Case 2:23-cv-04561-CFK Document 1 Filed 11/18/23 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF PENNSYLVANIA
`PHILADELPHIA DIVISION
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`CASE NO.:
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`RICARDO AYALA, on behalf of himself
`and others similarly situated,
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`Plaintiff,
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`SYNCREON.US INC.
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`Defendant.
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`NOTICE AND PETITION FOR REMOVAL
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`Defendant syncreon.US, Inc. (“Defendant”) pursuant to 28 U.S.C. § 1332(d), 1441, 1446,
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`and 1453 respectfully submits this notice and petition for removal of a case from the Court of
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`Common Pleas, Philadelphia County, Pennsylvania to the United States District Court for the
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`Eastern District of Pennsylvania. In support thereof, Defendant asserts the following:
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`I.
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`JURISDICTION
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`1.
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`This is a civil action over which the Court has original subject matter
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`jurisdiction under 28 U.S.C. § 1332. Removal is proper under the Class Action Fairness Act of
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`2005 (“CAFA”), codified in pertinent part at 28 U.S.C. § 1332(d).
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`2.
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`This Court is the judicial district and division embracing the place where
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`the state court case was brought and is pending. Thus, this Court is the proper district court to
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`which this case should be removed. 28 U.S.C. §§ 1441(a), 1446(a).
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`II.
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`FACTUAL BACKGROUND AND TIMELINESS OF REMOVAL
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`3.
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`On or about October 3, 2023, Plaintiff Ricardo Ayala (“Plaintiff”) filed this
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`civil action in the Court of Common Pleas, Philadelphia County, Pennsylvania bearing Case No.
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`1
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`2:23-CV-4561
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`2023-394M entitled Ricardo Ayala, on behalf of himself and others similarly situated v.
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`syncreon.US Inc. (hereinafter, the “State Court Action”).
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`4.
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`Defendant was served with initial pleadings through its registered agent on
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`October 19, 2023. Pursuant to 28 U.S.C. § 1446(a), all process, pleadings, and orders that have
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`been filed and served in the State Court Action are attached to this Notice as Exhibit A.
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`5.
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`Defendant has not filed an answer or other pleading in the Court of Common
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`Pleas, Philadelphia County other than a Stipulation Extending Time to Answer or Otherwise Plead.
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`Defendant has affected removal within thirty (30) days of receipt by it of a paper from which it
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`could first be ascertained that this action is removable under the provisions of 28 U.S.C. § 1446(b).
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`III.
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`THIS COURT HAS SUBJECT MATTER JURISDICTION OVER THIS ACTION
`PURSUANT TO 28 U.S.C. § 1332(d), THE CLASS ACTION FAIRNESS ACT
`(“CAFA”)
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`6.
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`The Class Action Fairness Act of 2005 (“CAFA”) grants district courts
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`original subject matter jurisdiction over any civil action involving a proposed class of at least 100
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`members “in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive
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`of interest and costs, and is a class action in which . . . any member of a class of plaintiffs is a
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`citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2); 28 U.S.C. §
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`1332(d)(5)(B); see Walsh v. Defs., Inc., 894 F.3d 583, 586 (3d Cir. 2018).
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`7.
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`As set forth below, pursuant to 28 U.S.C. §1332(d) and §1441(a), Defendant
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`may remove this action to federal court under CAFA because: (1) this action is pled as a class
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`action; (2) the putative class includes more than one hundred (100) members; (3) “minimal
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`diversity” exists, i.e. members of the putative class are citizens of a state different from that of
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`Defendant; and (4) the matter in controversy, in the aggregate, exceeds the sum or value of
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`$5,000,000, exclusive of interest and costs. See Ramirez v. Vintage Pharms., LLC, 852 F.3d 324,
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`328 (3d Cir. 2017).
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`A. This Action Is Pled As A Class Action.
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`8.
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`CAFA defines a “class action” as “any civil action filed under rule 23 of the
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`Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing
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`an action to be brought by 1 or more representative persons as a class action.” 28 U.S.C. §
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`1332(d)(1)(B).
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`9.
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`Plaintiff’s Complaint was filed as a class action pursuant to Pennsylvania
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`Rules of Civil Procedure 1702, 1708, and 1709. See Complaint, ¶¶ 12-13.
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`10.
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`11.
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`Therefore, the class action pleading requirement is satisfied.
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`B. The Putative Class Includes At Least One Hundred (100) Members.
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`Plaintiff claims that the class, upon information and belief, “includes
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`hundreds of individuals . . .” See Complaint, ¶ 14.
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`12.
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`syncreon Technology (USA), LLC’s (“syncreon Technology”) records
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`identify in excess of 100 hourly paid, non-exempt individuals and temporary staffing agency
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`workers at its Pennsylvania facilities. See Declaration of Al Robinson attached hereto as Exhibit
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`B (“Robinson Decl.”), at ¶¶ 6-7.
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`13.
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`14.
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`Accordingly, the numerosity requirement for CAFA jurisdiction is satisfied.
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`C. There Is Minimal Diversity.
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`This action is removed to this Court on the grounds of diversity of
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`citizenship pursuant to 28 U.S.C. § 1332(d), CAFA.
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`15.
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`In order to meet the “minimal diversity” required by CAFA, any member
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`of a class of plaintiffs must be a citizen of a state different from any defendant. 28 U.S.C. §
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`1332(d).
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`16.
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`Here, named plaintiff, and most if not all of the putative class members are
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`citizens of a different state from Defendant. Plaintiff alleges that he is a Pennsylvania resident and
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`that the putative class members are individuals who work or worked at Defendant’s warehouses
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`located in the state of Pennsylvania which would include citizens of the state of Pennsylvania.
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`See Complaint, ¶¶ 3, 12.
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`17.
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`Defendant is a corporation organized under the laws of the State of
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`Michigan with its principal place of business in Michigan and company headquarters located in
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`Charlotte, North Carolina. None of Defendant’s executive officers reside in the State of
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`Pennsylvania. See Robinson Decl, at ¶ 4; see also Complaint, ¶ 4.
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`18.
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`Accordingly, Defendant is a citizen of the States of Michigan and North
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`Carolina. See 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed to be a citizen of any
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`State by which it has been incorporated and of the State where it has its principal place of
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`business.”).
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`19.
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`20.
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`Therefore, it appears that minimal diversity under CAFA is met.
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`D. The Amount In Controversy Exceeds $5,000,000 Based On A Plausible
`Reading Of The Allegations Of The Complaint.1
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`Plaintiff has not alleged a specific amount in controversy in the Complaint.
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`Accordingly, the case must be remanded only if it appears to a legal certainty that the plaintiff
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`1 Defendant denies each and every allegation set forth by Plaintiff in the Complaint and denies that Plaintiff
`or any putative class member are entitled to any compensatory or statutory damages, costs, attorneys’ fees, or
`any other relief. Defendant also denies that any of Plaintiff’s claims are appropriate for class treatment.
`Notwithstanding the above, removal of this action is proper given that removal is based on the allegations
`asserted in the Complaint.
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`cannot recover the jurisdictional amount. Frederico v. Home Depot, 507 F.3d 188, 197 (3d Cir.
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`2007). Under the “legal certainty test,” “[w]hen it appears to a legal certainty that the plaintiff was
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`never entitled to recover the jurisdictional amount, the case must be dismissed.” Id. at 194 (citing
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`Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993); Meritcare, Inc. v. St. Paul
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`Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1993) (“When it appears to a legal certainty that the
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`plaintiff was never entitled to recover the minimum amount set by Section 1332, the removed case
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`must be remanded . . . .”). “The rule does not require the removing defendant to prove to a legal
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`certainty the plaintiff can recover” $5,000,000. Id. at 195 (quoting Valley v. State Farm Fire and
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`Cas. Co., 504 F. Supp. 2d 1, 3-4 (E.D. Pa. 2006).) Rather, the removing defendant must "justify
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`[its] allegations by a preponderance of the evidence." Frederico, 507 F.3d at 197, citing McNutt v.
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`General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). The preponderance of the evidence
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`standard means the defendant must provide evidence establishing that it is 'more likely than not'
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`that the amount in controversy exceeds [the statutory minimum]." Sanchez v. Monumental Life
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`Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996); Frederico, 507 F.3d at 196. Without admitting that
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`Plaintiff or the purported class could recover any damages, the amount in controversy in this action
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`exceeds $5,000,000.00, exclusive of interest and costs, as established below
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`21.
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`Plaintiff brings his class action on behalf of himself and all individuals –
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`whether paid by Defendant, Defendant’s associated businesses, or third-party staffing agencies –
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`who during any time since October 3, 2020 have been paid an hourly wage to work at a
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`Pennsylvania warehouse operated by or on behalf of Defendant or any related business entity for
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`unpaid wages (including overtime wages), prejudgment interest, litigation costs and expenses,
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`attorney fees, and any other relief deemed just and proper under the Pennsylvania Minimum Wage
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`Act (“PMWA”), 43 P.S. §§ 333.101, et seq. See Complaint, Introduction, ¶¶ 12, 21-26, and Prayer
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`for Relief
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`22.
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`Plaintiff claims he and all other putative class members working in at least
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`three warehouses in Pennsylvania (Carlisle, Middleton, and York) were required to undergo
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`security screenings at the beginning and end of each workday and did not receive wages (including
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`overtime wages) for time spent waiting in line at the screening area, undergoing the screenings,
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`walking to and from the timekeeping devices, and waiting in line at the timekeeping devices at the
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`beginning of the workday. See Complaint, ¶¶ 10,11.
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`23.
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`Plaintiff also alleges possible violations of the PMWA involving class
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`members not being paid for certain activities arising after logging-in at the timekeeping devices,
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`including walking to work locations and/or picking up required gear. See Complaint, fn 6.
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`24.
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` Plaintiff also alleges possible violations of the PMWA involving class
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`members not being paid for certain activities arising before logging-out at the timekeeping devices,
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`walking to timekeeping devices and dropping off gear. See Complaint, fn 7.
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`25.
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`At the time the Complaint in this action was filed on October 3, 2023 and
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`currently, syncreon Technology operated facilities located in Pennsylvania. See Robinson Decl.,
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`at ¶ 2.
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`26.
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`Between October 3, 2020 and October 3, 2023, syncreon Technology has
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`employed at least 1,000 hourly paid, nonexempt individuals employed at its Pennsylvania
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`facilities. See Robinson Decl., at ¶ 6.
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`27.
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`Between October 3, 2020 and October 3, 2023, there have been at least
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`3,000 temporary staffing agency workers assigned to syncreon Technology’s Pennsylvania
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`facilities. See Robinson Decl., at ¶ 7.
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`28.
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`Between October 3, 2020 and October 3, 2023, the lowest pay rate paid to
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`any hourly, non-exempt employee at any of syncreon Technology’s Pennsylvania facilities is
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`$14.50 and the highest pay rate paid to any hourly, non-exempt employee at any of syncreon
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`Technology’s Pennsylvania facilities is $36.37 per hour. See Robinson Decl. at ¶ 8.
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`29.
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`Between October 3, 2020 and October 3, 2020, the maximum amount of
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`time spent by an employee or temporary staffing agency worker in security screenings at syncreon
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`Technology’s Pennsylvania facilities is approximately 3 minutes. See Robinson Dec. at ¶ 9.
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`30.
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`On average, an hourly, non-exempt employee at syncreon Technology’s
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`Pennsylvania facilities works five days per week, or forty hours per week, and fifty weeks per year
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`and a temporary staffing agency worker works on average five days per week, or forty hours per
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`week, and twelve weeks per year. See Robinson Dec. at ¶ 10.
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`31.
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`Given that the number of total hourly, nonexempt employees (as defined in
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`¶ 12 of the Complaint) at any of the syncreon Technology Pennsylvania facilities is at least 1,000,
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`a claim that such employees are owed an average of $2.54 (at straight time) per day would
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`represent $12.71 per week, $635.87 per year (assuming 50 workweeks per year), and $1,907.62
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`over a three-year period for Plaintiff and each putative class member.
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`32.
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`Given that the number of temporary staffing agency workers at any of
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`syncreon Technology’s Pennsylvania facilities is at least 3,000, a claim that any such temporary
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`workers are owed an average of $2.54 (at straight time) per day would represent $12.71 per week,
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`$152.52 per year (assuming 12 workweeks per year), and $457.56 over a three-year period for
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`Plaintiff and each putative class member.
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`33.
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`In addition, Plaintiff seeks attorneys’ fees, which “can exceed six figures in
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`a class action and are properly aggregated and considered for purposes of determining the amount
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`in controversy under CAFA.” Id. (citing 28 U.S.C. § 1332(d)(6) and Suber v. Chrysler Corp., 104
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`F.3d 578, 585 (3d Cir. 1997)) (“Moreover, in calculating the amount in controversy, we must
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`consider potential attorneys’ fees.”). Assuming 25% of attorneys’ fees recovered on the total
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`amount, the attorneys’ fees in this case could far exceed the $5,000,000.00 removal threshold.
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`34.
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`Here, Defendant provides the Court with factual evidence well beyond
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`“mere speculation or conjecture” from which the Court can conclude whether that the amount in
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`controversy clearly exceeds $5,000,000. Defendant’s calculation is based on the actual number of
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`hourly, non-exempt employees employed at the three warehouses over the last three years.
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`Defendant’s calculation is likewise based on a realistic estimation of the number of hours Plaintiff
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`and the putative class members are owed, which is the basis for the amount in controversy. See
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`Robinson Decl. at ¶ 16. Defendant’s calculation assumes the average possibly applicable wage
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`rate, which is significantly lower than the amount many putative class members actually earn. See
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`Robinson Decl. at ¶ 16. Defendants’ calculation assumes that each employee or temporary staffing
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`agency worked five days per week and fifty weeks per year. See Robinson Decl. at ¶ 15.
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`35.
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`Even at the average straight time pay rate, Plaintiff is asserting claims that
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`total in excess of $5,000,000. See Robinson Decl. at ¶ 16. Plaintiff is additionally asserting that
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`some or all of the damages would be at overtime rates which would represent an even larger claim
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`for damages. See, Complaint, at ¶¶ 10-11. While Defendant disputes that Plaintiff will ultimately
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`prove he and the putative class members are entitled to any additional compensation, there can be
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`no doubt that Plaintiff’s Complaint seeks damages exceeding $5,000,000 by a substantial margin.
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`Accordingly, CAFA’s “amount in controversy” element is satisfied.
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`IV.
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`CONCLUSION
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`There is no uncertainty about the potential size of the class or the amount in controversy in
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`this case. Defendant has shown by a preponderance of the evidence that there is a potential class
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`of at least 100 members and a controversy worth more than the jurisdictional minimum. Defendant
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`has established the necessary jurisdictional elements to assert federal jurisdiction under CAFA.
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`For this reason, this Court has original jurisdiction over Plaintiffs’ claims by virtue of the CAFA
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`this case should be removed to this Court.
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`The Philadelphia County Court of Common Pleas, the place where the pending action was
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`originally filed, is within the geographic boundaries of the United States District Court for the
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`Eastern District of Pennsylvania. Therefore, venue is proper in this Court. Defendant submits this
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`notice and petition without waiving any defenses to the claims asserted by Plaintiff or conceding
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`Plaintiff has pleaded claims upon which relief may be granted. Upon filing this Notice of Removal,
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`Defendant will provide a written notification to Plaintiff and will file a Notification of Removal
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`with the clerk of the Philadelphia County Court of Common Pleas. As required by 28 U.S.C. §
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`1446(d), a true and correct copy of the Notification of Removal is attached hereto as Exhibit C.
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`WHEREFORE, Defendant respectfully requests that the within action, now pending in the
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`Philadelphia County Court of Common Pleas, be removed to the United States District Court for
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`the Eastern District of Pennsylvania.
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`Respectfully Submitted,
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`JACKSON LEWIS P.C.
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`s/ Stephanie J. Peet
`__________________________________
`Stephanie J. Peet, Esq. (# 91744)
`1601 Cherry Street, Ste. 1350
`Philadelphia, PA 19102
`T: 267-319-7802
`F: 215-399-2249
`Stephanie.Peet@jacksonlewis.com
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`ATTORNEYS FOR DEFENDANT
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