Filed March 24, 2008
00 as a reasonable average hourly wage or to assure this Court that such an average estimate is, in fact, the average rate of pay applicable to class members in this action. See, e.g., Lowdermilk, 479 F.3d at 1001 (rejecting 5 Plaintiffs note that defendants are clearly capable of making such detailed lists and estimates. For example, when the court in the Western District of Pennsylvania granted notice with respect to the FLSA claims of employees of SCI’s subsidiary Alderwoods Group, Inc., that subsidiary produced a list of names and contact information for approximately 2,780 class members.
Filed March 8, 2013
Plaintiffs’ contention is also inconsistent with the Ninth Circuit precedent in Lowdermilk, which expressly contemplated the use of estimates and assumptions when establishing the amount in controversy to a legal certainty. 479 F.3d at 1001. Indeed, the Ninth Circuit not only adopted assumptions made by the defendant in Lowdermilk when assessing the amount in controversy, but even adopted those assumptions where they were unsupported by any record evidence.
Filed December 6, 2007
/ / / / / / -6- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO REMAND CASE NO. 3:07-CV-2133-JM-BLM Case 3:07-cv-02133-JM-BLM Document 7 Filed 12/06/2007 Page 6 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. The CAFA Analysis Should Be Conducted Within the Four-Corners of the Complaint In cases such as this, in which a plaintiff pleads an amount in controversy of less than $5,000,000, the court “need not look beyond the four corners of the complaint to determine whether the CAFA jurisdictional amount is met.” Lowdermilk, 479 F.3d at 998. Notwithstanding the afore-mentioned case law, Defendant submitted a sparse and conclusory declaration from Ms. Brenda Liistro, which Plaintiff properly objected to as irrelevant, lacking foundation, and violative of the best evidence rule to the extent Ms. Liistro’s declaration is based on her review of business records, in an attempt to satisfy the “high bar” of proving that the amount in controversy in this matter exceeds $5,000,000.
Filed December 6, 2007
/ / / / / / Case 3:07-cv-02133-JM-BLM Document 8 Filed 12/06/2007 Page 6 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO REMAND CASE NO. 3:07-CV-2133-JM-BLM D. The CAFA Analysis Should Be Conducted Within the Four-Corners of the Complaint In cases such as this, in which a plaintiff pleads an amount in controversy of less than $5,000,000, the court “need not look beyond the four corners of the complaint to determine whether the CAFA jurisdictional amount is met.” Lowdermilk, 479 F.3d at 998. Notwithstanding the afore-mentioned case law, Defendant submitted a sparse and conclusory declaration from Ms. Brenda Liistro, which Plaintiff properly objected to as irrelevant, lacking foundation, and violative of the best evidence rule to the extent Ms. Liistro’s declaration is based on her review of business records, in an attempt to satisfy the “high bar” of proving that the amount in controversy in this matter exceeds $5,000,000.
Filed February 18, 2014
Furthermore, even though Plaintiffs potential recovery on the rest break class, 203 penalties, and PAGA claims is more than sufficient to meet CAFA's amount in controversy requirement, Defendant is also permitted to include the potential recovery of attorneys' fees to establish that the amount in controversy has been met. "Where a statutory authority provides for attorneys' fees, the fees are included in the amount in controversy to reach CAFA's $5,000,000." Chambers v. CVS Pharmacy, Inc., 2009 U.S. Dist. LEXIS 73472, at * 6 (S.D. Cal. Aug. 19, 2009); see also Lowdermilk v. United States Bank Nat'l Assoc., 479 F.3d 994, 1000 (9th Cir. 2007) (holding "attorneys' fees were properly included in the amount in controversy in a class action"); Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007) (holding attorneys' fees are included in determining amount in controversy in both 28 U.S.C. § 1332(a) and CAFA removal actions); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 1998) (holding attorneys' fees are properly included in determining the amount in controversy, regardless of whether they are mandatory or discretionary). Here, an estimate of Plaintiffs attorneys' fees is 25% of the total recovery.
Filed May 13, 2013
This is particularly true since a removing defendant is expected to submit “summary-judgment-type evidence relevant to the amount in controversy at the time of removal,” including information from its own records. Valdez, supra, 372 F.3d at 1117; Cohn, supra, 281 F.3d at 840 n.1; Lowdermilk, supra, 479 F.3d at 1002. Reading a requirement that a defendant acquire every single piece of evidence upon which it might rely to remove within 30 days of removal – including that contained in its own records – would read the second thirty- day period in Section 1446(b) right out of the statute.
Filed November 30, 2007
The defendant in Lowdermilk v. U.S. Bank Nat’l. Ass’n., attempted to meet the “legal certainty” standard of proof with regard to multi-variable and individualized, wage-based damage claims by filing a declaration that used a simplistic “x times y” equation to calculate the total amount in controversy. Lowdermilk, supra, 479 F.3d at 1001- 1002. The Ninth Circuit found the figures too speculative to meet the legal certainty test based on the extensive variation between the types and amounts of unpaid wages owed to workers.
Filed June 15, 2015
1 See Mot. at 6-9 (citing Lowdermilk v. United States Bank Nat’l Ass’n, 479 F.3d 994 (9th Cir. 2007) (addressing question of what defendant must prove to remove case originally filed in state court where plaintiff pleads damages less than CAFA’s $5 million requirement); Case 5:13-cv-02329-AB-AGR Document 108 Filed 06/15/15 Page 8 of 22 Page ID #:1737 2 Harris v. CVS Pharmacy, Inc., No. 13-edcv-2329-AB-AGR OPPOSITION TO CVS’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CVS is wrong that merely by “disputing” or “challenging” the amount in controversy, it has somehow initiated a procedure whereby “the parties must submit evidence outside the complaint,” and “the court then decides, by a preponderance of the evidence, whether the amount . . . has been satisfied.” (Mot.
Filed October 3, 2013
Plaintiffs do not allege an amount in controversy in their complaint, and thus the Defendants bear the burden of showing by a preponderance of the evidence that the amount in controversy exceeds $5,000,000. See Lowdermilk, 479 F.3d at 997 (reserving the preponderance of the evidence standard only for those situations where the plaintiff does not seek a specific amount in damages). Case3:12-cv-06579-JSW Document48 Filed04/10/13 Page4 of 8 EXHIBIT 1: ORDER REMANDING CASE Case3:13-cv-04209-JSW Document1 Filed1 /03/13 Page20 35 U ni te d St at es D is tr ic t C ou rt Fo r t he N or th er n D is tri ct o f C al ifo rn ia 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 In support of their petition for removal, Defendants also attach a notice of removal and a joint case management statement from another case pending in the Northern District of California, to which plaintiff Bernal is a party.
Filed July 19, 2013
; Heleine v. Saxon Mortgage Servs., Inc., 2013 U.S. Dist. LEXIS 47466 (D. N.J. April 2, 2013) (granting defendant’s motion to dismiss pursuant to Rule 12(b)(1) based on plaintiffs’ failure to carry their burden, in light of defendants’ challenge, to demonstrate the amount in controversy of the proposed class exceeded the $5,000,000 threshold where plaintiffs failed to “respond to Defendants’ jurisdictional challenge with any declarations, affidavits, or other evidence to support their position.”); see also Lowdermilk v. United States Bank National Assoc., 479 F. 3d 994, 1002 (9th Cir. 2007) (concluding, in the removal context, that “Defendant has left us to speculate as to the size of the class, the amount of unpaid wages owed due to the rounding policy, and whether or not members of the class qualify for penalty wages; such speculation does not meet the ‘legal certainty’ standard. Until the parties are able to more definitely ascertain the potential size of the class or the extent of the damages, we cannot base our jurisdiction on Defendant’s speculation and conjecture.”)