stating that Local Rule 7-3 is “an administrative mechanism to reduce unnecessary burdens on the district court's resources”
How later courts described this case
- stating that Local Rule 7-3 is “an administrative mechanism to reduce unnecessary burdens on the district court's resources”
- noting that CAFA dissolved the traditional rule that an unincorporated association shares the citizenship of its members for the purpose of diversity
- finding that the district court did not abuse its discretion by declining to find a violation of Local Rule 7-3 where counsel emailed the opposing side in an attempt to meet and confer seven days before filing a motion
Written by the judges who cited it.
The opinion
Case 2:21-cv-08581-DMG-E Document 22 Filed 04/22/22 Page 1 of 5 Page ID #:434
UNITED STATES DISTRICT COURT JS-6 / REMAND
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 21-8581-DMG (Ex) Date April 22, 2022
Title Mark Clemons v. Element Materials Technology Huntington Beach Page 1 of 5
LLC
Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
KANE TIEN NOT REPORTED
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)
None Present None Present
Proceedings: IN CHAMBERS—ORDER RE PLAINTIFF’S MOTION TO REMAND [13]
AND DEFENDANT’S MOTION TO DISMISS [9]
This matter is before the Court on Plaintiff Mark Clemons’ Motion to Remand (“MTR”)
[Doc. # 13.] The MTR is fully briefed. [Doc. ## 17, 19.] Also pending before the Court is
Defendant Element Materials Technology Huntington Beach LLC’s (“Element HB”) Motion to
Dismiss (“MTD”). [Doc. # 9.] For the reasons set forth below, the Court GRANTS Plaintiff’s
MTR and REMANDS this matter to Los Angeles County Superior Court for lack of subject matter
jurisdiction. The MTD is DENIED as moot.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On September 13, 2021, Plaintiff filed a class action complaint in Los Angeles County
Superior Court against Element HB. Notice of Removal (“NOR”), Ex. B [Doc. # 1-2]. On
September 15, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”), asserting
various wage-and-hour violations on behalf of the following proposed class:
All California citizens currently or formerly employed as non-exempt employees
by Defendants in the State of California within four years prior to the filing of this
action to the date of class certification.
And the following proposed subclass:
All members of the Class who separated their employment from Defendants in the
State of California within four years prior to the filing of this action to the date of
class certification.
NOR, Ex. A ¶¶ 19-20 [Doc. # 1-1].
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UNITED STATES DISTRICT COURT JS-6 / REMAND
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 21-8581-DMG (Ex) Date April 22, 2022
Title Mark Clemons v. Element Materials Technology Huntington Beach Page 2 of 5
LLC
On October 29, 2021, Element HB removed the action to this Court, invoking jurisdiction
under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). NOR ¶ 9. Element HB filed
its MTD on November 5, 2021. On November 10, 2021, Plaintiff filed his MTR, asserting that (1)
the amount in controversy does not meet the $5,000,000 jurisdictional threshold for CAFA, and (2)
the parties are not diverse for purposes of CAFA jurisdiction.1
II.
LEGAL STANDARD
Defendants may remove a case filed in a state court to a federal court if the federal court
would have original jurisdiction over the case. 28 U.S.C. § 1441. There is no presumption against
removal in CAFA cases. Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th 989, 992-93 (9th
Cir. 2022). Instead, “CAFA's provisions should be read broadly, with a strong preference that
interstate class actions should be heard in a federal court if properly removed by any defendant.”
Id. at 993 (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014)).
The party seeking removal has the burden to establish that the requirements of CAFA are satisfied.
Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197-98 (9th Cir. 2015).
III.
DISCUSSION
CAFA affords district courts jurisdiction “over class actions in which the class members
number at least 100, at least one plaintiff is diverse in citizenship from any defendant, and the
aggregate amount in controversy exceeds $5 million, exclusive of interest and costs.” Ibarra, 775
F.3d at 1195 (citing 28 U.S.C. § 1332(d)). CAFA’s diversity requirement is satisfied when at least
one plaintiff is a citizen of a state in which none of the defendants are citizens. 28 U.S.C. §§
1332(d)(2). Under CAFA, a limited liability company is “deemed to be a citizen of the State where
1 Element HB also asks the Court to deny Plaintiff’s MTR for failure to comply with Local Rule 7-3. Local
Rule 7-3 requires “counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and
any potential resolution,” so that parties might “eliminate[ ] the necessity for a hearing.” C.D. Cal. R. 7-
3; see Hernandez v. Sessions, 872 F.3d 976, 1000 n.29 (9th Cir. 2017) (stating that Local Rule 7-3 is “an administrative
mechanism to reduce unnecessary burdens on the district court's resources”). Although Plaintiff’s counsel could and
should have tried to comply more fully with Local Rule 7-3, the Court will not deny Plaintiff’s MTR on that basis
where, as here, Plaintiff’s counsel notified Element HB’s counsel of their intent to move for remand on November 2,
eight days before filing the motion to remand, and in that same email requested to meet and confer. See Colodney v.
County of Riverside, 651 F. App'x 609, 611 (9th Cir. 2016) (finding that the district court did not abuse its discretion
by declining to find a violation of Local Rule 7-3 where counsel emailed the opposing side in an attempt to meet and
confer seven days before filing a motion).
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UNITED STATES DISTRICT COURT JS-6 / REMAND
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 21-8581-DMG (Ex) Date April 22, 2022
Title Mark Clemons v. Element Materials Technology Huntington Beach Page 3 of 5
LLC
it has its principal place of business and the State under whose laws it is organized.” 28 U.S.C §
1332(d)(10); see Davis v. HSBC Bank Nev., 557 F.3d 1026, 1032 n.13 (9th Cir. 2009) (noting that
CAFA dissolved the traditional rule that an unincorporated association shares the citizenship of its
members for the purpose of diversity).
All putative class members are citizens of California. Element HB asserts it is a citizen of
North Carolina, where it is incorporated, and Florida, where its Executive Vice President Americas
and Chief Executive Officer (“CEO”), Henrik Sluiter, resides. NOR ¶¶ 11-22.
Element HB previously sought to remove another wage-and-hour class action brought by
Plaintiff’s counsel to this Court. See Flores v. Element Materials Tech. Huntington Beach LLC,
No. CV 21-275-DMG (Ex) (C.D. Cal.). This Court granted Flores’ motion to remand because
Element HB had not met its burden in showing that Florida was its principal place of business for
the purposes of establishing diversity under CAFA. See Flores, 2021 WL 663124 at *2 (C.D. Cal.
Feb. 19, 2021).2 In the present action, Element HB fails to cure the same issues raised in this
Court’s order in Flores regarding its principal place of business and consequently fails to establish
diversity jurisdiction.
The United States Supreme Court has adopted the “nerve center test” to determine an
entity’s principal place of business for diversity purposes of jurisdiction. See Hertz Corp. v. Friend
559 U.S. 77 (2010). Under the nerve center test, an entity’s principal place of business is where
that entity’s “high-level officers direct, control, and coordinate the corporation’s activities”—
normally, an entity’s headquarters, so long as that headquarters is not simply an office for holding
board meetings. Id. at 93. The nerve center test is an objective inquiry that focuses on the
corporation’s “place of actual direction, control, and coordination.” Hertz, 559 U.S. at 79. Under
Hertz, “the mere filing of a form ... listing a corporation's ‘principal executive offices' would,
without more,” be insufficient to establish a corporation's nerve center. Id. at 97.
Sluiter attests that as the CEO, he is responsible for Element HB’s management and
“oversee[s], control[s], and ha[s] final say over all of Element HB’s executive decisions, including
strategic, financial, operational, administrative, and policy-making decisions.” Sluiter Decl. ¶ 6
[Doc. # 1-4]. But Huntington Beach, California is listed as the mailing and principal office address
in Element HB’s filings with the California and North Carolina Secretaries of State. See id., Ex. 1.
In addition, Element HB does not dispute that the Huntington Beach address also appears on its
2 The Court had previously granted a motion to remand in Flores for failure to meet CAFA’s amount in
controversy. See Flores v. Element Materials Tech. Huntington Beach LLC, No. CV 19-932-DMG (Ex), 2019 WL
2418748 (C.D. Cal. June 10, 2019).
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UNITED STATES DISTRICT COURT JS-6 / REMAND
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 21-8581-DMG (Ex) Date April 22, 2022
Title Mark Clemons v. Element Materials Technology Huntington Beach Page 4 of 5
LLC
website, each of its 28 approvals and accreditations, in its correspondence with its California-based
customers, and on the wage statements issued to its employees. Opp. at 8-9; Sluiter Decl. ¶ 8;
Bekam Decl., Ex. D [Doc. # 13-1 at 14]. Sluiter attests that he travels to the laboratory in California
about once every six weeks, for two to three days at a time, but generally interacts with on-site
managers in California remotely. Sluiter Decl. ¶¶ 10, 7. While Sluiter spends less than 10% of his
overall time in California, there is no evidence that any other high-level managers travel to Sluiter’s
Jupiter, Florida office or that Sluiter conducts any in-person meetings in Florida at all. Sluiter Decl.
¶ 6-10. In addition, there is no indication that any other Element HB employees work in Florida.
Element HB argues that this Court’s decision in Colmenares v. Paedae, Inc., supports
removal here, but Colmenares is distinguishable. In Colmenares, the removing defendant had nine
high-ranking officers, three of whom worked in a Granville, Ohio office, while the majority,
including the three highest-ranking officers, worked in neither Ohio nor California. Colmenares v.
Paedae, Inc., No. CV 21-5221-DMG (KSx), 2021 WL 4934976, at *4 (C.D. Cal. Oct. 22, 2021).
This Court determined that the Granville, Ohio office was the “nerve center” because it was home
to “a plurality of its officers with strategic, decision-making, and financial authority, and is the only
single place home to more than one of them.” Id. Here, Element HB’s three “managers” all work
in states different from one another (Ohio, Illinois, and Florida) and different from the location of
the company’s two laboratories (California). See Sluiter Decl. ¶¶ 5-6. Indeed, if anything,
Colmenares shows that the location of the CEO is not dispositive. See Colmenares, 2021 WL
4934976, at *4 (noting the CEO did not work in Ohio).
Colmenares was not an easy case, and as this Court noted there, this difficulty is
compounded in the post-COVID-19 era, when substantially more employees telecommute. Indeed,
Sluiter claims to have traveled far less frequently in 2020 and 2021 due to travel restrictions and
therefore worked from his office in Florida more often. Sluiter Decl. ¶ 10. Still, Element HB has
shown only that its CEO works in Florida. This alone is insufficient to make Florida its principal
place of business.
Because Element HB has not borne its burden to show that diversity of citizenship exists
between it and Plaintiff, it has not established CAFA jurisdiction. The Court therefore need not
address the amount in controversy to conclude it lacks jurisdiction under CAFA.
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UNITED STATES DISTRICT COURT JS-6 / REMAND
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 21-8581-DMG (Ex) Date April 22, 2022
Title Mark Clemons v. Element Materials Technology Huntington Beach Page 5 of 5
LLC
IV.
CONCLUSION
In light of the foregoing, the Court GRANTS Plaintiff’s MTR and REMANDS this case to
Los Angeles County Superior Court for lack of jurisdiction. Element HB’s MTD is DENIED
without prejudice as moot.
IT IS SO ORDERED.
CV-90 CIVIL MINUTES—GENERAL Initials of Deputy Clerk KTI