The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND VACATING EX PARTE APPLICATION [Dkt. Nos. 15 & 22]
Presently before the court is Plaintiff Michael Trang's Motion to Remand to Superior Court of California, County of Los Angeles. Having considered the submissions of the parties and heard oral argument, the court grants the motion and adopts the following order.
Plaintiff worked as an hourly, non-exempt machinist for Turbine Engine Components Technologies ("TECT") until February 2012. (First Amended Complaint ("FAC") ¶ 23.) TECT is a parts manufacturer. (Id. ¶ 2.) On August 8, 2012, Plaintiff, on behalf of himself and all others similarly situated, filed a class action lawsuit in Los Angeles County Superior Court against TECT. The putative class consists of:
Any and all persons who are or were employed as an hourly, non-exempt employee, however titled, by TECT in the state of California within four years prior to the filing of the original complaint in this action until resolution of this lawsuit. (Id. ¶ 16.)
The FAC alleges fourteen causes of action for violations of the California Labor Code and the California Business and Professions Code, including failure to pay overtime wages and wages upon termination, failure to provide meal periods or rest breaks, and unfair competition. Among those fourteen causes of action are seven under the Private Attorney General Act of 2004 ("PAGA").
On September 6, 2012, Defendant timely removed the suit to federal court under the Class Action Fairness Act of 2005 ("CAFA"). Plaintiff now brings this motion to remand, arguing that TECT has failed to prove by a preponderance of the evidence that the amount in controversy exceeds the five million dollar jurisdictional minimum for class actions based on diversity jurisdiction.
A defendant may remove a case from state court to federal court if the case could have originally been filed in federal court. 28 U.S.C. § 1441(a); see also Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th Cir. 1977). CAFA, passed in 2005, amended the conditions under which class actions can be brought to federal court based on diversity jurisdiction. Under 28 U.S.C. § 1332(d), a class action can be brought in federal court if: (1) at least one defendant and one plaintiff are from different states; (2) there are at least 100 class members; and (3) the amount in controversy exceeds $5,000,000. "CAFA was enacted, in part, to restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction." Roth v. Comerica Bank, 799 F. Supp. 2d 1107, 1115 (C.D. Cal. 2010)(internal quotations and citations omitted).
The removal statute is strictly construed against removal jurisdiction, and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The removing party bears the burden of proving federal jurisdiction. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). This "strong presumption against removal" does not change under CAFA. Roth, 779 F. Supp. at 1115 (internal quotations omitted); Abrego Abrego v. The Dow Chemical Company Co., 443 F.3d 676, 685 (9th Cir. 2006).
When a plaintiff does not specify an amount of damages in the complaint, "the removing defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds" the required amount. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). In other words, Defendant must "provide evidence establishing that it is 'more likely than not' that the amount in controversy exceeds that amount." Id.; see also Gaus, 980 F.2d at 566-67 ("If it is unclear what amount of damages the plaintiff has sought . . . then the defendant bears the burden of actually proving the facts to support jurisdiction, including the jurisdictional amount.").
"[R]emoval cannot be based simply upon conclusory allegations." Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)(internal quotation marks and citation omitted). The court may require parties to submit "summary-judgment-type evidence relevant to the amount in controversy at the time of removal." Id. See also Matheson, 319 F.3d at 1090; Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).
The court finds, and the parties do not dispute, that the first two elements of diversity jurisdiction under CAFA are met. First, Plaintiff alleges in his FAC that the putative class is "estimated to be greater than one hundred." (FAC ¶ 17.) Second, minimal diversity exists because Plaintiff Trang is a citizen of California, and TECT is incorporated in Delaware and has its principle place of business in Georgia or Kentucky. (Opp'n at 3:13-16.) The only disputed issue is whether TECT has met its burden of proof that the amount in controversy exceeds $5,000,000.
A. Amount in Controversy Plaintiff's FAC does not specify the amount of damages. Thus, TECT has the burden of proving that it is more likely than not that damages exceed $5,000,000. TECT provided a declaration from Martha Kinsley ("Kinsley"), TECT's Human Resources Manager, in which she calculated the number of putative class members and the amount in controversy based on her "personal knowledge and [her] review and analysis of TECT's payroll and personnel records." (Kinsley Decl. ¶ 3.) Kinsley determined that the total amount in controversy reaches $14,282,563.34 excluding attorney's fees. (Kinsley Decl. ¶ 45.)
To arrive at this figure, TECT assumed a 100% violation rate. That is, Kinsley assumed that every putative class member suffered a violation of every cause of action applicable to them during every pay period.
Some courts have been willing to assume a 100% violation rate to calculate the amount in controversy. See e.g., Coleman v. Estes Express Lines, Inc., 730 F. Supp. 2d 1141, 1149 (C.D. Cal. 2010); Korn v. Polo Ralph Lauren Corp., 536 F. Supp. 2d 1199, 1205 (E.D. Cal. 2008). The logic behind such an assumption is that the plaintiff is the "master of the complaint," and thus the ...