Pittman et al v. Westgate Planet Hollywood Las Vegas, LLC et al

Filing 25

ORDER Granting 7 Motion to Remand to State Court. The clerk of court shall REMAND this action to the Eighth Judicial District Court. Signed by Judge Larry R. Hicks on 1/27/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEBRA PITTMAN; et al.,
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Plaintiffs,
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v.
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WESTGATE PLANET HOLLYWOOD LAS )
VEGAS, LLC; et al.,
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Defendants.
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2:11-cv-1149-LRH-PAL
ORDER

Before the court is plaintiffs Debra Pittman, Rosalyne Smith, Rineo Vlijter, and Edith

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Marshall’s (collectively “plaintiffs”) motion to remand and for attorney’s fees. Doc. #7.1

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Defendants filed an opposition (Doc. #21) to which plaintiffs replied (Doc. #24).

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I.

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Facts and Procedural History
Plaintiffs filed the underlying overtime compensation class action against defendants in

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state court. See Doc. #1, Exhibit 1. Defendants removed the action to federal court alleging

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jurisdiction under the Class Action Fairness Act. Doc. #1. Thereafter, plaintiffs filed the present

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motion to remand arguing that defendants have failed to satisfy the $5,000,000.00 amount in

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controversy requirement. Doc. #7.

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Refers to the court’s docket entry number.

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II.

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Legal Standard
Removal of a case to a district court may be challenged by motion. 28 U.S.C. § 1441(c). A

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federal court must remand a matter if there is a lack of jurisdiction. Id. Removal statutes are

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construed restrictively and in favor of remanding a case to state court. See Shamrock Oil & Gas

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Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

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1992). 28 U.S.C. § 1332(d).

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III.

Discussion

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A. Amount in Controversy

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The Class Action Fairness Act (“CAFA”), found at 28 U.S.C. § 1332(d), extends federal

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subject matter jurisdiction to a class action when the aggregate claim exceeds $5 million, exclusive

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of interest and costs. 28 U.S.C. § 1332(d)(2). The removing party has the burden of demonstrating

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by a preponderance of the evidence that the amount in controversy exceeds $5 million. Abrego

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Abrego v. The Dow Chemical Co., 443 F.3d 676, 683 (9th Cir, 2006). Jurisdiction cannot be based

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on mere “speculation and conjecture.” Lowedermilk v. U.S. Bank National Ass’n, 479 F.3d 994,

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1002 (9th Cir. 2007). In determining whether the amount in controversy exceeds the jurisdictional

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requirement, the court may consider facts in the notice of removal as well as “summary judgment

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type evidence relevant to the amount in controversy at the time of removal.” Valdez v. Allstate Ins.

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Co., 372 F.3d 1115, 1117 (9th Cir. 2004); see also, Kroske v. U.S. Bank Corp., 432 F.3d 976, 980

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(9th Cir. 2006) (internal quotation marks omitted).

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Here, the court finds that defendants have not established the amount in controversy

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exceeds $5 million by a preponderance of the evidence. Defendants argue that the amount in

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controversy is reached by multiplying the estimated class size by the estimated recovery per person

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of a similar action against defendants currently in federal court. However, defendants’ calculations

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are not based on any real class size or recovery, but only on estimated class size and recovery.

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See Doc. #21. Thus, defendants’ stated amount in controversy is based on “speculation and

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conjecture” rather than actual evidence. See Lowedermilk, 479 F.3d at 1002. Therefore, the court

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finds that defendants have not established the $5 million amount in controversy by a preponderance

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of the evidence, and shall remand this matter accordingly.

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B. Attorney’s Fees

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An order remanding a case to state court may include an award of attorney’s fees. 28 U.S.C.

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§ 1447(c). A district court has wide discretion to grant attorney’s fees. Moore v. Permanent

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Medical Group, 981 F.2d 443, 446 (9th Cir. 1992). Fees may be awarded when removal, “while

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fairly supportable, was wrong as a matter of law.” Balcorta v. Twentieth Century-Fox Film Corp.,

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208 F.3d 1102, 1106 n.6 (9th Cir. 1999).

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Here, the court declines to exercise its discretion in awarding attorney’s fees because

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defendants’ removal, though ultimately improper, was not completely meritless as it was based on

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figures from a similar, though distinct, action currently being litigated in federal court.

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IT IS THEREFORE ORDERED that plaintiffs’ motion to remand (Doc. #7) is GRANTED.
The clerk of court shall REMAND this action to the Eighth Judicial District Court.

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IT IS SO ORDERED.

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DATED this 27th day of January, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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