The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO REMAND ACTION
Plaintiff Brian Butterworth ("Plaintiff"), individually and on behalf of others similarly situated, filed the instant Motion to Remand this action to the Stanislaus County Superior Court on August 19, 2011. The motion was heard on October 7, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Raul Perez appeared on behalf of Plaintiff. Lee J. Hutton appeared on behalf of Defendant American Eagle Outfitters, Inc. ("Defendant").
Plaintiff, individually and on behalf of all others similarly situated, filed a putative class and representative action against Defendant in Stanislaus County Superior Court on May 12, 2011. Plaintiff filed a First Amended Complaint ("FAC") on June 8, 2011, alleging eight wage and hour claims under California law.
Defendant filed its answer in Stanislaus County Superior Court on July 18, 2011. On July 20, 2011, Defendant removed the action to this Court pursuant to this Court's original jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d).
Plaintiff filed this Motion to Remand on August 19, 2011. Defendant opposed the Motion on September 23, 2011, and Plaintiff filed his reply on September 30, 2011.*fn1
ALLEGATIONS IN THE FIRST AMENDED COMPLAINT
Plaintiff alleges that from October 2008 through February 2011, he worked as a sales associate, a non-exempt hourly paid position, at Defendant's retail stores in Capitola and San Jose, California. His duties included helping customers pick out clothing, opening fitting rooms, operating cash registers, unloading merchandise trucks and stocking new items.
Plaintiff alleges eight causes of action: (1) unpaid minimum wages in violation of California Labor Code sections 1194, 1197 and 1197.1; (2) unpaid reporting time in violation of California Labor Code section 1198 and California Code of Regulations, Title 8, section 11070(5); (3) failure to compensate for split shifts in violation of California Labor Code section 1198 and California Code of Regulations, Title 8, section 11070(4)(C); (4) failure to provide seating in violation of California Labor Code section 1198 and California Code of Regulations, Title 8, section 11070(14); (5) wages not timely paid upon termination in violation of California Labor Code sections 201 and 202; (6) non-compliant wage statements in violation of California Labor Code section 226(a); (7) violation of the California Private Attorneys General Act ("PAGA"), California Labor Code sections 2698, et seq.,*fn2 and (8) violation of the California Business and Professions Code sections 17200, et seq.
Congress enacted the Class Action Fairness Act ("CAFA") to "'curb perceived abuses of the class action device which, in the view of CAFA's proponents, had often been used to litigate multi-state or even national class actions in state courts.'" United Steel v. Shell Oil Co., 602 F.3d 1087, 1090 (9th Cir. 2010) (quoting Tanoh v. Dow Chem. Co., 561 F.3d 945, 952 (9th Cir. 2009)). CAFA vests a district court with original jurisdiction over "a class action" where: (1) there are 100 or more putative class members; (2) at least one class member is a citizen of a state different from the state of any defendant; and (3) the aggregated amount in controversy exceeds $5,000,000, exclusive of costs and interest. 28 U.S.C. § 1332(d)(2), (5)(B), (6).
The burden of establishing removal jurisdiction, even in CAFA cases, lies with the defendant seeking removal. Washington v. Chimei Innolux Corp., - F.3d - , 2011 WL 4543086 (9th Cir. 2011).
The applicable burden of proof, however, varies depending on the pleadings. When the state court complaint "affirmatively alleges that the amount in controversy is less than the jurisdictional threshold, the party seeking removal must prove with legal certainty that CAFA's jurisdictional amount is met." Lowdermilk v. U.S. Bank National Ass'n, 479 F.3d 994, 1000 (9th Cir. 2007)). Two basic principles informed this decision- the limited jurisdiction of federal courts is strictly construed and the plaintiff is the "master of her complaint" and can plead to avoid federal jurisdiction. Lowdermilk, 479 F.3d at 998-999. By adopting the "legal certainty" standard, "we guard[ed] the presumption against federal jurisdiction and preserve[d] the plaintiff's perogative, subject to the good faith requirement, to forgo a potentially larger recovery to remain in state court." Lowdermilk, 506 F.3d at 999; Lewis v. Verizon Commc'n, Inc., 627 F.3d 395, 399 (9th Cir. 2010) ( "Generally, the sum claimed by the plaintiff controls if the claim is apparently made in good faith.").
Where the state court does not specify the amount in controversy, the preponderance of the evidence applies. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 683 (9th Cir.2006). The standard requires that the defendant prove that it is more likely than not that the amount in controversy is greater than the jurisdictional minimum. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 2007).
Finally, if the state court complaint is ambiguous as to the total recovery sought, the preponderance of the evidence standard applies. Guglielmino v. McKee Foods ...