Brown v. United Airlines, Inc. et al, No. 3:2019cv00537 - Document 23 (S.D. Cal. 2019)

Court Description: ORDER Granting 11 Plaintiff's Motion to Remand. The Court grants Plaintiff's motion to remand, and remands this action back to state court. The Clerk of Court is instructed to close the case. Signed by Judge Michael M. Anello on 7/9/2019. (Certified copy sent to State Court via US Mail Service.) (rmc)

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Brown v. United Airlines, Inc. et al Doc. 23 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 ELLA BROWN, an individual, on behalf of herself and on behalf of all persons similarly situated, Case No.: 19cv537-MMA (JLB) ORDER GRANTING PLANTIFF’S MOTION TO REMAND Plaintiff, v. [Doc. No. 11] UNITED AIRLINES, INC., an Illinois Corporation, Defendant. 16 17 Plaintiff Ella Brown (“Plaintiff”) filed this putative class action against Defendant 18 19 United Airlines, Inc. (“Defendant”) in the Superior Court of California, County of San 20 Diego. See Doc. No. 1, Ex. A (hereinafter “Compl.”). On March 21, 2019, Defendant 21 removed the action to this Court pursuant to the Class Action Fairness Act (“CAFA”), 28 22 U.S.C. § 1332(d). See Doc. No. 1. On April 19, 2019, Plaintiff filed a motion to remand 23 this action back to state court. See Doc. No. 11. Defendant filed an opposition, to which 24 Plaintiff replied. See Doc. Nos. 14, 15. The Court found the matter suitable for 25 determination on the papers and without oral argument pursuant to Civil Local Rule 26 7.1.d.1. See Doc. No. 17. For the reasons set forth below, the Court GRANTS 27 Plaintiff’s motion to remand. 28 /// 1 19cv537-MMA (JLB) Dockets.Justia.com 1 2 BACKGROUND Plaintiff, a California resident, has been employed as a non-exempt ramp agent by 3 Defendant in California since September 2016. See Compl. ¶ 3. Plaintiff claims she is 4 entitled to overtime pay and meal rest periods dating back to the start of her employment. 5 See id. Plaintiff alleges that the Class Period for this action is any time during the four 6 years prior to the filing of the Complaint (February 14, 2019) “and ending on a date as 7 determined by the Court.” Id. ¶ 20. 8 On February 14, 2019, Plaintiff filed this putative class action in San Diego 9 Superior Court on behalf of herself and all other similarly situated California employees. 10 See Compl. Plaintiff alleges six claims for relief: (1) unlawful business practices, in 11 violation of Cal. Bus. & Prof. Code § 17200, et seq.; (2) failure to pay minimum wages, 12 in violation of Cal. Lab. Code §§ 1194, 1197, 1197.1; (3) failure to pay overtime 13 compensation, in violation of Cal. Lab. Code §§ 201, 510, 1194, 1198; (4) failure to 14 provide required meal periods, in violation of Cal. Lab. Code §§ 226.7, 512; (5) failure to 15 provide required rest periods, in violation of Cal. Lab. Code §§ 226.7, 512; and (6) failure 16 to provide accurate itemized statements, in violation of Cal. Lab. Code § 226. See id. 17 Plaintiff defines the proposed class as “all individuals who are or previously were 18 employed by Defendant in California and classified as non-exempt employees.” Id. ¶ 20. 19 Plaintiff excludes from the proposed class “all persons that are or were employed by 20 Defendant in the position of Flight Attendant.” Id. 21 22 23 24 Defendant removed the action to this Court on March 21, 2019. See Doc. No. 1. Plaintiff filed the instant motion to remand on April 19, 2019. See Doc. No. 11. LEGAL STANDARD “As a general matter, defendants may remove to the appropriate federal district 25 court ‘any civil action brought in a State court of which the district courts of the United 26 States have original jurisdiction.’ 28 U.S.C. § 1441(a). The propriety of removal thus 27 depends on whether the case originally could have been filed in federal court.” City of 28 Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). The “propriety of removal” in 2 19cv537-MMA (JLB) 1 this case arises under “CAFA[, which] gives federal courts jurisdiction over certain class 2 actions, defined in § 1332(d)(1), if the class has more than 100 members, the parties are 3 minimally diverse, and the amount in controversy exceeds $5 million.” Dart Cherokee 4 Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 552 (2014). 5 A notice of removal must contain a “short and plain statement of the grounds for 6 removal.” 28 U.S.C. § 1446(a). There is no presumption against removal jurisdiction in 7 CAFA cases. Dart, 135 S. Ct. at 554 (noting “CAFA’s provisions should be read 8 broadly, with a strong preference that interstate class actions should be heard in a federal 9 court if properly removed by any defendant”) (internal quotations omitted). The burden 10 of establishing removal jurisdiction under CAFA lies with the proponent of federal 11 jurisdiction. See Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1199 (9th Cir. 12 2015). 13 “[W]hen a defendant seeks federal-court adjudication, the defendant’s amount-in- 14 controversy allegation should be accepted when not contested by the plaintiff or 15 questioned by the court.” Dart, 135 S. Ct. at 553. “Evidence establishing the amount is 16 required” where, as here, the plaintiff challenges the defendant’s amount in controversy 17 assertion. Id. at 554. “In such a case, both sides submit proof and the court decides, by a 18 preponderance of the evidence, whether the amount-in-controversy requirement has been 19 satisfied.” Id. (citing 28 U.S.C. § 1446(c)(2)(B)). “Under the preponderance of the 20 evidence standard, a defendant must establish ‘that the potential damage could exceed the 21 jurisdictional amount.’” Bryant v. NCR Corp., 284 F. Supp. 3d 1147, 1149 (S.D. Cal. 22 2018) (quoting Rea v. Michaels Stores Inc., 742 F.3d 1234, 1239 (9th Cir. 2014)). 23 DISCUSSION 24 There is no dispute that the proposed class includes more than 100 employees. 25 Thus, the issues before the Court are: (1) whether the parties are minimally diverse; and 26 (2) whether Defendant has shown, by a preponderance of the evidence, that the amount in 27 controversy exceeds $5 million. 28 /// 3 19cv537-MMA (JLB) 1 1. Plaintiff’s Request for Judicial Notice 2 As an initial matter, in her reply brief, Plaintiff requests that the Court take judicial 3 notice of a May 2019 opinion from the Eastern District of California, Gonzalez v. Hub 4 Int’l Midwest Ltd., NO. ED CV 19-557 PA (ASx) 2019 U.S. Dist. LEXIS 79672 (C.D. 5 Cal. May 10, 2019). See Doc. No. 15-1 at 2. However, Plaintiff asks the Court to 6 judicially notice the opinion not to establish the facts of the case, but rather as 7 supplemental authority for the Court to consider. This request is misguided as “a request 8 for judicial notice is not a proper vehicle for legal argument.” Garcia v. California 9 Supreme Court, No. CV 12-4504-DWM, 2014 U.S. Dist. LEXIS 7363, at *1 (N.D. Cal. 10 Jan. 21, 2014); see, e.g., Ghalehtak v. FNBN I, LLC, No. 15-CV-05821-LB, 2016 U.S. 11 Dist. LEXIS 61347, at *3 (N.D. Cal. May 6, 2016); McVey v. McVey, 26 F. Supp. 3d 980, 12 984 (C.D. Cal. 2014), appeal dismissed (Apr. 22, 2015). Accordingly, the Court DENIES 13 Plaintiff’s request for judicial notice. 14 2. Diversity of Citizenship 15 Plaintiff first argues that Defendant fails to prove that the parties are sufficiently 16 diverse. See Doc. No. 11-1 at 3. Plaintiff further argues that neither Defendant’s Notice 17 of Removal (“NOR”) nor the testimony of Defendant’s Declarant, Dorota Karpierz, 18 contain “a shred of evidence or sworn testimony” that would suffice to establish minimal 19 diversity of the parties. Id. at 3. 20 Minimal diversity under CAFA requires that a “member of a class of plaintiffs is a 21 citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). For 22 purposes of diversity jurisdiction, a person’s citizenship is determined by the person’s 23 state of domicile—not the state of residence. Kanter v. Warner-Lambert Co., 265 F.3d 24 853, 857 (9th Cir. 2001). A corporation is “a citizen of any State by which it has been 25 incorporated and of the State where it has its principal place of business.” Kuntz v. 26 Lamar Corp., 385 F.3d 1177, 1181-82 (9th Cir. 2004) (citing 28 U.S.C. § 1331(c)(1)). 27 For diversity jurisdiction in federal cases, the burden of proof rests with the party seeking 28 4 19cv537-MMA (JLB) 1 removal. Kearns v. Ford Motor Co., 2005 U.S. Dist. LEXIS 41614, at *15 (C.D. Cal. 2 Nov. 18, 2005). 3 Here, Plaintiff lives and works in California, and is thus a citizen of California. 4 See Compl. ¶ 3. Contrary to Plaintiff’s assertions, Defendant provided sworn testimony 5 by Declarant Dorota Karpierz that “[Defendant] is a Delaware corporation and has its 6 headquarters in Chicago, Illinois.” Doc. No. 1-2 at 2. Declarant Karpierz has been 7 employed by Defendant for over 20 years and has “personal knowledge” of Defendant’s 8 citizenship. Id. at 2. Declarant Karpierz’s sworn testimony regarding Defendant’s 9 citizenship is sufficient to establish Defendant’s citizenship by a preponderance of the 10 11 12 evidence. Accordingly, the Court finds that Defendant has met its burden to establish minimal diversity under CAFA’s relaxed standard. 13 3. Amount in Controversy Calculations 14 Plaintiff next contends that Defendant fails to prove that the amount in controversy 15 exceeds $5,000,000. See Doc. No. 11-1 at 3. 16 Plaintiff’s Complaint is silent with respect to damages sought, aside from 17 indicating that “the amount in controversy for the aggregate claim of [California Class] 18 Members is under five million dollars ($5,000,000).” Compl. ¶ 20. Plaintiff argues that 19 the Court should grant her Motion to Remand because “Defendant’s NOR relies solely on 20 assumptions not grounded in real evidence . . . .” Doc. No. 11-1 at 10. In opposition, 21 Defendant submits the declaration of Dorota Karpierz, employed by Defendant as Case 22 Manager, Labor and Employment. See Doc. No. 14-1 at 2. Declarant Karpierz includes, 23 as Exhibit A, the Fleet Services Employees Agreement (“Agreement”) that governs the 24 relationship between Defendant and its non-exempt employees, including ramp agents. 25 See Doc. No. 14-1, Ex. A. The Agreement includes company policies and pay scales for 26 ramp agents and various other non-exempt employees. See id. Based on Declarant 27 Karpierz’s declaration, and the employee pay scales included in Exhibit A, Defendant 28 5 19cv537-MMA (JLB) 1 calculates that the amount in controversy to exceed $10,000,000. See Doc. No. 1 at 6.1 2 In reply, Plaintiff argues that Defendant used a “randomly determined number of 3 workweeks” and a 20% violation rate, without providing evidence as to why these 4 assumptions were made. Doc. No. 15 at 1-2. As such, Plaintiff asserts that Defendant 5 fails to prove, by a preponderance of the evidence, that the amount in controversy is 6 greater than $5,000,000. See id. 7 a. Meal and Rest Break Claims 8 The Court first considers the amount in controversy calculations concerning 9 10 Plaintiff’s meal and rest break claims—the two claims for which Defendant provides specific assumptions and calculations. 11 Plaintiff alleges that “from time to time, D[efendant] failed to provide all the 12 legally required off-duty meal breaks to Plaintiff and the other C[alifornia labor sub-class 13 members].” Compl. ¶ 88. The Complaint also states that “Plaintiff and other C[alifornia 14 labor sub-class members] are often not fully relieved of duty . . . for their meal periods.” 15 Id (emphasis added). Plaintiff further alleges that she, and other class members, are 16 “from time to time required to work in excess of four (4) hours without being provided 17 ten (10) minute rest periods.” Id. ¶ 92. Plaintiff characterizes the alleged rest break 18 violations as occurring “periodically.” Id. 19 Defendant focuses on Plaintiff’s use of the words “often” and “periodically” to 20 characterize the consistency of Defendant’s alleged violations. See Doc. No. 1 at 6. 21 Defendant makes the following assumptions regarding the amount in controversy 22 calculations for Plaintiff’s meal and rest break claims: “There are approximately 2,182 23 individuals working for United as ramp agents in California.” Id. Defendant states that 24 “the current lowest hourly rate for ramp agents is $14.38.” Id. To account for employee 25 attrition, Defendant assumes that the putative class only includes 50% of the 2,182 ramp 26 27 28 1 Citations to this document refer to the pagination assigned by the CM/ECF system. 6 19cv537-MMA (JLB) 1 agents employed by Defendant in California. Id. at 7. Defendant also assumes that “each 2 class member was paid at $14.38 per hour, and missed one meal and one rest break each 3 week for the 4 years (or 208 weeks) at issue in this action[.]” Id. One missed meal and 4 one missed rest break per week is, effectively, a 20% violation rate. Defendant calculates 5 the amount in controversy for Plaintiff’s meal break claim to be $3,263,224.64 ($14.38 6 hourly wage x 208 weeks x 1091 employees). Further, Defendant calculates the amount 7 in controversy for Plaintiff’s rest break claim to be $3,263,224.64 ($14.38 hourly wage x 8 208 weeks x 1091 employees). Thus, Defendant calculates Plaintiff’s fourth and fifth 9 causes of action as placing $6,526,449.28 in controversy. See id. at 7. As Defendant 10 notes that because “this calculation only values the fourth and fifth causes of action and 11 only considers ramp agents,” the “actual amount in controversy is significantly higher.” 12 Id. 13 Plaintiff maintains that “Defendant’s [calculation] is . . . supported by a randomly 14 determined number of workweeks . . . fails to consider the length of shifts, [and] whether 15 meal breaks were owed based on length of shifts.” Doc. No. 15 at 2. Moreover, Plaintiff 16 argues that Defendant’s assumed violation rate is not backed by evidence. See Doc. No. 17 11-1. Plaintiff states, “Defendant offers zero factual evidence as to why it is reasonable 18 to assume that class members missed an average of one meal break and one rest break 19 every single alleged workweek.” Id. at 5. Plaintiff also asserts that “Defendant has the 20 data regarding actual violation rates” but has not included it in Defendant’s amount in 21 controversy calculation. Doc. No. 15 at 5. According to Plaintiff, because the Complaint 22 alleges that violations only occurred “from time to time,” assuming any violation rate 23 without actual evidence is unjustifiable. Id. at 3. 24 Here, the Court looks first to the allegations in the Complaint to establish the 25 appropriate violation rate. See Ibarra, 775 F.3d at 1197 (“In determining the amount in 26 controversy, courts first look to the complaint.”); LaCross v. Knight Transp. Inc., 775 27 F.3d 1200, 1202 (9th Cir. 2015) (“[O]ur first source of reference in determining the 28 amount in controversy [is] plaintiff’s complaint”). Defendant, then, “bears the burden to 7 19cv537-MMA (JLB) 1 show that its estimated amount in controversy relied on reasonable assumptions.” Id. at 2 1199. Plaintiff alleges that the violations occurred from “time to time.” Compl. ¶¶ 13, 3 15, 17, 88, 92, 97. Defendant argues that because Plaintiff only provided a “vague 4 assertion” of violations “from time to time,” Defendant’s assumed violation rate of 20% 5 is reasonable. See Doc. No. 14 at 9. However, the Ninth Circuit has made clear that 6 assumptions for an amount in controversy calculation “cannot be pulled from thin air[.]” 7 Ibarra, 775 F.3d at 1199. Indeed, assumptions regarding a proposed violation rate need 8 to be “grounded in real evidence.” Id. 9 Courts in this District have previously found that assuming a violation rate that is 10 not grounded in real evidence is arbitrary. See Baretich v. Everett Fin., Inc., No. 18-cv- 11 1327-MMA-BGS, 2018 U.S. Dist. LEXIS 164609, at *19 (S.D. Cal. Sep. 25, 2018) 12 (quoting Ibarra, 775 F.3d at 1199) (“Ms. Dworshak’s declaration does not address 13 defendant’s alleged violation rates and thus ‘offers no information by which the Court 14 may conclude that Defendant’s assumptions were not ‘pulled from thin air’”); Basile v. 15 Aaron Bros. Inc., No. 17-cv-485-L (NLS), 2018 U.S. Dist. LEXIS 16940, at *2 (S.D. Cal. 16 Jan 31, 2018) (finding that allegations similar to the allegations here are “insufficient to 17 support the assumption of any particular rate violation.”); Sanders v. Old Dominion 18 Freight Line, Inc., No. 16-cv-2837-CAB-NLS, 2017 U.S. Dist. LEXIS 15936, at *4 (S.D. 19 Cal. Feb. 2, 2017) (noting that “without evidence to support this violation rate, the use of 20 a 50% violation rate (or virtually any violation rate for that matter) is completely arbitrary 21 and little more than speculation and conjecture.”). 22 Plaintiff also cites to authority from a case where, like here, the complaint alleged 23 that violations occurred “from time to time.” See Salazar v. Johnson & Johnson 24 Consumer Inc., No. 2:18-cv-05884-SJO-E, 2018 U.S. Dist. LEXIS 161293 (C.D. Cal. 25 Sep. 19, 2018). There, the court found that because the defendant “does not set forth any 26 facts supporting its assumptions regarding the frequency of meal and rest period 27 violations,” the defendant “has failed to establish . . . the amount in controversy for these 28 claims.” Id. at *9. 8 19cv537-MMA (JLB) 1 Upon review of the pleadings and evidence submitted, Defendant offers no reason 2 “grounded in real evidence” as to why a 20% violation rate is appropriate. Ibarra, 775 3 F.3d at 1199. Ms. Karpierz’s declaration does not include any information relevant to the 4 frequency of meal and rest break violations. While Ms. Karpierz’s declaration does 5 include useful data regarding the potential class size, and hourly wages, there is no 6 evidence that would lead the Court to believe that Defendant’s assumptions were not 7 “pulled from thin air.” Id. Similar to Sanders, “[b]ecause use of either a 25% or 50% 8 violation rate would at a minimum be equally reasonable (or equally unreasonable), it is 9 impossible for the Court to decide that [the defendant] has satisfied its burden.” Sanders, 10 11 2017 U.S. Dist. LEXIS 15936 at *11. The Court acknowledges Defendant’s concern that it need not “comb through [its] 12 records to identify and calculate the exact frequency of violations.” Doc. No. 14 at 9 13 (citing Oda v. Gucci America, Inc., No. 2:14-cv-7468-SVW (JPRx), 2015 U.S. Dist. 14 LEXIS 1672, at *5 (C.D. Cal. Jan. 7, 2015)). Many courts have considered this 15 “fundamental tension.” Morris v. Camden Dev., Inc., No. 18-cv-3089-GW(FFMx), 2018 16 U.S. Dist. LEXIS 146559, at *18 (C.D. Cal. Aug. 27, 2018). However, “the Court may 17 not simply ignore the Ninth Circuit’s directive that it should not rely [on] ‘an assumption 18 about the rate of [defendant’s] alleged labor law violations that [is] not grounded in real 19 evidence.’” Id. (quoting Ibarra, 775 F.3d at 1199). 20 Accordingly, the Court finds that Defendant has not satisfied its burden, by a 21 preponderance of the evidence, as to the amount in controversy with respect to Plaintiff’s 22 meal and rest break claims. See Ibarra, 775 F.3d at 1199. 23 b. Plaintiff’s Overtime Claim 24 Plaintiff further alleges that Defendant failed to pay overtime wages during the 25 period in question. See Compl. ¶¶ 8-15. According to Plaintiff, Defendant “maintained a 26 uniform wage practice of paying P[laintiff] . . . without regard to the correct amount of 27 overtime worked . . . .” Id. at ¶ 76. Defendant argues that because Plaintiff alleges a 28 uniform policy without including facts regarding the frequency of the violations, it can 9 19cv537-MMA (JLB) 1 assume a 100% violation rate. See Doc. No. 14 at 12 (citing Byrd v. Masonite Corp., No. 2 EDCV 16-35 JGB (KKx), 2016 U.S. Dist. LEXIS 60078 (C.D. Cal. May 5, 2016)). 3 Defendant asserts that even if it assumed a 20% violation rate, as it did for Plaintiff’s 4 meal and rest break claims, “the amount in controversy from Plaintiff’s overtime claim is 5 approximately $4,894,836.96.”2 Doc. No. 14 at 12. 6 Defendant’s arguments are unavailing for two reasons. First, a uniform policy 7 does not necessarily mean Defendant failed to pay each employee all overtime wages 8 during the relevant period. As Plaintiff points out, “while a practice may be uniformly 9 applied that does not presuppose that everyone was uniformly harmed.” Doc. No. 15 at 3 10 (citing Williams v. Superior Court, 165 Cal. Rptr. 3d 340, 353 (Ct. App. 2013)). Indeed, 11 Plaintiff alleges that she “and other members” of the putative class “did not receive full 12 compensation for all overtime owed.” Compl. ¶ 79 (emphasis added). Thus, Plaintiffs 13 allegations support the inference that she and members of the putative class received 14 some, but not all, of overtime owed. As such, application of a 100% violation rate is 15 unwarranted and speculative. 16 Second, the weight of authority in this District does not support application of any 17 violation rate that is not grounded in real evidence. For example, when considering 18 allegations of a defendant’s uniform policy, courts have found that assumptions made 19 without substantiation are “arbitrary and little more than speculation and conjecture.” 20 Sanders, 2017 U.S. Dist. LEXIS 15936, at *4; see also Cummings v. G6 Hosp., Ltd. Liab. 21 Co., No. 19-CV-00122-GPC-LL, 2019 U.S. Dist. LEXIS 56719, at *10 (S.D. Cal. Apr. 2, 22 2019) (finding that “[d]efendants have not provided reliable evidentiary bases for [their] 23 assumption” that a 100% violation rate is reasonable in light of the plaintiff’s allegations 24 of a uniform policy); Vilitchai v. Ametek Programmable Power, Inc., No. 3:15cv1957- 25 L(BLM), 2017 U.S. Dist. LEXIS 31623, at *9 (S.D. Cal. Mar. 6, 2017) (“Ametek 26 27 28 2 Defendant reached this number by multiplying $21.57 (hourly wage) by 1091 (number of employees) by 208 (208 weeks or 20% violation rate). 10 19cv537-MMA (JLB) 1 assumes that each putative class member employed . . . worked one hour of unpaid 2 overtime per week. It provides no support for this assumption. Because the assumption is 3 ‘pulled from thin air,’ it is insufficient to support Ametek’s amount in controversy 4 calculation.”) (quoting Ibarra, 775 F.3d at 1199). 5 Additionally, several other courts have understood the “grounded in real evidence” 6 standard outlined in Ibarra to mean that, when a complaint is based on an alleged 7 uniform policy, assumptions made by a defendant must be backed by foundational facts. 8 See Davis v. Barney’s Inc., No. CV 18-6627-JFW(SKx), 2018 U.S. Dist. LEXIS 175506, 9 at *8-9 (C.D. Cal. Oct. 11, 2018) (“There is no basis to conclude that [defendant’s 10 assumptions] are accurate. This sort of guesswork is particularly egregious because 11 [d]efendant . . . has ready access to all the facts [and] records . . . necessary to support its 12 . . . calculations.”); Amirian v. Umpqua Bank, No. CV 17-7574 FMO (FFMx), 2018 U.S. 13 Dist. LEXIS 129228, at *13 (C.D. July 31, 2018) (“Although defendant does not have the 14 burden of proving its ultimate liability, it must provide evidence of the amount in 15 controversy, which defendant has not done here.”); Armstrong v. Ruan Transp. Corp., 16 NO. EDCV 16-1143-VAP (SPx), 2016 U.S. Dist. LEXIS 148460, at *9 (C.D. Cal. Oct. 17 25, 2016) (noting that because “defendant ‘provides no factual underpinning for the 18 assumption that a meal and rest break violation occurred one time per week,’ the Court 19 finds [defendant] has failed to sustain its evidentiary burden for purposes of removal”) 20 (quoting Weston v. Helmerich & Payne Int’l Drilling Co., No. 1:13-cv-01092-LJO-JLT, 21 2013 U.S. Dist. LEXIS 132930, at *6 (E.D. Cal. Sept. 17, 2013)); Nolan v. Kayo Oil Co., 22 No. C 11-00707 MEJ, 2011 U.S. Dist. LEXIS 72256, at *4-5 (N.D. Cal. July 6, 2011) 23 (rejecting the use of a violation rate where the plaintiff alleged “systematic practice” of 24 failing to pay overtime because the defendant “failed to provide evidence beyond the 25 average number of employees during the class period and the number of pay statements 26 at issue”). 27 28 Here, the Court finds that the weight of authority supports the notion that assumed violation rates must be “grounded in real evidence.” Ibarra, 775 F.3d at 1199. Similar to 11 19cv537-MMA (JLB) 1 the analysis undertaken in discussion of claims four and five, without real evidence, the 2 Court considers Defendant’s assumptions to be “arbitrary and little more than speculation 3 and conjecture.” Sanders, 2017 U.S. Dist. LEXIS 15936, at *4. 4 Some courts have indicated that “a defendant may establish the amount in 5 controversy by presenting admissible statistical evidence taken from a representative 6 sample and extrapolat[e] to calculate the potential liability for the full class.” Salcido v. 7 Evolution Fresh, Inc., No. 2:14-cv-09223-SVW-PLA, 2016 U.S. Dist. LEXIS 1375, at 8 *11 (C.D. Cal. Jan. 6, 2016) (citing LaCross, 775 F.3d 1200, at 1202-1203); see also 9 Moreno v. Ignite Rest. Grp., No. C 13-05091 SI, 2014 U.S. Dist. LEXIS 37035, at *16 10 (N.D. Cal. Mar. 20, 2014) (remanding case because the defendant failed to provide any 11 evidence to support its assumed violation rate, “such as evidence based on records or a 12 random sampling”). Defendant, however, offers no such statistical evidence in support of 13 its violation rate. 14 Accordingly, the Court finds that Defendant has failed to satisfy its burden, by a 15 preponderance of the evidence, as to the amount in controversy for Plaintiff’s overtime 16 claim. 17 c. Attorneys’ Fees 18 Defendant argues that attorneys’ fees should be considered a “factor that further 19 increases the amount in controversy beyond $5 million.” Doc. No. 14 at 13. However, 20 because Defendant “did not meet [its] burden to establish the amount in controversy as to 21 any of the claims” discussed in its opposition brief, any fee calculation is “unsupported.” 22 Basile, 2018 U.S. Dist. LEXIS 16940 at *4. 23 d. Summary 24 In sum, the Court finds that Defendant has failed to carry its burden to demonstrate 25 by a preponderance of the evidence that the amount in controversy exceeds $5 million. 26 As a result, the Court lacks subject matter jurisdiction and remand is proper. See Ibarra, 27 775 F.3d at 1197 (“[A] defendant cannot establish removal jurisdiction by mere 28 speculation and conjecture, with unreasonable assumptions”). 12 19cv537-MMA (JLB) 1 CONCLUSION 2 Based on the foregoing, the Court GRANTS Plaintiff’s motion to remand, and 3 REMANDS this action back to state court. The Clerk of Court is instructed to close the 4 case. 5 6 IT IS SO ORDERED. 7 8 Dated: July 9, 2019 9 ____________________________ 10 HON. MICHAEL M. ANELLO United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 19cv537-MMA (JLB)

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