United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND RE:
DKT. NO. 21
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
Ar'maney Lewis brings a motion to remand this case to
Alameda County Superior Court. See Dkt. No. 21.
Because there is no basis for this Court to exercise
jurisdiction, the Court GRANTS
Plaintiff's motion and REMANDS the case.
February 28, 2019, Plaintiff filed a wage and hour putative
class action complaint in the Alameda County Superior Court.
Dkt. No. 1-1 (“Complaint”). Plaintiff listed
“ABB Optical Group LLC” and “ABB Con-Cise
Optical Group LLC” as Defendants. Id. ¶
6-8. Plaintiff was employed by Defendants as an hourly,
non-exempt employee in California from approximately November
2016 to February 2017. Id. ¶ 18. The putative
class was comprised of: “All current and former
hourly-paid or non-exempt employees who worked for any of the
Defendants within the State of California at any time during
the period from four years preceding the filing of this
Complaint to final judgment.” Id. ¶ 14.
Plaintiff asserts that Defendant “engaged in pattern
and practice of wage abuse against their hourly-paid or
non-exempt employees within the State of California. This
pattern and practice involved, inter alia, failing
to pay them for all regular and/or overtime wages earned and
for missed meal periods and rest breaks . . . .”
Id. ¶ 26. Plaintiff additionally alleges that
Defendants violated sections of the California Labor Code by
failing to provide uninterrupted meal and rest periods, pay
the minimum wage, pay wages owed at discharge or resignation,
provide complete or accurate wage statements, keep complete
or accurate payroll records, and reimburse all necessary
business-related expenses, among other violations.
Id. ¶¶ 38- 46.
asserts ten causes of action for violations of: (1)
California Labor Code sections 510 and 1198 (unpaid
overtime); (2) California Labor Code sections 226.7 and
512(a) (unpaid meal period premiums); (3) California Labor
Code section 226.7 (unpaid rest period premiums); (4)
California Labor Code sections 1194, 1197, and 1197.1 (unpaid
minimum wages); (5) California Labor Code sections 201 and
202 (final wages not timely paid); (6) California Labor Code
section 204 (wages not timely paid during employment); (7)
California Labor Code section 226(a) (non-compliant wage
statements); (8) California Labor Code sections 1174(d)
(failure to keep required payroll records); (9) California
Labor Code sections 2800 and 2802 (unreimbursed business
expenses); and (10) California Business and Professional Code
section 17200 (Unfair Competition Law, “UCL”).
Id. at 1.
ABB Con-Cise Optical Group LLC removed this case to federal
court on April 29, 2019, claiming that this Court has
diversity jurisdiction under 28 U.S.C. §
1332. On May 21, 2019, the parties stipulated to
the dismissal of Plaintiff's sixth cause of action for
failure to timely pay wages in violation of California Labor
Code section 204, eighth cause of action for failure to keep
accurate and complete payroll records in violation of
California Labor Code section 1174(d), and request for
injunctive relief under California Business and Professional
Code section 17200. Dkt. No. 14. The Court granted the
parties' stipulation. Dkt. No. 19. Defendant concurrently
filed a motion to dismiss. Dkt. No. 15. On May 29, 2019,
Plaintiff filed the motion to remand to state court, Dkt. No.
21, and on June 28, 2019, Defendant filed a motion for leave
to amend notice of removal, Dkt. No. 29. The Court held a
hearing on the motion to remand on October 3, 2019. Dkt. No.
as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts
of the United States have original jurisdiction, may be
removed” to federal court. 28 U.S.C. § 1441(a).
District courts have “original jurisdiction of all
civil actions where the matter in controversy exceeds the sum
or value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States. 28 U.S.C §
1332. Where “the complaint does not demand a dollar
amount, the removing defendant bears the burden of proving by
a preponderance of evidence that the amount in controversy
exceeds $, 000.” Kroske v. U.S. Bank
Corp., 432 F.3d 976, 980 (9th Cir. 2005), as amended
on (Feb. 13, 2006) (alteration in original) (quoting
Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d
373, 376 (9th Cir. 1997)). “The amount in controversy
includes the amount of damages in dispute, as well as
attorney's fees, if authorized by statute or
contract.” Id. The Court must determine
whether it is “facially apparent” from the
complaint that the jurisdictional amount has been satisfied.
Singer, 116 F.3d at 377.
plaintiff may seek remand to state court if the district
court lacks jurisdiction. 28 U.S.C. § 1447(c). On a
motion to remand, the removing party bears the burden of
establishing that removal is proper. See Abrego Abrego v.
The Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006).
There is a strong presumption in favor of remand and doubts
about removability are resolved in favor of remanding the
case to state court. See Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992) (holding that “[f]ederal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance”).
argues the case must be remanded to state court because
Defendant failed to meet its burden to show the amount in
controversy exceeds $75, 000. Dkt. No. 21 at 7. Specifically,
Plaintiff notes that Defendant estimated less than $7, 000 in
unpaid wages and penalties and relied on $90, 000 in
attorney's fees to meet the requirement. Id. at
12-16. The Court agrees that Defendant has not met its burden
to show that the amount in controversy exceeds $75, 000.
Additionally, because resolution of this issue is
dispositive, the Court does not reach Plaintiff's other
arguments for remand or any of Defendant's other motions.
the claims and allegations raised by Plaintiff in the
Complaint, Defendant proffered the following estimates to
meet the amount in controversy requirement: $1, 023.75
potential recovery for Plaintiff's overtime claim
(assuming three quarters of an hour overtime per day during
the fourteen weeks of employment at a $19.50 overtime rate);
$1, 820.00 potential recovery for Plaintiff's meal and
rest break claim (assuming five denied meal periods and rest
periods per week of employment); $3, 120.00 potential
recovery for failure to timely pay wages at termination
(statutory penalties up to thirty day maximum under section
203); $650 potential recovery for failure to provide wage
statements (statutory penalties for seven potentially
unprovided wage statements); and $90, 000 in attorneys'
fees (estimating a billing rate of $450 per hour and two
hundred hours of attorney time spent on the case). Dkt. No. 1
Court finds that Defendant has failed to show by a
preponderance of the evidence that attorneys' fees for a
single-plaintiff wage and hour suit alleging less than $7,
000 in damages would add up to $90, 000. Although the Court
may consider a “reasonable estimate of [authorized]
attorneys' fees likely to be expended, ”
Lippold v. Godiva Chocolatier, Inc., No. C 10-00421
SI, 2010 WL 1526441, at *3 (N.D. Cal. Apr. 15, 2010),
Defendant offers very little to explain why $90, 000 is
reasonable. Defendant cites various cases to argue that two
hundred attorney hours is a reasonable estimate for such an
action, but the cases range from considering one hundred
hours to be a conservative estimate, to awarding only
sixty-two hours' worth of work because the remaining
hours were unsubstantiated, to awarding over four hundred
hours' worth of attorneys' fees. Compare Id.
at *4 with Egelhoff v. Pac. Lightwave, No.
CV-1204745-RGK-DTBX, 2013 WL 12125913, at *3 (C.D. Cal. Nov.
20, 2013) and Park v. Joong-Ang Daily News California
Inc., No. BC 508362, 2016 WL 363171, at *3 (Cal. Supp.
Jan. 7, 2016). Defendant makes no effort to explain why the
facts of these cases are like the facts and claims at issue
in this case. Nor does Defendant focus on the statutory bases
for attorneys' fees given Plaintiff's claims, or
explain why the work on only those claims would require two
hundred hours. See Fritsch v. Swift Transportation Co. of
Arizona, LLC, 899 F.3d 785, 796 (9th Cir. 2018)
(highlighting that “a court's calculation of future
attorneys' fees is limited by the applicable contractual
or statutory requirements that allow fee-shifting in the
first place.”). As noted in Fritsch, certain
claims alleged in the Complaint do “not allow recovery
of attorneys' fees for legal work.” Id.
(citing Kirby v. Immoos Fire Prot, Inc., 274 P.3d
1160 (Cal. 2012) (stating that the attorneys' fees
shifting provisions do not apply to legal work relating to
meal and rest period claims)). Instead, the Court notes that
two hundred hours appears to be a rather convenient estimate,
given that Defendant would fail to meet the minimum $75, 000
threshold if it had used the more conservative one hundred
hour estimate cited in other comparable removal cases.
See, e.g., Lippold, 2010 WL 1526441, at *3;
Cagle v. C & S Wholesale Grocers, Inc., No.
2:13-CV-02134-MCE, 2014 WL 651923, at *11 (E.D. Cal. Feb. 19,