Patel v. Nike Retail Services, Inc. et al
Filing
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ORDER GRANTING MOTION TO REMAND by Judge Jon S. Tigar; granting 12 Motion to Remand. (wsn, COURT STAFF) (Filed on 7/21/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PAYAL PATEL,
Case No. 14-cv-00851-JST
Plaintiff,
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v.
ORDER GRANTING MOTION TO
REMAND
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NIKE RETAIL SERVICES, INC.,
Re: ECF No. 12
Defendant.
United States District Court
Northern District of California
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I.
INTRODUCTION
Defendant Nike Retail Services, Inc. removed this action from the Alameda County
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Superior Court on diversity jurisdiction grounds. ECF No. 1. Plaintiff Payal Patel now moves to
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remand it. ECF No. 12. At issue is whether the federal “amount in controversy” requirement has
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been satisfied. The matter came for hearing on May 8, 2014.
The Court will grant the motion.
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II.
BACKGROUND
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A.
Procedural and Factual History
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Plaintiff alleges that she was employed by Defendant as an Assistant Store Manager from
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November 2010 to August 2013. Complaint ¶ 4 (Exh. A to Notice of Removal, ECF No. 1). In
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November 2013, she brought an action against her former employer, asserting claims under
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California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq., failure to pay
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overtime compensation in violation of Cal. Labor §§ 510, 1194 & 1198, failure to provide
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accurate wage statements in violation of Cal. Labor Code § 226, failure to make timely wage
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payments in violation of California Labor Code §§ 201-03, and a cause of action pursuant to
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California Private Attorney General Act (“PAGA”), Cal Lab. Code § 2698, et seq.
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Defendant removed to this Court, asserting diversity jurisdiction over this action. Plaintiff
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now moves to remand.
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B.
Legal Standard
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“[A]ny civil action brought in a [s]tate court of which the district courts of the United
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States have original jurisdiction, may be removed by a defendant ... to [a] federal district court.”
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28 U.S.C. § 1441(a). “A defendant may remove an action to federal court based on federal
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question jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
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(9th Cir. 2009) (citing 28 U.S.C. § 1441).
To invoke federal diversity jurisdiction under 28 U.S.C. § 1332(a), a matter must ‘exceed[]
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the sum or value of $75,000.’” Urbino v. Orkin Servs. of California, Inc., 726 F.3d 1118, 1121
(9th Cir. 2013). If the district court determines that it lacks jurisdiction, the action should be
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United States District Court
Northern District of California
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remanded back to the state court. Martin v. Franklin Capital Corp., 546 U.S. 132, 134 (2005).
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“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first
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instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The court “resolves all ambiguity in
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favor of remand.” Hunter, 582 F.3d at 1042.1
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III.
ANALYSIS
Defendant asserts, and Plaintiff does not deny, that Defendant is a citizen only of Oregon
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and that Plaintiff is a citizen of California. Notice of Removal, ¶¶ 6-12. However, Plaintiff
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disputes whether Defendant has established that at least $75,000 is in controversy.
Plaintiff does not specify what damages she is entitled to for each specific cause of action
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she brings. She alleges overall that “[t]he amount in controversy for the PLAINTIFF individually
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does not exceed the sum or value of $75,000.” Complaint ¶ 24. However, under California law, a
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plaintiff is not limited to the amount set forth in his or her complaint. Damele v. Mack Trucks,
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Inc., 219 Cal. App. 3d 29, 41-42 (1990).
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In the Notice of Removal, Defendant calculates the amount Plaintiff is seeking for meal
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and rest period penalties as at least $38,464.80 and the amount Plaintiff is seeking for untimely
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wages as at least $6,962.40. Plaintiff does not dispute these amounts, and the court agrees that
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Other aspects of the applicable legal standard are disputed by the parties and are discussed more
fully infra.
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they are appropriate. But Plaintiff does dispute Defendant’s argument that Plaintiff’s other claims
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place at least $29,572.80 in controversy.
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To resolve this dispute, the Court first discusses the applicable standard of proof, see Part
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III-A, infra. and then considers whether Plaintiff is legally required to seek less than $75,000, see
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Part III-B, infra. With those issues out of the way, determining the amount in controversy requires
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the Court to answer three questions:
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1.
How to determine the amount the proper amount Plaintiff has put in controversy
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with her allegation that she was “regularly” required to work uncompensated
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overtime, and for the amount she may elect to recover for the enhanced penalties
available for “subsequent,” knowing, Labor Code violations. See III-C, infra.
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United States District Court
Northern District of California
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2.
Whether the amount in controversy for a PAGA cause of action is the total amount
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of penalties attributable to an individual plaintiff, or whether the amount in
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controversy should be reduced by 75% to reflect the fact that 75% of PAGA
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penalties are paid to California’s Labor & Workforce Development Agency rather
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than the individual plaintiff. See III-D, infra.
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3.
What amount of attorney’s fees should be attributed to the amount in controversy.
See III-E, infra.
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Surprisingly, none of these questions have well-established answers.
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A.
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To begin with, the Court must address the proper standard of proof for establishing the
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amount in controversy. Relying primarily upon a CAFA case, Lowdermilk v. U.S. Bank Nat’l
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Ass’n, 479 F.3d 994, 999 (9th Cir. 2007), Plaintiff argues that the amount in controversy must be
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proven to a “legal certainty.” Lowdermilk acknowledged that the “preponderance of the
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evidence” standard applies “when the plaintiff fails to plead a specific amount of damages.” Id. at
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998. But “[w]here the plaintiff has alleged her facts and pled her damages, and there is no
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evidence of bad faith, the defendant must not only contradict the plaintiff’s own assessment of
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damages, but must overcome the presumption against federal jurisdiction.” Id. at 999 (citing St.
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Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.. 293, 290 (1938)). “We think that the familiar
Standard of Proof
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‘legal certainty’ standard best captures the proof the defendant must produce.” Lowdermilk, 479
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F.3d at 999.
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The Ninth Circuit recently held “that Lowdermilk has been effectively overruled [by
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Standard Fire Ins. Co. v. Knowles, __ U.S. __, 133 S.Ct. 1345 (2013)], and that the proper burden
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of proof imposed upon a defendant to establish the amount in controversy is the preponderance of
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the evidence standard.” Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 977 (9th Cir.
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2013). Upon close review, however, this overruling appears to be limited to the specific situation
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presented in those cases: class actions removed pursuant to CAFA.
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More importantly, however, the answer to this question is now a matter of statute. In
2011, Congress amended the federal removal statute to specify that, where the underlying state
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United States District Court
Northern District of California
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practice “permits recovery of damages in excess of the amount demanded . . . removal of the
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action is proper on the basis of an amount in controversy asserted . . . if the district court finds, by
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the preponderance of the evidence, that the amount in controversy exceeds the amount specified in
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section 1332(a).” Pub. L. 112-63, December 7, 2011, 125 Stat. 758, § 103(b)(3)(C) (codified at 28
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U.S.C. §1446(c)(2) (emphasis added)). The legislative history indicates that Congress acted to
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eliminate the “legal certainty” standard that courts previously applied in situations when state law
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permits recovery in excess of the amount demanded in the complaint:
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Proposed new paragraph 1446(c)(2) allows a defendant to assert an
amount in controversy in the notice of removal if the initial pleading
seeks non-monetary relief or a money judgment, in instances where
the state practice either does not permit demand for a specific sum
or permits recovery of damages in excess of the amount demanded.
The removal will succeed if the district court finds by a
preponderance of the evidence that the amount in controversy
exceeds the amount specified in 28 U.S.C. s 1332(a), presently
$75,000.
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[. . .]
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In adopting the preponderance standard, new paragraph 1446(c)(2)
would follow the lead of recent cases. See McPhail v. Deere & Co.,
529 F.3d 947 (10th Cir. 2008); Meridian Security Ins. Co. v.
Sadowski, 441 F.3d 536 (7th Cir. 2006). As those cases recognize,
defendants do not need to prove to a legal certainty that the amount
in controversy requirement has been met. Rather, defendants may
simply allege or assert that the jurisdictional threshold has been met.
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Discovery may be taken with regard to that question. In case of a
dispute, the district court must make findings of jurisdictional fact to
which the preponderance standard applies. If the defendant
establishes by a preponderance of the evidence that the amount
exceeds $75,000, the defendant, as proponent of Federal
jurisdiction, will have met the burden of establishing jurisdictional
facts.
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H.R. REP. 112-10, 15-16, 2011 U.S.C.C.A.N. 576, 580; see also Wright & Miller, 14AA Fed.
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Prac. & Proc. Juris. § 3702.1 (4th ed.) (“in many situations the notice of removal will assert . . .
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that state law permits recovery in excess of the ad damnum. Removal will be proper under Section
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1446(c)(2)(B) if the district court finds by a preponderance of the evidence that the amount in
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controversy exceeds the jurisdictional minimum”).
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As shall become clear in the discussion infra, a significant dispute remains between the
United States District Court
Northern District of California
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parties about how the preponderance of the evidence standard applies to Plaintiff’s complaint. But
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after the 2011 amendment of the removal statute, preponderance of the evidence, rather than “legal
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certainty,” is the standard for determining whether the amount in controversy is satisfied when
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state law permits the plaintiff to recover in excess of the amount alleged in the complaint.
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B.
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“[F]ederal courts permit individual plaintiffs, who are the masters of their complaints, to
Is Plaintiff Legally Bound to Seeking Less Than $75,000?
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avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at
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issue that fall below the federal jurisdictional requirement.” Standard Fire, 133 S. Ct. at 1350
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(citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 294 (1938)). After
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Standard Fire, a class representative cannot stipulate on behalf of absent class members to avoid
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CAFA’s $5 million aggregate matter in controversy. But while the instant case is a proposed class
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action, Defendant has not argued that it is removable pursuant to CAFA. The sole basis of
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removal is “traditional” diversity jurisdiction, and the applicable amount in controversy is
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$75,000. As to that amount, Plaintiff is free to stipulate on her own behalf not to seek $75,000 for
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herself (and to stipulate that her attorneys will not seek any amount of attorney’s fees attributable
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to her claim that would bring the amount in controversy to $75,000). “[A] federal court . . . can
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insist on a binding affidavit or stipulation that the plaintiff will continue to claim less than the
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jurisdictional amount as a pre-condition for remanding the case to state court.” Wright & Miller,
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14A Fed. Prac. & Proc. Juris. § 3702.1 (4th ed.).
“Some courts have required that these affidavits or stipulations be executed prior to the
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notice of removal as a sign of their bona fides and cannot await the motion to remand.” Id.
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“[T]hough . . . the plaintiff after removal, by stipulation, by affidavit, or by amendment of his
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pleadings, reduces the claim below the requisite amount, this does not deprive the district court of
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jurisdiction.” St. Paul, 303 U.S. at 292; see also Hill v. Blind Indus. & Servs., 179 F.3d 754, 757
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(9th Cir. 1999) (“diversity jurisdiction is determined at the time the action commences, and a
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federal court is not divested of jurisdiction . . . if the amount in controversy subsequently drops
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below the minimum jurisdictional level”). It does not appear that any such binding stipulation was
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attached to Plaintiff’s state-court complaint.
United States District Court
Northern District of California
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Notwithstanding this, district courts within this circuit have remanded actions on the
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condition that a plaintiff stipulate to seeking less than the jurisdictional minimum or submitting an
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affidavit binding him or her not to accept any amount meeting the jurisdictional minimum. See,
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e.g., Sherman v. Nationwide Mut. Ins. Co., No. 12-cv-152-M-DLC-JCL, 2013 WL 550265 (D.
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Mont. Jan. 15, 2013) report and recommendation adopted, No. 12-cv-152-M-DLC-JCL, 2013 WL
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550659, at *2 (D. Mont. Feb. 12, 2013) (“Based upon the Shermans’ affidavit, the Court finds by a
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preponderance of the evidence presented that the amount in controversy does not exceed the
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requisite jurisdictional amount of $75,000”); see also Cicero v. Target Corp., No. 2:13-CV-619
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JCM (GWF), 2013 WL 3270559, at *2 (D.Nev. June 26, 2013) (“[B]ased on plaintiff’s arguments
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in her motion to remand that her damages are limited to $74,999.99, plaintiff is judicially estopped
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from arguing for more than $75,000 in damages”).2
“The amount in controversy is simply an estimate of the total amount in dispute, not a
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prospective assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395,
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This practice is in some tension with the Supreme Court’s holding in St. Paul, 303 U.S at 292.
But the precedents are reconcilable. In St. Paul, “the complaint disclosed an amount in
controversy requisite to the federal court’s jurisdiction.” 303 U.S. at 284. It was only after
remand that plaintiff tried to seek a lesser amount. At the time of removal, the amount in
controversy was satisfied.
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400 (9th Cir. 2010). The question is whether it is more likely than not Plaintiff can recover
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$75,000 if successful on all of her claims. A legally binding commitment by Plaintiff not to
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recover that amount is the best possible evidence on that question.
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At oral argument, the Court asked Plaintiff’s counsel if Plaintiff would stipulate to seek no
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more than $75,000, inclusive of attorney’s fees attributable to her claim alone. Plaintiff’s counsel
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declined, and in the two months since the matter has been under submission, no stipulation has
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been submitted to this Court.
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A refusal to stipulate to receive less than $75,000 certainly does not conclusively establish
that the amount of controversy is met. Conrad Associates v. Hartford Acc. & Indem. Co., 994 F.
Supp. 1196, 1199 (N.D. Cal. 1998). But a stipulation could conclusively establish that the amount
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United States District Court
Northern District of California
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is not met. Plaintiff’s counsel has declined to take that route, preferring instead to maintain the
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legal ability to recover more than $75,000 in this action. Therefore, the Court must resolve the
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question of the amount in controversy for itself.
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C.
Overtime and Subsequent Violations
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The parties dispute how much is in controversy regarding two of Plaintiff’s substantive
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claims: Plaintiff’s allegation that she was “regularly” required to work uncompensated overtime
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hours, and her allegation that she could be entitled to recover the enhanced PAGA penalties that
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apply to “subsequent” PAGA violations.
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1.
Overtime
As her second cause of action, Plaintiff alleges that Defendant failed to pay her overtime
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compensation in violation of California Labor Code §§ 510, 1194 & 1198. Complaint, ¶¶ 64-88.
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Plaintiff does not allege precisely how often this occurred, or how much she is seeking in damages
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for this violation. But she does allege that “at all relevant times,” she was “regularly required to
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work, and did in fact work, overtime hours.” Complaint, ¶¶ 49, 77.
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In its notice of removal, Defendant construes this as an allegation that Plaintiff was made
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to work between 1-5 hours of overtime a week. Notice of Removal, ¶¶ 20- 24. On the basis of a
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declaration from a Nike employee about Plaintiff’s scheduled working hours, Defendant calculates
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an amount in controversy between $5,769.69 (if Plaintiff is alleging 1 hour a week of unpaid
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overtime) and $28,848.45 (5 hours a week). Id.
In her motion to remand, Plaintiff does not dispute the accuracy of Defendant’s
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calculations. Nor does she aver what amount should properly be considered to be in controversy
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for her second cause of action. And she certainly does not disclaim that she is seeking to recover
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the amount Defendant identifies. Instead, she asks this Court to attribute no amount in
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controversy for this cause of action, since Defendant “provided no facts establishing the
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calculation of overtime at one hour a week.” Mem. Pts. & Auth. In Support of Motion to Remand
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5:6-9, ECF No. 12-1. “The word ‘regularly’ could be construed to mean once a week, but there is
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no evidence proving whether the overtime was one (1) hour a week or thirty (30) minutes a week
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or even something less.” Id. In other words, Plaintiff faults Defendant for failing to prove what
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United States District Court
Northern District of California
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Plaintiff means by the term “regularly,” and for failing to prove the truth of Plaintiff’s allegations.
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As another court of this district put it, this is a “have . . . [your] cake and eat it too” argument,
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Navarro v. Servisair, LLC, No. 08-cv-02716-MHP, 2008 WL 3842984, at *9 (N.D. Cal. Aug. 14,
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2008), and it is not persuasive.
“Not surprisingly, the federal courts have had some difficulty in ascertaining the amount in
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controversy when the [plaintiff’s state-court] complaint is silent or inconclusive on the subject.”
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Wright & Miller, 14C Fed. Prac. & Proc. Juris. § 3725.1 (4th ed.).3 Courts must tread carefully
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when applying the phrase “preponderance of the evidence” to the “amount in controversy”
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inquiry. Usually, “preponderance of the evidence” is a phrase used for determining whether a
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factual allegation is, in fact, true. But a defendant is not required to admit, and is certainly not
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required to prove, the truth of plaintiff’s assertions before invoking diversity jurisdiction. “The
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amount in controversy is simply an estimate of the total amount in dispute, not a prospective
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assessment of defendant’s liability.” Lewis, 627 F.3d at 400; see also McPhail v. Deere & Co.,
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529 F.3d 947, 956 (10th Cir. 2008) (cited approvingly in Lewis) (“[t]he amount in controversy is
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not proof of the amount the plaintiff will recover. Rather, it is an estimate of the amount that will
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While Plaintiff’s state-court complaint alleges that she seeks less than $75,000, it is still legally
“inconclusive” on this point since California law permits her to recover in excess of the amount
she alleges.
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be put at issue in the course of the litigation”).
The question at this stage of the litigation is not how many overtime hours Plaintiff
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actually worked, but how many hours Plaintiff alleges that she did. Plaintiff is in a much better
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position to know this information than Defendant.
Defendant argues that “once Nike sets forth a prima facie case establishing jurisdiction, the
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onus shifts to Plaintiff to offer some kind of proof that jurisdiction is lacking.” Defendant’s
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Opposition to Plaintiff’s Motion to Remand (“Opp.”) 4:25-26, ECF No. 13 (citing Lewis, 627 F.3d
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at 400-01; McPhail, 529 F.3d at 298-99; Strawn v. AT&T Mobility LLC, 530 F.3d 293, 298-99
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(4th Cir. 2008); Univ. of Rhode Island v. A.W. Chesterton Co., 2 F.3d 1200, 1213 (1st Cir. 1993);
Ohio Nat’l Life Ins. Co. v. U.S., 922 F.2d 320, 327, n. 7 (6th Cir. 1990)). That somewhat
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United States District Court
Northern District of California
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overstates those cases’ holdings, but the general concept is acknowledged in this circuit’s case
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law.
In Lewis, plaintiff Delores Lewis brought a class action alleging that Verizon had billed
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her and other customers for “unauthorized” services they had not ordered. 627 F.3d at 397.
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Verizon removed, providing a declaration proving that the proposed class members were billed
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more than $5 million for the challenged Verizon services during the relevant period, meeting the
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amount in controversy requirement under CAFA. Id. at 398. Lewis opposed removal, arguing
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that Verizon had failed to prove that all of those charges were actually “unauthorized.” Id. The
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Ninth Circuit rejected this argument: “Plaintiff has alleged that the putative class has been billed
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for unauthorized charges; the Defendant has put in evidence of the total billings and the Plaintiff
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has not attempted to demonstrate, or even argue, that the claimed damages are less than the total
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billed.” Id. at 400.4
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There are some contrary indications in Lewis. For example, the court held that the Ninth
Circuit’s law “expressly contemplate[s] the district court's consideration of some evidentiary
record.” 627 F.3d at 400. But this presumably means only that there must be a solid evidentiary
basis for estimating the monetary value of Plaintiff’s claims. Lewis does not state that the district
court must contemplate an evidentiary record establishing the truth of Plaintiff’s allegations; in
fact, it indicates the opposite. Lewis also seemed to partly rest its conclusion on the fact that
Verizon “has conceded that where proposed class members have been billed for services they did
not order, they are entitled to a refund. “ Id. But presumably, Nike also concedes that where
workers entitled to overtime pay were denied it, they are entitled to damages. Finally, this Court
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To the extent Lewis is not directly controlling, this Court is also persuaded by other courts
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of this district that when facing an allegation like the one in this case, if a defendant prepares a
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well-founded evidentiary record, a defendant’s reasonable extrapolations from the plaintiff’s
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allegations suffice to establish the amount in controversy, if unrebutted by the plaintiff. In facing
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a similar wage-and-hour violation, the Navarro court held:
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In light of these numbers, this court is convinced that the amount in
controversy requirement is met. Although plaintiff claims defendant
simply invents numbers in order to meet the amount in controversy
requirement, he offers no alternative. For instance, he claims that
defendant's calculations take into account three meal period
violations per week without arguing that the same is untrue. He does
not limit his claim by stating that only a certain number of hours
went uncompensated. Nevertheless, he seeks remand. Plaintiff
cannot have his cake and eat it too.
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2008 WL 3842984, at *9. More recently, another court of this district held similarly, addressing a
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similar allegation that a plaintiff was “regularly” made to work overtime:
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United States District Court
Northern District of California
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Plaintiff argues that the revised calculations are inflated because
they assume, as one example, that plaintiff worked 13 hours a day
every day that plaintiff worked for Godiva. However, as defendant
notes, these calculations are consistent with plaintiff's allegation that
during the relevant time period, he “regularly and/or consistently
worked in excess of 12 hours per day.” Compl. ¶ 50. While
defendant's use of a 13 hour day is perhaps not conservative,
defendant’s calculations do not assume—as they could consistent
with plaintiff's allegations—that he worked seven days in a row and
thus would be entitled to even additional overtime. Plaintiff also
argues that defendant's calculations are flawed because they are
based on estimates of hours worked, and that defendant should have
based its calculations based on the information in defendant's
records. However, ‘a removing defendant is not obligated to
“research, state, and prove the plaintiff's claims for damages.’” Korn
v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199, 1204-05
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acknowledges that it cannot fully reconcile the Lewis approach with the approach apparently taken
by the Ninth Circuit in Garibay v. Archstone Communities LLC, 539 F. App’x 763 (9th Cir. 2013)
(unpublished). The claims in Garibray are more similar to the case at bar than the claims at issue
in Lewis. And in Garibray, the Ninth Circuit appeared to endorse the principle that a removing
defendant is required to provide evidence of how many hours the employees actually worked effectively proving the truth of Plaintiff’s allegations rather than the monetary value of what
Plaintiff alleges. See also Garibray v. Archstone Communities LLC, No. 12-cv-10640-PA
(VBKx) (C.D.Cal. Feb. 4, 2013). This is very difficult to square with the notion that “[t]he
amount in controversy is simply an estimate of the total amount in dispute, not a prospective
assessment of defendant’s liability.” Lewis, 627 F.3d at 400. Faced with this potential conflict,
this Court accepts the Ninth Circuit’s published opinion as the superior authority.
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1
(E.D.Cal.2008) (quoting McCraw v. Lyons, 863 F.Supp. 430, 434
(W.D.Ky.1994).
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Lippold v. Godiva Chocolatier, Inc., No. 10-cv-00421 SI, 2010 WL 1526441, at *3 (N.D. Cal.
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Apr. 15, 2010).
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Defendant cited both Navarro and Lippold in its opposition to this motion. In response,
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Plaintiff argues that “all those cases found the removal burden satisfied by evidence that is not
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present in this case, including deposition and declarant testimony regarding hours actually
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worked.” Reply 3:7-9. Neither Navarro nor Lippold discussed any deposition or declarant
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testimony regarding the hours the plaintiffs actually worked. And, as described supra, the number
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of hours actually worked is not the relevant inquiry at this stage of the litigation.
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Plaintiff alleges that she was regularly required to work overtime, and seeks damages for
United States District Court
Northern District of California
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having been made to do so. Defendant has put forward a very reasonable estimate of how much a
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“regular” overtime violation would place in controversy, grounded in specific facts regarding
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Plaintiff’s work schedule and salary. In the face of this, Plaintiff cannot simply sit silent and take
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refuge in the fact that it is Defendant’s burden to establish the grounds for federal jurisdiction.
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This is especially the case since the knowledge in question – how often Plaintiff claims she was
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made to work overtime -- is uniquely within Plaintiff’s possession.
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The Court considers $5,767.69, or 1 hour a week of overtime, to be appropriately
considered toward the amount in controversy for the second cause of action.
2.
“Subsequent” Violations
Plaintiff alleges that Defendant failed to provide accurate itemized wage statements in
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violation of section 226 of the California Labor Code. Complaint ¶¶ 82-85. Plaintiff states in her
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complaint that she may elect to recover $50 for the initial pay period in which the violation
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occurred, and $100 for each “subsequent” violation. Id. ¶ 85. She also alleges that Defendant
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committed ten different statutory violations to which PAGA penalties apply. Id. ¶¶ 94-98. As to
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those violations, enhanced penalties for “subsequent” violations are also available, although
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Plaintiff does not specifically state in her complaint that she is seeking them.
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The word “subsequent” has a specific meaning under the California Labor Code. “Until
the employer has been notified that it is violating a Labor Code provision . . . the employer cannot
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be presumed to be aware that its continuing underpayment of employees is a ‘violation’ subject to
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penalties.” Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1209 (2008). “However, after
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the employer has learned its conduct violates the Labor Code, the employer is on notice that any
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future violations will be punished just the same as violations that are willful or intentional—i.e.,
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they will be punished at twice the rate of penalties that could have been imposed or that were
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imposed for the initial violation.” Id.
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Defendant proposes to calculate the amount in controversy as though all alleged Section
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226 and PAGA violations after the first pay period will be penalized at the enhanced rate for
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“subsequent” violations. But this situation is not like the one presented by Plaintiff’s overtime
claims, in which Plaintiff has chosen not to clarify the extent of her own allegations. Here,
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United States District Court
Northern District of California
10
Plaintiff alleges (and provides a letter evidencing) that she informed Defendant in writing by mail
12
on September 24, 2013 that its actions violated the Labor Code. Id. ¶ 97; see also Exhibit 1 to
13
Complaint. There are no other factual allegations in the complaint suggesting that Defendant
14
knew its actions violated the Labor Code before that date. At the hearing, Plaintiff’s counsel
15
stated specifically that Plaintiff “disclaims” her right to recover the enhanced penalties for any pay
16
periods that occurred before the letter was sent. As Plaintiff explains in paragraph 85 of her
17
complaint, she seeks only to reserve the right to claim possible “subsequent” penalties for any
18
future, continued violations of the Labor Code which occurred after the letter was sent, and while
19
this litigation is ongoing. For purposes of considering remand, the court considers “the amount in
20
controversy at the time of removal.” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377
21
(9th Cir. 1997) (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th Cir. 1995)).
22
Therefore, the court calculates the amount in controversy for these claims on the basis of
23
the initial, rather than “subsequent” rate. The Court considers only $1,750 to be in controversy for
24
the § 226 claim, and $12,700 to be in controversy for the PAGA claims.
25
C.
Reduction of PAGA penalties
26
In a PAGA suit, “[i]f the representative plaintiff prevails, the aggrieved employees are
27
statutorily entitled to 25% of the civil penalties recovered while the LWDA [Labor & Workforce
28
Development Agency] is entitled to 75%.” Urbino, 726 F.3d at 1121 (citing Cal. Lab. Code
12
1
§ 2699(i)). Plaintiff argues that, for this reason, the amount in controversy for her PAGA claims
2
should be reduced to 25% of the total to reflect only the portion of the penalties Plaintiff herself
3
would receive.
4
“The traditional rule is that multiple plaintiffs who assert separate and distinct claims are
5
precluded from aggregating them to satisfy the amount in controversy requirement.” Urbino, 726
6
F.3d at 1122 (citing Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40 (1911)). Congress
7
created a specific exception to this rule in CAFA. See Standard Fire Ins. Co. v. Knowles, __ U.S.
8
__, 133 S. Ct. 1345, 1348 (2013) (CAFA “tells the District Court to determine whether it has
9
jurisdiction by adding up the value of the claim of each person who falls within the definition of . .
. [the] proposed class and determine whether the resulting sum exceeds $5 million”). But in a
11
United States District Court
Northern District of California
10
diversity action not subject to CAFA, the traditional “anti-aggregation” rule applies. If a court is
12
presented with a case involving “multiple plaintiffs,” the court must determine whether those
13
multiple plaintiffs have “‘united to enforce a single title or right in which they have a common and
14
undivided interest,’ . . . and look to whether ‘the claims are derived from rights that they hold in
15
group status.’” Urbino, 726 F.3d at 1122 (quoting Snyder v. Harris, 394 U.S. 332, 335 (1969) and
16
Eagle v. Am. Tel. & Tel. Co., 769 F.2d 541, 546 (9th Cir. 1985)). Unless the court concludes that
17
these criteria have been met, the multiple plaintiffs’ claims are disaggregated to calculate the
18
amount in controversy.
19
Federal courts have had some difficulty determining how a PAGA suit fits within this
20
typology. See Hernandez v. Towne Park, Case No. CV 12–02972 MMM (JCGx), 2012 WL
21
2373372, at * 16 (C.D.Cal. June 22, 2012) (describing split and listing cases). There are at least
22
two ways in which a PAGA suit could be viewed as involving “multiple plaintiffs.” First, in a
23
PAGA suit, a representative plaintiff brings claims not just to vindicate the Labor Code violations
24
that directly affect her but also to vindicate the rights of other similarly situated workers. Second,
25
in a PAGA suit, 75% of the penalties are paid to the State of California’s LWDA, and only 25%
26
are distributed to the aggrieved employees.
27
28
In Urbino, the Ninth Circuit issued an opinion addressing the amount in controversy in a
PAGA suit, and concluded in pertinent part:
13
1
Aggrieved employees have a host of claims available to them—e.g.,
wage and hour, discrimination, interference with pension and health
coverage—to vindicate their employers' breaches of California's
Labor Code. But all of these rights are held individually. Each
employee suffers a unique injury—an injury that can be redressed
without the involvement of other employees. Troy Bank, 222 U.S. at
41, 32 S.Ct. 9 (explaining that an interest is common and undivided
when “neither [party] can enforce [the claim] in the absence of the
other”). Defendants' obligation to them is not “as a group,” but as
“individuals severally.” Gibson, 261 F.3d at 944 (quotation
omitted). Thus, diversity jurisdiction does not lie because their
claims cannot be aggregated.
2
3
4
5
6
7
8
Defendants contend, however, that the interest Urbino asserts is not
his individual interest but rather the state's collective interest in
enforcing its labor laws through PAGA. See, e.g., Arias, 95
Cal.Rptr.3d 588, 209 P.3d at 934; Amalgamated Transit Union,
Local 1756, AFL–CIO v. Super. Ct., 46 Cal.4th 993, 95 Cal.Rptr.3d
605, 209 P.3d 937, 943 (2009). Accordingly, they argue this is
effectively a “case[ ] in which a single plaintiff seeks to aggregate
two or more of his own claims against a single defendant,” Snyder,
394 U.S. at 335, 89 S.Ct. 1053, and that those claims can be
combined to satisfy the minimum amount in controversy
requirement of the diversity statute, id. To the extent Plaintiff can—
and does—assert anything but his individual interest, however, we
are unpersuaded that such a suit, the primary benefit of which will
inure to the state, satisfies the requirements of federal diversity
jurisdiction. The state, as the real party in interest, is not a “citizen”
for diversity purposes. See Navarro Sav. Ass'n v. Lee, 446 U.S. 458,
461, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980) (courts “must disregard
nominal or formal parties and rest jurisdiction only upon the
citizenship of real parties to the controversy.”); Mo., Kan. & Tex.
Ry. Co. v. Hickman, 183 U.S. 53, 59, 22 S.Ct. 18, 46 L.Ed. 78
(1901); see also Moor v. Cnty. of Alameda, 411 U.S. 693, 717, 93
S.Ct. 1785, 36 L.Ed.2d 596 (1973) (explaining that “a State is not a
‘citizen’ for purposes of the diversity jurisdiction”).
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
Urbino, 726 F.3d at 1122-23. The question is whether the Ninth Circuit was addressing only the
23
issue of whether John Urbino’s claims must be aggregated with his fellow multiple workers, or
24
whether the court was also addressing whether that the portion of the penalties John Urbino would
25
personally receive should be aggregated with the portion that would be distributed to the LWDA.
26
Plaintiff reads Urbino to have addressed both issues. This court reads it only as authority on the
27
first.
28
At least two district courts in non-CAFA diversity actions have read the second Urbino
14
1
paragraph cited above as addressing the issue of whether the State of California’s interest in a
2
PAGA suit must be disaggregated from the interest of the employees. Those courts have
3
concluded that, after Urbino, only 25% of the employees’ PAGA recovery counts towards the
4
jurisdictional minimum. Willis v. Xerox Bus. Servs., LLC, No. 1:13-cv-01353-LJO-JLT, 2013
5
WL 6053831, at *8 (E.D. Cal. Nov. 14, 2013); Pagel v. Dairy Farmers of Am., Inc., __ F.Supp.
6
2d__, No. 13-cv-2382-SVW-VBKX, 2013 WL 6501707, at *2 (C.D. Cal. Dec. 11, 2013) (reading
7
Urbino to have “resolved this disagreement” in non-CAFA diversity suits, but then limiting
8
Urbino’s reach to non-CAFA suits). While that is an understandable conclusion, this court does
9
not read Urbino the same way.
To begin with, Urbino nowhere explicitly discussed the argument that the amount in
10
United States District Court
Northern District of California
11
controversy attributable to a representative plaintiff in a PAGA suit must be reduced by 75%.
12
That question was not before the court. The Urbino court described the question in front of it as
13
“whether the penalties recoverable on behalf of all aggrieved employees may be considered in
14
their totality to clear the jurisdictional hurdle.” 726 F.3d at 1122 (emphasis added). Urbino
15
concluded that they could not, because “[e]ach employee suffers a unique injury.” Id.
16
Once the Urbino court concluded that representative plaintiff John Urbino’s claims must
17
be calculated separately from the claims pertaining to his fellow aggrieved employees, reducing
18
“his” amount in controversy further by 75% would not have changed the outcome. The penalties
19
attributable to Urbino’s claims only totaled $11,602.40, well short of the jurisdictional minimum
20
even before any further reduction. 726 F.3d at 1121.5 On the other side of the equation, the total
21
penalties were $9,409,550. Id. So if the Urbino court had held that all employees’ claims should
22
be aggregated, even 25% of this total would have satisfied the jurisdictional minimum. The
23
question of whether John Urbino’s claims were aggregated with his fellow aggrieved employees
24
was entirely dispositive of the jurisdictional issue.
Moreover, not only did the Urbino court not address the same issue presented here, but that
25
26
27
28
5
That $11,602.40 figure reflects the full amount of penalties attributable to John Urbino’s claims.
It is notable that the Ninth Circuit did not list the amount attributable to him as $2,900.60, as it
would have if it viewed his claims as subject to a further 75% markdown.
15
1
issue was not even before the court. The defendant in Urbino did not argue that the State of
2
California asserted 75% of the interest in Urbino’s claims. It argued that the State of California
3
asserted 100% of the interest in all employees’ claims: “the interest asserted in a PAGA suit is the
4
undivided interest of the LWDA to enforce California labor laws and recover civil penalties for
5
violations of those laws,” and therefore “the amount in controversy is the full measure of civil
6
penalties sought--not some subset of those penalties attributable to alleged violations involving a
7
single employee.” Urbino, Third Brief on Cross-Appeal of Defendants-Counter-Plaintiffs-
8
Appellants/Cross-Appellees, 2012 WL 3781500 (C.A.9), at * 11 (emphases added); see also id. at
9
*29-44.
10
In assessing the defendant’s argument that a plaintiff asserts “not his individual interest but
United States District Court
Northern District of California
11
rather the state’s collective interest in enforcing its labor laws,” Urbino allowed only that “to the
12
extent Plaintiff can—and does—assert anything but his individual interest, however, we are
13
unpersuaded that such a suit, the primary benefit of which will inure to the state, satisfies the
14
requirements of federal diversity jurisdiction,” since “[t]he state, as the real party in interest, is not
15
a ‘citizen’ for diversity purposes.” 726 F.3d at 1122-23 (emphasis added). Urbino did not take a
16
clear position on whether the representative plaintiff in a PAGA action “can‒and does‒assert
17
anything but his individual interest.” The better reading of this passage is that the Ninth Circuit
18
was indulging, for the sake of argument, the defendant’s contention that John Urbino was
19
effectively a representative of the State of California, and noting that even if this were so, diversity
20
jurisdiction would be lacking for a different reason and so remand would still be required.
21
For the foregoing reasons, this court does not read Urbino to hold that individual
22
employees’ PAGA claims must be reduced by 75% for purposes of calculating the amount in
23
controversy. And for the following reasons, the court also does not understand Urbino’s rationale
24
to require that result.
25
It is possible, of course, that the Ninth Circuit might later determine that the portion of
26
penalties paid to a worker should be disaggregated from the portion paid to the LWDA, applying a
27
logic similar to the one used by Urbino to determine that the portion of penalties attributable to
28
other employees must not be aggregated with the penalties attributable to the representative
16
1
plaintiff. Urbino does partially undermine one rationale that some pre-Urbino courts used to
2
explain why they did not reduce the requisite amount in controversy by 75%. District courts who
3
combined the LWDA’s share of the recovery with the employees’ share had “likened PAGA
4
claims to derivative shareholder suits, in which a shareholder has no individual rights to recovery
5
but rather seeks recovery on behalf of the corporation.” Quintana v. Claire’s Stores, Inc., No. 13-
6
cv-0368-PSG, 2013 WL 1736671, at *7 (N.D. Cal. Apr. 22, 2013) (citing cases)).6 Those courts
7
reasoned that since “the interest in collecting civil penalties for violations belongs to the LWDA,”
8
the employee only “steps in to the LWDA’s shoes to prosecute the action,” and should be viewed
9
as combining his or her interest with that of the state. Id. Urbino’s analysis of this issue, although
brief, appeared to reject the proposition that PAGA suits are fundamentally law enforcement
11
United States District Court
Northern District of California
10
actions vindicating the interests of the state. Compare Urbino, 726 F.3d at 1122-23 with id. at
12
1123-24 (Thomas, J., dissenting) and Urbino, 882 F.Supp.2d at 1162-64 (district court holding
13
reversed by the Ninth Circuit).
But it does not follow from this that the State of California and the employees must split
14
15
the claims. An equally plausible inference from Urbino is that the Ninth Circuit rejected the
16
proposition that the State of California has any interest at all in a PAGA suit for purposes of
17
considering the amount in controversy. The State of California, after all, is not actually a party to
18
the case. True, “a federal court must disregard nominal or formal parties and rest jurisdiction only
19
upon the citizenship of real parties to the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458,
20
461 (1980). And courts sometimes view the actual parties to the case as effectively representing
21
the interest of a nonparty, such as when shareholders are effectively asserting “an injury to the
22
corporation and only an indirect injury to the shareholders.” Eagle v. Am. Tel. & Tel. Co., 769
23
F.2d 541, 547 (9th Cir. 1985). But Urbino specifically distinguished Eagle, and in doing so “cast
24
doubt upon the notion that PAGA claims represent ‘the state’s collective interest in enforcing its
25
labor laws through PAGA.’” Halliwell v. A-T Solutions, __ F.Supp.2d __, No. 13-cv-2014-H
26
27
6
28
Quintana, too, was a CAFA case, but its rationale and its analysis of other cases remains
applicable.
17
1
KDS, 2013 WL 6086156, at *4 (S.D. Cal. Nov. 7, 2013) (quoting Urbino, 726 F.3d at 1122).7
The other possibility Urbino considered was that PAGA claims should be viewed as State
2
3
property. But, again, the possibility Urbino considered was that the entirety of a PAGA claim
4
belonged to the state, not the possibility that 75% of the claim does. Urbino’s analysis was all-or-
5
nothing; either a PAGA suit belongs to individual workers or it belongs entirely to the state.
6
Given the procedural posture of the case, Urbino did not decide the question because either result
7
would require remand.
However, even assuming that the State of California does not own the entirety of the
8
9
claims, but still remains part of the amount in controversy calculation, the question of whether
employees share their claims with the LWDA is importantly different than the question of whether
11
United States District Court
Northern District of California
10
employees share their claims with each other. “[T]he aggregation of employees’ individual rights
12
does not compel their aggregation with the rights of a state agency, the LWDA.” Hernandez, 2012
13
WL 2373372, at *16. By the same token, the dis-aggregation of employees’ individual claims
14
does not necessarily compel their dis-aggregation from the rights of the state agency.
Urbino concluded that the workers’ rights in a PAGA suit “are held individually,” because
15
16
“[e]ach employee suffers a unique injury.” 726 F.3d at 1122. This is a reasonable way to
17
characterize the different employees’ claims vis-à-vis each other, but it does not apply to the
18
relationship between the employees and the LWDA. The Labor Code violations Plaintiff Patel
19
allegedly suffered are not unique from the ones the LWDA might seek to vindicate; both “claims”
20
have as their source the exact same injuries.
Applying Gibson v. Chrysler Corp., 261 F.3d 927, 944 (9th Cir. 2001), holding modified
21
22
post-CAFA by Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005), Urbino also
23
24
25
26
27
28
7
Halliwell characterization of Urbino is accurate, although it applied the analysis to a different
context. Halliwell was considering whether PAGA claims were sufficiently similar to a class
actions to require the plaintiff to fulfill Rule 23 in federal court. On that point, Halliwell’s
conclusion was undermined by the Ninth Circuit’s later finding that “[a] PAGA action is at heart a
civil enforcement action filed on behalf of and for the benefit of the state, not a claim for class
relief.” Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1124 (9th Cir. 2014). It does not fall
to this court to reconcile any tension between Baumann’s view of PAGA and Urbino’s. On the
issue of determining the amount in controversy, Urbino is the controlling authority.
18
1
concluded that the employees’ claims should be disaggregated because “Defendants’ obligation to
2
them is not ‘as a group,’ but as ‘individuals severally.’” 726 F.3d at 1122. Here, Defendant Nike
3
owes an obligation to Plaintiff Patel and to the LWDA to obey the state Labor Code, but it owes
4
that obligation to both entities as a plurality. A single Labor Code violation violates Defendant’s
5
obligations to both entities at the same time and in the same way.
In Gibson, the Ninth Circuit considered “paradigm aggregation cases” to be those that
7
“involv[e] ‘a single indivisible res’ and concern[] ‘matters that cannot be adjudicated without
8
implicating the rights of everyone involved with the res.’” 261 F.3d at 944. Individual claims, on
9
the other hand, “are each cognizable, calculable, and correctable individually.” Id. at 945. If this
10
court adjudicates Patel’s PAGA claims, any “rights” the LWDA has in those claims will either be
11
United States District Court
Northern District of California
6
vindicated or extinguished. The adjudication of Patel’s claims will implicate both Patel’s rights
12
and the LWDA’s. Once the LWDA has been informed of the potential Labor Code violations and
13
declined to prosecute them, Patel’s claims are not “cognizable” as different claims that the
14
LWDA’s.
15
One factor considered by Urbino appears to push in the other direction. When claims are
16
aggregated, it is usually the case that “neither [party] can enforce [the claim] in the absence of the
17
other.” Urbino, 726 F.3d at 1122 (citing Troy Bank) (alterations in the original). PAGA “permits
18
either the LWDA or the aggrieved employees to act independently to enforce the Labor Code.”
19
Hernandez, 2012 WL 2373372, at *6. But even if this one factor suggests that the rights might be
20
individualized, most of the relevant factors weigh in favor of considering any of the LWDA’s
21
claims in a PAGA suit to be held commonly and indivisibly with the individual workers. In a
22
PAGA suit, the individual employee and the LWDA are not joining together to assert different
23
claims, they are “unit[ing] to enforce a single title or right in which they have a common and
24
undivided interest.” Troy Bank, 394 U.S. at 335.
25
After Urbino, it is unclear whether the State of California has any interest in PAGA suits
26
for the purposes of calculating the amount in controversy. But if it does hold any such interest, the
27
interest is held in common with the individual workers. For these reasons, the entire amount of
28
PAGA penalties attributable to Patel’s claims count towards the amount in controversy.
19
Attorney’s Fees
1
D.
2
Before considering attorney’s fees, the amount in controversy stands at $65,644.89. The
3
only remaining question is whether Defendant has met its burden to establish that attorney’s fees
4
of at least $9,355.11 can also be considered in controversy.
5
“The amount in controversy includes . . . attorney’s fees, if authorized by statute or
6
contract.” Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005). Plaintiff’s complaint
7
does not specifically state that she is seeking any attorney’s fees, and in fact her prayer states that
8
“neither this prayer nor any other allegation or prayer in this Complaint is to be construed as a
9
request, under any circumstance, that would result in a request for attorneys’ fees under Cal. Lab.
Code 218.5.” Complaint, at p. 40. But whether or not the complaint itself requests an award of
11
United States District Court
Northern District of California
10
attorney’s fees, Plaintiff may later seek them, and Plaintiff’s counsel has not disclaimed his ability
12
to recover them. “Any employee who prevails in any [PAGA] action shall be entitled to an award
13
of reasonable attorney’s fees and costs.” Cal. Lab.Code § 2699(g).
14
In support of removal, Defendant “conservatively estimates that attorneys’ fees through
15
trial will exceed at minimum $39,500, using the lowest hourly rate for Plaintiffs counsel.” Opp. at
16
13 (citing Notice of Removal ¶ 47). Defendant bases this estimate on two foundations. First,
17
Defendant produces a declaration by another attorney at Plaintiff’s counsel’s law firm in support
18
of a request for attorney’s fees in another case. Exh. D to Notice of Removal. That declaration
19
indicates that attorneys at the firm bills at between $395 and $775 per hour. Id. Second, to
20
provide the appropriate multiplier for the $395 hourly rate, Defendant relies on the Lippold court’s
21
statement that “attorneys handling wage-and-hour cases typically spend far more than 100 hours
22
on the case” through trial. 2010 WL 1526441, at *4.
23
In response, Plaintiff makes two arguments. First, she notes that there is a circuit split, and
24
a split of authority within the Ninth Circuit, over “whether the courts may consider only fees
25
incurred as of the time of removal, or also a reasonable estimate of future attorneys’ fees to be
26
incurred in the action, when determining the amount in controversy.” Wright & Miller, 14C Fed.
27
Prac. & Proc. Juris. § 3725 (4th ed.). She urges this court to adopt the former view. This
28
argument is unavailing on its own. Plaintiff’s counsel has declared that attorneys’ fees and costs
20
1
accrued through removal amount to $9,641.25. Bhowmik Declaration ¶ 2. This would bring
2
Plaintiff $286.14 over the jurisdictional minimum.
3
But Plaintiff’s second argument is well-founded. As the undersigned recently concluded in
another PAGA removal action, only the portion of attorney’s fees attributable to Patel’s claims
5
count towards the amount in controversy. See Garrett v. Bank of Am., N.A., No. 13-cv-05263-
6
JST, 2014 WL 1648759, at *8 (N.D. Cal. Apr. 24, 2014). “When the rule is that claims are not
7
aggregated (as the rule was . . . for class actions under Zahn and as it is now for PAGA actions
8
under Urbino), it ‘would seriously undermine’ the [anti-aggregation] rule to allow attorney’s fees
9
to be allocated solely to a named plaintiff in determining the amount in controversy.” Id. (quoting
10
Goldberg v. CPC Int’l, Inc., 678 F.2d 1365, 1366 (9th Cir. 1982)); accord Davenport v. Wendy’s
11
United States District Court
Northern District of California
4
Co., No. 2:13-CV-02159-GEB, 2013 WL 6859009, at *2 (E.D. Cal. Dec. 24, 2013).
12
Therefore, even taking Defendant’s estimate of $39,500 as the appropriate estimate of the
13
attorney’s fees incurred in taking a PAGA lawsuit through trial, that amount in total is not
14
appropriately added to Patel’s claims. The amount must distributed pro rata to all aggrieved
15
employees Patel seeks to represent.
16
In her complaint, Plaintiff seeks to represent “all other individuals who are or previously
17
were employed by DEFENDANT as Assistant Store Managers in California and were classified as
18
exempt from overtime wages during the applicable statutory period.” Complaint ¶ 96. If there are
19
even five such employees within the state of California, that would make Patel’s share of the fees
20
only $7,900. This would be insufficient to meet the $75,000 amount in controversy. It seems
21
likely that many more than five employees fit within this category. But in any case, the
22
evidentiary burden is on Defendant to prove otherwise, and Defendant has failed to produce
23
evidence necessary to meet its burden of showing that the amount in controversy attributable just
24
to Patel’s claims meets the amount in controversy. The representative plaintiffs are defined by
25
objective criteria based on information that is within Defendant’s possession, and demonstrating
26
the number of employees who meet the criteria would not require Defendant to prove its own
27
liability.
28
Defendant has failed to demonstrate that at least $9,355.11 in attorney’s fees are in
21
1
controversy for Plaintiff Patel’s claims.
2
IV.
3
CONCLUSION
For the foregoing reasons, Defendant has failed to meet its burden to demonstrate that the
4
amount in controversy necessary to establish federal diversity jurisdiction is established. This
5
action is hereby REMANDED to Alameda Superior Court.
6
7
8
9
IT IS SO ORDERED.
Dated: July 21, 2014
______________________________________
JON S. TIGAR
United States District Judge
10
United States District Court
Northern District of California
11
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13
14
15
16
17
18
19
20
21
22
23
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