United States District Court, S.D. California
LAURA AVILEZ, and ROES 1-50, on behalf of themselves and in a representative capacity for all others similarly situated, Plaintiffs,
OMNICARE, INC. and DOES 1-50, inclusive, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND TO STATE COURT [Dkt. No. 5.]
GONZALO P. CURIEL, District Judge.
Before the Court is Plaintiff's motion to remand to state court. (Dkt. No. 5.) Defendant filed an opposition on May 9, 2014. (Dkt. No. 9.) A reply was filed on May 16, 2014. (Dkt. No. 10.) Based on the briefs, supporting documentation, and the applicable law, the Court GRANTS Plaintiff's motion to remand.
Plaintiff Laura Avilez ("Plaintiff") brought a putative class action case against Defendant Omnicare, Inc. ("Defendant") in state court on January 17, 2014. (Dkt. No. 1-1, N. of Removal, Compl.) Plaintiff alleges wage and hour causes of action for failure to pay wages and overtime compensation; failure to provide rest periods and proper meal periods or compensation; failure to timely pay wages due at termination; unfair business practices; failure to provide accurate wage statements; declaratory relief; accounting; and injunctive relief. (Id.)
On February 21, 2014, Defendant filed a notice of removal to this Court pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d), § 1441 and § 1446. (Dkt. No. 1.) In her motion, Plaintiff seeks to remand the case back to state court arguing that Defendant has failed to demonstrate the amount in controversy exceeds $5, 000, 000.
A. Motion to Remand/Amount in Controversy
Federal courts have original jurisdiction over class actions where 1) any member of the plaintiff class is diverse from any defendant; 2) the proposed class contains 100 or more putative class members; 3) and the amount in controversy exceeds the "sum or value of $5, 000, 000, exclusive of interest and costs." 28 U.S.C. § 1332(d); Rodriguez v. AT & T Mobility Servs., LLC , 728 F.3d 975, 978 (9th Cir. 2013). Plaintiff moves on the third factor alleging that Defendant failed to demonstrate the $5, 000, 000 amount in controversy by a preponderance of the evidence. Defendant contends that it has met its burden to demonstrate the amount in controversy.
"A defendant seeking removal of a putative class action must demonstrate, by a preponderance of evidence, that the aggregate amount in controversy exceeds the jurisdictional minimum. This standard conforms with a defendant's burden of proof when the plaintiff does not plead a specific amount in controversy." Rodriguez , 728 F.3d at 981; Abrego Abrego v. The Dow Chem. Co. , 443 F.3d 676, 683 (9th Cir. 2006). A preponderance of the evidence standard requires a defendant to "provide evidence establishing that it is more likely than not' that the amount in controversy exceeds that amount." Sanchez v. Monumental Life Ins. Co. , 102 F.3d 398, 404 (9th Cir. 1996) (citation omitted). This burden is not "daunting, " and the removing defendant is not obligated to "research, state, and prove the plaintiff's claims for damages." McCraw v. Lyons , 863 F.Supp. 430, 434 (W.D. Ky. 1994). "Specifically, the removing defendant must establish the amount in controversy by "[t]he greater weight of the evidence, ... [a] superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Lowery v. Alabama Power Co. , 483 F.3d 1184, 1209 (11th Cir. 2007) (citations omitted).
The removing defendant bears the burden of proof. Abrego Abrego , 443 F.3d at 678. The court looks at the amount in controversy at the time of the filing of the complaint and the ultimate inquiry is what amount is put "in controversy" by the plaintiff's complaint, not what a defendant will actually owe. Rippee v. Boston Market Corp. , 408 F.Supp.2d 982, 986 (S.D. Cal. 2005).
"[T]he amount-in-controversy inquiry in the removal context is not confined to the face of the complaint." Valdez v. Allstate Ins. Co. , 372 F.3d 1115, 1117 (9th Cir. 2004). In addition to the complaint, the court considers "facts presented in the removal petition as well as any summary-judgment-type evidence relevant to the amount in controversy at the time of removal.'" Id . (quoting Matheson v. Progressive Specialty Ins. Co. , 319 F.3d 1089, 1090 (9th Cir. 2003)).
Calculations that are based on speculation and conjecture are not sufficient to meet the preponderance of the evidence standard. Fong v. Regis Corp., No. C 13-04497 RS, 2014 WL 26996, at *2 (N.D. Cal. Jan. 2, 2014); see also Lowdermilk v. U.S. Bank Nat'l Ass'n , 479 F.3d 994, 1002 (9th Cir. 2007), overruled on other grounds, Rodriguez v. AT & T Mobility Servs. LLC , 728 F.3d 975, 977 (9th Cir. 2013). A removing defendant is required to set forth underlying facts to support key variables used in their calculations. Andersen v. The Schwan Food Co., No. C 13-2362 PJH, 2013 WL 3989562, at *2 (N.D. Cal. Aug. 2, 2013) (citing Singer v. State Farm Mut. Auto. Ins. Co. , 116 F.3d 373, 377 (9th Cir. 1997)); Korn v. Polo Ralph Lauren Corp , 536 F.Supp.2d 1199, 1205 (E.D. Cal. 2008) ("a defendant must set forth the underlying facts supporting its assertion that the amount in controversy exceeds the statutory minimum"); Gaus v. Miles , 980 F.2d 564, 567 (9th Cir. 1992) (a defendant must set forth the underlying facts supporting its assertion that the amount in controversy exceeds the statutory minimum).
Here, the Complaint does not allege a specific amount in controversy and the "preponderance of the evidence" standard applies. See Rodriguez , 728 F.3d at 978. In order to demonstrate the amount in controversy, Defendant presents the declaration of Sandy Koch, the Human Resources Director, who is familiar with Omnicare's business operations and its record-keeping practices for employee personnel files. (Dkt. No. 1-4, Koch Decl. ¶¶ 1-2.) She reviewed payroll and personnel information to Omnicare's California personnel who worked from January 17, 2010 through January 29, 2014 during the putative class period. (Id. ¶ 6.) She also "reviewed employment start and end dates and rates of pay pertaining to all present and former employees holding a non-exempt position as a dispensing pharmacist and/or pharmacy technician and/or Order Entry Technicians during the putative class period." (Id.) Based on her review, she assessed there are 448 putative class members. (Id. ¶ 7.) Koch conducted calculations as to meal periods, rest periods, overtime pay, wage statement penalties, waiting time penalties and attorneys' fees and came to a total amount in controversy of $9, 657, 915.53. (Id. ¶¶ 9-15.)
Plaintiff objects to Koch's declaration as rife with speculation and conjecture which does not support the amount in controversy. Plaintiff alleges that Koch's calculations are not supported by any evidence or data and speculates as to the number of actual violations that occurred and the specific amount of damages for each potentially affected class ...