United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND
DENYING PLAINTIFF'S MOTION TO STRIKE PORTIONS OF
DEFENDANT'S ANSWER AS MOOT RE: DKT. NOS. 11, 14
M. Ryu United States Magistrate Judge.
Antonio Calderon (“Plaintiff”) filed this wage
and hour class action in Alameda County Superior Court
against his employer, Defendant BKB Construction, L.P.
(“Defendant”). [Docket No. 1]. Defendant
subsequently removed the case to federal court, invoking the
Class Action Fairness Act of 2005 (“CAFA”), 28
U.S.C. § 1332(d), as well as diversity jurisdiction.
Plaintiff then filed the instant motion to remand and motion
to strike portions of Defendant's Answer. [Docket Nos.
11, 14]. The court finds that Plaintiff's motions are
appropriate for disposition without a hearing. See
Civ. L.R. 7-1(b). Having considered the parties'
submissions, the court GRANTS Plaintiff's motion to
remand, and DENIES Plaintiff's motion to strike AS MOOT.
FACTS AND PROCEDURAL BACKGROUND
is a former employee of Defendant. He filed this class action
in Alameda County Superior Court on January 24, 2017,
alleging violations of various provisions of the California
Labor Code. He seeks back wages, unpaid overtime, and
statutory penalties on behalf of a putative class of
Defendant's current and former non-exempt employees.
Compl. [Docket No. 1].
asserts eight claims for relief: (1) failure to pay overtime
in violation of California Labor Code (“Labor
Code”) sections 510 and 1198; (2) failure to provide
meal periods in violation of Labor Code sections 226.7 and
512(a); (3) failure to provide rest periods in violation of
Labor Code section 226.7; (4) failure to pay minimum wage in
violation of Labor Code sections 1194, 1197, and 1197.1; (5)
failure to pay wages at termination in violation of Labor
Code sections 201 and 202; (6) failure to issue accurate and
itemized wage statements in violation of Labor Code section
226(a); (7) failure to reimburse for business-related
expenses and costs in violation of Labor Code sections 2800
and 2802; and (8) violation of California Business and
Professions Code sections 17200 et seq. See
timely removed the complaint. Not. of Removal [Docket No. 1].
Defendant alleges that removal is proper because diversity
jurisdiction exists over Plaintiff's individual claims,
and CAFA jurisdiction exists over the class claims.
Id., ¶¶ 4-14.
support of removal, Defendant submitted the Declaration of
Stuart English. English Decl. [Docket No. 2]. English is
Defendant's Senior Estimator and oversees and manages
Defendant's employment issues in California. English
Decl., ¶ 1. English makes certain assertions about the
putative class and Plaintiff's individual claims. The
court discusses those assertions in greater detail below.
Generally speaking, English states that there are
approximately 400 putative class members, and that each
earned between $10 and $15 per hour. He also purports to
calculate the value of Plaintiff's individual claims.
According to English, Plaintiff's damages total $77,
202.00 based on his calculations of Plaintiff's waiting
time penalties, meal and rest period premiums, overtime and
minimum wage damages and penalties, and paystub violation
penalties. Id., ¶¶ 3-8. English offers no
damages calculations for the class claims.
now moves for remand, arguing that Defendant has failed to
establish that Plaintiff's individual claims exceed the
$75, 000.00 minimum for diversity jurisdiction, or that the
class claims exceed the $5, 000, 000.00 jurisdictional
minimum under CAFA.
to 28 U.S.C. § 1441, “any civil action brought in
a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or other defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. §
1441(a). “The removal statute is strictly construed
against removal jurisdiction, and the burden of establishing
federal jurisdiction falls to the party invoking the
statute.” Cal. ex rel. Lockyer v. Dynegy,
Inc., 375 F.3d 831, 838 (9th Cir.), opinion amended
on denial of reh'g, 387 F.3d 966 (9th Cir. 2004)
(citing 28 U.S.C. § 1447).
district court has diversity jurisdiction where the parties
are diverse and “the matter in controversy exceeds the
sum or value of $75, 000, exclusive of interests and
costs.” 28 U.S.C. § 1332(a)(1). In the context of
class actions, when “at least one named plaintiff . . .
satisfies the amount-in-controversy requirement, ” and
the other elements of diversity jurisdiction are met, a court
can exercise supplemental jurisdiction over the claims of
other plaintiffs in the same case, “even if those
claims are for less than the jurisdictional amount specified
in the statute setting forth the requirements for diversity
jurisdiction.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 549 (2005).
seeking removal on the basis of diversity jurisdiction, a
defendant must show by a preponderance of evidence that the
plaintiff's individual claim exceeds the $75, 000.00
jurisdictional threshold. See Patel v. Nike Retail
Servs., Inc., 58 F.Supp.3d 1032, 1038 (N.D. Cal. 2014)
(finding that removal statute, 28 U.S.C. §
1446(c)(2)(A)(ii), (B) establishes that the
“preponderance of the evidence . . . is the standard
for determining whether the amount in controversy is
satisfied when state law [such as California law] permits the
plaintiff to recover in excess of the amount alleged in the
gives federal district courts original jurisdiction over
class actions in which the class members number at least 100,
at least one plaintiff is diverse in citizenship from any
defendant, and the aggregate amount in controversy exceeds $5
million, exclusive of interest and costs.” Ibarra
v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir.
2015) (citing 28 U.S.C. § 1332(d)).
seeking removal under CAFA, the defendant bears the usual
burden of establishing federal jurisdiction. See Serrano
v. 180 Connect, Inc., 478 F.3d 1018, 1021, 1024 (9th
Cir. 2007) (holding that in a CAFA case the removing party
bears the burden of establishing federal jurisdiction under
28 U.S.C. § 1332(d)(2)). However, unlike other removed
cases, there is “no antiremoval presumption” in
CAFA cases. Dart Cherokee Basin Operating Co., LLC v.
Owens, 135 S.Ct. 547, 554 (2014); see also
Coleman-Anacleto v. Samsung Elecs. Am., Inc., No.
16-cv-02941-LHK, 2016 U.S. Dist. LEXIS 123455, at *8 (N.D.
Cal. Sept. 12, 2016) (citing Dart Cherokee Basin
Operating Co., LLC, 135 S.Ct. at 554).
order to meet its burden on removal, a defendant must show
“by a preponderance of evidence that the aggregate
amount in controversy exceeds $5 million.”
Ibarra, 775 F.3d at 1197. The preponderance of the
evidence standard requires the removing party “to
‘provide evidence establishing that it is more likely
than not that the amount in controversy exceeds [the
Coleman-Anacleto, 2016 U.S. Dist. LEXIS 123455, at
*13 (quoting Sanchez v. Monumental Life Ins. Co.,
102 F.3d 398, 404 (9th Cir. 1996) (internal quotation marks
omitted)). The Ninth Circuit has clarified that the
preponderance of the evidence applies irrespective of the
specificity of the plaintiff's allegations regarding the
jurisdictional amount in controversy. See Ibarra,
774 F.3d at 1197 (the preponderance of evidence standard
applies whether the complaint is unclear or ambiguous
regarding the jurisdictional amount in controversy, or
“affirmatively contend[s] that damages do not exceed $5
determining whether a removing defendant has met its burden,
a court may consider “evidence outside the complaint,
including affidavits or declarations, or other
‘summary-judgment type evidence relevant to the amount
in controversy.” Ibarra, 775 F.3d at 1197
(quoting Singer v. State Farm Mut. Auto. Ins. Co.,
116 F.3d 373, 377 (9th Cir. 1997) (internal quotation marks
omitted)). However, a defendant is not required to produce
“summary judgment-type” evidence to demonstrate
removability under CAFA. See Altamirano v. Shaw Indus.,
Inc., No. C-13-0939 EMC, 2013 WL 2950600, at *4 (N.D.
Cal. June 14, 2013) (explaining that courts “have
rejected the notion that the fact that courts may
consider such evidence necessarily requires the
removing party to produce it;” discussing case where a
court noted that a defendant may meets its burden by relying
on allegations made in the complaint) (emphasis in original).
“[i]f  . . . the allegations in the complaint provide
no basis for certain assumptions in the calculations, a
defendant must provide some evidence rather than relying on
mere unsupported speculation or conclusory
allegations.” Altamirano, 2013 WL 2950600, at
*4 (citing Singer, 116 F.3d at 377). “[A]
defendant cannot establish removal jurisdiction [under CAFA]
by mere speculation and conjecture, with unreasonable
assumptions.” Ibarra, 775 F.3d at 1197;
see also Coleman-Anacleto, 2016 U.S. Dist. LEXIS
123455, at *13 (“Mere conclusory allegations are
insufficient, as are ‘speculative and self-serving
assumptions.'”) (quoting Garibay v. Archstone
Cmtys. LLC, 539 F. App'x 763, 764 (9th Cir. 2013)).
“CAFA's requirements are to be tested by
consideration of real evidence and the reality of what is at
stake in the litigation, using reasonable assumptions
underlying the defendant's theory of damages
exposure.” Ibarra, 775 F.3d at 1198.
considering the allegations in the plaintiff's complaint,
“[t]he court must assume that the allegations of the
complaint are true, and that a jury will return a verdict for
the plaintiff on all claims made.”
Coleman-Anacleto, 2016 U.S. Dist. LEXIS 123455, at
*13; see also Ibarra, 775 F.3d at 1197. “The
ultimate inquiry is what amount is put ‘in
controversy' by the plaintiff's complaint, not what a
defendant will actually owe.” Korn v. Polo Ralph
Lauren Corp., 536 F.Supp.2d 1199, 1205 (E.D. Cal. 2008)
PLAINTIFF'S EVIDENTIARY OBJECTIONS
objects to the English Declaration on numerous evidentiary
grounds including hearsay, lack of foundation and personal
knowledge, speculation, improper expert testimony, and
failure to authenticate. [Docket No. 14-1]. As discussed
below, the court largely agrees that the English Declaration
is markedly deficient in numerous ways.
filed the English Declaration with its Notice of Removal.
Defendant did not submit any additional evidence in support
of its opposition to the motion for remand. The entire
English Declaration is slightly over one double-spaced page
in length. English states that he has “personal
knowledge” of the facts in his declaration, but does
not explain how he obtained such knowledge, and whether he
actually reviewed any employee payroll records or other
business records. English Decl., ¶ 1. The declaration
includes the following handful of objective facts: Paragraph
3 provides Plaintiff's dates of employment and rates of
pay, and Paragraph 2 estimates that there were 400 individual
non-exempt employees during the class period, and that these
individuals had a regular rate of pay between $10 and $15 per
hour. Notwithstanding this paucity of facts, the rest of the