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Garibay v. Archstone Communities LLC

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Aug 27, 2013
539 F. App'x 763 (9th Cir. 2013)
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Summary

holding "25% [of the plaintiffs'] recovery is the 'benchmark' level for reasonable attorney's fees in class action cases"

Summary of this case from Ramirez v. Benihana Nat'l Corp.
See 25 Summaries

Opinion

08-27-2013

VICTOR GARIBAY, individually and on behalf of other members of the general public similarly situated, Plaintiff - Appellee, v. ARCHSTONE COMMUNITIES LLC, a Delaware limited liability company; ARCHSTONE PROPERTY MANAGEMENT CALIFORNIA INCORPORATED, a Delaware corporation, Defendants - Appellants.

NOT FOR PUBLICATION


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding


Submitted August 7, 2013

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Pasadena, California

Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM, Senior District Judge.

The Honorable Miriam Goldman Cedarbaum, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation.
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Archstone Communities, LLC and Archstone Property Management California, Inc. appeal the district court's order granting Victor Garibay's motion to remand his class action complaint, which alleges violations of various California wage and employment laws, to state court. We have jurisdiction under 28 U.S.C. § 1453(c), and we affirm.

The district court correctly held that the defendants did not meet their burden to prove by a preponderance of the evidence that the amount in controversy exceeds $5 million as required for federal jurisdiction under the Class Action Fairnesss Act, 28 U.S.C. § 1332(d). See Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006) (per curiam). The only evidence the defendants proffer to support their calculation of the amount in controversy is a declaration by their supervisor of payroll, which sets forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages. Beyond this, the defendants rely on speculative and self-serving assumptions about key unknown variables. The district court correctly concluded that Archstone's evidence was insufficient to support removal jurisdiction under CAFA.

For example, Garibay alleged violations of Cal. Labor Code § 226, which provides that employers who fail to provide employees with "an accurate itemized [wage] statement" are subject to fines. Archstone's calculations assume that every single member of the class would be entitled to recover penalties for every single pay period. Garibay also alleges violations of Cal. Labor Code § 203, which provides that employers who fail to timely pay all earned wages upon termination are subject to a fine equal to the employee's normal wages for each day the wages are late, up to a maximum of 30 days. Archstone assumes that each employee would be entitled to the maximum statutory penalty, but provides no evidence supporting that assertion. Along the same lines, Garibay alleged violations of Cal. Labor Code § 226.7, which provides that employers who fail to provide adequate meal or rest breaks must compensate the employee for an additional hour of pay. Archstone assumes that each class member was wrongly denied a break twice each week. As the district court correctly explained, Archstone failed to provide any evidence regarding why the assumption that each employee missed two rest periods per week was more appropriate than "one missed rest period per paycheck or one missed rest period per month." Although Archstone correctly notes that 25% recovery is the "benchmark" level for reasonable attorney's fees in class action cases, see Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998), and that such fees are properly included in calculations of the amount in controversy, see Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 1000 (9th Cir. 2007); Cal. Labor Code § 218.5, Archstone has not established by a preponderance of the evidence that the underlying amount upon which those fees would be based is at least $4 million, as would be required to meet the $5 million minimum.

Finally, although the district court cited to Lowdermilk, 479 F.3d at 1002, which applied the heightened "legal certainty" standard, it relied on that case for the general proposition that we may not base our jurisdiction on mere speculation. Contrary to Archstone's assertions, the district court correctly identified and applied the preponderance of the evidence standard.

When it initially sought removal, Archstone did not have the benefit of our decision in Roth v. CHA Hollywood Med. Ctr., _F.3d_ (9th Cir. 2013). Under Roth, if Archstone later discovers evidence that the jurisdictional bar is met, it may once again attempt to remove this case to federal court.

AFFIRMED.

Summaries of

Garibay v. Archstone Communities LLC

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Aug 27, 2013
539 F. App'x 763 (9th Cir. 2013)

holding "25% [of the plaintiffs'] recovery is the 'benchmark' level for reasonable attorney's fees in class action cases"

Summary of this case from Ramirez v. Benihana Nat'l Corp.

finding the defendants failed to provide evidence that the assumption of two rest break violations per week was "more appropriate" than one violation per pay period or one violation per month

Summary of this case from Lindsey v. WC Logistics, Inc.

finding the defendants failed to provide evidence that the assumption of two rest break violations per week was "more appropriate" than one violation per pay period or one violation per month

Summary of this case from Holcomb v. Weiser Sec. Servs., Inc.

finding assumption of 100% violation rate unacceptable because it required reliance "on speculative and self-serving assumptions about key unknown variables."

Summary of this case from Marquez v. Toll Glob. Forwarding (U.S.A.) Inc.

finding similar calculation assumed "every single member of the class would be entitled to recover penalties for every single pay period" was not supported by evidence and could not be used to calculate amount in controversy

Summary of this case from Contreras v. J.R. Simplot Co.

finding there was insufficient information to support a finding that the amount in controversy requirement was satisfied where "the defendants rely on speculative and self-serving assumptions about key unknown variables"

Summary of this case from Willis v. Xerox Bus. Servs., LLC

affirming district court's order remanding case based on failure to show $5 million amount in controversy, finding the defendant improperly "assume[d] that each employee would be entitled to the maximum statutory penalty, but provide[d] no evidence supporting that assertion."

Summary of this case from Vargas v. Airport Terminal Servs.

affirming order remanding case in wage-and-hour action removed pursuant to CAFA where "defendants rely on speculative and self-serving assumptions about key unknown variables"

Summary of this case from Taylor v. United Rd. Servs., Inc.

affirming order remanding case in wage-and-hour action removed pursuant to CAFA where "defendants rely on speculative and self-serving assumptions about key unknown variables"

Summary of this case from Taylor v. United Rd. Servs., Inc.

affirming conclusion that Archstone did not establish amount in controversy where it merely "assume[d] that each employee would be entitled to the maximum statutory penalty, but provide[d] no evidence supporting that assertion" and "assumed each class member was wrongly denied a break twice each week" but "failed to provide any evidence regarding why" it assumed that

Summary of this case from Ogues v. Healthsource Global Staffing Inc.

rejecting defendants' assumption that each employee was entitled to maximum statutory penalty because the assumption was not supported by any evidence

Summary of this case from Contreras v. J.R. Simplot Co.

rejecting calculation of amount in controversy where only evidence provided was "a declaration by [defendants'] supervisor of payroll, which sets forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages"

Summary of this case from Garcia v. Wal-Mart Stores Inc.

rejecting calculation of amount in controversy where the only evidence provided was "a declaration by [defendants'] supervisor of payroll, which set forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages"

Summary of this case from Garcia v. Wal-Mart Stores Inc.

In Garibay, the court found that a declaration from a payroll supervisor was not sufficient to establish the amount in controversy.

Summary of this case from Sanchez v. Abbott Laboratories

In Garibay, defendants submitted a "declaration by their supervisor of payroll, which set[ ] forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages.

Summary of this case from Guijarro v. Healthcare Servs.

In Garibay, the Ninth Circuit recognized that "if [a defendant] later discovers evidence that the jurisdictional bar is met, it may once again attempt to remove this case to federal court."

Summary of this case from Garay v. Sw. Airlines Co.

explaining that defendant's evidence was insufficient to support removal jurisdiction under CAFA where defendant's calculations "assume[d] that every single member of the class would be entitled to recover penalties for every single pay period" under Labor Code section 226

Summary of this case from Calderon v. BKB Constr., LP

questioning why two missed rest periods per paycheck was more appropriate than one missed rest period per paycheck or one missed rest period per month

Summary of this case from Freeman v. Mercy Servs. Corp.

In Garibay v. Archstone Communities LLC, 539 Fed. App'x 763 (9th Cir. 2013), an unpublished Ninth Circuit decision, the court reached a similar conclusion.

Summary of this case from Armstrong v. Ruan Transp. Corp.

In Garibay, an employee sued an employer for meal- and rest-break violations, failure to provide accurate wage statements, and waiting-time penalties.

Summary of this case from Armstrong v. Ruan Transp. Corp.

In Garibay, defendants submitted a "declaration by their supervisor of payroll, which set[] forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages.

Summary of this case from Smith v. Diamond Resorts Mgmt., Inc.

In Garibay, the defendants submitted a "declaration by their supervisor of payroll, which set[] forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages.

Summary of this case from Fuente v. Cott Beverages, Inc.

observing that in connection with a waiting time penalties claim defendant "assume[d] that each employee would be entitled to the maximum statutory penalty, but provide[d] no evidence supporting that assertion."

Summary of this case from Townsend v. Brinderson Corp.

In Garibay, the Ninth Circuit found the defendants' calculation of the amount in controversy unjustified where the only evidence they provided was " a declaration by their supervisor of payroll, which sets forth only the number of employees during the relevant period, the number of pay periods, and general information about hourly employee wages." Id.

Summary of this case from Johnson v. Sunrise Senior Living Management, Inc.

criticizing a removing defendant for assuming, in the context of a wage-and-hour class action, that "every single member of the class would be entitled to recover penalties for every single pay period" and for failing to provide evidence to justify its assumption that there were two rest period violations per work week

Summary of this case from Mejia v. DHL Express (Usa), Inc.
Case details for

Garibay v. Archstone Communities LLC

Case Details

Full title:VICTOR GARIBAY, individually and on behalf of other members of the general…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Aug 27, 2013

Citations

539 F. App'x 763 (9th Cir. 2013)

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