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500195650 v3

Matthew Ball (SBN 208881)

matthew.ball@klgates.com

K&L GATES LLP

4 Embarcadero Center, Suite 1200

San Francisco, CA 94111

Telephone: +1 415 882 8200

Facsimile: +1 415 882 8220

Attorneys for Defendants

Wal-Mart Associates, Inc. and Wal-Mart Stores, 

Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RODERICK MAGADIA, individually and on 

behalf of all those similarly situated, 

Plaintiffs,

v.

WAL-MART ASSOCIATES, INC., a Delaware 

corporation; WAL-MART STORES, INC., a 

Delaware corporation; and DOES 1 through 50, 

inclusive,

Defendants.

Case No.: 

NOTICE OF REMOVAL 

TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NORTHERN CALIFORNIA, SAN JOSE DIVISION

AND TO: RODERICK MAGADIA, individually and on behalf of all similarly situated, and his 

attorneys of record.

Defendants Wal-Mart Associates, Inc. and Wal-Mart Stores, Inc. (hereinafter collectively 

“Wal-Mart”),1 by and through the undersigned attorneys, removes this action from the Superior 

Court for the State of California, County of Santa Clara, where it is currently pending, to the United 

States District Court for the Northern District of California pursuant to 28 U.S.C. §§ 1332, 1441, 

1446, and 1453. 

 1 By filing this Notice of Removal, Wal-Mart does not waive any of its rights to any objections or 

defenses, including jurisdictional, and expressly reserves the right to amend and supplement this 

Notice of Removal.

Case 5:17-cv-00062-LHK Document 1 Filed 01/05/17 Page 1 of 10
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NOTICE OF REMOVAL

As addressed below, original jurisdiction exists in this action pursuant to 28 U.S.C. § 

1332(d), the Class Action Fairness Act (“CAFA”) 28 U.S.C. § 1453, and as otherwise specified 

herein. In support of this removal, Wal-Mart states the following:

I. Introduction and Background

On or about December 2, 2016, Plaintiff filed a putative class action complaint captioned, 

Roderick Magadia v. Wal-Mart Associates, Inc.; Wal-Mart Stores, Inc.; and DOES 1 through 50, 

County of Santa Clara, Case No. 16CV303387. See Compl., attached hereto as Exhibit A. Plaintiff 

alleges that Wal-Mart is a national retailer with locations throughout the United States, including 

Santa Clara County, California. Id. ¶ 3. Plaintiff alleges that he was employed by Wal-Mart as a 

non-exempt employee from June 17, 2008 through September 16, 2016 at the Wal-Mart located in 

San Jose, California. Id. ¶ 4. Plaintiff alleges that Wal-Mart violated his rights protected by the 

California Labor Code §§ 201-203, 226, 226.7, 512, and 558, and the Unfair Competition Law (the 

“UCL”), California Business and Professions Code § 17200 et seq. Id. ¶ 10. Finally, Plaintiff asserts 

a putative class action, and brings this action on behalf of himself and four subclasses of employees:

1) “Meal Period Regular Rate Class,” which Plaintiff defines as “all current and former 

California non-exempt employees of Defendants who received non-discretionary 

remuneration, including ‘MYSHARE INCT,’ and was paid any meal period premium 

payments in the same period that the non-discretionary remuneration was earned, at any 

time between December 2, 2012, through the present;” 

2) “Meal Period Regular Rate Wage Statement Sub-Class,” which Plaintiff defines as “all 

current and former California non-exempt employees of Defendants who received nondiscretionary remuneration, including ‘MYSHARE INCT,’ and was paid any meal period 

premium payments in the same period that the non-discretionary remuneration was 

earned, at any time between December 2, 2015, through the present;” 

3) “OVERTIME/INCT Class”, which Plaintiff defines as “all current and former California 

non-exempt employees of Defendants who received ‘OVERTIME/INCT,’ at any time 

between December 2, 2015, through the present;” and

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NOTICE OF REMOVAL

4) “Final Wage Statement Class,” which Plaintiff defines as “all former non-exempt

employees who worked for Defendants in the State of California and whose employment 

terminated (whether voluntarily or involuntarily) at any time from December 2, 2015 to 

the present.” Id. ¶ 11.

II. Wal-Mart has satisfied the procedural requirements for removal

On December 6, 2016, Plaintiff served Wal-Mart with a copy of the Complaint. Removal is 

timely pursuant to 28 U.S.C. § 1446(b) because thirty days or less have passed since Plaintiff served 

the Complaint on Wal-Mart.

Pursuant to 28 U.S.C. § 117 and Local Rule 3-2(c), the United States District Court for the 

Northern District of California, San Jose Division, is the federal judicial district and division 

encompassing the Superior Court of the State of California, County of Santa Clara, where this 

lawsuit was originally filed. Venue is thus proper because this is the “district and division 

embracing the place where such action is pending.” See 28 U.S.C. § 1441(a).

As required by 28 U.S.C. § 1446(a), Wal-Mart attached a copy of all process, pleadings, and 

orders served upon it as Exhibit A.

As required by 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being promptly 

served upon counsel for Plaintiff and a copy is being filed with the Clerk of the Superior Court of the 

State of California, County of Santa Clara. A true and correct copy of “Defendant’s Notice of 

Removal to State Court of Removal of Action” filed in the Superior Court of the State of California, 

County of Santa Clara, is attached hereto as Exhibit B.

III. Removal is proper because the Court has subject matter jurisdiction under 28 

U.S.C. §§ 1332, 1441, 1446, and 1453.

Pursuant to 28 U.S.C. § 1332(d)(2), this Court has original jurisdiction over any civil action 

with more than 100 class members where the matter in controversy exceeds the sum or value of 

$5,000,000, exclusive of interest and costs and is a class action in which any member of a class of 

plaintiffs is a citizen of a state different from any defendant. Moreover, Congress enacted the Class 

Action Fairness Act “to facilitate adjudication of certain class actions in federal court,” and thus 

“CAFA’s provisions should be read broadly, with a strong preference that interstate class actions 

Case 5:17-cv-00062-LHK Document 1 Filed 01/05/17 Page 3 of 10
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NOTICE OF REMOVAL

should be heard in a federal court if properly removed by any defendant.” Dart Cherokee Basin

Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014) (citing Standard Fire Ins. Co. v. Knowles, 

568 S. Ct. 1345 (2013)).

A. Plaintiff’s Complaint constitutes a “class action”

This action meets the Class Action Fairness Act’s definition of a class action, which is “any 

civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule 

of judicial procedure.” 28 U.S.C. § 1332(d)(1)(B), 1435(a) & (b). Here, Plaintiff filed his 

Complaint under a state judicial procedure, California Code of Civil Procedure § 382, which 

authorizes an action to be brought by one or more representative persons as a class action. See

Compl. ¶ 11 (stating same). Thus, Plaintiff’s Complaint constitutes a class action under the Class 

Action Fairness Act.

B. The putative class consists of more than 100 members

In paragraph 11 of his Complaint, Plaintiff defines the putative class as four distinct 

subclasses: 

• “[A]ll current and former California non-exempt employees of Defendants who 

received non-discretionary remuneration, including ‘MYSHARE INCT,’ and was 

paid any meal period premium payments in the same period that the non-discretionary 

remuneration was earned, at any time between December 2, 2012, through the 

present;” 

• “[A]ll all current and former California non-exempt employees of Defendants who 

received non-discretionary remuneration, including ‘MYSHARE INCT,’ and was 

paid any meal period premium payments in the same period that the non-discretionary 

remuneration was earned, at any time between December 2, 2015, through the 

present;” 

• “[A]ll current and former California non-exempt employees of Defendants who 

received ‘OVERTIME/INCT,’ at any time between December 2, 2015, through the 

present;” and

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• “[A]ll former non-exempt employees who worked for Defendants in the State of 

California and whose employment terminated (whether voluntarily or involuntarily) 

at any time from December 2, 2015 to the present.” See Compl. ¶ 11. 

Solely addressing the final putative subclass identified in paragraph 11 of his Complaint, 

Wal-Mart has 53,808 former non-exempt employees whose employment terminated “at any time 

from December 2, 2015, to the present.” Declaration of Todd Stokes (“Stokes Decl.”), ¶ 6. This 

putative class exceeds 100 persons, as required by 28 U.S.C. § 1332(d)(5)(B). 

C. The putative parties meet the minimal diversity requirements

This Court has original jurisdiction of this action, in part, because “(A) any member of a 

class of plaintiffs is a citizen of a State different from any defendant; of (B) any member of a class of 

plaintiffs is a [...] citizen or subject of a foreign state and any defendant is a citizen of a Stat[.]” See

28 U.S.C. § 1332(d)(2)(A), (B).

Plaintiff failed to identify of which State or foreign state he is a citizen. Regardless, the 

putative class contains citizens of states different from any defendant. Wal-Mart Associates, Inc. is a 

wholly-owned subsidiary of Wal-Mart Stores, Inc. Therefore Wal-Mart is the only defendant in this 

action. Wal-Mart is a Delaware corporation with its principal place of business in Bentonville, 

Arkansas. Stokes Decl. ¶ 3. Wal-Mart has 5,303 stores located in all 50 U.S. states and no state 

contains a substantial predominance of the corporation’s business. Id. ¶ 4. Because Wal-Mart has 

5,303 stores located in more than twenty states and no state contains a substantial predominance of 

the corporation’s business, its principal place of business for purposes of diversity jurisdiction under 

28 U.S.C. § 1332(c)(1) is deemed to be Wal-Mart’s corporate headquarters or the “nerve center” in 

Bentonville, Arkansas. Breitman v. May Co. California, 37 F.3d 562, 564 (9th Cir. 1994) (where 

corporation had retail locations in 30 states, principal place of business was location of corporate 

headquarters); Industrial Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1094 (9th Cir. 1990) 

(explaining the “nerve center” test). Because there are members of the putative class who are 

citizens of states other than Delaware and Arkansas, the putative class action meets the minimal 

diversity requirements for removal.

///

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NOTICE OF REMOVAL

D. The amount of controversy exceeds the sum or value of $5,000,000

Under the Class Action Fairness Act, the claims of the individual class members are 

aggregated to determine if the amount of controversy exceeds the required “sum or value of 

$5,000,000, exclusive of interests and costs.” 28 U.S.C. § 1332(d)(2), (d)(6). While denying all 

liability, Wal-Mart avers, for the purposes of this Notice only, that Plaintiff’s claims place more than 

$5 million in controversy (excluding costs and interests). The United States Court of Appeals for the 

Ninth Circuit has instructed that under CAFA, removal is proper if, from the allegations of the 

Complaint and the Notice of Removal, it is more likely than not that the amount in controversy 

exceeds $5 million. Rodriguez v. AT&T Mobility Servs., Inc., 728 F.3d 975, 981 (9th Cir. 2013)

(overturning previous Ninth Circuit precedent requiring proof of amount in controversy to a “legal 

certainty” under some circumstances). This standard is satisfied here.2

 Wal-Mart is permitted to 

include a plausible allegation, without evidentiary submissions, that the requisite amount in 

controversy is met. See Dart Cherokee Basin Operating Co., 135 S. Ct. at 551.

1. Plaintiff Seeks Recovery for Himself and the Putative Class for Damages for Alleged 

Violations of California Labor Code §§ 226.7 and 512 for Wal-Mart’s Failure to Pay for 

Missed Meal Periods. 

Plaintiff’s First Cause of Action alleges that “Plaintiff and Class Members were suffered and 

permitted to work through legally required meal breaks and were denied the opportunity to take their 

full 30-minute off-duty meal breaks. As such, Defendants are responsible for paying premium 

compensation for missed meal periods pursuant to Labor Code §§ 226.7 and 512 and the applicable 

IWC Wage Order.” Compl. ¶ 25. California Labor Code § 226.7(c) provides that if an employer 

fails to provide a proper meal break, it must pay the affected employee an additional hour of pay as a 

premium. Thus, Plaintiff seeks one hour of premium pay for each meal break the putative class 

member missed. See Compl. ¶ 25 (“During pay periods in which Plaintiff and Class Members 

 2 Wal-Mart denies Plaintiff’s allegations and claims of liability and damages, and Wal-Mart further 

denies that this matter is properly brought and should proceed as a class action. However, for the 

purposes of removal, Wal-Mart and this Court must rely on the allegations pled. See Standard Fire 

Ins. Co. v. Knowles, 568 S. Ct. at 1350 (“CAFA, however, permits the federal court to consider only 

the complaint that the plaintiff has filed, i.e., this complaint, not a new, modified (or amended) 

complaint that might eventually emerge.”) (emphasis in original).

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earned non-discretionary remuneration, Defendants improperly paid the meal premium at the base 

rate of pay.”); id. ¶ 26 (“Plaintiff further alleges that Plaintiff and similarly situated employees are 

owed wages for the meal period violations set forth above.”).

As identified in the Declaration of Todd Stokes, during the period of December 2, 2015 

through Dec. 2, 20163, Wal-Mart employed at least 53,808 employees within the putative class, and 

these individuals earned at least $8 per hour4 during that time. Stokes Decl. ¶ 6. Even if, on 

average, the putative class members missed only one meal break per week, Plaintiff’s claims would 

therefore seek restitution more than $430,464 per week ($8 x 1 meal break x 53,808 employees = 

$430,464). This assumption is conservative, given Plaintiff’s allegations that Wal-Mart’s failure to 

provide meal breaks was “regular” and that Wal-Mart as “a matter of corporate policy and 

procedure, regularly failed to pay the meal period premium at the correct rate of pay.” Compl. ¶ 25; 

see also Campbell v. Vitran Express, Inc., 471 F. App’x 646, 648-49 (9th Cir. 2012) (finding amount 

in controversy requirement satisfied based on estimate of one meal break and one rest break per 

week because plaintiff alleged that defendant “regularly and consistently” failed to provide proper 

breaks); Jasso v. Money Mart Express, Inc., No. 11-CV-5500 YGR, 2012 WL 699465, at *5 (N.D. 

Cal. Mar. 1, 2012) (accepting defendant’s “reasonable and conservative estimate” of one missed 

meal break and one missed rest break per week).

2. Plaintiff Seeks Recovery for Himself and The Putative Class for Damages for Alleged 

Violations of California Labor Code § 203 for Wal-Mart’s Failure to Timely Pay Final 

Wages.

Furthermore, as part of his First Cause of Action, Plaintiff seeks to recover additional 

penalties against Wal-Mart pursuant to California Labor Code § 203. See Compl. ¶ 27 (“Plaintiff 

and other members of the Class who have separated from employment are entitled to compensation 

pursuant to Labor Code § 203.”). Approximately 53,808 employees in the putative class terminated 

their employment with Wal-Mart between December 2, 2015 and December 2, 2016. Stokes Decl. ¶ 

6. Each of these individuals earned at least $8 per hour, which was the minimum wage in the State 

 3 Plaintiff establishes the relevant time period for this claim as an even longer time period: 

December 2, 2012 through December 2, 2016. See Compl. ¶ 11. 4 The minimum wage in the State of California in 2012 was $8 per hour.

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NOTICE OF REMOVAL

of California in 2012. This hourly rate multiplied by 8 hours per day for 30 days results in potential 

damages of $1,920 per person in waiting penalties ($8 hourly rate x 8 hours x 30 days).5 

Accordingly, Plaintiff’s claim for Section 203 penalties places at least $103,311,360 in controversy 

($1,920 per person x 53,808 former employees = $103,311,360). 

3. Plaintiff Seeks Recovery for Himself and the Putative Class for Attorney’s Fees.

In addition, Plaintiff seeks attorney fees pursuant to California Labor Code 226, as well any 

further or alternative relief in his favor that the Court deems appropriate. See Compl., “Prayer for 

Relief.” While Plaintiff fails to allege an amount for attorneys’ fees, those fees would further 

substantiate a potential award exceeding $5 million. See Galt G/S v. JSS Scandinavia, 142 F.3d 

1150, 1156 (9th Cir. 1998). The Ninth Circuit “has established 25% of the common fund as a 

benchmark award for attorney fees” in class actions. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 

(9th Cir. 1998). Therefore based solely on Plaintiff’s alleged subclass seeking Section 203 penalties 

above, inclusion of these fees places an additional $25,827,840 in controversy given the potential 

damages at issue. See e.g., Rodriguez v. Cleansource, Inc., No. 14-CV-0789-L (DHB) 2014 WL 

3818304, at *4 (S.D. Cal. Aug. 4, 2014) (denying motion to remand where defendant showed 

potential damages of $4.2 million because attorney’s fees of 25 percent brought the total amount of 

controversy to $5.3 million); see also Deaver v. BBVA Compass Consulting & Benefits, Inc., No. 13-

cv-00222-JSC, 2014 WL 21999645, at * 6 (N.D. Cal. May 27, 2014 (accounting for attorney’s fees 

by adding 25 percent of potential damages to amount in controversy); Giannini v. Nw. Mut. Life Ins. 

Co., No. C 12-77 CW, 2012 WL 1535196, at *4 (N.D. Cal. Apr. 30, 2012)(same); Jasso, 2012 WL 

699465, at *7 (reasonable to assume attorney’s fees valued at 25 percent of common fund on 

removal). 

In short, based on the above, a conservative estimate of the amount in controversy (excluding 

costs and interests) exceeds the sum or value of $5,000,000.00.

///

///

 5 For the purposes of this Notice of Removal, Wal-Mart is using the California minimum wage of $8 

per hour as it existed in 2012, although some individual employees within the putative class had 

higher hourly wages.

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NOTICE OF REMOVAL

By filing this Notice of Removal, Wal-Mart does not waive any of its rights to any objections 

or defenses, including jurisdictional, and expressly reserves the right to amend and supplement this 

Notice of Removal.

WHEREFORE, Wal-Mart prays that the above-entitled action be removed from the Santa 

Clara County Superior Court to the United States District Court for the Northern District of 

California, San Jose Division, for all further proceedings.

Dated this 5th day of January, 2017.

K&L GATES LLP

By: /s/ Matthew Ball

Email: matthew.ball@klgates.com

Attorneys for Defendants Wal-Mart Associates, Inc. 

and Wal-Mart Stores, Inc.

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NOTICE OF REMOVAL

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true and correct copy of the foregoing NOTICE 

OF REMOVAL upon the following counsel via the Court’s CM/ECF System to:

ATTORNEYS FOR PLAINTIFF AND CLASS:

DIVERSITY LAW GROUP, P.C.

Larry W. Lee, Bar #228175

Nicholas Rosenthal, Bar #268297

515 S. Figueroa St., Suite 1250

Los Angeles, CA 90071

Tel. (213) 488-6555

Emails: lwlee@diversitylaw.com; nrosenthal@diversitylaw.com

POLARIS LAW GROUP

William Marder, Bar #170131

501 San Cenito St., Suite 200

Holllister, CA 95023

Tel. (831) 531-4214

Email: bill@polarislawgroup.com

HYUN LEGAL, APC

Dennis Hyun

515 S. Figueroa St., Suite 1250

Los Angeles, CA 90071

Tel. (213) 488-6555

Email: dhyun@hyunlegal.com

K&L GATES LLP

Dated: January 5, 2017 By: /s/ Matthew Ball 

Matthew Ball 

Attorneys for Defendants Wal-Mart Associates, 

Inc. and Wal-Mart Stores, Inc. 

Case 5:17-cv-00062-LHK Document 1 Filed 01/05/17 Page 10 of 10