 (“Plaintiff
`. . . is an individual who, at all times herein, worked in the City of Fresno, State of California.”).
`As such, Plaintiff is a citizen of California for purposes of diversity jurisdiction.
`
`8.
`A corporation is a citizen of the state where (i) it has been incorporated; and
`where (ii) its principal place of business is located. 28 U.S.C. § 1332(c). The principal place of
`business for a corporation is determined by the location of its “nerve center,” which includes the
`location of its headquarters and the location where its “officers direct, control and coordinate the
`corporation’s activities. Hertz Corp. v. Friend, 559 U.S. 77, 78 (2010).
`
`9.
`Defendant is incorporated in the state of Delaware and its principal place of
`business is in Wichita, Kansas where its headquarters is located at 151 North Main Street, Wichita,
`KS 67202. (Decl. of Les Iceton, at ¶ 6.) Therefore, it is a citizen of both Delaware and Kansas.
`
`10.
`As such, Plaintiff and Defendant are completely diverse of citizenship and
`the citizenship prong of the diversity jurisdiction requirements is met.
`
`B.
`
`Diversity Jurisdiction Exists Because The Amount In Controversy Exceeds $75,000.
`
`11.
`For purposes of jurisdiction under 28 U.S.C. § 1332, the sum demanded in
`the complaint shall be deemed to be the amount in controversy, but in instances where the
`complaint does not specify an amount in controversy, the defendant may assert that it exceeds the
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`COZEN O’CONNOR
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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 5 of 8
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`threshold if state practice “permits recovery of damages in excess of the amount demanded.” See
`28 U.S.C. § 1446(c)(2)(A)(ii).
`
`12.
`Though Plaintiff’s state court Complaint does not specify a particular
`amount of damages in the prayer for relief, it is clear from the body of the Complaint that she will
`seek over $75,000. (See generally, Ex. A.) Plaintiff is explicitly seeking to recover compensatory
`damages in the form of lost wages and benefits, and emotional distress “in excess of $50,000”.
`(Ex. A, p. 15.) Plaintiff also seeks an additional $1,980 in unpaid vacation hours and penalties for
`violations of state labor code claims (Id.) These amounts, combined with Plaintiff’s purported non-
`economic and punitive damages, as discussed in paragraphs 13-15 below, establish an amount in
`controversy in excess of $75,000.
`
`13. When the amount in controversy is not definite from the face of the
`Complaint, in order to prevent removal of an action based on diversity jurisdiction, a plaintiff must
`file a binding stipulation or affidavit with his or her Complaint stating that the amount in
`controversy does not exceed $75,000. DeAguilar v. Boeing, 47 F.3d 1404, 1412 (5th Cir. 1992)
`(per curium). Plaintiff did not file any such stipulation or affidavit with her Complaint. In any
`event, it is apparent from the allegations in the Complaint and the damages that Plaintiff seeks that
`the amount in controversy exceeds $75,000.
`
`14.
`Notwithstanding the above, Plaintiff’s non-economic damages alone could
`easily exceed $75,000. For example, in Roby v. Mckesson Corp., 47 Cal. 4th 686, 699 (2009), the
`plaintiff alleged similar causes of action as Plaintiff does here, including claims under California’s
`Fair Employment and Housing Act (“FEHA”) and a claim for wrongful termination. The jury
`awarded the plaintiff $800,000 in non-economic past and future damages for her FEHA
`discrimination and wrongful termination claims, plus $15 million in punitive damages. Id.; see
`also Simmons v. PCR Technology, 209 F. Supp. 2d 1029, 1033 (N.D. Cal. 2002) (denying
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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 6 of 8
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`plaintiff’s motion to remand where plaintiff was only employed for four months and noting,
`notwithstanding plaintiff’s short-term employment, “emotional distress damages in a successful
`employment discrimination case may be substantial.”).
`
`15.
`Finally, Plaintiff seeks punitive damages. Punitive damages are a part of the
`amount in controversy in a civil action where they are recoverable as a matter of law. See Simmons,
`209 F. Supp. 2d at 1033; Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001). To establish
`probable punitive damages for the purposes of satisfying the amount in controversy requirement,
`a defendant may introduce evidence of jury verdicts in cases involving analogous facts. Simmons,
`209 F. Supp. 2d at 1033. In the Roby case above, the jury awarded over $15 million in punitive
`damages, which the Court of Appeal reduced to $2 million. The California Supreme Court
`subsequently reduced the award to $1,905,000.00 to satisfy federal Constitutional constraints.
`Roby, 47 Cal. 4th at 720. Thus, even with that reduction, the punitive damages award far exceeded
`$75,000.00. Other cases alleging wrongful termination in violation of public policy and violations
`of the FEHA, like this case, have resulted in substantial awards of punitive damages. See, e.g.,
`Simmons, 209 F. Supp. 2d at 1033 (citing punitive damages awards ranging from $60,000 to
`$40,000,000). Here, as in Roby, Plaintiff has alleged she was discriminated against because of a
`protected characteristic. Thus, those cases provide evidence that the potential value of Plaintiff’s
`claim for punitive damages meets the jurisdictional threshold by itself, and especially satisfies the
`jurisdictional threshold when combined with Plaintiff’s claims for economic damages, and non-
`economic damages.
`
`16.
`In sum, the amount in controversy exceeds the minimum sum of $75,000.00
`set forth in 28 U.S.C. § 1332(a), exclusive of interest and costs. See Vasquez v. Arvato Digital
`Services, LLC, Case No. CV 11-02836, 2011 WL 2560261 (C.D. Cal. June 27, 2011) (denying
`plaintiff’s motion to remand where plaintiff’s lost wages were approximately $25,171 at the time
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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 7 of 8
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`of removal and plaintiff’s alleged damages included lost wages, emotional distress damages,
`attorneys’ fees, and punitive damages).
`
`III.
`
`VENUE
`
`17.
`Federal law permits removal in “any civil action brought in a State court of
`which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). A
`defendant may remove an action “to the district court of the Unites States for the district and
`division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).
`
`18.
`As stated above, the U.S. District Courts have original jurisdiction in this
`matter. This action is currently pending in state court in the County of Fresno. Fresno is located
`within the Eastern District of California. See 28 U.S.C. §84(a). Therefore, this matter is properly
`removed to the Eastern District of California.
`
`IV.
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`NOTICE TO PLAINTIFF AND THE SUPERIOR COURT
`
`19. Written Notice of the Removal of this action to the United States District
`Court for the Eastern District of California will be filed with the Clerk of the Superior Court for
`the County of Fresno, and sent via First Class U.S. Mail to Plaintiff through her attorney of record.
`A true and correct copy of the Notice to Superior Court and to Adverse Party of Removal of Action
`to Federal Court is attached to the Declaration of Austin Dieter and incorporated herein as Exhibit
`D.
`
`20.
`This Notice of Removal is filed subject to and without prejudice to
`Defendant’s full reservation of all rights and remedies. No admission of fact, law or liability is
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`JURISDICTION UNDER 28 U.S.C § 1441(b)
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`Case 1:21-cv-00107-DAD-EPG Document 1 Filed 01/26/21 Page 8 of 8
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`intended or implied by this Notice of Removal, and all defenses, rights and remedies are expressly
`reserved by Defendant.
`
`V.
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`INTRADISTRICT ASSIGNMENT
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`21.
`Pursuant to 28 U.S.C. § 1446(a) and Eastern District Local Rule 3-2 (c) and
`(d), this action is properly assigned to the Fresno Division of the United States District Court for
`the Eastern District of California.
`
`WHEREFORE, Defendant CARGILL MEAT SOLUTIONS CORPORATION
`hereby removes the above-entitled action now pending before the Superior Court of the State of
`California, County of Fresno to this Court.
`
`
`Dated: January 26, 2021
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`COZEN O’CONNOR
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`By: /s/ Austin G. Dieter
`Michele Ballard Miller
`Austin G. Dieter
`Attorneys for Defendant
`CARGILL MEAT SOLUTIONS
`CORPORATION
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