case 5:19-cv-01540 document 1 filed 03/25/19 page 1 of 7- 1 - notice of removal cv _____ to the...
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NOTICE OF REMOVAL CV __________
ROBERT A. SIEGEL (S.B. #64604) [email protected] O’MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071-2899 Telephone: 213-430-6000 Facsimile: 213-430-6407
ADAM P. KOHSWEENEY (S.B. #229983) [email protected] SUSANNAH K. HOWARD (S.B. #291326) [email protected] KRISTIN M. MACDONNELL (S.B. #307124) [email protected] O'MELVENY & MYERS LLP Two Embarcadero Center San Francisco, CA 94111-3823 Telephone: 415-984-8912 Facsimile: 415-984-8701
Attorneys for Defendant American Airlines, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
HASIM A. MOHAMMED, on behalf of himself, all others similarly situated
Plaintiff,
v.
AMERICAN AIRLINES, INC., a Corporation; and DOES 1 through 50, inclusive,
Defendants.
Case No. CV __________
NOTICE OF REMOVAL OF DEFENDANT AMERICAN AIRLINES, INC.
(28 U.S.C. §§ 1332(d), 1441(a))
(Santa Clara County Superior Court Case No. 19CV342788)
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- 1 - NOTICE OF REMOVAL CV __________
TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF HASIM A.
MOHAMMED AND PLAINTIFF’S ATTORNEYS OF RECORD:
Pursuant to 28 U.S.C. §§ 1332(d), 1441(1) and 1446, Defendant American Airlines, Inc.
(“American”) hereby files this Notice of Removal, removing this action brought by Plaintiff
Hasim A. Mohammed (“Plaintiff”) from the Superior Court of the State of California, County of
Santa Clara, where the action is currently pending, to this Court pursuant to 28 U.S.C. § 1332(d),
as amended by the Class Action Fairness Act of 2005. American states the following grounds for
removal:
PROCEDURAL HISTORY AND TIMELINESS OF REMOVAL
1. On February 21, 2019, American received a Summons and Complaint that had
been filed on February 19, 2019, a true and correct copy of which is attached hereto collectively
as Exhibit A. The action was brought as a putative class action in the Superior Court of the State
of California, County of Santa Clara, styled and captioned exactly as above, and assigned Case
No. 19CV342788. On March 22, 2019, American filed an Answer to the Complaint in the
Superior Court of the State of California, County of Santa Clara, a copy of which is attached
hereto as Exhibit B. No other process, pleadings or orders have been filed and served in this
action, and no other defendant has been named or served.
2. The Complaint asserts six causes of action, predicated on alleged violations of
California’s meal and rest break, recordkeeping, and timeliness of wage payment laws. Plaintiff
seeks to bring these claims on behalf of a putative “Hourly Employee Class” defined as “[a]ll
persons employed by Defendants and/or any staffing agencies and/or any other third parties in
hourly or non-exempt positions in California during the Relevant Time Period.” (Ex. A ¶ 11.)1
1 The “Relevant Time Period” is alleged to be from February 19, 2015, to the date of final
judgment. (Ex. A ¶ 11.) Plaintiff also seeks to certify various subclasses, including a Meal
Period Subclass, a Rest Period Subclass, a Wage Statement Penalties Subclass, a Waiting Time
Penalties Subclass. (Id.).
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- 2 - NOTICE OF REMOVAL CV __________
Additionally, Plaintiff seeks to certify a “UCL Class” defined as “[a]ll Hourly Employee Class
members employed by Defendants in California during the Relevant Time Period.” (Id.)
3. In the First Cause of Action, Plaintiff alleges that American failed to provide
Plaintiff and the putative class members off-duty meal periods in accordance with the California
Labor Code and the applicable Industrial Welfare Commission (“IWC”) Wage Order. (Ex. A ¶¶
32-33, 38-39.) Plaintiff seeks premium compensation for missed meal periods pursuant to Labor
Code § 226.7, interests, costs, and attorneys’ fees. (Id. ¶¶ 44-45.)
4. In the Second Cause of Action, Plaintiff alleges that American failed to provide
Plaintiff and the putative class members off-duty rest periods in accordance with the California
Labor Code and applicable IWC Wage Order. (Ex. A ¶ 52.) Plaintiff seeks premium
compensation for missed rest period pursuant to Labor Code § 226.7, interest, costs, and
attorneys’ fees. (Id. ¶¶ 55-56.)
5. In the Third Cause of Action, Plaintiff alleges that American failed to pay Plaintiff
and the putative class members regular and overtime wages in accordance with California Labor
Code §§ 223, 510, 1196, 1197, and 1198. (Ex. A ¶ 71.) Plaintiff seeks recovery of all unpaid
straight time and overtime wages, interest, statutory costs, and statutory penalties. (Id. ¶ ¶ 78-79.)
6. In the Fourth Cause of Action, Plaintiff alleges that American failed to provide
accurate itemized wage statements to Plaintiff and the putative class members. (Ex. A ¶ 83.)
Plaintiff seeks penalties pursuant to Labor Code § 226, attorneys’ fees, and costs. (Id. ¶ 86.)
7. In the Fifth Cause of Action, Plaintiff alleges that American failed to timely pay all
final wages in accordance with California Labor Code §§ 201-203. (Ex. A ¶ 94.) Plaintiff seeks
penalties pursuant to Labor Code §§ 203 and 218.6, as well as attorneys’ fees and costs. (Id. ¶¶
96, 97.)
8. In the Sixth Cause of Action, Plaintiff alleges that American engaged in unfair
business practices by engaging in the alleged violations described in the first through fourth
causes of action. (Ex. A ¶ 108.) Plaintiff seeks declaratory relief and restitution of all money
acquired by American as a result of these allegedly unfair practices according to California
Business & Professions Code § 17200 et seq., as well as attorneys’ fees. (Id. ¶ 114-115.)
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- 3 - NOTICE OF REMOVAL CV __________
9. This Notice of Removal has been filed within thirty (30) days of service of
American, and, as no other defendant has been named or served, the requirement of 28 U.S.C.
§ 1446(b) requiring removal within thirty (30) days of service of the first defendant has been
satisfied. Therefore, this Notice of Removal has been timely filed.
BASIS FOR REMOVAL: CLASS ACTION FAIRNESS ACT OF 2005 (“CAFA”)
10. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d), which
provides that the United States District Courts have original jurisdiction over any class action: (i)
involving a plaintiff class of 100 or more members, (ii) where at least one member of the plaintiff
class is a citizen of a State different from any defendant, and (iii) in which the matter in
controversy exceeds (in the aggregate) the sum or value of $5,000,000, exclusive of interest and
costs. See 28 U.S.C. § 1332(d)(2)(A) & (5)(B); see also Dart Cherokee Basin Operating Co. v.
Owens, 135 S. Ct. 547, 554 (2014) (explaining that “CAFA’s provisions should be read broadly,
with a strong preference that interstate class actions should be heard in federal court if properly
removed by any defendant.” (internal quotation marks omitted)).2
11. These three conditions are satisfied here. First, Plaintiff filed this action as a
“class action” within the meaning of 28 U.S.C. § 1332(d)(1)(b) because Plaintiff pleads that this
civil action should be considered a class action under California law. (Ex. A ¶ 11.) According to
American’s records, there are approximately 1,379 ramp agents currently working for American
in California. (Declaration of Lisa Magdaleno i/s/o Notice of Removal, dated March 25, 2019
(“Magdaleno Decl.”) ¶ 2.) The requirement that the class consist of at least 100 members is
therefore satisfied.
12. Second, Plaintiff is a citizen of the state of California. (Ex. A ¶ 5.) American is
incorporated in the State of Delaware, with its principal place of business in Fort Worth Texas,
and is therefore for removal purposes a citizen of the State of Delaware and of the State of Texas.
2 American does not waive, and expressly reserves, all arguments that this matter is improper for
both class certification and as a non-class representative action.
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- 4 - NOTICE OF REMOVAL CV __________
See Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010); Magdaleno Decl. ¶ 4. Thus, Plaintiff is a
citizen of a state different from American within the meaning of 28 U.S.C. § 1332(d)(2)(A).
13. Third, the claims asserted by the plaintiff class, aggregated as required by 28
U.S.C. § 1332(d)(2), exceed the necessary sum of $5,000,000 “in controversy” within the
meaning of 28 U.S.C. § 1332(d)(2). Although American denies that Plaintiff and/or any putative
class member is entitled to any relief based on the allegations in the Complaint, given the size of
the proposed class, the breadth of the claims alleged and relief sought, and the specific allegations
in the Complaint, the amount put “in controversy” by this litigation is in excess of $10,000,000,
far exceeding the threshold requirement of $5,000,000:
a. Plaintiff’s First and Second Causes of Action allege that American
maintained a policy or practice of denying Plaintiff and the putative class
members off-duty meal and rest periods or premium compensation in lieu
thereof, Compl. ¶¶ 38-41; 52-53, and therefore he and the putative class
members are entitled to missed meal and rest period premiums pursuant to
Labor Code § 226.7 going back four years to February 19, 2015.
b. There are approximately 1,379 individuals currently working for
American as ramp agents in California. (Magdaleno Decl. ¶ 2.) According
to the applicable collective bargaining agreement, the current lowest hourly
rate for ramp agents is $14.18 per hour. (Id. ¶ 3.) Labor Code § 226.7
provides that if an employer fails to provide a meal or rest period in
accordance with the law, “the employer shall pay the employee one
additional hour of pay at the employee’s regular rate of compensation for
each workday that the meal or rest or recovery period is not provided.”
Cal. Lab. Code § 226.7(c).
c. Reducing the number of putative class members by approximately 30%
(965) to account for attrition, and assuming each class member was paid at
$14.18 per hour and missed one meal and one rest break each week for the
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4 years (or 208 weeks) at issue in this action, the amount in controversy for
Plaintiff’s First and Second Causes of Action is approximately:
i. (14.18 x 208 weeks x 965) + (14.18 x 208 weeks x 965) =
$5,692,419.20.
d. Although American contends that the claims are meritless, and that no
monies are owed, relative to the claims in the Complaint, this calculation
uses low assumptions regarding the putative class members’ regular hourly
rate and the number of missed meal and rest periods per week.
14. This calculation only values the First and Second Causes of Action and only
considers ramp agents—accordingly, the actual amount in controversy is significantly higher.
15. In addition, Plaintiff seeks to recover attorney’s fees, which further increases the
alleged amount “in controversy” beyond $5,000,000. (Ex. A ¶¶ 45, 56, 79, 86, 97, 115.); see
Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994 (9th Cir. 2007) (including attorneys’ fees in
calculating amount in controversy), overruled on other grounds by Standard Fire Ins. Co. v.
Knowles, 133 S. Ct. 1345 (2013); see also Gibson v. Chrysler Corp., 261 F.3d 927 (9th Cir. 2001)
(holding that attorneys’ fees were properly included in the amount in controversy requirement in
a class action); Galt G/S v. JSS Scandinavia, 142 F.3d 1150 (9th Cir. 1998) (including attorneys’
fees in calculating the amount in controversy requirement for traditional diversity jurisdiction).
16. Thus, based on the reasonable assumptions set forth herein, the potential
compensatory damages, together with the statutory penalties and attorney’s fees, exceed the
$5,000,000 aggregate amount in controversy requirement set forth under 28 U.S.C. § 1332(d)(2).
Dart Cherokee, 135 S.Ct. at 554 (“a defendant's notice of removal need include only a plausible
allegation that the amount in controversy exceeds the jurisdictional threshold.”).
VENUE
17. Plaintiff’s state court action was commenced in the Superior Court of the State of
California for the County of Santa Clara and, pursuant to 28 U.S.C. §§ 84(a), 1441(a), & 1446(a)
may be removed to this United States District Court for the Northern District of California, which
embraces Santa Clara County within its jurisdiction.
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- 6 - NOTICE OF REMOVAL CV __________
CONCLUSION
18. For the reasons discussed herein, pursuant to 28 U.S.C. §§ 1332(d), 1441(a) &
1446, this state court action may be removed to this Federal District Court.
WHEREFORE, Defendant requests that this action be brought to this Court, and that this
Court exercise its jurisdiction in the premises.
Dated: March 25, 2019 O’MELVENY & MYERS LLP ROBERT A. SIEGEL ADAM P. KOHSWEENEY SUSANNAH K. HOWARD
By: /s/ Adam P. KohSweeney Adam P. KohSweeney
Attorneys for Defendant American Airlines, Inc.
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EXHIBIT A
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EXHIBIT B
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DEFENDANT’S ANSWER TO COMPLAINT
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ROBERT A. SIEGEL (S.B. #64604) [email protected] O’MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071-2899 Telephone: 213-430-6000 Facsimile: 213-430-6407 ADAM P. KOHSWEENEY (S.B. #229983) [email protected] SUSANNAH K. HOWARD (S.B. #291326) [email protected] KRISTIN M. MACDONNELL (S.B. #307124) [email protected] O’MELVENY & MYERS LLP Two Embarcadero Center 28ᵗʰ Floor San Francisco, California 94111-3823 Telephone: +1 415 984 8700 Facsimile: +1 415 984 8701
Attorneys for Defendant American Airlines, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
HASIM A. MOHAMMED, on behalf of himself, all others similarly situated,
Plaintiff,
v.
AMERICAN AIRLINES, INC., a Delaware Corporation; and Does 1 through 50, Inclusive
Defendants.
Case No. 19CV342788
DEFENDANT AMERICAN AIRLINES,
INC.’S ANSWER TO PLAINTIFF’S
UNVERIFIED CLASS ACTION
COMPLAINT
Electronically Filedby Superior Court of CA,County of Santa Clara,on 3/22/2019 5:01 PMReviewed By: R. WalkerCase #19CV342788Envelope: 2663184
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DEFENDANT’S ANSWER TO COMPLAINT
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Defendant American Airlines, Inc. (“American” or “Defendant”), for itself alone and for
no other defendant, hereby answers the unverified complaint herein, dated February 19, 2019,
(the “Complaint”), as follows:
Pursuant to the provisions of Section 431.30 of the California Code of Civil Procedure,
Defendant denies each and every, all and singular, allegations of the Complaint and also denies
that Plaintiff Hasim A. Mohammed (“Plaintiff”) or any putative member of any purported class
set forth in the Complaint were damaged in the sum or sums alleged or in any sum at all.
Defendant further specifically denies that any of the claims alleged by Plaintiff in the Complaint
may properly be adjudicated on a class-action and/or representative basis.
AS AND FOR ITS AFFIRMATIVE DEFENSES TO ALL CAUSES OF ACTION
PURPORTED TO BE SET FORTH AGAINST IT BY PLAINTIFF ON BEHALF OF
HIMSELF, AND ON BEHALF OF THE PUTATIVE MEMBERS OF EACH
PURPORTED CLASS AS SET FORTH IN THE COMPLAINT, DEFENDANT ALLEGES
AS FOLLOWS:
FIRST AFFIRMATIVE DEFENSE
Failure to State a Cause of Action
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, fail to state facts
sufficient to constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Preemption
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because they are preempted by, inter alia, the Railway Labor Act, 29 U.S.C. §§
151 et seq. and/or the Airline Deregulation Act, 49 U.S.C. §§ 40120 et seq.
THIRD AFFIRMATIVE DEFENSE
Dormant Commerce Clause Preemption
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
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DEFENDANT’S ANSWER TO COMPLAINT
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members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because the application of California law to employment in other states or
countries would violate the Dormant Commerce Clause of the United States and California
Constitutions given that said laws, facially and as applied to this action, would impose a burden
on interstate commerce that is clearly excessive in relation to the putative local benefits.
FOURTH AFFIRMATIVE DEFENSE
Lawful Exemptions
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of each purported class as set forth in the Complaint, or some of them, are barred in
whole or in part by California Labor Code § 514 and/or Industrial Welfare Commission Order
No. 9-2001, § 1(E).
FIFTH AFFIRMATIVE DEFENSE
Statute of Limitations
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part by the applicable statutes of limitations, including without limitation, the
limitations periods prescribed in California Business and Professions Code § 17209, California
Labor Code § 203, and California Code of Civil Procedure §§ 338, 340, and/or 340.
SIXTH AFFIRMATIVE DEFENSE
No Standing
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because Plaintiff lacks standing.
SEVENTH AFFIRMATIVE DEFENSE
No Class Action
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, fail to meet the
necessary requirements for class certification, including, inter alia, class ascertainability,
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typicality, commonality, numerosity, manageability, superiority, and adequacy of the class
representative and/or counsel.
EIGHTH AFFIRMATIVE DEFENSE
Unconstitutional Action
Certification of a class or representative action under the circumstances of this case would
violate Defendant’s rights under the United States Constitution and California Constitution.
NINTH AFFIRMATIVE DEFENSE
Conduct Reasonable and In Good Faith/Not Willful
Plaintiff’s claims and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because Defendant has at all times acted in good faith, in conformity with and in
reliance on written administrative regulations, orders, rulings, guidelines, approvals, and/or
interpretations of federal and California agencies, and on the basis of a good-faith and reasonable
belief that it had complied fully with California wage and hour laws.
TENTH AFFIRMATIVE DEFENSE
No “Knowing and Intentional” Violations and No Injury
Neither Plaintiff nor any putative class members are entitled to penalties under California
Labor Code § 226 because Defendant’s behavior was not “knowing and intentional” and/or
because no injury was suffered.
ELEVENTH AFFIRMATIVE DEFENSE
Waiver
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because such claims have been waived, discharged, and/or abandoned.
TWELFTH AFFIRMATIVE DEFENSE
Accord and Satisfaction, Payment
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
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whole or in part by the principles of accord and satisfaction and payment.
THIRTEENTH AFFIRMATIVE DEFENSE
Release
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because Plaintiff released the claims at issue.
FOURTEENTH AFFIRMATIVE DEFENSE
Res Judicata and/or Collateral Estoppel
Plaintiff’s causes of action as set forth in the Complaint, or some of them, are barred in
whole or in part by the doctrines of res judicata and/or collateral estoppel because they have
already been adjudicated through the grievance procedures of the applicable collective bargaining
agreement(s) and/or by other litigation.
FIFTEENTH AFFIRMATIVE DEFENSE
Setoff and Recoupment
If any damages have been sustained by Plaintiff, or by any putative member of the
purported class as set forth in the Complaint, although such is not admitted hereby or herein and
is specifically denied, Defendant is entitled under the equitable doctrine of setoff and recoupment
to offset all obligations of the Plaintiff or putative class members owed to Defendant against any
judgment that may be entered against Defendant.
SIXTEENTH AFFIRMATIVE DEFENSE
No Jury Trial
Plaintiff is not entitled to have equitable issues or matters of law tried to a jury, and
Plaintiff’s demand for a jury trial should be so limited.
SEVENTEENTH AFFIRMATIVE DEFENSE
Adequate Remedy at Law
To the extent Plaintiff seeks such relief, any claim by Plaintiff for equitable relief is barred
because, to the extent Plaintiff and/or the putative class members are entitled to any remedy,
which is not admitted hereby or herein, Plaintiff and/or the putative class members have an
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DEFENDANT’S ANSWER TO COMPLAINT
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adequate remedy at law and/or other requirements for granting injunctive or other equitable relief
cannot be satisfied.
EIGHTEENTH AFFIRMATIVE DEFENSE
Restitution Only
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part to the extent they seek to receive penalties or other non-restitutionary awards
pursuant to California Business & Professions Code.
NINETEENTH AFFIRMATIVE DEFENSE
Estoppel
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because Plaintiff is estopped by his own conduct to claim any right to damages or
other monetary relief, or any additional damages or other monetary relief, from Defendant.
TWENTIETH AFFIRMATIVE DEFENSE
Unclean Hands
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part by Plaintiff’s unclean hands and/or inequitable or wrongful conduct.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Laches
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part by the doctrine of laches.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Due Process
Any award of restitution under Plaintiff’s sixth cause of action pursuant to the California
Business & Professions Code §§ 17200 et seq. would violate the Excessive Fines and Due
Case 5:19-cv-01540 Document 1-2 Filed 03/25/19 Page 7 of 11
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DEFENDANT’S ANSWER TO COMPLAINT
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Process Clauses of the United States and California Constitutions.
TWENTY-THIRD AFFIRMATIVE DEFENSE
No Unfair or Unlawful Practice
Plaintiff’s cause of action under California Business & Professions Code §§ 17200 et seq.
is barred, in whole or in part, because Defendant’s alleged practices were not “unfair” or
“unlawful,” the public was not and would not likely have been deceived by any such alleged
practices, Defendant would have gained no competitive advantage by engaging in such alleged
practices, and the benefits of the alleged practices outweighed any harm or other impact they
might have caused.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Unconstitutional Remedy - California Business & Professions Code
Any finding of liability pursuant to the California Business & Professions Code would
violate the Due Process Clauses of the United States and California Constitutions because, inter
alia, the standards of liability under the Business & Professions Code are unduly vague and
ambiguous, and permit retroactive, random, arbitrary, and capricious punishment that serves no
legitimate governmental interest.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Unjust, Arbitrary and Oppressive, or Confiscatory Penalties
Plaintiff, and the putative members of the purported classes as set forth in the Complaint,
are not entitled to recover any civil penalties and/or fines pursuant to Plaintiff’s causes of action,
because, under the circumstances of this case, any such recovery would be unjust, arbitrary and
oppressive, or confiscatory.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Proper Calculations and Documentation
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because at all relevant times at issue, Defendant properly tracked the hours
worked by non-exempt employees, compensated them for hours worked at the appropriate rates
Case 5:19-cv-01540 Document 1-2 Filed 03/25/19 Page 8 of 11
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DEFENDANT’S ANSWER TO COMPLAINT
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pursuant to California law, and documented such compensation in legally sufficient wage
statements.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
No Private Right of Action
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred to the
extent they are brought under California Labor Code Section 226.7, as there is no private right of
action under said statute.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Frivolous Claims
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are “frivolous,
unreasonable, or groundless” within the meaning of Christianburg v. Garment Co. v. EEOC, 434
U.S. 412 (1978) and Cummings v. Benco Building Servs., 11 Cal. App. 4th 383 (1992), and,
accordingly, Defendant should recover all costs and attorneys’ fees incurred herein.
TWENTY-NINTH AFFIRMATIVE DEFENSE
De Minimis Harm
Plaintiff’s claims, and each of them, brought on behalf of himself and the putative
members of the purported classes as set forth in the Complaint, or some of them, are barred in
whole or in part because any time Plaintiff or putative class members worked allegedly without
compensation was de minimis and not compensable.
THIRTIETH AFFIRMATIVE DEFENSE
Attorneys’ Fees
Defendant is entitled to recover all costs and attorneys’ fees incurred herein under
California Labor Code § 218.5.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Defendant is informed and believes and on that basis alleges that Defendant may have
additional defenses available, which are not now fully known and of which it is not now aware.
Case 5:19-cv-01540 Document 1-2 Filed 03/25/19 Page 9 of 11
Case 5:19-cv-01540 Document 1-2 Filed 03/25/19 Page 10 of 11
Electronically filedby Superior Court of CA, County of Santa Clara,on 3/22/2019 5:01 PMReviewed By:R. WalkerCase #19CV342788Env #2663184
Case 5:19-cv-01540 Document 1-2 Filed 03/25/19 Page 11 of 11
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ROBERT A. SIEGEL (S.B. #64604) [email protected] O'MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071-2899 Telephone: 213-430-6000 Facsimile: 213-430-6407
ADAM P. KOHSWEENEY (S.B. #229983) [email protected] SUSANNAH K. HOWARD (S.B. #291326) [email protected] KRISTIN M. MACDONNELL (S.B. #307124) [email protected] O'MEL VENY & MYERS LLP Two Embarcadero Center San Francisco, CA 94111-3823 Telephone: 415-984-8912 Facsimile: 415-984-8701
Attorneys for Defendant American Airlines, Inc.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
19 HASIM A. MOHAMMED, on behalf of himself, all others similarly situated
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Plaintiff,
V.
AMERICAN AIRLINES, INC., a 23 Corporation; and DOES 1 through 50,
inclusive, 24
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Defendants.
CaseNo. CV ----
DECLARATION OF LISA MAGDALENO IN SUPPORT OF NOTICE OF REMOVAL OF DEFENDANT AMERICAN AIRLINES, INC.
(28 U.S.C. §§ 1332(d), 1441(a))
(Santa Clara County Superior Court Case No. 19CV342788)
MAGDALENO DECLARATION ISO REMOVAL
Case 5:19-cv-01540 Document 1-3 Filed 03/25/19 Page 1 of 2
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I, Lisa Magdaleno, declare and state as follows:
1. I am currently employed by American Airlines, Inc. ("American") in the capacity
of Paralegal, Legal-Employment. I have worked for American since August 21, 1995, and have
worked as a paralegal for American since September 1, 2004. In my current position, I have
access to the collective bargaining agreements applicable to American' s various employee
groups, as well as records showing the number of employees in each work group. In attesting to
the matters set forth in this declaration, I reviewed these records, which American keeps in the
regular course of business. If called as a witness, I could and would competently testify to the
matters set forth herein.
2. American currently employs approximately 1,379 ramp agents in the State of
California.
3. Under the current collective bargaining agreement, entered between American and
the Transport Workers Union of America, AFL-CIO, the union that represents American ramp
agents, the lowest base hourly wage for a ramp agent is $14.18 per hour.
4. American is a Delaware corporation and has its headquarters in Fort Worth, Texas.
I declare under penalty of perjury under the laws of the State of California and the United
States of America that the foregoing is true and correct.
Executed this 25th day of March, 2019, t arrant County, in the State of Texas.
Lisa Magdaleno
MAGDALENO DECLARATION ISO REMOVAL
Case 5:19-cv-01540 Document 1-3 Filed 03/25/19 Page 2 of 2
JS-CAND 44 (Rev. 06/17) CIVIL COVER SHEET The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
(b) County of Residence of First Listed Plaintiff (EXCEPT IN U.S. PLAINTIFF CASES)
County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
1 U.S. Government Plaintiff 3 Federal Question (U.S. Government Not a Party)
2 U.S. Government Defendant 4 Diversity (Indicate Citizenship of Parties in Item III)
(For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF
Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State Citizen of Another State 2 2 Incorporated and Principal Place 5 5 of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of
Overpayment Of Veteran’s Benefits
151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excludes Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’
Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product
Liability 360 Other Personal Injury 362 Personal Injury -Medical
Malpractice
CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations 445 Amer. w/Disabilities–
Employment 446 Amer. w/Disabilities–Other 448 Education
PERSONAL INJURY 365 Personal Injury – Product
Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability
368 Asbestos Personal Injury Product Liability
PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property
Damage 385 Property Damage Product
Liability
PRISONER PETITIONS
HABEAS CORPUS 463 Alien Detainee 510 Motions to Vacate
Sentence 530 General 535 Death Penalty
OTHER 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee–
Conditions of Confinement
625 Drug Related Seizure of Property 21 USC § 881
690 Other
LABOR710 Fair Labor Standards Act 720 Labor/Management
Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION 462 Naturalization
Application 465 Other Immigration
Actions
422 Appeal 28 USC § 158 423 Withdrawal 28 USC
§ 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 835 Patent Abbreviated New
Drug Application 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or
Defendant) 871 IRS–Third Party 26 USC
§ 7609
375 False Claims Act 376 Qui Tam (31 USC
§ 3729(a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced &
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision
950 Constitutionality of State Statutes
V. ORIGIN (Place an “X” in One Box Only)
1 Original Proceeding
2 Removed from State Court
3 Remanded from Appellate Court
4 Reinstated or Reopened
5 Transferred from Another District (specify)
6 Multidistrict Litigation–Transfer
8 Multidistrict Litigation–Direct File
VI. CAUSE OF
ACTION
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:
VII. REQUESTED IN
COMPLAINT: CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, Fed. R. Civ. P.
DEMAND $ CHECK YES only if demanded in complaint: JURY DEMAND: Yes No
VIII. RELATED CASE(S), IF ANY (See instructions):
JUDGE DOCKET NUMBER
IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2) (Place an “X” in One Box Only) SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE
DATE SIGNATURE OF ATTORNEY OF RECORD
Hasim A. Mohammed American Airlines, Inc.
Unknown Tarrant County, TX
Shaun Setareh, William P. Pao, Lilit Ter-AstvatsatryanSetareh Law Group315 South Beverly Drive, Suite 315Beverly Hills, CA 90212 / Tel: 310-888-7771
Robert A. Siegel, Adam P. KohSweeney, Susannah K. Howard, Kristin M. MacDonnellO'Melveny & Myers LLPTwo Embarcadero Center, Floor 28San Francisco, CA 94111 / Tel: 415-984-8700
Class Action Fairness Act, 28 U.S.C. § 1332(d)
Plaintiff alleges failure by Defendant to provide meal & rest breaks, timely pay all wages, and provide accurate wage statements.
✔
03/25/2019 /s/ Adam P. KohSweeney
Case 5:19-cv-01540 Document 1-4 Filed 03/25/19 Page 1 of 1
ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: American Airlines Facing Ex-Employee’s Lawsuit Over Allegedly Missed Breaks, Unpaid Wages