Hewitt et al v. Gerber Products Company

Filing 23

MEMORANDUM OPINION AND ORDER granting 6 Motion to Remand and matter is remanded to the Circuit Court of Sebastian County, Arkansas. Signed by Honorable P. K. Holmes, III on November 6, 2012. (sh) Modified to add text on 11/6/2012 (sh).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DAVID HEWITT II; AARON
JOHNSON; JAMES LANE; RALPH
LAROSA, JR.; and JERRY OSBORNE;
Individually and on Behalf of All Others
Similarly Situated
PLAINTIFFS
v.

Case No. 2:12-CV-02152

GERBER PRODUCTS COMPANY
d/b/a NESTLE’ INFANT NUTRITION
d/b/a NESTLE’ NUTRITION USA
d/b/a NESTLE’ NUTRITION USA –
INFANT NUTRITION d/b/a NESTLE’
NUTRITION USA – PERFORMANCE
NUTRITION; and PATRICK MURRAY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiffs’ Motion to Remand (Doc. 6) and supporting documents, and
Defendant Gerber Products Company’s (“Gerber”) Response in Opposition (Doc. 18) and
supporting documents. Plaintiffs also filed a Reply (Doc. 21) without leave of Court, which the
Court, nevertheless, has read and considered. Plaintiffs dispute the existence of both federal
question and diversity jurisdiction in this case, contending that their claims arise independently
under state law, the parties are not diverse, and the amount in controversy does not meet the
jurisdictional requirements. For the reasons described herein, Plaintiffs’ Motion to Remand (Doc.
6) is GRANTED, and this case is remanded to the Circuit Court of Sebastian County, Arkansas.
I. Background
Named Plaintiffs are hourly employees who are or were employed by Gerber at its Fort
Smith, Arkansas, baby food manufacturing and processing facility (the “Facility”). On June 6,
-1-

2012, Plaintiffs filed this putative collective action against Gerber in Sebastian County Circuit
Court, asserting state law claims for unpaid wages under the Arkansas Minimum Wage Act
(“AMWA”) and for unjust enrichment. Plaintiffs allege they spent time donning and doffing
protective gear, sanitizing clothing and equipment, washing their hands, and walking to and from
their work stations for which they were not compensated, and also that they were periodically
required to work through their lunch breaks without compensation. (Doc. 3, ¶ 3). Plaintiffs aver
that they are entitled to compensation for this time under Arkansas state law. According to
Plaintiffs, Gerber violated the AMWA and state common law by failing to fully compensate
employees for time worked in excess of 40 hours per week.
On July 6, 2012, Gerber filed a Notice of Removal in this Court, alleging three theories of
subject matter jurisdiction. (Doc. 1). First, Gerber asserts that Plaintiffs’ claims raise a federal
question under 28 U.S.C. § 1331 because they are completely preempted by § 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185, which grants exclusive federal jurisdiction
over state law claims that are based on or require interpretation of a collective bargaining agreement
(“CBA”). Second, Gerber contends removal is proper under 28 U.S.C. § 1332 on grounds of
traditional diversity jurisdiction. Third, Gerber argues diversity jurisdiction is proper under the
Class Action Fairness Act of 2005 (“CAFA”).
Plaintiffs moved to remand on July 23, 2012. Contemporaneously with their Motion,
Plaintiffs filed an Amended Complaint adding Patrick Murray, plant manager of the Facility and an
Arkansas citizen, as a defendant. (Doc. 7). In support of remand, Plaintiffs argue that their claims
arise independently under Arkansas law and are not completely preempted, that diversity jurisdiction
does not exist because the parties are no longer completely diverse and Gerber has failed to prove

-2-

the requisite amount in controversy, and that even if the Court finds that it has jurisdiction pursuant
to CAFA, the local-controversy exception would require the Court to decline to exercise jurisdiction.
II. Legal Standard
A defendant in state court may remove the case to federal court if the defendant can
demonstrate that the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a).
Once a case is removed to federal court, a plaintiff may move to remand to state court if the federal
court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). Removal cases are construed more
narrowly than originally filed cases to protect the plaintiff’s choice of forum and to protect the state
courts from usurpation by federal courts. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108109 (1941); Hurt v. Dow Chemical Co., 963 F.2d 1142, 1145 (8th Cir. 1992). The Court must
strictly construe the federal removal statute and resolve any ambiguities about federal jurisdiction
in favor of remand. Transit Casualty Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d
619, 625 (8th Cir. 1997).
III. Discussion
Gerber claims this Court has removal jurisdiction under three separate theories: federal
question jurisdiction, traditional diversity jurisdiction, and CAFA jurisdiction. Plaintiffs dispute
each theory, and argue that this Court must remand to state court for lack of subject matter
jurisdiction. Each of these three theories of federal jurisdiction is analyzed below.
A. Federal Question Jurisdiction
Federal courts have original jurisdiction over civil actions arising under the Constitution,
laws, or treaties of the United States. 28 U.S.C. § 1331. In the usual case, the contents of a wellpleaded complaint determine federal question jurisdiction. Caterpillar Inc. v. Williams, 482 U.S.

-3-

386, 393 (1987). Federal preemption is ordinarily a substantive defense to the plaintiff’s suit; as
such, it does not appear on the face of a well-pleaded complaint, and therefore does not authorize
removal to federal court. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). However, “[o]ne
corollary of the well-pleaded complaint rule . . . is that Congress may so completely pre-empt a
particular area that any civil complaint raising this select group of claims is necessarily federal in
character.” Id. at 64-65. Complete preemption converts an ordinary state law complaint into one
asserting a federal claim. Caterpillar, 482 U.S. at 393. The complaint is viewed as stating a federal
claim from the beginning; therefore, complete preemption provides a valid basis for removal to
federal court. Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1051 (8th Cir. 2006).
Section 301 of the LMRA is one of the few statutes to which the complete preemption
doctrine undoubtedly applies. It provides: “[s]uits for violation of contracts between an employer
and a labor organization representing employees in an industry affecting commerce as defined in
this Act, or between any such labor organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the amount in controversy or without
regard to the citizenship of the parties.” 29 U.S.C. § 185(a). “[T]he preemptive force of § 301 is
so powerful as to displace entirely any state cause of action for violation of contracts between an
employer and a labor organization.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation
Trust for S. Cal., 463 U.S. 1, 23 (1983) (internal quotation marks omitted). “[W]here a complaint
raises issues to which federal law applies with complete preemptive force, the Court must look
beyond the face of the complaint in determining whether remand is proper.” Austin v. Int’l Bhd. of
Elec. Workers, AFL-CIO, 2012 WL 685416, at *1 (E.D. Mo. Mar. 2, 2012) (citing Williams v. Nat’l
Football League, 582 F.3d 863, 874 (8th Cir. 2009)).

-4-

As a threshold issue, the Court must determine whether there is a clear indication that the
Plaintiffs are covered by a CBA. See Pruell v. Caritas Christi, 645 F.3d 81, 83 (1st Cir. 2011)
(“[R]emoval and dismissal based on complete preemption under the LMRA must start with a
plaintiff covered by a CBA for it is that fact that establishes subject matter jurisdiction in the federal
district court.”) (citing Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists and Aerospace
Workers, 390 U.S. 557, 560 (1968)). Plaintiffs’ Complaint does not mention either union
membership or the existence of a CBA; however, Gerber alleges in its Notice of Removal that
Plaintiffs are represented by Lodge 260 International Association of Machinists and Aerospace
Workers, AFL-CIO (the “Union”) and that Gerber and the Union are parties to a CBA that addresses
wages, hours, and terms and conditions of employment. (Doc. 1, ¶¶ 3, 4). Plaintiffs do not dispute
these allegations, but instead argue that their claims arise independently of any CBA and also that
Gerber’s preemption argument must fail as to any potential plaintiffs who are not members of the
Union. (Doc. 7, p. 11). As a general rule in class action suits, the court looks to the status of the
named plaintiffs and their claims. Pruell, 645 F.3d at 83 (citing 5 W. Moore et al., Moore’s Federal
Practice § 23.63[1][b] (3d ed. 2011)). Named Plaintiffs do not deny that they are members of a
Union, and Gerber’s Human Resources Manager submitted a sworn affidavit stating that each of the
named Plaintiffs is a member of the Union. (Doc. 19, ¶ 4). The Court therefore finds that, for the
purpose of this Motion, Plaintiffs are members of the Union and are subject to the CBA between the
Union and Gerber.
Section 301 “does not preempt every employment dispute, and it does not preempt all other
disputes concerning CBA provisions.” Miner v. Local 373, 513 F.3d 854, 865 (8th Cir. 2008). For
complete preemption to be a valid basis for removal jurisdiction in this case, at least one of

-5-

Plaintiffs’ state law claims must arise under § 301. A state claim arises under § 301 when “the heart
of the state law complaint is a . . . clause in the collective bargaining agreement.” Avco Corp., 390
U.S. at 558. The Eighth Circuit adopted a narrow approach to § 301 preemption, where the inquiry
is only “whether the claim itself is necessarily grounded in rights established by a CBA.” Meyer v.
Schnucks Mkts., Inc., 163 F.3d 1048, 1051 (8th Cir. 1998); see also Caterpillar, 482 U.S. at 398-99
(“When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has
chosen to plead what we have held must be regarded as a federal claim, and removal is at the
defendant's option.”). The analysis begins with the claim itself and involves a two-step approach
to determine if the claim is sufficiently independent to survive complete preemption. Williams, 582
F.3d at 874 (citations omitted). First, a state law claim is completely preempted if it is directly based
on a provision of the CBA, meaning that the CBA provision at issue actually sets forth the right
upon which the claim is based. Id. Second, § 301 complete preemption applies where a state law
claim “is dependent upon an analysis of the relevant CBA,” meaning that the resolution of a
plaintiff's state law claim requires interpretation of a provision of the CBA. Id.
Plaintiffs’ Complaint sets forth two claims: one based on Arkansas statutory law, and one
based on the Arkansas common law of unjust enrichment. “Complaints alleging a violation of state
law without asserting a breach of the CBA have been found not preempted by federal law.” Carlson
v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1051 (8th Cir. 2006). The Court finds that
neither claim is directly based on a provision of the CBA. The Complaint does not reference the
CBA or implicate any reliance on a right established under the CBA. Plaintiffs’ AMWA claim
derives from an alleged right to compensation based on Ark. Code Ann. §§ 11-4-218(a)(1) and 11-4211. Plaintiffs’ unjust enrichment claim arises out of Arkansas common law, which provides that

-6-

a party who receives the benefit of services must compensate the party who performed the services
in good faith. Dews v. Halliburton Indus., Inc., 708 S.W.2d 67, 69 (Ark. 1986) (citing Dunn v.
Phoenix Village, Inc., 213 F.Supp. 936 (W.D. Ark.1963)); see also Hatchell v. Wren, 211 S.W.3d
516, 522 (Ark. 2005) (describing the elements of a cause of action for unjust enrichment).
Moreover, Gerber fails to point to any specific provision of the CBA that sets forth the rights upon
which Plaintiffs’ claims are based. Thus, the Court finds that Plaintiffs’ claims are not completely
preempted on this basis.
The parties’ main arguments are in regard to the second step of analysis, as to whether
Plaintiffs’ claims are dependent on an interpretation of the CBA. For complete preemption to exist,
“the [state law] claim must require the interpretation of some specific provision of a CBA.” Meyer,
163 F.3d at 1051. As mentioned above, Gerber fails to point to any specific provision of the CBA
that is at issue. In fact, Gerber points out that the issue of compensation for donning and doffing
protective gear was raised and rejected during CBA negotiations, which leads the Court to infer that
the CBA does not address the issue at all. (Doc. 18, p. 9, n.5). Gerber provided the Court with
portions of the relevant CBA. (Doc. 19-1). Based on the provided material, there is no indication
that time spent walking, washing, or donning and doffing gear is addressed as either compensable
time or as time specifically excluded from compensation under the CBA. If the CBA is silent on
the issue, there is no provision of the CBA that requires interpretation by the Court, and Plaintiffs’
claims are not completely preempted. The Court concludes that there is no provision of the CBA
that must be interpreted to resolve Plaintiffs’ claims.
Even if the CBA were to address compensation for the disputed time periods, Plaintiffs’
claims arise independently under state law and are therefore not completely preempted. Plaintiffs’

-7-

Complaint sets forth an AMWA claim and a common law claim for unjust enrichment, both of
which are based on the premise that Arkansas state law provides all employees with a minimum,
guaranteed right to compensation for time worked. Plaintiffs contend that Arkansas substantive law
provides all individual employees with a right to be paid for all time worked, which, Plaintiffs argue,
includes compensation for time spent walking to and from work stations, washing their hands, and
donning and doffing protective equipment. Gerber argues that Arkansas law does not require
compensation for these activities. The ultimate issue is whether or not Plaintiffs are entitled to
compensation for those activities under state law, regardless of what is provided under the CBA.
Gerber contends that, because the AMWA does not explicitly require employers to pay
employees for time spent walking or donning and doffing their clothing, any entitlement to overtime
compensation for those periods must arise under the parties’ CBA. (Doc. 18, pp. 3-4). The Court
disagrees. While the AMWA does not explicitly mandate compensation for walking or donning and
doffing time, it also does not expressly exclude compensation for that time, either. Arkansas law
requires employers to compensate hourly workers at a rate not less than one and one-half (1 ½) times
their regular rate of pay for all hours worked in excess of 40 per week. Ark. Code Ann. § 11-4-211.
What must follow is that state courts are to interpret the statute to determine whether or not the
contested time periods are compensable time. The AMWA applies to all employees, whether or not
they are members of a union. It is a statute of general application.
The Court is not persuaded by the case law cited by Gerber in support of its argument that
any entitlement to compensation for donning and doffing time directly arises under the parties’
CBA. Gerber relies on Curry v. Kraft Foods Global, Inc., an unreported Illinois case that held § 301
preempted the plaintiffs’ wage and hour claims because the CBA created the right to overtime

-8-

compensation, even though neither the state statute nor the CBA explicitly indicated whether
donning and doffing time was compensable. 2010 WL 4338637, at *6 (N.D. Ill. Oct. 25, 2010). The
Court finds a more recent reported case from the same district persuasive. In Whitmore v. Kraft
Foods Global, Inc., the United States District Court for the Northern District of Illinois disagreed
with its earlier decision in Curry. 798 F. Supp. 2d 917, 923 n.4 (N.D. Ill. 2011). The Illinois
Minimum Wage Act (“IMWA”) did not explicitly mention donning and doffing, nor did the court
find any Illinois cases that held that doffing and donning must be compensated. Whitmore, 798 F.
Supp. 2d at 922. Even so, the court determined that the IMWA could, by its own force, require
compensation for donning and doffing time, because the statute’s use of broad language required
interpretation to determine whether a specific activity is or is not included within compensable time.
Id. In the instant case, Plaintiffs argue and the Court agrees that the issue is one of statutory
interpretation, not contract interpretation. Plaintiffs do not seek a determination as to the appropriate
wage under the CBA; they seek to recover wages allegedly due under state statutory and common
law. Plaintiffs’ claims hinge on whether they, as individual employees, are entitled to compensation
under Arkansas law. If the state court determines that they are not entitled to compensation, their
claims fail; however, this is a separate, unrelated issue to the issue of federal preemption. See
Mitchell v. JCG Indus., 842 F. Supp. 2d 1080, 1086 (N.D. Ill. 2012) (“[T]he alleged absence of a
meritorious basis to bring the claim . . . is a separate issue from preemption.”). The other cases cited
by Gerber are unpersuasive, as they either dealt with § 301 preemption as a defense, rather than as
a basis for removal, or included a separate federal claim that served as the basis for removal. It is
important to distinguish between complete preemption and ordinary or traditional preemption. The
former is a jurisdictional matter, while the latter provides a substantive defense to a plaintiff’s state

-9-

law claim but does not alter the jurisdiction of the federal court. Chapman v. Lab One, 390 F.3d
620, 624 (8th Cir. 2004).
Gerber relies heavily on the broad language in the AMWA’s collective bargaining exception.
Under Ark. Code Ann. § 11-4-205, “[n]othing in [the AMWA] shall be deemed to interfere with,
impede, or in any way diminish the right of employers and employees to bargain collectively
through representatives of their own choosing in order to establish wages or other conditions of
work.” According to Gerber, this makes employee minimum wage rights fully negotiable in that
a CBA can establish either lower or higher standards than those provided under the AMWA.
Whether or not the broad language in the collective bargaining exception allows a CBA to set lower
standards than those set forth in the AMWA is purely a matter of statutory interpretation, and is not
relevant to the jurisdictional question at issue here.
In conclusion, the parties have a dispute over interpretation and application of Arkansas state
law, not over the interpretation of a provision in the CBA. The issue is whether or not Plaintiffs are
entitled to compensation for time spent walking, washing, and donning and doffing under either the
AMWA or the common law of unjust enrichment. This is a matter more properly decided by a state
court. The issue does not require analysis of any provision of the CBA and does not support § 301
complete preemption as a basis for asserting federal question jurisdiction. Therefore, the Court finds
that it does not have jurisdiction over this case under § 1331. This finding does not prevent Gerber
from asserting § 301 preemption as a defense to Plaintiffs’ claims in state court. See Caterpillar,
482 U.S. at 398-99 (“When a defense to a state claim is based on the terms of a collective-bargaining
agreement, the state court will have to interpret that agreement to decide whether the state claim
survives.”).

-10-

B. Traditional Diversity Jurisdiction
Under 28 U.S.C. § 1332(a)(1), federal district courts have original jurisdiction “where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between citizens of different states.” As the party invoking federal diversity jurisdiction, Gerber has
the burden of proving by a preponderance of the evidence that the amount in controversy exceeds
the jurisdictional minimum. Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009) (citation
omitted). In putative class action cases, removal is proper if a defendant can show, by a
preponderance of the evidence, that one plaintiff meets the amount-in-controversy requirement, as
the Court can exercise supplemental jurisdiction over the other plaintiffs’ claims under 28 U.S.C.
§ 1367. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549 (2005). Plaintiffs argue that
jurisdiction under § 1332(a)(1) is improper because diversity of citizenship no longer exists and the
$75,000 statutory minimum for amount in controversy has not been met.
Upon consideration, the Court finds that Gerber failed to meet its burden of proving that the
amount in controversy exceeds $75,000. The Complaint does not seek a specified sum, and Gerber’s
Notice of Removal fails to sufficiently plead the requisite amount. Neither party asserts even an
estimate of any individual plaintiff’s potential recovery. Gerber’s Notice of Removal merely states
a conclusory allegation that the amount is met, and provides no factual basis for this assertion;
Gerber’s Response in Opposition to Plaintiffs’ Motion to Remand omits mention of this issue
altogether. Therefore, Gerber has not met its burden of proving that the amount in controversy is
satisfied for the purposes of traditional diversity jurisdiction under § 1332 (a)(1). Since remand is
appropriate on the grounds that the requisite amount in controversy was not met, the Court declines
to address the issue of the Plaintiffs’ joinder of a non-diverse party as a defendant.

-11-

C. CAFA Jurisdiction
Under CAFA, federal district courts have original jurisdiction over class actions where there
is minimal diversity of citizenship among the parties and “the matter in controversy exceeds the sum
or value of $5,000,000, exclusive of interest and costs.” 28 U.S.C. § 1332 (d)(2). However, this
provision does not apply if there are fewer than 100 class members or potential class members. 28
U.S.C. § 1332 (d)(5)(B). A defendant seeking removal on grounds of CAFA jurisdiction must prove
each of the jurisdictional elements by a preponderance of the evidence. Bell, 557 F.3d at 957. Once
the initial jurisdictional requirements have been established, the burden shifts to the party seeking
remand to establish that one of CAFA’s express jurisdictional exceptions applies. Westerfield v.
Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010) (citations omitted).
As the party invoking federal jurisdiction, Gerber must prove by a preponderance of the
evidence that there is minimal diversity, the matter in controversy is more than $5,000,000, and there
are at least 100 potential class members. See Bell, 557 F.3d at 955. The parties do not dispute the
existence of minimal diversity. Plaintiffs argue that remand is appropriate because Gerber failed
to present any evidence tending to show the amount in controversy. Before this argument is
addressed, the Court must determine whether or not the CAFA jurisdictional provision is applicable.

Both parties fail to acknowledge that for CAFA to apply, Gerber must demonstrate the
existence of a class of at least 100 members. However, there is no adequate proof in the record as
to the potential class size, and therefore Gerber failed to meet its burden of proof as to this
requirement. Gerber’s Notice of Removal erroneously states,“Plaintiffs allege...a putative class of
some 650 or more persons.” (Doc. 1, ¶ 9). In fact, the Complaint alleges the class size is unknown,

-12-

but the number of all persons employed by Gerber at the Fort Smith facility is 650. (Doc. 3, ¶ 35).
Plaintiffs limit the class to “persons who were, are, or will be employed by Gerber as non-exempt,
hourly paid employees at the Facility.” (Doc. 3, ¶ 4). Gerber provided no information regarding
the number of hourly workers employed by the Facility. According to Gerber, the Court must
assume every employee at the Facility is a potential class member. The Court declines to make such
an assumption.
Plaintiffs provided a list of 186 names and addresses of persons that they contend to be
potential class members. (Doc. 7-1). This list is described by Plaintiffs as “a summary of
information on contracts and questionnaires in the possession of Plaintiffs’ counsel.” (Doc. 7, p. 17
n.70). Gerber dismisses the list as an “unauthenticated spreadsheet,” pointing out that there is no
evidence to establish that the individuals identified in the sample are actually representative of the
class as a whole, nor is there any evidence that the individuals identified in the list could qualify as
class members. (Doc. 18, p. 15). This list provides little, if any, proof as to potential class size.
Furthermore, Gerber failed to establish that the amount in controversy exceeds the
jurisdictional minimum of $5,000,000, exclusive of interest and costs. While Gerber is not required
to prove an actual damage amount, it must provide the Court with factual evidence from which the
Court can conclude whether or not the jurisdictional amount is met. See Bell, 557 F.3d at 959
(“Under the preponderance standard, ‘[t]he jurisdictional fact . . . is not whether the damages are
greater than the requisite amount, but whether a fact finder might legally conclude that they are.’”)
(quoting Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002)). The Court must engage in a “fact
intensive” inquiry to determine whether the preponderance standard has been met. Id. Mere
speculation or conjecture on the part of the defendant as to the amount will not be sufficient to meet

-13-

the preponderance standard. See, e.g., Thomas v. Southern Pioneer Life Ins. Co., 2009 WL 4894695,
*2 (E.D. Ark. Dec. 11, 2009) (overbroad interpretation of proposed class rendered amount in
controversy speculative); Nowak v. Innovative Aftermarket Sys., 2007 WL 2454118, *5 (E.D. Mo.
Aug. 23, 2007) (defendant’s calculation offered no evidence indicating actual potential class
members, nor the exact damage amount for each of those persons).
After careful consideration of all of the evidence, the Court finds that Gerber has failed to
show by a preponderance of the evidence that the amount in controversy requirement is satisfied for
CAFA jurisdiction. Gerber’s Notice of Removal contains conclusory allegations that the amount
in controversy exceeds $5,000,000, exclusive of interests and costs, but provides no underlying
factual basis for this assertion. (Doc. 1, ¶¶ 11, 15). In its Response in Opposition to Plaintiffs’
motion, Gerber provides a calculation of damages based on a proposed class of 650 members, which
is the total number of persons employed at the Facility, as opposed to limiting the calculation to the
total number of potential class members. In calculating the estimated value of Plaintiffs’ claims,
Gerber averred, “Defendants [sic] are requesting four hours per week of overtime pay for 650
employees for a three-year period.” (Doc. 18, p. 12). Gerber’s calculation rests on the speculative
assumptions that every single employee at its Facility was denied four hours of overtime pay every
week, earned the same wage rate, and received the maximum amount of vacation each year. Gerber
offers no evidence regarding the size of the class or the number of former employees who are
potential class members. The Court finds that Gerber has not met its burden of proving that the
amount in controversy exceeds $5,000,000.
In conclusion, there is great uncertainty about the potential class size and the amount in
controversy in this case. Any doubt as to federal jurisdiction must be resolved in favor of remand.

-14-

In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010); In re Bus. Men’s Assur. Co.
of Am., 992 F.2d 181, 183 (8th Cir. 1993). Gerber has not shown by a preponderance of the
evidence either a potential class of at least 100 members or a controversy worth more than the
jurisdictional minimum. The Court finds that Gerber failed to establish the necessary jurisdictional
elements to assert federal jurisdiction under CAFA, and therefore Plaintiffs’ argument that the localcontroversy exception applies need not be addressed.
. IV. Conclusion
The Court finds that Plaintiffs’ state law AMWA claim and state common law claim are not
completely preempted by § 301 of the LMRA, and therefore there is no basis for removal based on
federal question jurisdiction under 28 U.S.C. § 1331. The Court also finds that Gerber has not
shown, by a preponderance of the evidence, that any plaintiff has an individual claim exceeding
$75,000, as required for the Court to exercise diversity jurisdiction on the basis of 28 U.S.C. §
1332(a). Nor has Gerber shown, by a preponderance of the evidence, that the putative class size is
at least 100 members or that the aggregate damages claimed on behalf of the class exceed CAFA’s
jurisdictional minimum of $5,000,000. Accordingly, Plaintiffs’ Motion to Remand (Doc. 6) is
hereby GRANTED. This case shall be remanded forthwith to the Circuit Court of Sebastian
County, Arkansas.
IT IS SO ORDERED this 6th day of November, 2012.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

-15-