United States District Court, N.D. California
ORDER DENYING MOTION TO REMAND AND GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS RE: DKT. NOS. 35,
CHHABRIA, UNITED STATES DISTRICT JUDGE
Nash's motion to remand is denied because this Court has
diversity jurisdiction. In addition to diversity of the
parties, Horizon has shown by a preponderance of the evidence
that the amount in controversy on Nash's claims exceeds
$75, 000. Among his other claims, Nash's complaint seeks
reimbursement under California Labor Code section 2802 for
expenses drivers incur on the job, including
“expenditures associated with driving their vehicles
(e.g., gas, mileage, insurance, maintenance, and other fees
and costs) . . . .” Third Cause of Action, Dkt. 1 at
12. During the 60-day period of jurisdictional discovery that
this Court ordered, Nash testified to his fuel costs in a
deposition. He testified that (1) he filled up his truck with
gas “one and a half” times per week; (2) the
price of gas “varie[d] from 3 to 4.50 [dollars per
gallon], never got to $5, but 4.89 and down to like I would
say 3.19”; and (3) it took 200 gallons to fill up his
truck. Dkt. 54-1 at 7. In addition, Horizon's CFO
testified in a declaration that Horizon made 126 weekly
payments to Nash. Bosak Decl. ¶ 9, Dkt. 51-1 at 3. Based
on this testimony, Horizon now calculates the amount in
controversy on Nash's gas reimbursement claim as $132,
This calculation is based on real evidence and reflects
reasonable assumptions, and is therefore sufficient to show
that the amount-in-controversy requirement is met. See
Ibarra v. Manheim Investments, Inc., 775 F.3d
1193, 1198 (9th Cir. 2015); LaCross v. Knight
Transportation Inc., 775 F.3d 1200, 1203 (9th Cir.
argues that Horizon has not offset these estimated fuel
expenses by the “fuel surcharges” it regularly
paid Nash. To be sure, it seems probable that taking the fuel
surcharges into consideration would have given a more
accurate estimate of the amount in controversy for the fuel
reimbursement claim. But the preponderance of the evidence
still suggests that the amount in controversy exceeds $75,
000. See Dart Cherokee Basin Operating Co., LLC v.
Owens, 574 U.S. 81, 82 (2014). Neither party has
submitted evidence as to the total amounts of the fuel
surcharges during the relevant period. And even extrapolating
the single month of fuel surcharge data the Court has been
given to the entire 126-week period, this claim would still
be almost exactly at the $75, 000 threshold. Considering the
gas reimbursement claim along with all the other claims in
the lawsuit, the amount in controversy clearly exceeds the
also objects to Horizon's new amount-in-controversy
calculations, and contends that Horizon is attempting to
impermissibly add a new basis for removal. But this argument
is unpersuasive. Horizon alleged diversity jurisdiction in
its notice of removal. Dkt. 1 at 4; see O'Halloran v.
University of Washington, 856 F.2d 1375, 1381 (9th Cir.
1988) (“The petition cannot be amended to add a
separate basis for removal jurisdiction after the
thirty day period.”) (emphasis added); Cohn v.
Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002).
And Horizon properly re-calculated the amount in controversy
after having the benefit of jurisdictional discovery. Indeed,
it makes sense that Horizon would be able to more accurately
estimate alleged reimbursement expenses after being able to
ask Nash what his expenses actually were.
Horizon's motion for partial summary judgment is granted
in part and denied in part. It is granted with respect to
Nash's penalty claims for which there is a one-year
statute of limitations, which Nash concedes has expired.
See California Code of Civil Procedure § 340.
This includes his claim under the Private Attorneys General
Act, as well as his claim for inaccurate wage statements to
the extent that claim seeks penalties.
judgment is otherwise denied. Horizon fails to show that Nash
was operating in interstate commerce, and therefore
Horizon's arguments regarding federal preemption fail.
See 49 U.S.C. §§ 13501, 31132(1). The
evidence that Horizon produces to prove that Nash worked in
interstate commerce appear to be bills of lading, but this
evidence is fatally flawed. See Bosak Decl., Ex. D,
Dkt. 41-4 at 50-89. To the extent the bills of lading are
offered to prove the truth of the facts asserted upon them -
that certain containers were transported to and from certain
locations - they constitute hearsay, and Horizon has not
shown that they could be admitted at trial under any
exception. See Federal Rule of Civil Procedure
56(c)(2). It's uncertain whether Robert Bosak,
Horizon's declarant, is competent to authenticate these
documents. And more generally, basic facts about the
documents - how they were made, what they actually show, who
made the markings on them - remain unclear. It is therefore
impossible to conclude as a matter of law on this evidentiary
record that Nash drove in interstate commerce.
IS SO ORDERED.
 ($3.50 per gallon) x (200 gallons) x
(1.5 times per week) x (126 weeks) = $132, 300.
 126 weeks is roughly 31.5 months. At
$1, 827.89 per month, the total amount of fuel surcharges
would be $57, 578.54. Subtracting that figure from the $132,
300 fuel estimate produces an amount in controversy of $74,
 To pick just one example, Nash
testified in his deposition that he was seeking
reimbursements for truck tolls. Dkt. 51-4 at 7. Based on his
deposition testimony, Horizon reasonably estimated the amount
in controversy for the truck toll reimbursements to be $15,
750, and Nash does not appear to dispute this
 Horizon styles its motion as a motion
to dismiss, but since Horizon relies on extrinsic evidence
and the affirmative defense of the statute of limitations,
the Court treats the motion as a motion for partial summary