ROUNDTREE et al v. PRIMEFLIGHT AVIATION SERVICES, INC.
REPORT AND RECOMMENDATIONS re 7 MOTION to Remand filed by TANAIJAH ROUNDTREE, D'ANDRE KING, NICOLAS MOLINA Objections, if any, to R&R due by 8/11/2017. Signed by Magistrate Judge Mark Falk on 7/28/17. (LM, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TANAIJAH A. ROUNDTREE, NICOLAS
MOLINA, and D’ANDRE KING,
Civil Action No. 16-9609 (CCC)
PRIMEFLIGHT AVIATION SERVICES,
REPORT & RECOMMENDATION
Plaintiffs bring this case as a putative class action under the New Jersey Wage
and Hour Law (“NJWHL”), contending that Defendant wrongfully deducted pay for
lunch breaks each day, and further failed to fully record their compensable work,
including unpaid overtime. Defendant removed the case to federal court, alleging
jurisdiction pursuant to The Class Action Fairness Act of 2005 (“CAFA”). Before the
Court is Plaintiffs’ motion to remand this case to state court. [ECF No. 7.] Plaintiff
contends that the case does not meet CAFA’s jurisdictional threshold of $5,000,000.
For the reasons set forth below, it is respectfully recommended that Plaintiff’s motion
RELEVANT BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs are three residents of the State of New Jersey. (Compl., ¶¶ 3-5.)
Defendant is an Ohio corporation with its principal place of business in Tennessee.
(Compl., ¶ 6.) Defendant is in the business of providing aviation and airport business
services. (Id.) Plaintiffs, and the putative class, worked for Defendant as cabin
cleaners, lift truck drivers, drivers’ helpers, and “in similar trades” at Newark Airport.
(Compl., ¶¶ 1, 3-5.)1
Plaintiffs allege that, “at all times between October of 2014 and the present,”
Defendants engaged in a pattern and practice of automatically deducting one-half hour
each day from each Plaintiff and member of the putative class’ pay. (Compl., ¶ 15.)
This deduction was allegedly related to meal breaks, although Plaintiffs claim that
they routinely did not receive a lunch break and performed work during that time for
which they were not compensated. (Compl., ¶¶ 15-17.) Plaintiffs further contend that
Defendants engaged in a pattern and practice of automatically “clocking out”
Plaintiffs and all other class members at a point “at or near their scheduled shift
ending time,” even though they routinely worked past the time of these automatic
“clock-outs” and were not compensated. (Compl., ¶ 18.) As a result, Plaintiffs claim
that they were not paid the statutorily required minimum wage, and that they were
Plaintiff Roundtree was employed as a cabin cleaner and cabin cleaning lead from
February 2016 until she resigned in October 2016. (Compl., ¶ 3.) Plaintiff Molina
remains employed by PrimeFlights as a cabin cleaner. (Compl., ¶ 4.) Plaintiff King
was employed as a lift truck driver from April 2015 until September 2016. (Compl., ¶
denied overtime compensation for “breaks” automatically deducted from their
paychecks, as well as for the time past their scheduled shift endings after they had
been automatically “clocked out.” (Compl., ¶¶ 23-24.)
On November 4, 2016, Plaintiffs filed this putative class action in the Superior
Court of New Jersey, Essex County. The Complaint alleges that it is brought, “on
behalf of the Plaintiffs and a putative class consisting of each and every other person
who performed work in trades, including but not limited to cabin cleaners, cabin
cleaning leads, lift truck drivers, drivers’ helpers, and other related trades for
Defendants at Newark Airport.” (Compl., ¶ 8.) The Complaint contains two counts
labeled (1) New Jersey Minimum Wage Compensation, N.J.S.A. §§ 34:11-56a4, et
seq.; and (2) New Jersey Overtime Compensation, N.J.S.A. §§ 34:11-56a4, et seq.
Plaintiffs allege that the class “is believed to be in excess of 100 similarly situated
employees,” (Compl., ¶ 9), and that all class members are entitled to “(a) Damages;
(b) attorney’s fees; and (c) costs of suit.” (Compl., ad damnum clause).
On December 30, 2016, Defendant removed the action pursuant to 28 U.S.C.
§§ 1332(d)(2), (d)(5)(B) and 1446. This removal invoked CAFA jurisdiction, which
vests original jurisdiction in federal district courts over “class actions” in which the
proposed class has at least 100 members, “the parties are minimally diverse,” and “the
matter in controversy exceeds the sum or value of $5 million.” Standard Fire Ins. Co.
v. Knowles, 568 U.S. 558, 559 (2013).
On January 20, 2017, Defendant filed a motion to compel arbitration and
dismiss the Complaint. The motion remains pending.
PLAINTIFFS’ MOTION TO REMAND
On January 30, 2017, Plaintiff filed the present motion to remand. Plaintiff
concedes that the first two CAFA requirements are satisfied—i.e., there are at least
100 proposed class members and the parties are minimally diverse. However,
Plaintiff’s complaint is silent on the amount of damages sought. And Plaintiff initially
argued that, in removing the case, Defendant failed to show, “to a legal certainty,” that
the requisite amount in controversy—$5 million—is in dispute. (Pl.’s Br. 3 (citing
Morgan v. Gay, 471 F.3d 469 (3d Cir. 2006)).
Defendant opposed the motion to remand, cogently tracing a series of recent
cases to explain that, while it indeed does bear the burden on a motion to remand, that
burden is to show only “by a preponderance of the evidence” that the required amount
in controversy is in dispute. (Def.’s Br. 5-7 (citing Standard Fire Ins., 568 U.S. 558;
Judon v. Travelers Prop. Cas. Co. of Am., 773 F.3d 495 (3d Cir. 2014); and Dart
Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547 (2014)).)2
After full briefing, the parties now agree that (1) the burden is on Defendant;
and (2) that the burden is a “preponderance of the evidence.” (See, e.g., Pl.’s Reply
District Judge Kugler reconciled all of these cases in Grace v. T.G.I. Fridays, Inc.,
2015 WL 4523639 (D.N.J. July 27, 2015). There is no need to repeat Judge Kugler’s
analysis here, especially when the parties ultimately agree on the standard that applies.
Br. 1.) However, they continue to disagree whether Defendant has shown $5 million
is in dispute.
The federal removal statute provides that “[e]xcept as otherwise provided by
Congress, any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed . . . to the district court of
the United States for the district and division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). “[T]he party asserting federal jurisdiction in a
removal case bears the burden of showing, at all stages of the litigation, that the case
is properly before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193
(3d Cir. 2007).
Following Standard Fire, Judon, and Owens, it is clear that, when a complaint
is silent on the amount of damages sought, “the defendant’s amount-in-controversy
allegation should be accepted when not contested by the plaintiff or questioned by the
court.” Owens, 135 S. Ct. at 553. If contested, the “the parties must submit proofs for
the court to decide—by a preponderance of the evidence—whether the jurisdictional
requirements are met.” Hoffman v. Teleflora, 2016 WL 423648, at *3 (D.N.J. Jan. 19,
2016); see also Grace, 2015 WL 4523639, at *5.
A preponderance of the evidence means “proof to a reasonable probability that
jurisdiction exists.” Allen v. Bloomingdale’s Inc., 2016 WL 4579975, at *2 (D.N.J.
July 19, 2016) (citing Federico, 507 F.3d at 196 n.6). The Court may look to the
notice of removal and the submissions on the motion to remand to determine whether
the amount in controversy has been established. See 28 U.S.C. § 1446(c)(2)(A); see
also Pollock v. Trustmark, Inc., 367 F. Supp. 2d 293, 297 (E.D.N.Y. 2005) (“Where
there is no dollar amount alleged in the complaint and the action is in federal court by
a notice of removal, a reasonable probability that the jurisdictional amount is met can
be established by competent evidence from other sources. The [c]ourt first looks to
the complaint, then to the moving papers, then to anything else.”) (cites and quotes
omitted)). The amount in controversy is measured “not . . . by the low end of an openended claim, but rather by a reasonable reading of the value of the rights being
litigated.’” Werwinski v. Ford Motor Co., 286 F.3d 661, 666 (3d Cir. 2002) (quoting
Angus v. Shiley, Inc., 989 F.2d 142, 146 (3d Cir. 1993)); see also Hatchigan v. State
Farm Ins. Co., No. 13-2880, 2013 WL 3479436, at *2 (E.D. Pa. July 13, 2013).
APPLICATION OF THE PREPONDERANCE STANDARD
Under CAFA, the claims of all plaintiffs and putative class members are
aggregated to determine if the amount in controversy exceeds the jurisdictional
threshold. See 28 U.S.C. § 1332(d)(6). To attempt to compute the amount in
controversy, Defendant has addressed the following variables: (1) the size of the
putative class; (2) the amount of overtime worked by the purported class members; (2)
the applicable pay rate; (4) the liability period; and (5) attorney’s fees. In order to
address the factors, Defendant relies in part on the Declaration of Christina Michelle
Hall, Payroll Director for PrimeFlight Aviation Services. Applying the Hall
Declaration to the allegations in the Complaint, Defendant calculates the amount in
controversy to be at least $6,594,295. This calculation is made by using the following
information: (1) Class Members: 481 class members for the period of October 1, 2014
to October 1, 2015; 444 class members for the period from October 1, 2015 to
October 1, 2016; and 538 class members for the period from October 1, 2016 to
October 1, 2018; (2) Time Worked: 2.5 hours per class member per week, defined as a
30 minute lunch break for each class member for a 5 day work week; (3) Pay Rate:
$13.00 an hour, which is the mid-point between the lowest and highest pay rates of the
putative class members; and (4) Liability Period: 4 years, including two years prior to
the filing of the Complaint and two years after.
Plaintiffs counter with an amount in controversy calculation that they claim is
“more accurate and true to the Plaintiffs’ allegation in the Complaint.” Plaintiffs
concede that the number of Class Members Defendants have used in their calculation
is accurate. However, they claim that Defendant has overestimated the applicable pay
rate and used too long of a liability period, which they contend should be two and onehalf years, not the four Defendant proposes. Using the pay rate for the named class
members and the dates that they worked for Defendant, Plaintiffs project that no more
than $1.6 million is in dispute. Contending that attorney’s fees would not raise the
amount in dispute to $5 million, they argue remand is necessary.
After carefully reviewing the parties’ differing calculations, the Court is
satisfied that Defendant’s composition of the amount in controversy is reasonable and
not a “pie-in-the-sky” contrived number invented to meet the jurisdictional threshold.
As is shown below, Defendant has met its burden to show that more than $5 million is
Plaintiffs’ class is defined extremely broadly as “Plaintiffs and a putative class
consisting of each and every other person who performed work in trades, including
but not limited to cabin cleaners, cabin cleaning leads, lift truck drivers, drivers’
helpers, and other related trades for Defendants at Newark Airport.” (Compl., ¶ 8.)
And Plaintiffs plead that, on information and belief, the number of class members
exceeds 100. (Compl., ¶ 9.) Defendant submits the Hall Declaration, which states
that based on the class definition—including cabin cleaners, cabin cleaning leads, lift
truck drivers, driver helpers, dispatchers, and other non-exempt trade personnel—that
it employed 481 potential class members as of October 1, 2014; 444 potential class
members as of October 1, 2015; and 538 class members as of October 1, 2016. (Hall
Decl., ¶ 3.) Defendant has used the number of potential class members in its amount
in controversy calculation, and Plaintiffs have not challenged them. (Pl.’s Reply Br.
5-6.) Accordingly, the Court accepts the number of class members as stated in the
Amount of Overtime Worked
Defendant’s Notice of Removal supposes that plaintiff and the members of the
class worked 2.5 hours per-week of unpaid overtime. This assumption is based on the
allegations in the Complaint that include: that plaintiffs and the members of the class
“regularly worked over forty hours per week and were not properly paid time and one
half their regular hourly rate for each such hour”; (Compl., ¶ 24 (emphasis added));
that Defendant engaged in a pattern and practice of automatically deducting 30 minute
lunch breaks from employee pay each day and that they “regularly and routinely
failed to receive a lunch break, and performed work during break time for which they
were not compensated” (Compl., ¶ 17 (emphasis added)); and that Defendant engaged
in a pattern and practice of automatically “clocking-out” employees, and that Plaintiffs
and the members of the putative class “regularly and routinely performed work past
the time of these automatic ‘clock-outs,’ for which they were not compensated.”
(Compl., ¶¶ 18-19 (emphasis added).)
Taking these broad allegations of regular and routine unpaid work and unpaid
overtime, Defendants estimate 2.5 hours of unpaid overtime per class member each
week. The 2.5 hour number is reached by taking the alleged unpaid 30 minute lunch
break each day for each class member and assuming a five day work week. Plaintiffs
take issue with the amount of overtime hours used in Defendants’ amount in
controversy calculation, contending it is speculative. But what else is a Defendant to
do? The Court is well-aware that the Third Circuit has disapproved of the use of
“inconclusive assumptions” in calculating the amount in controversy. See, e.g.,
Morgan, 471 F.3d at 475. However, I have previously discussed how, in this type of
overtime case, what Defendant has done here is entirely reasonable if not all that it can
This number [of overtime hours] is necessarily speculative.
[A]n allowance must be made for this aspect of an overtime
claim. This is because the number of overtime hours worked
is presumably not known by defendant.
. . . [I]n this type of overtime case, the number of overtime
hours allegedly worked can only be estimated. Court have
held that “when determining whether a plaintiff has
established a prima facie case under the NJWHL . . . a
plaintiff need not prove damages with precision when it is
impracticable or impossible to do so. Genarie v. PRD Mgmt.,
Inc., No. 04-2082, 2006 WL 436733, at *18 (D.N.J. Feb. 17,
2006). Damages only need to be proved with such certainty
as the nature of the case may permit, laying a foundation
which will enable the trier of facts to make a fair and
reasonable estimate of damages. Because certain cases may
involve claims incapable of precise definition, ‘when the total
amount of actual damages cannot be verified, speculative
evidence may be used to estimate [the amount in
controversy].” Horn [& Hardart Sys., LLC v. Hunter], 2005
WL 1522266, at *2 [D.N.J. June 27, 2005].
Plaintiff’s amended complaint places no limit on the amount
of overtime pay sought, and alleged that the class members
“regularly” worked overtime hours. The Court concludes that
three (3) hours per week is a reasonable reading of the rights
being litigated. See Angus, 989 F.2d at 146.
Faltaous v. Johnson & Johnson, 2007 WL 3256833 (D.N.J. Nov. 5, 2007).
This case is the same as Faltaous. Plaintiffs allege that unpaid hours and
overtime hours were “regularly and routinely worked.” They do not place a limit on
the number of overtime hours worked or overtime pay sought. A defendant facing
this type of claim has no choice but to attempt to fairly project the number of hours of
allegedly uncompensated time or uncompensated overtime. Placing a more
demanding burden on a removing defendant would essentially preclude it from
establishing the amount in controversy, but at the same time leave them exposed to
unlimited damages. This can’t be. Stripped of legalese, the concept of assessing the
amount in controversy is to look at the claims made in the Complaint and the proofs
that the parties can reasonably provide and determine what the value of the rights
being litigated. See Angus, 989 F.2d at 146. Defendant has done precisely that.
It may be that some class members do not have 2.5 hours of uncompensated
overtime per week; however, it is equally likely that some have more, perhaps even
substantially more. Faced with an open-ended claim referring to “regular and routine”
overtime without compensation, the Court is satisfied that Defendant has established,
by a preponderance, that 2.5 hours of unpaid overtime is reasonable for each class
member per-week. This is especially so when the 2.5 hours is tethered to the
allegations in the Complaint of 5 day-a-week, 30-minute uncompensated lunch breaks.
Indeed, if anything, it is likely conservative and the true amount much higher.
The Rate of Pay
Plaintiff Roundtree’s hourly wage as a cabin cleaner and cabin cleaner lead was
$11. Plaintiff King’s hourly wage as a lift truck driver was $16. Plaintiff Molina’s
current wage as a cabin cleaner is $10.10 per hour. (Notice of Removal, ¶ 16 (citing
Hall Decl., ¶ 7.) The wage rates for other non-exempt trade positions at Newark
Airport generally range between $10.10 and $16.00 per hour. In light of the breadth
of the class and the different positions encompassed within it, Defendant has utilized a
wage amount of $13.00 per-hour. The $13 per-hour rate is the midpoint of the named
plaintiff’s hourly wages, as well as the mid-point between the highest and lowest pay
rates of occupations in the putative class.
Plaintiffs concede that the $13.00 per hour number is “not unreasonable,” but
nevertheless propose a different methodology that purports to calculate each
individual Plaintiff’s claim and then multiply the individual Plaintiffs’ damages by the
total amount of class members. However, the Court concludes that $13.00 is a
reasonable number to apply to the class members on an across-the-board basis.
Plaintiffs’ proposed class definition includes many positions at different pay rates.
The class is not limited by duration of employment, seniority, or by pay in any way.
There may be times when the average pay rate would be slightly less than $13.00 for
the entire class, but there will also be times when it is likely more. In other words,
neither Plaintiffs nor Defendants proposal is likely to be exact. But, under a
preponderance of the evidence standard, the Court cannot say that Defendant’s
proposal of a mid-point salary is unreasonable, if not most likely to lead to a close
approximation of the class’ alleged damages.
Plaintiff’s complaint alleges Defendant’s NWHL pay deficiencies have been
ongoing “at all times between October of 2014 and the present.” (Compl., ¶ 15.)
Defendant’s notice of removal and briefing utilizes a four-year liability period in
calculating the amount in controversy. This four-year period is comprised of two
years prior to suit measured by the statute of limitations on the NJWHL claim, and
two years after the date the Complaint was filed, citing case law that supports the
inclusion of two additional years for liability period purposes in NJWHL cases, see
e.g., Faltaous, 2007 WL 3256833, at *9 (Report and Recommendation, Falk, M.J.,
adopted in full by Linares, C.J.); and Alegre v. Atl. Ctrl. Logistics, 2015 WL 4607196,
at *3-4 (D.N.J. July 25, 2015) (Chesler J., citing Faltaous, supra).
Plaintiffs counter that only 2½ years should be used, measured by the two year
statute of limitations and then an arbitrary additional six months after the Complaint
was filed. Plaintiffs propose this restrictive period because they assume that, after the
Complaint was filed, “Defendant was undeniably on notice of Plaintiffs’ claims,” and
that “[i]t would be fair to assume that Plaintiff’s Complaint would trigger some
changes or improvements to Defendant’s meal break policies . . . thereby eliminating
damages at some point.” (Pl.’s Reply Br. 5.) Despite this, Plaintiffs do not refute the
case law cited above.
Defendant’s use of a four-year liability period is reasonable. While the amount
in controversy is determined through the consideration of the good faith allegations in
the Complaint at the time it was filed, see State Farm Mut. Auto. Ins. Co. v. Powell, 87
F.3d 93, 97 (3d Cir. 1996), damages accruing in the future are properly counted
against the jurisdictional amount if “the right to future payments . . . will be adjudged
in the present suit.” Faltaous, 2007 WL 3256833, at *9 (citing Broglie v. MacKaySmith, 541 F.2d 453, 455 (4th Cir. 1976)); see also Dardovitch v. Haltzman, 190 F.3d
125, 135 (3d Cir. 1997). Based on this concept, courts in this District have frequently
held that an additional two-year period from the filing of the Complaint is appropriate
in calculating the amount in controversy. See, e.g., Faltaous, 2007 WL 3256833, at
*9; Alegre v. Atl. Ctrl. Logistics, 2015 WL 4607196, at *3-4 (D.N.J. July 25, 2015)
(Chesler J., citing Faltaous, supra); Mazzucco v. Kraft Foods Global, Inc., 2011 WL
6935320, at *3 (D.N.J. Nov. 23, 2011).
Plaintiff’s suggestion of a 2½ year period is contrary to the allegations of the
Complaint which seek damages “to the present,” and is based entirely on the
speculation that Defendant has changed its pay practices in response to the filing of
the Complaint, and if it did, did so in six months. That is an assumption stacked on an
assumption. The Court will utilize a four-year liability period in assessing the amount
Both parties agree that potential attorney’s fees should be included in the
amount in controversy analysis. See, e.g., Suber v. Chrysler Corp., 104 F.3d 578, 585
(3d Cir. 1997). And both parties agree that in the context of a claim under the
NJWHL, courts may include a thirty percent attorney’s fee award. See, e.g.,
Mazzucco v. Kraft Foods Global, Inc., 2011 WL 6935320, at *3 (D.N.J. Nov. 23,
2011); Alegre, 2015 WL 4607196, at *5-6. Therefore, the Court will include a 30%
fee award to the calculation of the amount in controversy performed below.
Defendant has Met its Burden
As described above, the parties effectively agree on the Class Members to be
included in the jurisdictional calculation. The Court also finds that Defendant has
shown, by a preponderance of the evidence, that (1) using a 2.5 per-week, per-class
member overtime multiplier is reasonable; (2) that $13.00 per hour is an appropriate
rate of pay, and therefore, that $19.50 is an appropriate overtime rate; and (3) that a
liability period of four years is reasonable. Accordingly, the amount in controversy is:
October 2014-October 2015: 481 class members x 2.5 hours of
overtime per class member at $13.00 per hour ($19.50 for overtime
hour) x 52 weeks = $48.75 per class member x 481 class members x 52
weeks equals $1,219,335.
October 2015-October 2016: 444 class members x 2.5 hours of
overtime per class member at $13.00 per hour ($19.50 for overtime
hour) x 52 weeks = $48.75 per class member x 444 class members x 52
weeks equals $1,125,540.
October 2016-October 2018: 538 class members x 2.5 hours of
overtime per class member at $13.00 per hour ($19.50 for overtime
hour) x 52 weeks = $48.75 per class member x 538 class members x 104
weeks equals $2,727,660.
Based on the above, the total amount of potential damages that Defendant has
established is $5,072,535.3 Adding 30% for attorney’s fees, which the parties agree
on, puts an additional $1,521,760 in dispute. Therefore, Defendant has established
that the total amount in controversy is $6,594,295.
Defendant has easily shown that the requisite amount in controversy—$5
million—is in dispute in this case. For that reason, it is respectfully recommended
that Plaintiff’s motion to remand [ECF No. 7] be DENIED.
United States Magistrate Judge
Dated: July 28, 2017
3 $1,219,335 + $1,125,540
+ $2,727,660 = $5,072,535.
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