United States District Court, N.D. California
ORDER DENYING MOTION TO REMAND, Re: Dkt. No.
C. SPERO CHIEF MAGISTRATE JUDGE
a putative class action that was initially filed in the
Superior Court of California for the County of San Francisco.
Named Plaintiff Ruby Danielsson asserts ten claims against
Defendant, her former employer Vitalant,  for willfully
failing to pay wages by failing to pay for missed meal and
rest breaks; requiring Plaintiff and other class members to
work overtime without compensation; failing to accurately
calculate shift differentials, non-discretionary bonuses, and
performance pay; depriving Plaintiff and other class members
of mandatory meal and rest periods; failing to pay wages owed
to Plaintiff and other class members upon discharge and
resignation; non-compliance with wage reporting; keeping
inaccurate payroll records; and engaging in unfair trade
practices. Vitalant removed the case to federal court under
the Class Action Fairness Act. Danielsson moves to remand.
The Court held a hearing on December 20, 2019. For the
reasons discussed below, Danielsson's motion to remand is
Allegations in the Complaint
("Plaintiff), individually and on behalf of others
similarly situated, filed her Complaint (dkt. 1, Ex. A) in
the Superior Court of California for the County of San
Francisco. She alleges that her former employer Vitalant,
formally known as "BloodSource, Inc." and
"Blood Centers of the Pacific," and Does 1 through
100 (hereinafter referred to collectively as
"Defendant") engaged in a "pattern and
practice" of violating California labor laws. Compl.
¶ 26. Specifically, she alleges that Vitalant is
responsible for failure to pay overtime compensation (Cal.
Lab. Code §§ 510 and 1198); failure to provide meal
periods (Cal. Lab. Code §§ 226.7 and 512(a));
failure to provide rest periods (Cal. Lab. Code §
226.7); failure to pay minimum wages (Cal. Lab. Code
§§ 1194, 1197, and 1197.1); failure to timely pay
wages upon termination of employment (Cal. Lab. Code
§§201 and 202); failure to timely pay wages during
employment (Cal. Lab. Code § 204); failure to provide
accurate wage statements (Cal. Lab. Code § 226(a));
failure to maintain required records (Cal. Lab. Code §
1174(d)); failure to reimburse for expenses (Cal. Lab. Code
§§ 2800 and 2802); and unfair business practices
(Cal. Bus. & Prof. Code §§ 17200, et seq).
See generally Compl. (dkt. 1, Ex. A).
Removal to Federal Court
removed the action to this Court on August 9, 2019 based on
the Class Action Fairness Act ("CAFA"), codified as
28 U.S.C. § 1332(d). Notice of Removal
("Notice," dkt. 1). Under CAFA, federal courts have
original jurisdiction over class actions when there are at
least 100 class members in the putative class, when the
defendant is a citizen of a different state than at least one
class member, and when the combined claims of all class
members add up to an amount in controversy over $5 million.
See 28 U.S.C. § 1332(d). Here, Plaintiff claims
that the putative class includes all non-exempt employees
from March 29, 2015 to present. Compl. ¶ 14. According
to Defendant, there are 1, 257 such members. Reply (dkt. 18)
at 9; see also Supplemental Declaration of Elizabeth
Sweeley (dkt. 18, Ex. A) ¶ 3. In addition, because
"Vitalant is an Arizona non-profit corporation with its
principal place of business in Arizona" and the named
Plaintiff is a citizen of California, CAFA's diversity
requirement is met. Notice at 7; see also
Declaration of Bhavi A. Shah (dkt. 6) ¶ 4
("Defendant Vitalant is, and at all times relevant to
this action was, organized in the State of Arizona. . . .
Vitalant is not a citizen of California."). Initially,
Defendant calculated the amount in controversy to be "as
high as: $25, 229, 880." Notice at 7 (emphasis omitted).
It arrived at the number through the following calculation:
($26 (average hourly rate) x 5 (five missed meal breaks per
week) x 97, 038 (total number of weeks for which the entire
putative class was employed)) ($26 (average hourly rate) x
5 (five missed rest breaks per week) x 97, 038 (total number
of weeks for which the entire putative class was employed).
Id. The estimated amount in controversy exceeding $5
million, Defendant removed to this Court.
Motion to Remand to State Court
filed a Motion to Remand (dkt. 16) back to the Superior Court
on September 4, 2019 based on Defendant's initial amount
in controversy. She contested the sufficiency of
Defendant's evidence and the reasonableness of the
assumptions that formed the basis of Defendant's
calculation, arguing that "Defendant proposes violation
rates based entirely upon self-serving assumptions that lack
adequate evidentiary support and are tantamount to
impermissible speculation." Mot. at 2. First, Plaintiff
argued that the evidence Defendant provided-the Declaration
of Elizabeth Sweeley (dkt. 5)-was insufficient to support its
calculations. Mot. at 5 (citing Contreras v. J.R. Simplot
Co., No. 2:17-cv-00585-KJM-EFB, 2017 U.S. Dist. LEXIS
166359, at *7-8 (E.D. Cal. Oct. 5, 2017); Rinaldi v.
Dolgen Cal. LLC, No. 2:16-cv-02501-KJM-EFB, 2017 U.S.
Dist. LEXIS 126540, at *9 (E.D. Cal. Aug. 8, 2017)).
Plaintiff argued that Defendant should produce the documents
underlying Sweeley's declaration. Id. at 5-6.
addition, Plaintiff claimed that the assumptions underlying
Defendant's calculation were unreasonable. Plaintiff
argued that Defendant failed to "provide any reasonable
basis in fact or evidence for assuming that violations
occurred at ¶ 100% rate," which she contended is an
unreasonable interpretation of the "pattern and
practice" language of the Complaint. Id. at 8,
11 (citing Ibarra v. Manheim Invs., Inc., 775 F.3d
1193, 1198-99 (9th Cir. 2015); Moreno v. Ignite
Rest. Group, No. C 13-05091 SI, 2014 WL 1154063, at
*5 (N.D. Cal. Mar. 20, 2014)). In addition, Plaintiff argued
that Defendant failed to provide evidence for its assumed
average rate of pay. Id. at 9. Plaintiff pointed to
several cases in this circuit where courts have struck down
as unreasonable estimates based on violation rates lower than
the rate Defendant assumed in its original calculation.
Id. at 9-12 (citing Ruby v. State Farm Gen. Ins.
Co., No. C 10-02252 SI, 2010 U.S. Dist. LEXIS 88812, at
*11-12 (N.D. Cal. Aug. 4, 2010) (finding that an assumption
of one meal and one rest break violation per week was not
supported by the language of the complaint or the evidence
provided by the defendant); Armstrong v. Ruan Transp.
Corp., No. EDCV 16-1143-VAP (SPx), 2016 U.S. Dist. LEXIS
148460, at *14 (CD. Cal. Oct. 25, 2016) (finding a single
rest or meal break violation per week was not supported by
the language of the plaintiffs complaint and that the
defendant did not provide adequate factual support for the
assumption); Letuligasenoa v. Int'l Paper Co.,
No. 5:13-CV-05272-EJD, 2014 WL 2115246, at *5 (N.D. Cal. May
20, 2014) (finding a 100% uniform violation rate unsupported
by the plaintiffs complaint and "speculative" given
the defendant's evidence)).
made a similar argument rebutting Defendant's assumption
of one hour of overtime per week: "Defendant provides no
factual or evidentiary basis nor any explanation for any of
these assumptions. Defendant's assumptions also fail to
consider weeks during which class members' shifts were
too short to trigger overtime, and of course is based on
Defendant's baseless assumption that every shift was an
eight-hour shift. . . ." Id. at 13 (emphasis
omitted). Plaintiff cites cases in this circuit where
"courts in similar circumstances have found that even a
one-hour estimate of uncompensated overtime per week is too
speculative when not supported by any evidence."
Id. at 13-14 (citing cases).
Plaintiff asserted that Defendant waived any amount in
controversy based on the remaining causes of action or
attorney's fees because it did not calculate those
amounts in its Notice of Removal. Id. at 15.
November 1st Order and Supplemental Briefings
November 1, 2019, the Court ordered both parties "to
submit additional evidence related to the violation rate and
the disputed amount in controversy," based on the Ninth
Circuit's decision in Ibarra, 775 F.3d at 1193.
Order to File Additional Evidence ("Order," dkt.
27) at 2. In Ibarra, the court was faced with
calculating the amount in controversy for CAF A jurisdiction
in a similar wage and hour dispute where the defendant
"relied on a declaration of its senior director of
employee services and administration, which had a table
listing all of its non-exempt employees and their
corresponding number of shifts worked in excess of 5 hours
and 3.5 hours during the relevant class period."
Id. at 1198. The court vacated and remanded back to
the lower court and ordered "that 'both sides'
should have an opportunity to submit evidence and
argument." Id. (citing Dart Basin Operating
Co. v. Owens, 574 U.S. 81 (2014); 28 U.S.C. §
Defendant's Supplemental Briefing
response to the Order, Defendant submitted a third
declaration of Elizabeth Sweeley. Third Sweeley Decl. (dkt.
29-1) ¶¶ 1-4. Attached to this declaration were
four exhibits which summarized the data that Sweeley used to
calculate the amount in controversy. Id. In Exhibit
1 to Sweeley's declaration, she provided a spreadsheet
containing an identification number for 1, 225 of the
putative class members along with their hourly rate of pay,
the dates of their hire and termination, the number of wage
statements they received during the class period, and the
"total alleged amount of meal and rest period premium
pay in controversy." Id.¶5. ...