                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 30 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JUAN PEREZ, on behalf of himself and             No. 14-55029
those similarly situated,
                                                 D.C. No. 2:13-cv-07741-R-FFM
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

ALTA-DENA CERTIFIED DAIRY, LLC,
a Delaware Limited Liability Company,

              Defendant - Appellee.



JUAN PEREZ, on behalf of himself and             No. 14-55058
those similarly situated,
                                                 D.C. No. 2:13-cv-07741-R-FFM
              Plaintiff - Appellee,

 v.

ALTA-DENA CERTIFIED DAIRY, LLC,
a Delaware Limited Liability Company,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Manuel L. Real, District Judge, Presiding

                        Argued and Submitted March 9, 2016
                               Pasadena, California

Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.

      Juan Perez and Alta-Dena Certified Dairy cross-appeal from the district

court’s order denying Perez’s motion to remand, granting Alta-Dena’s motion for

partial dismissal, and remanding Perez’s remaining claims to state court. We

affirm in part, reverse in part, vacate in part, and remand for further proceedings

consistent with this disposition. Alta-Dena’s appeal is dismissed as moot.

1.    The district court did not err in denying Perez’s motion to remand. Alta-

Dena’s second removal petition was timely because it was filed within thirty days

after Perez’s First Amended Complaint (“FAC”) was remanded to state court. It is

immaterial that Alta-Dena removed more than thirty days after Perez filed the FAC

in federal court. See Peabody v. Maud Van Cortland Hill Schroll Trust, 892 F.2d

772, 775 (9th Cir. 1989) (observing that a motion “filed in federal court[] . . . could

not trigger a right to remove to federal court”); Williams v. Costco Wholesale

Corp., 471 F.3d 975, 976-77 (9th Cir. 2006) (“[T]he idea of filing a notice of

removal in a case that is already pending in federal court, having been properly

removed, is nonsensical.”).



                                          -2-
2.    Further, Alta-Dena’s second removal was not improperly successive.

Although a defendant may not file a second removal petition based on the same

grounds as a prior, unsuccessful petition, Seedman v. U.S. Dist. Court for Cent.

Dist. of Calif., 837 F.2d 413, 414 (9th Cir. 1988) (per curiam), “a defendant who

fails in an attempt to remove on the initial pleadings can file a removal petition

when subsequent pleadings or events reveal a new and different ground for

removal.” Kirkbride v. Continental Cas. Co., 933 F.2d 729, 732 (9th Cir. 1991).

In the related context of deciding when the thirty-day window to remove an

indeterminate complaint is triggered, we have observed that “even if a case were

not removable at the outset,” it may be “rendered removable by virtue of a change

in the parties or other circumstance revealed in a newly-filed ‘paper.’” Harris v.

Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005) (quoting 28 U.S.C.

§ 1446(b)). Here, Perez filed a new pleading, the FAC, which at the very least

placed two additional years of alleged violations in controversy. Additionally,

although the original complaint did not put rest breaks (in addition to meal breaks)

at issue under the route restriction theory, paragraph 16 of the FAC can fairly be

read to do just that. We hold therefore that the FAC presented a new and different

ground for removal justifying the second removal.




                                          -3-
3.      Perez’s related argument that Alta-Dena should have relied on the FAC filed

in district court when it opposed his first motion to remand is not well taken, since

Perez urged the district court to ignore it. In any event, “[w]e have long held that

post-removal amendments to the pleadings cannot affect whether a case is

removable, because the propriety of removal is determined solely on the basis of

the pleadings filed in state court.” Williams, 471 F.3d at 976.

4.      The district court fairly interpreted the FAC to place more than $75,000 in

controversy. As the record reflects, the district court adopted Alta-Dena’s amount-

in-controversy calculations for the FAC’s first cause of action, which were based

on two assumptions: Perez’s route restriction theory placed every meal and rest

break at issue, and the alleged violations occurred from May 2006 until January

2013.

        The allegations in the FAC support both assumptions. Paragraph 16 alleged

that “[f]rom at least 2005 to the present,” under Alta-Dena’s route restriction

policy “drivers could not leave the route and had to remain with their truck for

which they had ultimate responsibility. Thus, Defendant did not allow Plaintiff or

any putative class member duty free meal and/or rest period(s) . . . .” Perez

recognized that these allegations could support a “100% violation on the meal

breaks.” As noted above, the text of Paragraph 16 is plausibly read to allege a


                                          -4-
violation of every rest break as well. Moreover, even if the applicable statute of

limitations ultimately precludes recovery for violations before May 2009, as Perez

argues, that potential defense does not reduce the amount in controversy for

purposes of establishing federal jurisdiction. St. Paul Mercury Indem. Co. v. Red

Cab Co., 303 U.S. 283, 292 (1938) (“[T]he fact that it appears from the face of the

complaint that the defendant has a valid defense, if asserted, to all or a portion of

the claim, . . . , will not justify remand.”). Based on these two permissible

assumptions, Perez’s first cause of action placed just over $74,000 worth of meal

and rest break premiums in controversy.

      Additionally, the parties agree that the first cause of action placed statutory

penalties worth $1275 in controversy. Finally, Perez acknowledged that, in

addition to amounts the FAC’s first cause of action placed in controversy, four

other causes of action placed approximately $25,000 in controversy excluding

attorneys’ fees. Taken together, Alta-Dena met its burden of demonstrating by a

preponderance of the evidence that the jurisdictional threshold of $75,000 was




                                          -5-
satisfied. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.

1996).1

5.    Alta-Dena moved to dismiss Perez’s first and second causes of action only

to the extent they alleged meal-period and overtime claims arising after the June 1,

2011 collective bargaining agreement (“CBA”). Alta-Dena acknowledged in the

district court that Perez’s first and second causes of action also alleged rest-break

and straight-time claims not subject to the CBA exemption, and confirmed that it

did not seek to dismiss those “pieces” of the two causes of action. Similarly, Alta-

Dena acknowledged at oral argument in this court that its motion to dismiss did not

attack meal-break and overtime claims predating the CBA.

      Pursuant to the parties’ representations in their briefs and at oral argument,

we conclude that the district court erred in construing Alta-Dena’s motion to seek

complete dismissal of the first two causes of action and in dismissing them in their

entirety. The district court’s order is reversed to the extent it dismissed Perez’s

first two causes of action based on conduct other than meal-break and overtime

violations postdating the CBA. Perez’s first and second causes of action may

properly proceed to the extent they allege meal-break and overtime claims that

      1
       Because we do not rely on the portions of Alta-Dena’s supplemental
excerpts of record that Perez challenges in his Motion to Strike, the motion is
DENIED as moot.

                                          -6-
predate the CBA and to the extent they are based on rest-break and minimum-

wage/straight-time claims which were not the subject of Alta-Dena’s motion to

dismiss. Moreover, in light of Perez’s contention at oral argument that the CBA

may not be valid for purposes of exempting him from pursuing meal-break and

overtime claims, the district court’s dismissal with prejudice of the first two causes

of action to the extent they allege meal-break and overtime violations postdating

the CBA is vacated so that Perez may seek leave to amend.

6.    In its cross-appeal, Alta-Dena argues that the district court erred in

remanding Perez’s remaining causes of action. Because we reverse in part and

remand for further proceedings in the district court, Alta-Dena’s cross-appeal is

dismissed as moot.

      AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART,

AND REMANDED. Appeal No. 14-55058 is DISMISSED as moot.

      Alta-Dena shall recover its costs on appeal.




                                          -7-
