Page 1 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

Clarence M. Belnavis, OSB #942463

Email Address: cbelnavis@laborlawyers.com

Elizabeth K. Bonucci, OSB #063221

Email Address: ebonucci@laborlawyers.com

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262 Telephone

(503) 242-4263 Facsimile

Attorneys for Defendant RANDSTAD PROFESSIONALS US, LP

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MICHAEL MAKANEOLE, individually and

on behalf of all similarly situated,

Plaintiff,

v.

SOLARWORLD INDUSTRIES

AMERICA, INC.; SOLARWORLD

INDUSTRIES AMERICA, LP;

SOLARWORLD INDUSTRIES

SERVICES, LLC; SOLARWORLD

POWER PROJECTS, INC., RANDSTAD

PROFESSIONALS US, LP, and KELLY

SERVICES, INC.,

Defendants.

Case No. 3:14-cv-1528

NOTICE OF REMOVAL OF CIVIL

ACTION

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Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 1 of 12
Page 2 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

Defendant Randstad Professionals US, LP (“Randstad”) files this Notice of Removal of

Civil Action pursuant to 28 U.S.C. § 1332(d). This Court has jurisdiction over Plaintiff’s action

pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. All other Defendants join in this removal.

Preliminary Statement of Claims

1. Plaintiff Michael Makaneole filed this lawsuit against Defendants SolarWorld

Industries America, Inc.; SolarWorld Industries America, LP; SolarWorld Industries Services,

LLC; and SolarWorld Power Projects, Inc. (collectively referred to as “SolarWorld”), as well as

Randstad and Kelly Services, Inc. (“Kelly Services”) in the Circuit Court of Multnomah County,

Oregon, Civil Division, No. 14cv12000 (the “state court action”).

2. Plaintiff’s Complaint asserts liability on behalf of himself and all similarly

situated employees for all of the Defendants. Plaintiff alleges that he was employed by

Defendants Randstad and Kelly Services, and was assigned to work at SolarWorld’s Hillsboro,

Oregon facility. (Complaint ¶¶ 58-60.) Plaintiff also alleges that he worked as a SolarWorld

employee. (Complaint ¶ 61.) Specifically, Plaintiff asserts the following three class-wide causes

of action: (1) all Defendants failed to pay all wages owed (Complaint ¶¶ 84, 86, and 88); (2) all

Defendants failed to pay all overtime owed and are thus subject to penalties under ORS 652.150

and ORS 653.055 (Complaint ¶¶ 102-104); and (3) all Defendants failed to pay all wages at the

time of termination and are thus required to pay penalties under ORS 652.150 (Complaint ¶¶

131-133).

3. In the Complaint, Plaintiff alleges that Defendants programmed their time

keeping system such that an employee would not be paid for all time worked. (Complaint ¶ 20.)

4. Plaintiff brings the Complaint pursuant to Oregon Rules of Civil Procedure 32 as

an individual on behalf of all similarly situated individuals during the relevant time period.

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 2 of 12
Page 3 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

(Complaint ¶ 39.) Plaintiff seeks to represent a class defined as “...current and former

employees of Employers, who worked for Employers in Oregon [and] who are subject to Oregon

wage and hour provisions.” (Complaint ¶ 30.) Plaintiff further claims that the class of impacted

employees exceeds 500 persons (Complaint ¶ 40) and that Plaintiff’s claims are typical of class

members’ claims (Complaint ¶ 42).

5. Defendant Randstad is a limited partnership organized in the state of Delaware,

and its general headquarters and principal place of business are located in Woburn,

Massachusetts.

6. Defendant Kelly Services is a foreign business corporation organized in the state

of Delaware, and its general headquarters and principal place of business are located in Troy,

Michigan.

7. Defendant SolarWorld Industries America, Inc. is a domestic corporation

organized in the state of Oregon with its principal place of business located in Hillsboro, Oregon.

8. Defendant SolarWorld Industries America, LP is a foreign limited partnership

organized in the state of Delaware, and its general headquarters and principal place of business

are located in Bonn, Germany.

9. Defendant SolarWorld Industries Services, LLC is a foreign limited partnership

organized in the state of Delaware with its principal place of business located in Hillsboro,

Oregon.

10. Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders

served upon Defendant Randstad in this action are attached as Exhibit A. The required Civil

Cover Sheet is attached to this filing (as “Civil Cover Sheet” per local rule).

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Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 3 of 12
Page 4 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

Venue

11. This Court is the United States District Court for the district embracing

Multnomah County, Oregon, and is therefore the appropriate court for removal pursuant to 28

U.S.C. § 1441.

Consent of Other Defendants

12. All Defendants in this matter consent to the removal of this action.

Basis for Removal

13. The Class Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4

(amending 28 U.S.C. § 1332(d)), confers federal jurisdiction over class actions involving (a)

minimal diversity (i.e. diversity between any defendant and any putative class member); (b) at

least 100 putative class members; and (c) at least $5 million in controversy, exclusive of interests

and costs. 28 U.S.C. § 1332(d)(2)(A). Further, no Defendant identified in the Complaint is a

state, officer of a state, or a government agency. 28 U.S.C. § 1332(d)(5). Although the burden

rests on the removing party to demonstrate that CAFA’s jurisdictional requirements are met, the

party opposing jurisdiction under CAFA bears the burden of demonstrating that any exception to

CAFA jurisdiction applies. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1022-24 (9th Cir.

2007). Simply put, this case satisfies CAFA’s requirements.

Diversity of Citizenship

14. Pursuant to 28 U.S.C. § 1332(d)(2), the diversity requirement under CAFA is

satisfied when (1) any member of a class of plaintiffs is a citizen of a state different from any

defendant, (2) when at least one member of a class of plaintiffs is a citizen of a foreign state and

one defendant is a U.S. citizen, or (3) when at least one member of a class of plaintiffs is a U.S.

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 4 of 12
Page 5 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

citizen and one defendant is a citizen of a foreign state. Here, the diversity requirement under

CAFA is fully satisfied.

15. Based upon information and belief, Plaintiff is a resident of the State of Oregon.

For diversity purposes, a person is a “citizen” of the state in which he or she is domiciled.

Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983).

16. In the Complaint, Plaintiff asserts a proposed putative class of individuals located

in the State of Oregon or worked in Oregon. (Complaint ¶¶ 16 and 30-32.) On that basis, the

proposed putative class members are all citizens of the State of Oregon.

17. A corporation is deemed to be a citizen of the state in which it has been

incorporated and where it has its principal place of business. 28 U.S.C. § 1332(c)(1). The

phrase “principal place of business” “refers to the place where the corporation’s high level

officers direct, control, and coordinate the corporation’s activities.” Hertz Corp. v. Friend, 559

U.S. 77, 80, 130 S. Ct. 1181, 1186, 175 L. Ed. 1029, 1034 (2010). This is the corporation’s

“nerve center.” Id. at 81. “[I]n practice [this] should normally be the place where the

corporation maintains its headquarters.” Id. at 93.

18. Plaintiffs’ Complaint admits that two defendants are foreign entities – Randstad is

a foreign limited partnership and Kelly Services is a foreign business corporation. (Complaint ¶¶

8 and 11). Defendant Randstad is an entity organized in the State of Delaware with is principal

place of business in the State of Massachusetts, and Defendant Kelly Services is organized in the

State of Delaware with its principle place of business in the State of Michigan. Further, attached

as Exhibit B are true and correct copies of public records of the State of Oregon regarding

Defendants Randstad and Kelly Services. Therefore, the diversity requirement under CAFA is

fully satisfied as Plaintiff is a citizen of Oregon and two Defendants are citizens of other states.

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 5 of 12
Page 6 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

The Proposed Class Exceeds 100

19. Defendants do not concede in any way, shape, or form the propriety of Plaintiff’s

proposed class. Nor do Defendants concede that Plaintiff has properly pled a class. Defendants

do not waive and, to the contrary, reserve their rights to challenge the propriety of the alleged

putative class in all respects.

20. For purposes of removal, the Court must look at the Plaintiff’s allegations with

respect to class size. 28 U.S.C. §1332(d) (5); Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d

1136, 1140 (9th Cir. 2013) (CAFA requirement of 100 class members satisfied by plaintiff’s

complaint).

21. In the Complaint, Plaintiff alleges and seeks a putative class of at least 500.

(Complaint ¶ 40.) (“The class is believed to exceed 500 persons and may increase based on the

turnover rate of employees during applicable statute of limitations.”) According to the face of

the Complaint, the putative class surpasses the 100 class member threshold. See 28 U.S.C. §

1332(d)(5)(B).

The Amount in Controversy Exceeds $5,000,000

22. Although Defendants adamantly deny that Plaintiff, any putative class member, or

the putative class, are entitled to any relief whatsoever,1the Court must look at the Complaint’s

allegations to determine the amount in controversy, assuming the allegations to be true. Fong v.

Regis Corp., 2014 U.S. Dist. LEXIS 275, *5 (N.D. Cal.2014) (citing Kenneth Rothschild Trust v.

Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal. 2002) (The inquiry is what is

put “in controversy” by the complaint, not what a defendant will actually owe.). Notably, “[t]he

1 Defendant uses Plaintiff’s alleged legal theories and alleged theories of recovery of damages

and penalties only to demonstrate that the amount in controversy as pled exceeds $5,000.000.

Defendants believe Plaintiff’s allegations lack merit.

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 6 of 12
Page 7 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

amount in controversy is simply an estimate of the total amount in dispute, not a prospective

assessment of defendant’s liability.” Lewis v. Verizon Communications, Inc., 627 F.3d 395, 400

(9th Cir. 2010).

23. Plaintiff’s asserted putative class places in controversy in excess of $5 million,

excluding interest and costs. In the Complaint, Plaintiff seeks unpaid wages, unpaid overtime,

civil penalties per ORS 653.055(1)(b) and ORS 652.150 for each separate employer,2unpaid

wages, and statutory penalty wages pursuant to ORS 652.150 for each separate employer.

(Complaint, Prayer for Relief.) Thus, as pled, the alleged amount in controversy for one civil

penalty alone for the putative class (not including the alleged unpaid wages, the alleged unpaid

overtime, and the alleged penalties for failure to pay wages upon termination) exceeds the

aggregate $5,000,000:

NUMBER OF EMPLOYEES

ALLEGED AS A CLASS

OVER 500 (COMPLAINT, ¶ 40)

Alleged Overtime Penalties from SolarWorld

(Complaint, ¶ 101-104)

$1,750,000 (Penalty of $3500 x 500)

Alleged Overtime Penalties from Randstad

(Complaint, ¶ 101-104)

$1,750,000 (Penalty of $3500 x 500)

Alleged Overtime Penalties from Kelly

Services (Complaint, ¶ 101-104)

$1,750,000 (Penalty of $3500 x 500)

TOTAL $5,250,000

24. While Defendants do not believe Plaintiff is entitled to any damages or fees, for

purposes of removal only, the Court can also take into account the attorneys’ fees Plaintiff seeks

in determining the amount in controversy. Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56

(9th Cir. 1998); Goldberg v. CPC International Inc. 678 F.2d 1365, 1367 (9th Cir. 1982).

2 Plaintiff alleges a penalty under ORS 652.150 and ORS 653.055 for his second cause of action

in the amount of $3,500.00 from SolarWorld, Randstad, and Kelly Services. (Complaint ¶ 104.)

This penalty is representative of what is sought by the putative class.

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 7 of 12
Page 8 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

Attorney fees may total hundreds of thousands of dollars. Further, multiple courts have held that

under CAFA it is appropriate to apply at least a 25% benchmark for fees. See Jasso v. Money

Mart Exp., Inc., No. 11-cv-5500, 2012 WL 699465, at *7 (N.D. Cal. Mar. 1, 2012). Thus, even

if we assume the amount in controversy is approximately $5 million, 25% of $5 million is $1.25

million. Thus, the amount in controversy in this case far exceeds the $5 million threshold.

The Local Controversies and Home State Exceptions to CAFA Do No Apply

25. Noteworthy, the Local Controversies and Home State exceptions under 28 U.S.C.

§ 1332(d)(3) and (4) do not and cannot apply in the instant case.

26. First, in order for the Local Controversies exception to apply, “during the 3-year

period preceding the filing of that class action, no other class action [must have] been filed

asserting the same or similar factual allegations against any of the defendants on behalf of the

same or other persons.” 28 U.S.C. § 1332(d)(4)(A)(ii). Here, the exception does not apply

because, on December 26, 2012, a class action lawsuit was filed against SolarWorld by

Plaintiff’s counsel, and this lawsuit asserts virtually the same allegations on behalf of virtually

the identical group of employees. (Attached as Exhibit C is a true and accurate copy of the

complaint in the other class action, Bey v. SolarWorld Industries America, Inc., et al.,

Multnomah County Circuit Court Case No. 1212-16562.)

27. Second, the Home State exception only applies if “two-thirds or more of the

members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens

of the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(B). Here, both

Randstad and Kelly Services are primary Defendants because they are the “real targets” of

Plaintiff’s accusations – they are alleged to have employed Plaintiff, they are alleged to have

failed to pay all wages owed, and they are alleged to owe penalties for allegedly failing to pay all

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 8 of 12
Page 9 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

wages owed.3 Additionally, the Home State exception does not apply when two-thirds of the

putative class members are citizens of the same state as one of the primary defendants, but not

the remaining primary defendants. See Vodenichar v. Halcon Energy Properties, Inc., 733 F.3d

497, 505-06 (3rd Cir. 2013) (holding that CAFA requires remand under the Home State

exception only if all primary defendants are citizens of the same state as two-thirds of the

putative class). Thus, even if SolarWorld is also considered to be a “primary defendant,” it is not

enough to trigger the Home State exception. As such, the Home State exception does not apply,

and this Court has jurisdiction under CAFA.

Timeliness of Removal

28. Removal is timely pursuant to 28 U.S.C. § 1446(b) because Defendant Randstad

is filing this Notice of Removal within thirty days of receipt of the Complaint. Defendant

Randstad was served a copy of the Complaint through its agent, Corporation Service Company,

in Salem, Oregon on September 2, 2014. Corporation Service Company’s Notice of Service of

Process Transmittal to Defendant Randstad is attached as Exhibit D.

Proper Notice of Removal

29. Promptly after filing this Notice of Removal, Defendant Randstad will serve a

copy upon Plaintiff and will file a copy with the Clerk of the Circuit Court of Multnomah

County, Oregon.

Reservation of Defenses

30. By filing this Notice of Removal, Defendant Randstad does not waive, and

expressly reserves, any defenses that may be available.

3 As noted above, the Bey v. SolarWorld Industries America, Inc. et al class action makes the

same allegations against SolarWorld Defendants only. (Complaint, ¶¶ 70, 108.) This current

action includes Randstad and Kelly Services, thus making Randstad and Kelly Services the “real

target” in the present action.

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 9 of 12
Page 10 NOTICE OF REMOVAL OF CIVIL ACTION

FISHER & PHILLIPS LLP

111 SW Fifth Avenue, Suite 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

WHEREFORE, Defendant Randstad hereby removes the above-captioned civil action to

this Court’s jurisdiction.

Dated: September 24, 2014 FISHER & PHILLIPS LLP

s/ Clarence M. Belnavis

Clarence M. Belnavis, OSB #942463

Elizabeth K. Bonucci, OSB #063221

Attorneys for Defendant RANDSTAD

PROFESSIONALS US, LP

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 10 of 12
Page 1 CERTIFICATE OF SERVICE FISHER & PHILLIPS LLP

111 SW Fifth Ave., Ste. 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing NOTICE OF REMOVAL OF CIVIL

ACTION by the method(s) indicated below on:

David A. Schuck

SCHUCK LAW, LLC

10013 NE Hazel Dell Avenue #178

Vancouver, WA 98685

Tel: (360) 566-9243 Fax: (503) 575-2763

E-mail: dschuck@wageclaim.org

Attorney for Plaintiff

Victor J Kisch

STOEL RIVES LLP

900 S.W. 5th Avenue, Suite 2600

Tel: (503) 294-9648 Fax: (503) 220-2480

E-mail: vkisch@stoel.com

Attorneys for SolarWorld Industries America,

Inc., SolarWorld Industries America, LP,

SolarWorld Industries Services, LLC,

SolarWorld Power Projects, Inc.

Gerald Maatman

SEYFARTH SHAW

131 S. Dearborn Street, Suite 2400

Chicago, IL 60603

Tel: (312) 460-5000 Fax: (312) 460-7000

E-mail: gmaatman@seyfarth.com

Attorneys for Kelly Services, Inc.

by the following indicated method(s):

Electronic filing via the CM/ECF system.

Fax and Mail: by faxing to the attorney at the fax number as above stated, which is the

last known fax number for the attorney’s office, on the date set forth below; and by

mailing a full, true, and correct copy in a sealed envelope with postage prepaid thereon,

addressed as above stated, which is the last-known office address of the attorney, and

depositing it with the United States Postal Service at Portland, Oregon, on the date set

forth below. Plus E-mail*

Regular or Priority Mail: by mailing a full, true, and correct copy thereof in a sealed

envelope with postage prepaid thereon, addressed as above stated, which is the lastknown office address of the attorney, and

Depositing it with the United States Postal Service at Portland, Oregon, on the date

set forth below. Plus E-mail*

Sending it via a priority mail service on the date set forth below. Plus E-mail*

Hand-Delivery: by causing a full, true and correct copy thereof to be hand-delivered to

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 11 of 12
Page 1 CERTIFICATE OF SERVICE FISHER & PHILLIPS LLP

111 SW Fifth Ave., Ste. 4040

Portland, Oregon 97204

(503) 242-4262

FPDOCS 30137220.1

the attorney at either the attorney’s last-known office address as above stated, on the date

set forth below, or at another location where the attorney is known to be, on the date set

forth below.

* E-Mail: Where checked above, e-mail was effected by causing a full, true and correct copy

thereof to be transmitted to the attorney in WordPerfect or Word format via electronic

correspondence to the attorney’s last-known e-mail address in accordance with United States

District Court Local Rule, if applicable.

DATED: September 24, 2014 s/ Clarence M. Belnavis

Clarence M. Belnavis, OSB #942463

Elizabeth K. Bonucci, OSB #063221

Attorneys for Defendant RANDSTAD

PROFESSIONALS US, LP

Case 3:14-cv-01528-JR Document 1 Filed 09/24/14 Page 12 of 12