Danielsson v. Blood Centers of Pacific

          ORDER DENYING MOTION TO REMAND, Re: Dkt. No. 16

          JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE

         I. INTRODUCTION

         This is 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, ^[1] 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 DENIED.^[2]

         II. BACKGROUND

         A. Allegations in the Complaint

         Danielsson ("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).

         B. Removal to Federal Court

         Defendant 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.^[3] 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.

         C. Motion to Remand to State Court

         Plaintiff 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.

         In 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)).

         Plaintiff 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).

         Finally, 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.

         D. November 1st Order and Supplemental Briefings

         On 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. § 1446(c)(2)(B)).

         1. Defendant's Supplemental Briefing

         In 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. ...