Turner v. Alclear, LLC

Filing 10

ORDER signed by Chief District Judge Troy L. Nunley on 3/10/2025 DENYING 5 Motion to Remand and DIRECTING the Parties to file a Joint Status Report with proposed dates for filing a motion for class certification within 30 days of the date of this Order. (Deputy Clerk OML)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TYONNA TURNER,

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No. 2:24-cv-00530-TLN-AC

Plaintiff,

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v.

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ALCLEAR, LLC,

ORDER

Defendant.

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This matter is before the Court on Plaintiff Tyonna Turner’s (“Plaintiff”) Motion to

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Remand. (ECF No. 5.) Defendant Alclear, LLC (“Defendant”) filed an opposition. (ECF No. 8.)

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Plaintiff filed a reply. (ECF No. 9.) For the reasons set forth below, the Court DENIES

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Plaintiff’s motion.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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The instant action arises out of Defendant’s alleged wage and hour violations. (ECF No.

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1-4 at 8–27.) Plaintiff was employed by Defendant, a technology company, as a non-exempt

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employee with the title of “Sales Ambassador” out of the Sacramento office. (Id. at 11.) Plaintiff

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worked for Defendant from March 27, 2023, to October 12, 2023. (Id.) Plaintiff and other non-

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exempt employees were responsible for all aspects of Defendant’s business in California. (Id.)

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Plaintiff alleges she and non-exempt employees were often not afforded all the protections and

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rights conferred under state law. (Id.) On January 11, 2024, Plaintiff filed the operative

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Complaint in Sacramento County Superior Court, alleging the following claims: (1) failure to pay

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all overtime wages; (2) meal period violations; (3) rest period violations; (4) failure to pay sick

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time; (5) wage statement violations; (6) waiting time penalties; (7) failure to reimburse necessary

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business expenses; and (8) unfair competition. (Id. at 8–27.)

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On February 20, 2024, Defendant removed the action to this Court based on the Class

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Action Fairness Act (“CAFA”). (ECF No. 1.) Plaintiff filed the instant motion to remand on

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March 21, 2024. (ECF No. 5.)

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II.

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A civil action brought in state court, over which the district court has original jurisdiction,

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may be removed by the defendant to federal court in the judicial district and division in which the

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state court action is pending. 28 U.S.C. § 1441(a). CAFA gives federal courts original

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jurisdiction over certain class actions only if: (1) the class has more than 100 members; (2) any

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member of the class is diverse from the defendant; and (3) the aggregated amount in controversy

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exceeds $5 million, exclusive of interest and costs. See 28 U.S.C. §§ 1332(d)(2), (5)(B).

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STANDARD OF LAW

Congress enacted CAFA “specifically to permit a defendant to remove certain class or

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mass actions into federal court” and intended courts to interpret CAFA “expansively.” Ibarra v.

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Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). As a general rule, removal statutes are

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to be strictly construed against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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However, “no antiremoval presumption attends cases invoking CAFA.” Dart Cherokee Basin

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Operating Co. v. Owens, 574 U.S. 81, 89 (2014). Nonetheless, “[i]f at any time before final
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judgment it appears that the district court lacks subject matter jurisdiction, the case shall be

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remanded” to state court. 28 U.S.C. § 1447(c).

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A defendant seeking removal under CAFA must file in the federal forum a notice of

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removal “containing a short and plain statement of the grounds for removal.” Dart Cherokee, 574

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U.S. at 83 (quoting 28 U.S.C. § 1446(a)). The notice of removal “need not contain evidentiary

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submissions,” rather a defendant’s “plausible allegation that the amount in controversy exceeds

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the jurisdictional threshold” suffices. Id. at 84, 89. When “a defendant’s assertion of the amount

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in controversy is challenged . . . both sides submit proof and the court decides, by a

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preponderance of the evidence, whether the amount-in-controversy requirement has been

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satisfied.” Id. at 88. The parties may submit evidence outside the complaint including “affidavits

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or declarations or other ‘summary-judgment-type evidence relevant to the amount in controversy

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at the time of removal.’” Hender v. Am. Directions Workforce LLC, No. 2:19-cv-01951-KJM-

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DMC, 2020 WL 5959908 *2 (E.D. Cal. Oct. 7, 2020) (citation omitted).

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When “the defendant relies on a chain of reasoning that includes assumptions to satisfy its

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burden of proof, the chain of reasoning and the underlying assumptions must be reasonable, and

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not constitute mere speculation and conjecture.” Id. (citing Ibarra, 775 F.3d at 1197–99).

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“CAFA’s requirements are to be tested by consideration of real evidence and the reality of what is

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at stake in the litigation, using reasonable assumptions underlying the defendant's theory of

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damages exposure.” Ibarra, 775 F.3d at 1198. Then “the district court must make findings of

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jurisdictional fact to which the preponderance standard applies.” Dart Cherokee, 574 U.S. at 89

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(internal citation omitted).

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III.

ANALYSIS

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Plaintiff argues Defendant cannot remove this action under CAFA because it has not

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proven the requisite amount in controversy by a preponderance of the evidence. (ECF No. 5 at

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8.) Specifically, Plaintiff contends: (1) Defendant has not submitted credible evidence that the

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amount in controversy exceeds $5 million; (2) Defendant’s waiting time penalty calculation

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assumes a 100 percent violation rate; (3) Defendant did not offer a figure for the overtime, sick

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pay, meal and rest period, and reimbursement claims; and (4) Defendant’s attorneys’ fees
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calculations are unsupported and exaggerated. (Id. at 8–13.) The Court will consider each of

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these arguments in turn.

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A.

Credible Evidence

Plaintiff argues the Complaint does not specify an amount of damages and the allegations

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do not support Defendant’s purported 100 percent violation rates and damages model

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(specifically, an assumption of a 100 percent violation rate and 30 days of wages for more than

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1,150 putative class members). (Id. at 10.) Plaintiff contends that despite having access to

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Plaintiff’s and other putative class members’ time and payroll records, Defendant does not

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provide any evidence or reasonable assumptions about Plaintiff’s underlying overtime, sick pay,

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or meal and rest period claims. (Id.)

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In opposition, Defendant maintains it submitted with its notice of removal “authenticated

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evidence” in the form of a sworn declaration of its Payroll Manager, Cecilia N. Kwok (“Kwok”),

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who has access to and reviewed Defendant’s current and former employees’ records. (ECF No. 8

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at 10.) Defendant also submitted a supplemental declaration from Kwok with its opposition to

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confirm employees are regularly scheduled to work eight-hour shifts. (Id. at 11.)

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In reply, Plaintiff contends Defendant has not met the preponderance of the evidence

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standard, “as it is more likely than not that the amount in controversy fails to meet the $5,000,000

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threshold based solely on a self-serving declaration coupled with unreasonable assumptions

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without evidentiary support.” (ECF No. 9 at 5.)

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Because Plaintiff challenges Defendant’s estimate, Defendant bears the burden to

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establish jurisdiction by a preponderance of the evidence. Dart Cherokee, 574 U.S. at 87–88; see

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also Ibarra, 775 F.3d at 1197. Defendant must present “more than a plausible case to show it

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satisfies the jurisdictional prerequisite.” Hender v. Am. Directions Workforce LLC, No. 2:19-cv-

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01951-KJM-DMC, 2020 WL 5959908, at *2 (E.D. Cal. Oct. 7, 2020).

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As a preliminary matter, Defendant was not required to submit evidence with its notice of

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removal. See Dart Cherokee, 574 U.S. at 84, 89 (holding that the notice of removal “need not

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contain evidentiary submissions” and defendant’s “plausible allegation that the amount in

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controversy exceeds the jurisdictional threshold” is sufficient at that stage). To the extent
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Plaintiff challenges the Kwok declarations in her motion and reply, courts have found this type of

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evidence to be sufficient for establishing the amount in controversy in similar cases. See Avila v.

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Rue21, Inc., 432 F. Supp. 3d 1175, 1186 (E.D. Cal. 2020) (finding a declaration from defendant’s

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“Associate Director of the Operational Finance Department” based on “his personal knowledge of

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[d]efendant’s business records” to be sufficient); Andrade v. Beacon Sales Acquisition, Inc., No.

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CV 19-06963-CJC(RAOx), 2019 WL 4855997, at *4 (C.D. Cal. Oct. 1, 2019) (holding “a

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declaration from a knowledgeable employee based on her analysis of regularly kept and created

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business records” to be sufficient).

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Here, Kwok’s declarations establish that there were at least 1,150 putative class members

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who separated from Defendant between January 11, 2020,1 and December 12, 2023, and that the

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average hourly rate for those employees at the time of termination was $18.48. (ECF No. 1-3 at

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2; ECF No. 8-1 at 2–3.) Kwok avers that, in connection with these declarations, she reviewed

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records for Defendant’s non-exempt employees during the period between January 11, 2020, to

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the present that were created, maintained, and kept by Defendant in the regular and ordinary

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course of business. (Id.) Based on the content of these declarations — and in absence of any

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evidence from Plaintiff to the contrary — the Court concludes there is a sufficient evidentiary

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foundation laid to determine the amount in controversy.

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Further, to the extent Plaintiff argues Ibarra, 775 F.3d at 1199, mirrors the instant

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challenge to the credibility of evidence presented (ECF No. 9 at 6), the Court disagrees that

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Ibarra is analogous. In Ibarra, the Ninth Circuit held that “a ‘pattern and practice’ of doing

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something does not necessarily mean always doing something,” and, without more, an

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assumption of a 100 percent violation rate was not reasonable. 775 F.3d at 1199. The Ninth

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Circuit did not find that the declaration of defendant’s senior director of employee services and

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administration did not constitute sufficient credible evidence to determine the amount in

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controversy. Id. at 1198. Rather, the court took issue with the declaration’s method of

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calculation assuming defendant denied each class member one meal break in each of their 5-hour

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Defendant notes January 11, 2021, in its opposition brief, but Kwok notes the relevant
date is January 11, 2020, in her declaration. (ECF No. 1-3 at 2.)
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shifts and one rest break in each of their 3.5-hour shifts. Id.

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Having found the Kwok declarations to be sufficient, the Court will next consider the
amount in controversy for Plaintiff’s claims.

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B.

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Waiting Time Penalty Calculation

In the notice of removal, Defendant estimates waiting time penalties are $5,100,480.

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(ECF No. 1 at 11.) Defendant bases this estimate on the following calculation: $18.48 average

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hourly rate x 8 hours/day x 30 days x 1,150 full-time putative class members who have been

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terminated, resigned, or otherwise separated from employment with Defendant. (Id.; ECF No. 1-

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Plaintiff contends Defendant’s calculations lack justification for assuming a 100 percent

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penalty recovery for the full 30-day period for each putative class member. (ECF No. 5 at 11.)

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Specifically, Plaintiff notes the Kwok declaration: fails to state what electronic payroll

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information and data was used to determine there are “at least” 1,150 terminated non-exempt

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employees; why the average hourly rate for all those former employees would be entitled to

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maximum waiting time penalties; and the basis for the calculation that each employee worked

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eight hours per day, every day, during the three-year time frame. (Id. at 11–12.)

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In opposition, Defendant maintains its calculation of the amount in controversy does not

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assume putative class members were subjected to overtime, sick pay, vacation pay, and meal and

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rest period violations in 100 percent of the shifts they worked. (ECF No. 8 at 14.) Rather,

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Defendant asserts it only makes the reasonable assumption that Plaintiff is claiming putative class

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members were subjected to at least one violation (of overtime, sick pay, vacation pay, or a single

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meal or rest period violations) during their employment. (Id. at 14–15.) Defendant then states,

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that having made this assumption, it applied the statistics authenticated by its Payroll Manager to

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calculate the potential amount in controversy in connection with Plaintiff’s claim for waiting time

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penalties. (Id. at 15.) Defendant notes this method of calculation is routinely approved by

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California courts, including this Court in Vigil v. DAK Res., Inc., No. 2:23-cv-00163-TLN-AC,

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2023 WL 5917522 (E.D. Cal. Aug. 11, 2023). (Id.)

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Here, the Court agrees with Defendant that this matter is analogous to the matter presented

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in Vigil, 2023 WL 5917522. As in Vigil, Plaintiff alleges Defendant is liable for maximum

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waiting time penalties of 30 days of wages. (ECF No. 1-4 at 24 (“Defendant is liable to the

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Waiting Time Subclass for waiting time penalties amounting to thirty (30) days wages for

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Plaintiff and the Waiting Time Subclass pursuant to Labor Code § 203.”).) Therefore, it is

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reasonable to assume maximum waiting time penalties — the daily pay rate for up to 30 days —

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for purposes of calculating potential damages. See Nunes v. Home Depot U.S.A., Inc., No. 2:19-

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cv-01207-JAM-DB, 2019 WL 4316903, at *3 (E.D. Cal. Sept. 12, 2019) (holding it was

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reasonable to assume maximum waiting time penalties where the complaint demanded up to 30

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days of wages as penalties and made broad allegations of violations). Further, because Plaintiff

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makes broad allegations of violations, “it is reasonable to assume the [separated] class members

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suffered at least one violation (e.g., one missed meal or rest [period]) and were therefore not paid

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all wages owed upon [separation].” Id. Accordingly, the Court finds Defendant has established

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by a preponderance of the evidence the waiting time penalties claim equals an amount in

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controversy of $5,100,480.

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The Court disagrees with Plaintiff’s contention that this matter is like the one presented in

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Garibay v. Archstone Cmtys, LLC, 539 F. App’x 736, 764 (9th Cir. 2013). (ECF No. 5 at 11.) In

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Garibay, the court found a declaration from a payroll supervisor, without more, was insufficient

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to establish the amount in controversy. 539 F. App’x at 764. Several courts, including this one,

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have emphasized that Garibay is an unpublished opinion and therefore nonbinding. See Sanchez

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v. Abbott Laboratories, No. 2:20-cv-01436-TLN-AC, 2021 WL 2679057, at *3 (E.D. Cal. June

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30, 2021) (citing cases). Further, as this Court has done in the past, it finds “Garibay is of limited

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utility here because it contains little discussion of . . . the appropriate evidence that the defendants

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should have produced to establish the amount in controversy.” Id. (citing Herrera v. Carmax

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Auto Superstores Cal., LLC, No. EDCV14776MWFVBKX, 2014 WL 12586254, at *3 (C.D. Cal.

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June 12, 2014)).

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Defendant is correct the other cases Plaintiff cites (for the proposition that Defendant’s

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calculations lack justification for assuming a 100 percent penalty recovery for the full 30-day
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period) are distinguishable from the instant matter.2 (ECF No. 8 at 17–18.) First, both parties in

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Ibarra failed to provide evidentiary support for their competing violation rates, so the Ninth

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Circuit remanded the action to the district court for the parties to provide further evidence. 775

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F.3d at 1198–99. Unlike the defendant in Ibarra that assumed a 100 percent violation rate based

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on the plaintiff alleging a “pattern and practice” of failure to pay for all hours worked, Defendant

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is making a reasonable assumption that Plaintiff is seeking to recover some amount of unpaid

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wages for each putative class member based on at least one violation per employee. Second, in

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Beck v. Saint-Gobain Containers, Inc., No. 2:16-cv-03638-CAS-SK, 2016 WL 4769716, at *9

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(C.D. Cal. Sept. 12, 2016) and Cisneros v. Lerner N.Y., Inc., No. 2:16-cv-02722-CAS(Ex), 2016

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WL 4059612, at *4 (C.D. Cal. July 25, 2016), the courts found there was “no evidence” to

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support the assumption that all putative class members separated from employment would be

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entitled to receive waiting time penalties for the entire 30 day period and that all members would

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be entitled to eight hours of wages for each of the 30 days. In contrast, as stated previously,

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Plaintiff herself explicitly alleges the Waiting Time Penalty Subclass is owed a full 30 days of

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waiting time penalties. (ECF No. 1-4 at 24.) Finally, Defendant is correct that Dupre v. General

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Motors, No. CV-10-0955-RGK(Ex), 2010 WL 3447082 (C.D. Cal. Aug. 27, 2020), has no

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application to the instant matter because it does not address derivative waiting time penalties

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under Labor Code § 203. (ECF No. 8 at 18.)

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Based on the foregoing, the Court finds Defendant has established by a preponderance of
the evidence the waiting time penalties claim equals an amount in controversy of $5,100,480.

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C.

Overtime, Sick Pay, Meal and Rest Period, and Reimbursement Claims

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Plaintiff argues Defendant fails to calculate any damages for the overtime, sick pay, meal

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and rest period, and reimbursement claims, or include these claims in its calculations. (ECF No.

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5 at 12.) Plaintiff further argues that because Defendant did not offer an amount in controversy in

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its notice of removal for these claims, no value can be added on these claims or any associated

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Plaintiff also cites to a case “Johnson v. Sunrise Sr. Living Mgmt., Inc.” (ECF No. 5 at
11), but did not provide a citation. Defendant notes this in its opposition (ECF No. 8 at 17), but
Plaintiff does not address the issue in their reply (see ECF No. 9). Accordingly, the Court
declines to evaluate this argument.
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attorneys’ fees, even if Defendant presents additional evidence in its opposition. (Id.) Defendant

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does not address these arguments in its opposition. (See ECF No. 8.)

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As stated previously, CAFA provides this Court with jurisdiction if the aggregated

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amount in controversy exceeds $5 million, exclusive of interest and costs. See 28 U.S.C. §

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1332(d)(2). Defendant has already established by a preponderance of the evidence that the

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waiting time penalties claim equals an amount in controversy of $5,100,480. Accordingly, even

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without calculations for the overtime, sick pay, meal and rest period, and reimbursement claims,

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Defendant has shown by a preponderance of the evidence the amount in controversy in this case

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exceeds $5 million as required by CAFA.

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D.

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Attorneys’ Fees

Plaintiff argues Defendant has failed to meet its burden in proving the alleged $1,275,120

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amount in controversy for attorneys’ fees because Defendant’s purported damages calculations

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are “highly exaggerated.” (ECF No. 5 at 13.) Plaintiff notes that Defendant seeks to calculate the

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25 percent attorneys’ fees based on the $5,100,480 amount in controversy for the waiting time

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penalties claim, but only Plaintiff’s overtime, reimbursement, and derivative wage statement

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claims have underlying statutes that expressly authorize an award of attorneys’ fees. (Id.)

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Plaintiff maintains that if any attorneys’ fees are due, they would be solely based on the Labor

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Code § 226 and overtime and reimbursement claims, for which Defendant has not provided any

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calculations or evidence. (Id.)

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In opposition, Defendant maintains that Plaintiff’s Complaint “expressly prays for

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judgment ‘[o]n all causes of action, for attorneys’ fees and costs,’” and seeks to recover an

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unspecified amount of attorneys’ fees in connection with her claims for unpaid overtime wages,

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meal period violations, sick time pay, failure to provide accurate itemized wage statements, and

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unfair competition. (ECF No. 8 at 19.) Defendant asserts the benchmark for attorneys’ fees is 25

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percent of the amount in controversy and therefore the Court should consider its $1,275,120

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calculation to be a conservative estimate at 25 percent of the aggregate amount in controversy.

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(Id.)

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In reply, Plaintiff emphasizes the claim for waiting time penalties is not eligible for

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attorneys’ fees and therefore Defendant fails to meet its burden of proof as to any violations or

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damages attributable to claims that are eligible for attorneys’ fees. (ECF No. 9 at 8.)

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The Court finds the parties do not provide sufficient authority regarding whether

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attorneys’ fees can be calculated based on a waiting time penalties claim alone. Nevertheless,

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Defendant has already established by a preponderance of the evidence that the waiting time

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penalties claim equals an amount in controversy of $5,100,480. Accordingly, even without

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calculations for attorneys’ fees, Defendant has shown by a preponderance of the evidence the

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amount in controversy in this case exceeds $5 million as required by CAFA.

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IV.

CONCLUSION

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For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Remand. (ECF No.

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5.) The parties are ordered to file a Joint Status Report with proposed dates for filing a motion for

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class certification within thirty (30) days of the date of this Order.

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IT IS SO ORDERED.
Date: March 10, 2025

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___________________________________
TROY L. NUNLEY
CHIEF UNITED STATES DISTRICT JUDGE

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