Cate et al v. Service Corporation International et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 9/6/2011. (cc, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
DOUGLAS CATE, et al.,
INTERNATIONAL, et al.,
CIVIL ACTION NO.
This is a class action brought by the employees at
Alabama funeral homes against their employers for
allegedly unpaid wages.
The plaintiffs are Douglas
Cate, Gregory Cunningham, Bebe Dowe, Marjorie Jackson,
James Lovvorn, Michael Powell, and Kemberley CoheeIrby;
Support Center, L.P., Jane D. Jones, Gwen Petteway,
and Thomas Ryan.
This case, which was removed from state to federal
court pursuant to the Class Action Fairness Act of
2005 (“CAFA”), 28 U.S.C. § 1332(d), is now before the
court on the plaintiffs’ motion to remand.
review of the evidence, this court is of the opinion,
and so finds factually by a preponderance of the
evidence, that the amount-in-controversy is less than
$ 5 million.
The remand motion will be granted.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d
1092, 1095 (11th Cir. 1994). A federal court may hear
a case only if authorized to do so by federal law.
Kokkonen, 511 U.S. at 377.
One statutory right of removal exists under CAFA.
“Under CAFA, to remove a mass action to federal court,
a defendant must show: (1) an amount in controversy of
an aggregate of $ 5,000,000 in claims: (2) minimal
diversity; (3) numerosity involving monetary claims of
100 or more plaintiffs; and (4) commonality showing
that the plaintiffs' claims involve common questions
of law or fact.” Thomas v. Bank of America Corp., 570
F.3d 1280, 1282 (11th Cir. 2009); see also 28 U.S.C.
CAFA allows individual class members'
For purposes of removal under CAFA, where damages
preponderance of the evidence that the $ 5,000,000
diversity jurisdiction is met.
Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010);
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319
(11th Cir. 2001).
In assessing whether the defendant
has met its burden, “the court may consider facts
alleged in the notice of removal, judicial admissions
made by the plaintiffs, non-sworn letters submitted to
the court, or other summary judgment type evidence
requirement is satisfied.”
Pretka, 608 F.3d at 754
(quoting 16 James Wm. Moore et al., Moore's Federal
Practice § 107.14[g], at 107-86.4 to 107-86.5 (3d
plaintiff, the defendant, or the court.
Id. at 768.
The only jurisdictional disagreement between the
parties is whether the defendants have met CAFA’s
amount-in-controversy requirement. In their motion to
remand, the plaintiffs argue that the defendants have
failed to establish by a preponderance of the evidence
that the amount in controversy exceeds $ 5 million.
See 28 U.S.C. § 1332(d) (setting out the requirements
for federal jurisdiction under CAFA). They argue that
the “defendants’ amount in controversy here is based
on speculation and unreliable estimates, including
misplaced reliance on other litigation.”
at 6 (Doc. No. 12).
The defendants agree that it is
their burden to prove that the amount-in-controversy
requirement has been met, but they maintain that they
have presented evidence sufficient to establish that
plaintiffs are seeking more than $ 5 million.
When the jurisdictional amount in controversy is
not facially apparent from the complaint, “the court
may consider facts alleged in the notice of removal,
judicial admissions made by the plaintiffs, non-sworn
letters submitted to the court, or other summary
judgment type evidence that may reveal that the amount
in controversy requirement is satisfied.”
Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th
Cir. 2010) (quoting 16 James Wm. Moore et al., Moore's
107-86.5 (3d ed. 2010)). Thus, “defendants may submit
a wide range of evidence in order to satisfy the
jurisdictional requirements of removal.”
Id. at 755.
While any “specific factual allegations establishing
supported, the evidence used to do so may be “combined
with reasonable deductions, reasonable inferences, or
other reasonable extrapolations.”
Id. at 754.
In addition, the evidence submitted in support of
removal need not have been received by the defendants
from the plaintiffs or the court when, as here,
removal arises under the first paragraph of 28 U.S.C.
Id. at 768-69.
In Lowery v. Alabama
28 U.S.C. § 1446(b) reads in full as follows:
“The notice of removal of a civil
action or proceeding shall be filed
within thirty days after the receipt
by the defendant, through service or
otherwise, of a copy of the initial
Power Co., the Eleventh Circuit Court of Appeals held
that evidence “gathered from outside sources,” rather
than received from the plaintiffs, “is not of the sort
contemplated by § 1446(b).” 483 F.3d 1184, 1221 (11th
However, Pretka distinguished Lowery’s
pleading setting forth the claim for
relief upon which such action or
proceeding is based, or within
thirty days after the service of
summons upon the defendant if such
initial pleading has then been filed
in court and is not required to be
served on the defendant, whichever
period is shorter.
“If the case stated by the initial
pleading is not removable, a notice
of removal may be filed within
thirty days after receipt by the
otherwise, of a copy of an amended
pleading, motion, order or other
paper from which it may first be
ascertained that the case is one
which is or has become removable,
except that a case may not be
removed on the basis of jurisdiction
conferred by section 1332 of this
title more than 1 year after
commencement of the action.”
holding, limiting it to cases in which removal is
sought under the second paragraph of § 1446(b).
F.3d at 767.
When a defendant seeks to remove under
the first paragraph of § 1446(b), within 30 days of
receipt of the complaint, then Lowery’s “‘receipt from
the plaintiff’ rule” does not apply, and “the evidence
the defendant may use to establish the jurisdictional
facts is not limited to that which it received from
the plaintiff or the court.”
Id. at 768-69.
Here, the defendants have used a wide variety of
evidence in support of their contention that CAFA’s
amount-in-controversy requirement is satisfied. Most
of this evidence is based on submissions made in the
various cases that preceded, or are parallel to, this
litigation. Ultimately, this court finds that some of
this material qualifies as “evidence” indicative of
the amount in controversy in the instant case, while
some does not.
parties over whether the plaintiffs’ complaint states
the claims of all SCI employees nationwide or just
those who worked in Alabama.
The defendants argue
that “the Complaint does not limit the Class Members
to those working within the State of Alabama,” such
allegations of the Complaint exceed 10,000.”
Removal ¶ 23 (Doc. No. 2).
The plaintiffs, however,
contend that, “The complaint here encompasses only
employees who have claims under Alabama state law, and
defendants have not shown that employees who work or
live outside of Alabama can recover damages in the
Mot. Remand at 7 (Doc. No. 12).
While the complaint does not expressly state that it
is asserted on behalf of Alabama employees only, it
does note that the District Court for the Northern
District of California, which handled one of the cases
that preceded this one, dismissed without prejudice
certain claims, “including the state law claims of
employees in Alabama.”
Comp. ¶ 14.
It then avers
that, “The instant action was filed within 30 days of
the effective date of the dismissal without prejudice
Furthermore, the defendants have presented no evidence
that suggests that any of their employees outside of
Alabama could recover under this State’s laws.
court therefore factually finds by a preponderance of
the evidence that the plaintiffs assert claims on
behalf of only the defendants’ employees in the State
claims on behalf of Alabama employees only, the next
question is how many employees SCI had in Alabama.
This is an important issue not only because of CAFA’s
numerosity requirement, but because individual claims
must be aggregated to determine whether they meet the
$ 5 million amount-in-controversy requirement.
defendants state that there were 507 employees in
employees provided by the defendants in an Arizona
case that preceded this one.
Not. Removal ¶ 17 (Doc.
The plaintiffs do not dispute this number,
and the court finds that a document provided by SCI
listing its own employees is sufficient to establish
the number of people it employed in Alabama.
Relying on this 507 figure, the defendants try to
establish that the plaintiff class’s claims meet the
amount-in-controversy requirement. They first divide
Alabama, to reach what they contend each plaintiff
would need to claim: $ 9,862.
The defendants then
divide that jurisdictional amount average by the state
minimum wage, $ 7.25 per hour, to come up with an
estimate of the number of hours of unpaid work each
employee in Alabama would need to claim.
that calculation, according to the defendants, each
employee in Alabama must claim at least 1,360 hours of
defendants use sworn interrogatories submitted in the
Arizona litigation by the named plaintiffs in this
action to show that each of them claims more than
1,360 hours of unpaid work over a three-year period.
Thus, the defendants argue, “it is clear that the
value of each Class Member’s claim will far exceed
Def. Br. at 11.
interrogatories as such.
Though they were submitted
2. The period of liability for the plaintiffs’
claims run from two years for their fraud claims to
six years for their breach-of-contract claims. The
defendants have therefore employed “a conservative
calculations. Def. Br. at 12 (Doc. No. 19).
in different litigation, they are sworn statements
about hours that the plaintiffs worked for which they
did not receive payment, which is also at issue here.
However, as the plaintiffs point out, “[t]he ...
Interrogatory Responses are not reliable estimates of
plaintiffs’ estimated damages in this action because
the [Arizona] action includes categories of unpaid
time resulting from policies not even alleged in this
action.” Pl. Reply at 5 (Doc. No. 22). For instance,
the Arizona case was an action under the Federal Labor
Standards Act, 29 U.S.C. §§ 201–219, and included
damages for claims resulting from “eight (8) separate
policies or classes,” such as a training policy;
“whereas the instant action alleges only four (4)
separate policies or classes,” such as a meal breaks
The burden is on the defendants to
“establish that the claims are factually, not just
Pretka, 608 F.3d at 769.
court is therefore convinced, an so finds factually,
that the defendants have not done so here.
The defendants also make arguments based on suits
filed by plaintiffs’ counsel in other States.
defendants assert that the plaintiffs’ counsel filed
a lawsuit similar to the instant one in a Virginia
The Virginia suit alleges jurisdiction under
CAFA and makes almost identical claims under Virginia
law to those here; the defendants have only 300
employees in that State.
Therefore, according to the
defendants, “if 300 employees in Virginia, based on
controversy requirement for jurisdiction, then 507
employees working in Alabama would likewise meet that
requirement.” Def. Br. at 10 (Doc. No. 19). However,
the allegations at issue are not “identical” because
they arise in different States under their respective
This court is not convinced by a preponderance
of the evidence “the claims are factually, not just
Pretka, 608 F.3d at 769.
Similarly, the defendants’ contention that the
denial by a federal court in Louisiana of a similar
motion to remand should be dispositive here is not
persuasive either. The suit in Louisiana was filed on
behalf of the defendants’ employees in that State,
alleging violations of Louisiana law.
court is not convinced by a preponderance of the
evidence that, under Alabama law, plaintiffs have
stated claims worth $ 5 million or more.
The court agrees with the plaintiffs’ statement
that, “Defendants’ assertion that the ... Virginia,
and Louisiana actions are identical to the instant
lawsuit is simply wrong, as each of these actions
seeks to represent different classes of employees for
different claims under different state laws.”
Reply at 2 (Doc. No. 22).
The court comes to the same conclusion regarding
defendants’ employees there.
However, the settlement
proposal submitted by the defendants does not have a
breakdown of the claims at issue or detail how the
Massachusetts plaintiffs arrived at that figure; and
it says that the “Plaintiffs are open to negotiation”
on the settlement amount.
Def.’s Ex. 2 (Doc. No. 19-
Furthermore, it is a settlement offer made on
behalf of different plaintiffs in a different State.
This court is not convinced by a preponderance of the
proposal, that the plaintiffs’ claims in the instant
action are worth more than $ 5 million.
v. Select Portfolio Servicing, Inc., 651 F.Supp.2d
1279, 1281 (S.D. Ala. 2009) (Steele, J.) (stating that
“What [a settlement offer] counts for ... depends on
the circumstances,” and that they “commonly reflect
little weight in measuring the preponderance of the
Perhaps most importantly, the defendants here
have submitted no evidence that suggests that (1)
colorable claim for uncompensated hours worked or (2)
that those claims will be factually similar to those
of the named plaintiffs, that is, for more than 1,360
hours. The complaint defines each of the four classes
of employees represented not as “All employees of
Defendants,” but as, for example, “All current and
former hourly paid employees of Defendants who worked
as Funeral Directors, Embalmers or Family Services
Counselors at an SCI location prior to July 2007 and
who were encouraged or required to perform community
work ... but were not compensated.”
Comp. ¶ 27 (Doc.
The other three classes of employee are
similarly limited as to position and type of unpaid
work required of them.
The defendants have presented
no evidence to indicate that all 507 Alabama employees
Moreover, there is no evidence that all class
members will have claims for damages similar to those
alleged by the named plaintiffs.
element of a class action, by itself, does not allow
[a court] to infer that the amounts of the named
plaintiffs' claims are similar to those of other class
Pretka, 608 F.3d at 769; see also Kornberg
v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337
damages between the class representative and other
class members do[ ] not affect typicality.”).
defendants have not shown by a preponderance of the
necessarily accurate) are similar to those of the rest
of the class.
convinced by a preponderance of the evidence that the
plaintiffs’ claims in the instant action are worth
more than $ 5 million.
damages, and injunctive relief should all be included
in any calculation of the amount in controversy. “The
general rule is that attorneys' fees do not count
towards the amount in controversy unless they are
allowed for by statute or contract.”
Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 808
n.4 (11th Cir. 2003) (ruling in the context of regular
diversity jurisdiction); see also Lowdermilk v. U.S.
Bank National Ass'n, 479 F.3d 994, 1000 (9th Cir.
2007) (stating that, in general, attorneys’ fees are
only used to calculate the jurisdictional amount when
attorneys’ fees have been used to calculate the amount
in a class action).
None of the plaintiffs’ claims
here is made under statute; nor have the defendants
identified any contract that would make attorneys’
fees applicable to the amount in controversy.
defendants have also not established any range for a
prospective punitive damages amount, such that the
court should consider them. And, while the defendants
urge the court to “consider the cost to Defendants of
complying with such an order [granting injunctive
relief],” Def. Resp. at 13 (Doc. No. 19), they have
given the court no sense of what that cost might be.
As a result, the court finds that, even with these
convinced by a preponderance of the evidence that the
plaintiffs’ claims in the instant action are worth
more than $ 5 million.
While “a removing defendant is not required to
prove the amount in controversy beyond all doubt or to
banish all uncertainty about it,” Pretka, 608 F.3d at
754, this court is convinced, and so finds factually,
that the evidence does not convince the court by a
preponderance of the evidence that the amount in
controversy is greater than $ 5 million.
court is convinced to the contrary: that the amount in
controversy is less than $ 5 million.
plaintiffs’ remand motion.
DONE, this the 6th day of September, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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