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Calderon v. BKB Construction, LP

United States District Court, N.D. California

June 16, 2017



          Donna M. Ryu United States Magistrate Judge.

         Plaintiff 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.


         Plaintiff 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].

         Plaintiff 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 generally Compl.

         Defendant 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.

         In 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.

         Plaintiff 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.


         Pursuant 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).

         A. Diversity Jurisdiction

         A 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).

         In 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 complaint”).[1]

         B. CAFA Jurisdiction

         “CAFA 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)).

         In 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).

         In 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 jurisdictional amount].'” 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 million”).

         In 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).

         But, “[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.

         In 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) (emphasis omitted).


         Plaintiff 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.

         Defendant 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 ...

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