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`Case 5:21-cv-07774 Document 1 Filed 10/05/21 Page 1 of 8
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`Rick Bergstrom (State Bar No. 169594)
`rjbergstrom@jonesday.com
`Koree B. Wooley (State Bar No. 294489)
`kbwooley@jonesday.com
`Joshua C. Dutton (State Bar No. 328750)
`jdutton@jonesday.com
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121.3134
`Telephone: +1.858.314.1200
`Facsimile:
`+1.844.345.3178
`
`Attorneys for Defendant
`MICRON TECHNOLOGY, INC.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
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`ELIOT JOHNSON, individually, and on
`behalf of the general public,
`Plaintiff,
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`v.
`MICRON TECHNOLOGY, INC. and DOES
`1 through 100, inclusive,
`Defendant.
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`CASE NO. 5:21-cv-07774
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`DEFENDANT MICRON
`TECHNOLOGY INC.’S NOTICE OF
`REMOVAL OF ACTION PURSUANT
`TO 28 U.S.C. §§ 1332, 1441, 1446
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`DEFENDANT’S NOTICE OF REMOVAL
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`CASE NO. 5:21-cv-07774
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`Case 5:21-cv-07774 Document 1 Filed 10/05/21 Page 2 of 8
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`TO THE CLERK OF THE ABOVE ENTITLED COURT:
`PLEASE TAKE NOTICE THAT Micron Technology, Inc. (“Defendant”) hereby removes
`this matter from California Superior Court, Santa Clara County, to the United States District Court
`for the Northern District of California, San Jose Division, pursuant to 28 U.S.C. §§ 1332, 1441,
`and 1446. The grounds for removal are as follows:
`I.
`BACKGROUND
`Compliance with Statutory Requirements
`1.
`On June 25, 2021, Plaintiff Eliot Johnson (“Plaintiff”) filed a Class Action
`Complaint (“Complaint”) in the Superior Court of the State of California for the County of Santa
`Clara titled Eliot Johnson, individually, and on behalf of the general public, v. Micron Technology,
`Inc. and Does 1 through 100, inclusive, Santa Clara Superior Court Case No. 21CV383681 (the
`“Action”). On August 9, 2021, Plaintiff filed a First Amended Complaint (“FAC”).
`2.
`In the First Amended Complaint, Plaintiff asserts individual, class, and
`representative claims for violations of: (1) California Labor Code § 2802 (unreimbursed business
`expenses); (2) California Business & Professions Code § 17200, et seq. (unfair competition law);
`and (3) Penalties, pursuant to Labor Code § 2699 for Violations Of Labor Code § 2802 (PAGA
`Penalties). FAC at ¶¶ 28–42.
`3.
`Plaintiff asks for injunctive relief and seeks to recover unreimbursed business
`expenses, civil penalties, costs, and attorneys’ fees. Id. at ¶¶ 30, 37, 38, 42, Prayer for Relief.
`4.
`Plaintiff did not serve Defendant with the original Complaint. On September 7,
`2021, Defendant’s counsel signed and returned a Notice of Acknowledgement of Receipt,
`effectuating service of the FAC.
`5.
`Defendant’s removal of this Action is timely because Defendant is removing it
`within 30 days of service of the FAC. See 28 U.S.C. § 1446(b); Cal. Code Civ. P. §§ 415.10,
`415.30.
`6.
`In accordance with 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders
`served upon Defendant are attached as Exhibit A.
`7.
`Pursuant to 28 U.S.C. § 1446(d), Defendant will promptly give written notice of
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`DEFENDANT’S NOTICE OF REMOVAL
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`Case 5:21-cv-07774 Document 1 Filed 10/05/21 Page 3 of 8
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`removal of the Action to Plaintiff and file a copy of this Notice of Removal with the Clerk of the
`Superior Court of the State of California, County of Santa Clara.
`Intradistrict Assignment
`8.
`Plaintiff filed this Action in the Superior Court of California, County of Santa Clara;
`it may therefore be removed to the San Jose Division of the Northern District of California. 28
`U.S.C. § 1441(a); L.R. 3-2(e).
`II.
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`GROUNDS FOR REMOVAL
`Diversity Jurisdiction
`9.
`There is a sufficient basis for removal jurisdiction on diversity grounds because
`there is complete diversity of citizenship between the parties and the amount in controversy
`between Plaintiff and Defendant exceeds $75,000 exclusive of costs and interest. See 28 U.S.C. §
`1332(a); § 1441(b).
`There Is Complete Diversity of Citizenship Between the Plaintiff and Defendant
`10.
`As a corporate entity, Defendant is “a citizen of every State and foreign state by
`which it has been incorporated and of the State or foreign state where it has its principal place of
`business.” 28 U.S.C. § 1332(c)(1). Defendant is a Delaware corporation with its principal place
`of business in Idaho. See 28 U.S.C. § 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77 (2010). In
`actions removed from state court on diversity grounds, the citizenship of fictitious defendants “shall
`be disregarded.” 28 USC § 1441(a).
`11.
`Plaintiff alleges that he was employed by Defendant in California and asserts that
`the lawsuit was properly brought in California. See FAC ¶ 1. Plaintiff is deemed a “citizen” of
`California, the state where he is domiciled. Kentor v. Wellesley Galleries Ltd., 704 F.2d 1088, 1090
`(9th Cir. 1983).
`12.
`Accordingly, there is complete diversity of citizenship between Plaintiff and
`Defendant.
`The Amount in Controversy Between Plaintiff and Defendant Exceeds $75,000
`13.
`Though Defendant concedes neither liability on Plaintiff’s claims nor the propriety
`or breadth of any class or scope of aggrieved employees as alleged by Plaintiff, the FAC places in
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`controversy a sum greater than $75,000. 28 U.S.C. § 1332(a).1
`14.
`Plaintiff brings this class action to enforce the common and undivided interest of the
`class he seeks to represent. See FAC ¶ 16 (“Plaintiff can fairly and adequately protect the interests
`of all members of the class because it is in her [sic] best interest to prosecute the claims alleged to
`obtain the full compensation due to them.”). Plaintiff requests injunctive relief primarily “to
`enforce important rights affecting the public interest.” See id. at ¶ 38, Prayer for Relief. Where, as
`here, the plaintiff seeks injunctive relief, “the amount in controversy . . . may include ‘the cost of
`complying with an injunction . . . .’” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 416 (9th
`Cir. 2018) (quoting Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir.
`2016)). Plaintiff seeks, among other things, an injunction “that Defendant account for, disgorge,
`and restore to Plaintiff and Class Members, the reimbursement of expenses. . . .” FAC ¶ 38. These
`acts and omissions include failing to reimburse Plaintiff and the class for the use of “Internet and/or
`the cost of Wi-Fi.” FAC ¶ 7. Estimating, for purposes of removal only, wireless internet service
`at just five dollars for each of 1,100 workers, the order Plaintiff seeks would require Defendant to
`spend at least $104,500 to reimburse Plaintiff and the class for 19 months of internet service. The
`scope of Plaintiff’s request for injunctive relief also requires Defendant to modify its existing
`payroll practices to efficiently and promptly process reimbursement requests in order to “account
`for, disgorge, and restore” unreimbursed sums to Plaintiff and the class. FAC ¶ 38. To comply
`with this demand, Defendant estimates it will incur a minimum cost of $25,000 for a payroll clerk
`to improve Defendant’s payroll policies, increase review of expense reimbursement, and more
`closely supervise Defendant’s payroll department to ensure compliance with the Labor Code. Thus,
`the cost of complying with the injunctive relief related to internet service alone exceeds $75,000.
`15.
`Plaintiff also seeks compensatory damages, statutory penalties, and attorneys’ fees
`
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`1 In alleging the amount in controversy for purposes of removal, Defendant does not
`concede or acknowledge in any way that the allegations in Plaintiff’s FAC are accurate or that
`Plaintiff or any proposed class member is entitled to any amount under any claim or cause of
`action. Nor does Defendant concede or acknowledge that any class or subclass may be certified,
`or that the Action may proceed on a representative basis, whether as alleged or otherwise, or that
`any or all of its current or former employees are entitled to any recovery in this case, or are
`appropriately included in the putative class.
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`on behalf of himself and each of the purported class members. Id. at ¶¶ 30, 37, 42, Prayer for
`Relief.
`16.
`Plaintiff’s compensatory damages and his share of PAGA penalties may be
`considered when determining whether the amount in controversy is satisfied. Urbino v. Orkin
`Servs. of Cal., Inc., 726 F.3d 1118 (9th Cir. 2013); Linebarger v. Graphic Packaging Int’l, LLC,
`No. SACV2000309JVSJDEX, 2020 WL 1934958, at *2 (C.D. Cal. Apr. 22, 2020). Plaintiff is
`entitled to $60 in compensatory damages, which is the reimbursable amount for internet service
`from May 26, 2020 to May 3, 2021($5 reimbursement x 12 months of employment). Plaintiff
`worked 26 pay periods. His share of the PAGA penalties, assuming one violation at $100 and 25
`violations at $200, total $1,275. See Cal. Lab. Code § 2699(f)(2).
`17. Where, as here, Plaintiff is entitled to recover future attorneys’ fees if his action
`succeeds, “there is no question that future [attorneys’ fees] are ‘at stake’ in the litigation, and the
`defendant may attempt to prove that future attorneys’ fees should be included in the amount in
`controversy.” Fritsch v. Swift Transp. Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 2018).
`Further, for purposes of removal, attorneys’ fees can be allocated entirely to Plaintiff because Labor
`Code § 2802 “authorizes an award of attorneys’ fees solely to the named plaintiffs in a class action.”
`Gibson v. Chrysler Corp., 261 F.3d 927, 942 (9th Cir. 2001). The total amount of attorneys’ fees
`recoverable by Plaintiff, assuming that he is awarded the “benchmark award for attorney fees” at
`25% is approximately $2,062,500 based on the award of PAGA penalties ((1 pay period x $100 x
`1,100 class members) + (37 pay periods x $200 x 1,100 class members) x 25%) and $26,125 based
`recovery of compensatory damages for himself and the class ($5 reimbursement x 19 months x
`1,100 class members x 25%). Staton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003).
`18.
`Accordingly, all of the requirements for traditional diversity jurisdiction are
`established.
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`Class Action Fairness Act (CAFA) Jurisdiction
`19.
`This Court also has original jurisdiction over this Action pursuant to 28 U.S.C. §
`1332(d) (as amended by the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 14
`(“CAFA”)). Federal courts have original diversity jurisdiction over a class action whenever:
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`(1) “any member of a [putative] class of plaintiffs is a citizen of a State different from any
`defendant,” (2) “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of
`interest and costs,” and (3) “the number of members of all proposed plaintiff classes in the aggregate
`is” 100 or more. 28 U.S.C. § 1332(d)(2), (d)(5)(B). As a threshold matter, this is a putative class
`action. As set forth below, all additional requirements to establish jurisdiction pursuant to CAFA
`are satisfied in this case.
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`Number of Proposed Class Members
`20.
`The number of putative class members in the aggregate exceeds 100. 28 U.S.C. §
`1332(d)(5)(B). Defendant estimates that 1,100 employees were employed by Defendant in
`California during the relevant period. The 100 class member requirement is met.
`Minimal Diversity Exists Between Plaintiff and Defendant
`21. Minimal diversity of citizenship exists here. See 28 U.S.C. § 1332(d)(2). Plaintiff
`pleads in his Complaint that he was employed by Micron in California. FAC ¶ 1. Plaintiff is
`deemed a “citizen” of California, the state where he is domiciled. Kentor v. Wellesley Galleries
`Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). Moreover, the alleged putative class consists of persons
`who are or were employed in California. FAC ¶ 8.
`22.
`A corporation is “deemed to be a citizen of any State by which it has been
`incorporated and of the State where it has its principal place of business.” 28 U.S.C. §1332(c)(1);
`Hertz Corp., 559 U.S. at 80. Defendant is incorporated in Delaware and has its principal place of
`business in Idaho.
`23.
`For minimal diversity to exist, one Plaintiff must be diverse from one defendant. 28
`U.S.C. § 1332(d)(2)(A). Here, Plaintiff (in addition to many of the individuals he seeks to
`represent) is diverse from Defendant. The minimal diversity requirement is therefore satisfied.
`The Amount in Controversy Exceeds $5,000,000
`24.
`Though Defendant concedes neither liability on Plaintiff’s claims nor the propriety
`or breadth of the class Plaintiff alleges or employees he seeks to represent, the FAC places in
`controversy more than $5,000,000. 28 U.S.C. § 1332(d).
`25.
`Plaintiff seeks to represent all employees of Defendant in the State of California
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`who were not reimbursed for all expenses within four years preceding filing the complaint to the
`time of final judgment. FAC ¶ 8. Based on these allegations, Plaintiff places over $5,000,000 in
`controversy even with conservative assumptions.2
`26.
`Plaintiff, for himself and the class, seek compensatory damages for the reasonable
`cost of wireless internet. FAC ¶ 30, Prayer for Relief. The amount awarded to Plaintiff and the
`class will exceed $104,500 ($5 in internet costs x 19 months x 1,100 class members) because the
`actual cost of internet service is more than $5 a month.
`27.
`Plaintiff also alleges entitlement to “preliminary and permanent injunctive relief,
`including but not limited to orders that Defendant account for, disgorge, and restore to Plaintiff and
`Class Members, the reimbursement of expenses unlawfully withheld from Plaintiff and Class
`Members.” FAC ¶ 38. The cost of complying with injunctive relief may be included in the amount
`in controversy. Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018) (quoting
`Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016)). Assuming
`Plaintiff and class members incurred a mere $5 for internet service a month, the cost to reimburse
`Plaintiff and the class is $104,500 ($5 reimbursement x 19 months x 1,100 class members).
`Plaintiff’s proposed injunctive relief also requires that Defendant “account for” expenses that it did
`not reimburse. FAC ¶ 38. The cost of a payroll clerk to review expenses incurred to date and to
`ensure continued compliance with the Labor Code is at least $25,000 a year.
`28.
`Plaintiff seeks recovery of penalties under PAGA. FAC ¶ 42. “The PAGA claims
`should be counted in full in the amount in controversy analysis [under CAFA].” Quintana v.
`Claire’s Stores, Inc., No. 13-0368-PSG, 2013 WL 1736671, at *7 (N.D. Cal. Apr. 22, 2013). The
`amount of PAGA penalties in controversy is $8,250,000 ((1 pay period x $100 x 1,100 class
`members) + (37 pay periods x $200 x 1,100 class members)).
`29.
`Plaintiff also requests attorneys’ fees and costs. FAC at Prayer for Relief. The
`amount in controversy includes the future attorneys’ fees that are ‘at stake’ in the litigation. Fritsch
`v. Swift Transp. Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 2018). Using “25% as a
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`2 Given that Plaintiff’s claims are tied exclusively to the onset of the ongoing COVID-19
`pandemic, Defendant’s calculations are based on the period March 2020 to the time of removal.
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`DEFENDANT’S NOTICE OF REMOVAL
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`benchmark” for attorney’s fees would add at least another $2,088,625 to the amount in controversy
`((1 pay period x $100 x 1,100 class members) + (37 pay periods x $200 x 1,100 class members) x
`25%) + ($5 reimbursement x 19 months x 1,100 class members x 25%)). In re Hyundai & Kia
`Fuel Economy Litig., 926 F.3d 539, 570 (9th Cir. 2019).
`30.
`Accordingly, the $5,000,000 threshold amount in controversy is satisfied.
`III. CONCLUSION
`WHEREFORE, the above-titled Action is hereby removed to this Court from the Superior
`Court of the State of California, County of Santa Clara.
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`Dated: October 5, 2021
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`
`Jones Day
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`By: s/Rick Bergstrom
`Rick Bergstrom
`Attorneys for Defendant
`MICRON TECHNOLOGY, INC.
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