Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page1 of 8 1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Shon Morgan (Bar No. 187736) (shonmorgan@quinnemanuel.com) 2 Viola Trebicka (Bar. No. 269526) (violatrebicka@quinnemanuel.com) 3 Matthew Hosen (Bar No. 291631) (matthosen@quinnemanuel.com) 4 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 5 Telephone: (213) 443-3000 6 Facsimile: (213) 443-3100 7 Attorneys for Defendant Maplebear, Inc., dba Instacart 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 DOMINIC COBARRUVIAZ, 12 individually, and on behalf of all others 13 similarly situated; 14 Plaintiffs, 15 CASE NO. C 15-cv-00697 NOTICE OF REMOVAL OF CLASS ACTION TO FEDERAL COURT vs. 16 17 MAPLEBEAR, INC., dba INSTACART; and DOES 1 through 18 100, inclusive, 19 Defendants. 20 [Diversity Jurisdiction, 28 U.S.C. §§ 1332(d)(2), 1441, 1446 and 1453] 21 22 23 24 25 26 27 28 06083.00002/6497810.4 MOTION NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page2 of 8 1 TO THE CLERK OF THE ABOVE-ENTITLED COURT, ALL PARTIES, AND 2 THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE THAT defendant Maplebear Inc., dba Instacart 4 (“Instacart”) hereby removes this action to the United States District Court for the 5 Northern District of California, and in support thereof, respectfully shows the Court 6 as follows: 7 8 STATEMENT OF THE CASE 1. Plaintiff seeks to certify a class of “[a]ll persons who performed 9 grocery delivery work anywhere in the United States for or on behalf of one or more 10 of the Defendants from January 1, 2012 to the present.” Complaint at ¶ 10. 11 2. Plaintiff seeks, on behalf of himself and the purported class, 12 compensatory damages, restitution and disgorgement, an injunction, statutory 13 penalties, pre-judgment and post-judgment interest, and attorneys’ fees and costs. 14 3. The Class Action Complaint was filed January 9, 2015 and served 15 January 15, 2015. The Complaint is removable under the Class Action Fairness Act 16 of 2005 (“CAFA”), 28 U.S.C. §§ 1332(d)(2) and 1453(b). Instacart has satisfied all 17 procedural requirements of 28 U.S.C. § 1446 and thereby removes this action to the 18 United States District Court for the Northern District of California pursuant to 28 19 U.S.C. §§ 1332, 1441, 1446 and 1453. 20 THE REQUIREMENTS FOR REMOVAL 21 UNDER CAFA ARE SATISFIED 22 4. CAFA fundamentally changed the legal standards governing removal 23 jurisdiction for class actions. Congress explicitly stated that CAFA’s “provisions 24 should be read broadly, with a strong preference that interstate actions should be 25 heard in a federal court,” on the grounds that state courts were not adequately 26 protecting defendants against class action abuses. S. Rep. No. 109-14, at *43 27 (2005). Rather than emphasizing a strict constructionist view of the statute against 28 06083.00002/6497810.4 -1- NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page3 of 8 1 removal jurisdiction, Congress instructed district courts to “err in favor of exercising 2 jurisdiction.” Id. at 42-43. 3 5. The United States Supreme Court recently clarified the standards for a 4 notice of removal under CAFA. In Dart Cherokee Basin Operating Co. v. Owens, 5 574 U. S. ____ (2014), the Supreme Court held that courts must apply the same 6 liberal rules to removal allegations as to other matters of pleading. Id. at 5. The 7 Supreme Court also held that no presumption against removal exists under CAFA, 8 which was enacted to facilitate adjudication of certain class actions in federal court. 9 Id. at 6. 10 6. As shown below, this action satisfies the requirements for diversity 11 jurisdiction under CAFA, 28 U.S.C. § 1332(d)(2). 12 A. Class Action. 13 7. This lawsuit is a class action as defined by 28 U.S.C. § 1332(d)(1)(B). 14 CAFA defines a “class action” as “any civil action filed under rule 23 of the Federal 15 Rules of Civil Procedure or similar State statute or rule of judicial procedure 16 authorizing an action to be brought by 1 or more representative persons as a class 17 action.” Id. Plaintiff styles his complaint a “Class Action” and alleges that he 18 brings it “individually and on behalf of a proposed class.” Complaint at ¶1. 19 B. Diversity of Citizenship. 20 8. At the time this lawsuit was filed and as of the date of this notice, 21 Instacart was and is a Delaware corporation with its principal place of business at 22 420 Bryant Street, San Francisco, CA 94107. As Plaintiff acknowledges, “Instacart 23 maintains substantial ongoing business operations throughout the United States,” 24 and seeks to certify a class including individuals who “work anywhere in the United 25 States.” Complaint at ¶1, 10. Approximately 7,696 individuals performed grocery 26 delivery work for Instacart between January 2012 and the present, approximately 27 3,208 of which reside in California. Because at least one member of the proposed 28 class is from a state other than California, and the Defendant is a citizen of both 06083.00002/6497810.4 -2- NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page4 of 8 1 Delaware and California, the diversity requirement of 28 U.S.C. § 1332(d)(2)(A) is 2 met. 3 C. Amount in Controversy. 4 9. The Supreme Court recently clarified that the notice of removal need 5 only include a plausible allegation that the amount in controversy exceeds $5 6 million and need not include evidentiary submissions. Dart Cherokee, 574 U. S., at 7 ____ (slip op., at 3). Thus, a defendant’s amount in controversy allegation should 8 be accepted when not contested by a plaintiff or questioned by the court. Id. If a 9 plaintiff does contest the allegation, both sides must submit proof and the court will 10 decide, by a preponderance of the evidence, whether the amount in controversy 11 requirement has been satisfied. Id. 12 10. Instacart denies that a class is the proper vehicle for Plaintiff’s claims, 13 or that Instacart is liable for any such claims, but has calculated the amount in 14 controversy for purposes of this notice by taking Plaintiff’s Complaint at face value. 15 11. The Complaint is facially silent on the total amount in controversy. 16 However, as detailed below, even the compensatory damages for unpaid wages and 17 non-productive time for a subset of the putative class period alone satisfy the 18 amount-in-controversy requirement of 28 U.S.C. § 1332(d)(2). 19 12. Plaintiff claims that since January 2012 to the present, “[d]uring non- 20 productive time, or time during which Plaintiffs were required to make themselves 21 available for work but were not given an assignment, Plaintiffs were not 22 compensated in any manner whatsoever.” See Complaint at ¶¶ 30-31, 39-40. The 23 Complaint also alleges that Plaintiff and the members of the putative class 24 “regularly worked and continue to regularly work in excess of 8 hours per day or 40 25 hours per week,” but have not been paid any overtime. See Complaint at ¶ 42. It is 26 difficult to evaluate with precision the amount in controversy because Plaintiff does 27 not specifically allege the number of non-productive hours, or the number of regular 28 and overtime hours Instacart allegedly failed to pay. 06083.00002/6497810.4 -3- NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page5 of 8 1 13. From July, 2014 through the first week of February, 2015, putative 2 class members worked on-duty for 2,580,054 hours, for which they were 3 compensated. Furthermore, during this time period, there were 2,229 grocery 4 deliverers any given week, working an average of 35 hours a week each. 5 14. Conservatively assuming that for every five hours worked, putative 6 class members were not compensated for one additional “non-productive” hour, 7 potential damages for non-productive hours worked would total $4,644,097.2 from 8 July, 2014 through the first week of February, 2015 alone.1 Plaintiff also seeks 9 damages for non-productive time from January 1, 2012 through the end of June, 10 2014. 11 15. Similarly, conservatively assuming that putative class members worked 12 5 hours of overtime per week for the 33 week period from July, 2014 through the 13 first week of February, 2015, putative class members could be entitled to aggregate 14 damages totaling at least $1,655,032.2 Plaintiff also seeks damages for overtime 15 wages from January 1, 2012 through the end of June, 2014. 16 16. In addition to the non-productive time and overtime wages discussed 17 above, the Complaint seeks the following relief: expense reimbursement pursuant to 18 the California Labor Code, IWC Orders and other applicable laws and regulations; 19 civil and statutory penalties under the Private Attorney General Action, Labor Code 20 § 2698 et seq.; restitution and disgorgement under Business and Professions Code § 21 17200; an order enjoining Instacart from continuing to engage in the alleged conduct 22 described in the Complaint; pre-judgment and post-judgment interest; attorneys’ 23 24 1 The total 2,580,054 “on-duty” hours divided by 5 equals 516,010.8 total “non25 productive” hours worked from July 2014 to February 2014. The total 516,010.8 non-productive hours multiplied by $9 (the California minimum wage effective July 26 1, 2014) equals $4,644,097.2. 2 2,229 average weekly potential class members times $4.50 ($9 CA minimum 27 wage times 0.5) times 5 overtime hours per week times 33 weeks equals $1,655,032. 28 06083.00002/6497810.4 -4- NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page6 of 8 1 fees, costs and expenses as authorized by the California Labor Code; and other 2 further relief as the Court deems just and proper. See Prayer for Relief. Given these 3 requests for relief, the amount in controversy far exceeds $5,000,000 in the 4 aggregate, and this Court has jurisdiction under CAFA. 5 D. Number of Proposed Class Members. 6 17. Although Instacart denies that Plaintiff’s claims have any merit, it 7 believes the putative class pleaded by Plaintiff exceeds 7,000 members. Complaint 8 ¶ 10 (defining putative class as “[a]ll persons who performed grocery delivery work 9 anywhere in the United States for or on behalf of one or more of the Defendants 10 from January 1, 2012 to the present.”). Over the past three years, there have been at 11 least 7,696 individuals who performed grocery delivery work for Instacart. 12 Accordingly, the action satisfies the requirement of 28 U.S.C. § 1332(d)(5) that the 13 proposed class include at least 100 persons. 14 E. Timeliness. 15 18. This removal notice is timely filed as required by 28 U.S.C. § 1446(b). 16 Plaintiff filed his Complaint January 9, 2015 and Instacart was served January 15, 17 2015. Instacart filed this notice within thirty days of receipt of the Complaint. 18 F. Venue. 19 19. The United States District Court for the Northern District of California 20 is a federal judicial district embracing the San Francisco Superior Court of the State 21 of California, where Plaintiff originally filed this suit. Venue is therefore proper 22 under 28 U.S.C. § 1441(a). 23 G. No Exceptions Apply. 24 20. The exceptions to removal under 28 U.S.C. §§ 1332(d) and 1446 do not 25 apply here. Specifically, neither the “home state exception” nor the “local 26 controversy” exception to CAFA apply because less than two-thirds of the putative 27 class members are citizens of California. See 28 U.S.C. §§ 1332(d)(4)(A), (B). The 28 “discretionary” exception is also not appropriate in this case. See 28 U.S.C. §§ 06083.00002/6497810.4 -5- NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page7 of 8 1 1332(d)(3). The claims asserted in this suit involve matters of national or interstate 2 interest, which federal courts have repeatedly considered in similar wage class 3 actions involving independent contractors. See e.g. O’Conner, et. al. v. Uber 4 Technologies, Inc., et. al, Case No. 13-cv-3826 (N.D. Cal.); Cotter et al. v. Lyft Inc., 5 et al., Case No. 13-cv-04065 (N.D. Cal.). 6 THE OTHER PROCEDURAL REQUISITES 7 FOR REMOVAL ARE SATISFIED 8 21. Instacart has complied with 28 U.S.C. §§ 1446(a) and (d). Under 28 9 U.S.C. §§ 1446(a), a true and correct copy of all of the process, pleadings, or orders 10 on file in the state court or served on Instacart in the state court are attached as 11 Exhibit 1. Pursuant to 28 U.S.C. §§ 1446(d), Instacart has served written notice of 12 this notice of removal, with a copy of this notice of removal attached thereto, to 13 Plaintiff’s attorneys. Furthermore, a notice of filing of removal, with a copy of this 14 notice of removal attached thereto, will be filed promptly with the clerk of the 15 Superior Court of the State of California, County of San Francisco, Case No. CGC16 15-543583. Copies of the notice and the certificate of service of the notice to 17 Plaintiff’s attorneys is attached as Exhibit 2. (Exhibit A to Exhibit 2, which is a 18 copy of this notice, is not attached for the Court’s convenience. Defendant will 19 provide it up on request.) 20 CONCLUSION 21 By this notice, Instacart does not waive any objections it may have as to 22 improper service, jurisdiction, or venue, or any other defenses or objections to this 23 action. Instacart intends no admission of fact, law, or liability by this notice, and 24 reserves all defenses, motions, and pleas. Instacart prays that this action be removed 25 to this Court for determination; that all further proceedings in the state court suit be 26 stayed; and that Instacart obtain all additional relief to which it is entitled. 27 28 06083.00002/6497810.4 -6- NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case3:15-cv-00697-EMC Document1 Filed02/13/15 Page8 of 8 1 DATED: February 13, 2015 2 QUINN EMANUEL URQUHART & SULLIVAN, LLP 3 4 5 6 7 8 By Shon Morgan Viola Trebicka Matthew Hosen Attorneys for Defendant Maplebear, Inc., dba Instacart 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06083.00002/6497810.4 -7- NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT