Kendall v. Verizon Data Services LLC et al
ORDER by Judge Vince Chhabria denying 10 motion to remand. (vclc3, COURT STAFF) (Filed on 1/17/2023)
Case 3:22-cv-05324-VC Document 23 Filed 01/17/23 Page 1 of 2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANN MARIE KENDALL,
Case No. 22-cv-05324-VC
ORDER DENYING MOTION TO
VERIZON DATA SERVICES LLC, et al.,
Re: Dkt. No. 10
The motion to remand is denied because the amount in controversy is more than $75,000.
While this is a putative class action, neither side argues that CAFA’s jurisdictional
requirements are satisfied here. The question is therefore whether there is diversity jurisdiction
over Kendall’s individual claims. The complaint does not give specific dollar amounts or
numbers of hours, so Verizon may make “reasonable assumptions.” See Ibarra v. Manheim
Investments, Inc., 775 F.3d 1193, 1198 (9th Cir. 2015). Kendall is right that Verizon’s estimate
of three hours of unpaid overtime per week is too high; one hour per week is a more reasonable
estimate. (Kendall may make this argument without providing her own evidence. Harris v. KM
Industrial, Inc., 980 F.3d 694, 700 (9th Cir. 2020).) More importantly, Verizon’s estimate
assumes that Kendall was not paid anything for her overtime work. Notice of Removal 6. But the
complaint only claims that she was not paid the correct overtime rate. Compl. 11 (alleging the
defendant did not pay “proper overtime wages”). Verizon’s estimate of the amount in
controversy for the overtime claim therefore should be reduced by eight-ninths. With this
adjustment, a reasonable estimate of Kendall’s claims before attorney’s fees is more like
Case 3:22-cv-05324-VC Document 23 Filed 01/17/23 Page 2 of 2
Were this Court writing on a blank slate, that would be the end of the story—the motion
to remand would be granted. From a plain language standpoint, attorney’s fees are fees incurred
for adjudicating the controversy, but they are not themselves part of the “amount” that is the
subject of the “controversy.” Nor does it make practical sense to include attorney’s fees in the
amount in controversy. Future fees are hard to estimate, and including such an estimate is
incongruous with the bright-line jurisdictional threshold, since fees will vary wildly depending
on whether the parties settle a matter early or fight it out through a jury trial. See GardynskiLeschuck v. Ford Motor Co., 142 F.3d 955, 958–59 (7th Cir. 1998).
But the Ninth Circuit has come to the contrary conclusion. “[A] court must include future
attorneys’ fees recoverable by statute or contract when assessing whether the amount-incontroversy requirement is met.” Fritsch v. Swift Transportation Company of Arizona, LLC, 899
F.3d 785, 794 (9th Cir. 2018). The Circuit has expressed confidence, however misplaced, that
district courts can “determine when a fee estimate is too speculative because of the likelihood of
a prompt settlement.” Id. at 795.
If she prevails, Kendall will be statutorily entitled to recover reasonable fees. Cal. Labor
Code § 1194. And this case will not be far along before Kendall’s fees would put the total
amount over $75,000 (not counting any fees relating to class certification or class discovery).
The amount in controversy is therefore sufficient to create diversity jurisdiction.
IT IS SO ORDERED.
Dated: January 17, 2023
United States District Judge
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