Diponzio v. Bank of America Corporation et al
Filing
12
DECISION AND ORDER granting plaintiff's motion to remand the case to state court and denying defendants' request for costs and attorneys' fees in connection with this motion. Plaintiff makes no motion for attorneys' fees in connection with this motion and none are granted. Signed by Hon. Michael A. Telesca on 7/11/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
ANN MARIE DIPONZIO, on behalf of herself
and all other employees similarly situated,
Plaintiff,
11-CV-06192
DECISION
and ORDER
v.
BANK OF AMERICA CORPORATION and BANK OF
AMERICA, NATIONAL ASSOCIATION
Defendants.
___________________________________________
Introduction
Ann Marie DiPonzio (“Plaintiff”) filed this class action suit
with the Supreme Court of the State of New York, County of Monroe,
alleging violations of the New York Labor Law by Bank of America
Corporation (“BOAC”) and Bank of America, National Association
(“BANA”)
(collectively,
“Defendants”).
Thereafter,
Defendants
removed this action from state court to this Court, pursuant to the
Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332. Plaintiff now
moves to remand this action back to state court pursuant to
28 U.S.C. § 1447, on the grounds that Defendants have failed to
satisfy their burden to show that the amount in controversy is
sufficient for this Court’s jurisdictional requirements. For the
reasons set forth below, Plaintiff’s motion to remand is granted
and this action is remanded to state court.
Background
On March 10, 2011, Plaintiff filed a class action suit with
the Supreme Court of the State of New York, County of Monroe,
pursuant to Article 9 of the New York Civil Practice Law and Rules
(“CPLR”). Plaintiff’s suit claims that Defendants violated the
NYLL, by failing to pay proper wages to loan originator employees
in the Buffalo, Rochester, Syracuse, Albany, and Saratoga Springs
metropolitan areas of New York State.
On March 14, 2011, Defendants removed the complaint to this
Court, pursuant to CAFA and 28 U.S.C. § 1332(d). On April 20, 2011,
Plaintiff moved to remand the case to state court on the grounds
that federal jurisdiction does not exist in this case because
Defendants
had
failed
to
meet
their
burden
of
proving
to
a
reasonable probability that the amount in controversy exceeds five
million dollars, as required by Sec. 4 of CAFA, codified at 28
U.S.C. § 1332(d)(2).
Discussion
I. Standard of Review
Federal district courts are, fundamentally, courts of limited
jurisdiction. See Keene Corp. v. United States, 508 U.S. 200, 207,
(1993). Congress has the power to define the boundaries of their
authority, and district courts cannot disregard those boundaries.
Id. The right of removal to federal court is a statutory right and
only exists in strict conformity with its statutory requirements.
Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1045 (2d Cir.
1991).
Defendants have the right under 28 U.S.C. § 1441 to remove
cases over which a federal district court would have had original
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jurisdiction. Jefferson County v. Acker, 527 U.S. 423, 430 (1999).
28
U.S.C.
§
1332(d)(2)(A)
grants
federal
district
courts
jurisdiction over class actions in which the amount in controversy
exceeds five million dollars and there is diversity of citizenship
between any plaintiff in the class and all defendants.
The party claiming federal jurisdiction bears the burden of
establishing that subject matter jurisdiction exists. Blockbuster,
Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006); Res Exhibit
Services, LLC v. Tecan Group, Ltd., 2010 U.S. Dist. LEXIS 60948
(W.D.N.Y. 2010). A party asserting federal jurisdiction under 28
§ 1332(d)(2) must prove to a “reasonable probability” that the
amount in controversy exceeds five million dollars. Blockbuster,
472 F.3d at 59.
Judicial scrutiny is particularly important in the context of
removal, because removal implicates both state court independence
and the federal docket. Stan Winston Creatures, Inc. v. Toys "R"
Us, Inc., 314 F.Supp.2d 177, 179 (S.D.N.Y.2003). “Out of respect
for the limited jurisdiction of the federal courts and the rights
of states, we must resolve any doubts against removability." In Re
Methyl Tertiary Butyl Ether Products Liability Litigation, 488 F.3d
112, 124 (2d Cir. 2007) (Internal quotations removed).
Because this Court finds that Defendants have failed to
satisfy their burden to show to a reasonable probability that the
amount in controversy exceeds five million dollars, the Court
grants Plaintiff’s motion and remands the case back to state court.
-3-
II.
Defendants have Failed to Establish Federal Jurisdiction
A.
Requirements for Federal District Jurisdiction
In order for a federal district court to have jurisdiction
over the proposed class action lawsuit under CAFA, the amount in
controversy
must
exceed
five
million
dollars;
there
must
be
complete diversity of citizenship between all the defendants and at
least one member of the class of plaintiffs; and there must be at
least 100 potential members of the plaintiff class. 28 U.S.C.
§ 1332(d)(2)(A), (d)(5)(B). Defendants bear the burden of showing,
to a “reasonable probability,” that their removal of the case to
the Court’s diversity jurisdiction was justified. Blockbuster Inv.
v. Galeno, 472 F.3d 53, 59 (2d Cir. 2006).
Plaintiff and Defendants both assert that BANA is a federally
chartered
bank,
that
BOAC
is
incorporated
under
the
laws
of
Delaware, and that both have their principal place of business in
Charlotte, North Carolina. Defendants are therefore not citizens of
New York for the purpose of determining diversity jurisdiction.
Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010). The complaint
alleges
that
Plaintiff
is
a
New
York
State
resident,
and,
additionally, Defendants’ removal notice states that plaintiff is
a New York State citizen.
Plaintiff’s
complaint
provides
only
vague
and
conclusory
suggestions as to the potential number of class members. The
complaint admits that the size of the class is unknown, but
predicts between 50 and 100 members. Defendants contest this
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estimate and submit the declaration of Burges E. Burrows, Senior
Vice President for BANA, in which he avows that 118 BANA employees
meet the requirements for members of the class within the statutory
period, as required by 28 U.S.C. § 1332(d)(5)(B).
I
find
that
Defendants
have
satisfied
their
burden
of
establishing to a reasonable probability that diversity is present
and that there are more than 100 potential class members. Therefore
diversity of citizenship appears to exist between Plaintiff and
Defendants for a class action suit under 28 U.S.C. § 1332(d)(2)(A).
Plaintiff
does
not
dispute
Defendants’
claims
that
these
requirements have been met and argues only that Defendant has
failed to show to a reasonable probability that the amount in
controversy exceeds the statutory amount.
B.
Defendants Must Establish the Amount in Controversy to a
Reasonable Probability
Although I find that Defendants have satisfied their burden
with
respect
to
the
numerosity
and
diversity
requirements,
Defendants must demonstrate that, to a reasonable probability, the
amount in controversy exceeds five million dollars. 28 U.S.C.
§ 1332(d)(2); Blockbuster, 472 F.3d at 59. Where, as here, the
pleadings are silent as to the amount in controversy, “federal
courts may look outside those pleadings to other evidence in the
record.” United Food & Commercial Workers Union, Local 919 v.
Centermark Properties Meriden Square, Inc., 30 F.3d 298, 305
(2d Cir. 1994).
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Defendants contend that the amount in controversy is composed
of three types of costs and damages: attorneys’ fees, liquidated
damages,
and
actual
damages
from
lost
wages.
The
Court
will
consider each of these categories seriatim.
1)
Attorneys’ Fees
Defendants argue that they are entitled to assume attorneys’
fees of 33 percent of the total damages in their calculation of the
amount in controversy. “Attorney's fees can be considered as part
of the amount in controversy where they are anticipated or awarded
in the governing statute.” Pollock v. Trustmark Ins. Co., 367 F.
Supp. 2d 293, 298 (E.D.N.Y 2005). Because this action is brought
pursuant to the NYLL, which expressly allows for an award of
attorney’s fees, see N.Y. Labor Law § 198 (McKinney 2011), I find
that attorneys’ fees may be included in the calculation of the
amount in controversy.
Defendants argue that the court should use a benchmark rate of
33% of potential damages to calculate potential attorneys’ fees.
Attorneys’ fees of 33% of damages are “consistent with the norms of
class litigation” in the Second Circuit. McMahon v. Oliver Chenc
Catering and Events, LLC, 2010 U.S. Dist. LEXIS 18913, *20-21
(S.D.N.Y. 2010). See also Duchene v. Michael Cetta, Inc., 2009 U.S.
Dist. LEXIS 85955, *8-9 (S.D.N.Y. 2009) (awarding attorneys’ fees
of 32.2% of a $3,150,000 settlement fund in a Fair Labor Standards
Act (“FLSA”) and NYLL claim); Stefaniak v. HSBC Bank USA, 2008 U.S.
Dist. LEXIS 53872, *9 (W.D.N.Y. June 28, 2008) (awarding attorneys’
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fees of 33% of $2.9 million fund in a FLSA and NYLL claim); Arbor
Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 493
F.3d 110, 111-12 (2d Cir. 2007) (holding that a private retainer
agreement granting attorneys one third of total damages was valid
because it reflected what reasonable paying clients would agree
to). Plaintiff offers no contrary precedent and does not challenge
Defendants’ method of determining attorneys’ fees.
Accordingly, for the limited purpose of determining the amount
in controversy, attorneys’ fees will be estimated to be 33% of the
total damages otherwise contemplated.
2)
Liquidated Damages
Plaintiff’s
original
complaint
included
a
request
for
liquidated damages, which, under NYLL, can consist of damages of up
to 100% of the unpaid wages.1 N.Y. Labor Law § 198 (McKinney 2011).
However, under Article 9 of New York’s CPLR, class action suits may
not present a claim for liquidated damages. CPLR § 901 (McKinney
2011). Because liquidated damages may not be sought in a class
action suit under New York law, Plaintiff must amend her pleadings
to remove her request for liquidated damages. Andrade v. J.P.
Morgan Chase Bank, N.A., 2009 U.S. Dist. LEXIS 80836, *8 (E.D.N.Y
2009). Since this class action law suit was filed in state court
1
Prior to amendment of the NYLL in 2010, liquidated damages
were capped at 25% of unpaid wages. Defendants express
uncertainty as to what percentage would apply to unpaid overtime
from the time before the NYLL’s amendment.
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under New York law, I find that liquidated damages may not be
included in the calculation of the amount in controversy.
Defendants argue that Plaintiff cannot avoid federal diversity
jurisdiction with a post-removal amendment of her pleadings. Carter
v. Geldis, 2002 U.S. Dist LEXIS 9791 (E.D.N.Y. 2002); See also
Collins v. Flynn, 2008 U.S. Dist. LEXIS 109877, *19 (W.D.N.Y. 2008)
(holding that an offer to settle for $70,000 did not reduce the
amount in controversy to less than $75,000); Quinones v. Nat’s
Amusements, Inc., 2007 U.S. Dist. LEXIS 38490, *7-8 (S.D.N.Y. 2007)
(holding that a post-removal stipulation that damages were less
than $75,000 was irrelevant); Armstrong v. ADT Sec. Servs., Inc.,
2007 U.S. Dist. LEXIS 5452 (S.D.N.Y. 2007) (refusing to rely on
amendment of claimed damages from $1 million
to $70,000 when the
defendant had shown that the amount in controversy was likely to
exceed $75,000). Defendants’ argument, however, misses the point.
The Plaintiff here is not amending her pleadings simply to avoid
diversity jurisdiction; she is required to do so in order to
establish a valid class action suit under the New York CPLR.
Andrade, 2009 U.S. Dist. LEXIS 80836, at *8. Amending the complaint
does not change the amount in controversy, because liquidated
damages, whether requested or not, cannot be included in a class
action suit under CPLR § 901.
Defendants claim that under the Supreme Court’s recent ruling
in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130
S. Ct. 1431(2010), CPLR § 901 is preempted by Rule 23 of the
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Federal Rules of Civil Procedure. In Shady Grove, the Supreme Court
held that a class action suit filed in the Eastern District of
New York, claiming statutory damages under New York law, was valid
under Rule 23, notwithstanding the prohibition on such class
actions by CPLR § 901. Id. at 1443. The Supreme Court ruled that
Rule 23 did not grant a new substantive remedy, but instead merely
allowed plaintiffs to seek relief through a different process while
in federal court. Id. Whereas CPLR § 901 allowed statutory damages
to be claimed only in cases brought on behalf of individuals,
Rule 23 allows multiple plaintiffs to claim statutory damages
together in one class action suit. Id. In Shady Grove, the total
statutory
damages
for
all
class
members
in
the
federal
suit
exceeded five million dollars, thus the amount in controversy met
the requirement for federal diversity jurisdiction. Id.
However, Defendants’ assertion that Shady Grove applies not
only to claims filed in federal court but also to those removed
from state court is unsupported. Shady Grove clearly stated that
Congress has the “undoubted power to prescribe rules for the
[federal] courts it has created” which New York cannot supercede.
Id. at 1442. The Supreme Court nonetheless took for granted that
the state of New York had the power to make procedural rules for
its own courts. Id. at 1443. “The consequence of excluding certain
[class] actions [from state court] may be to cap the damage a
defendant can face in a single suit.” Id. Because of the different
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procedural statutes, “the same case may follow a different course
if filed in federal instead of state court.” Id. at 1448.
Because this case was filed in state court, it takes a
different course than Shady Grove. For this case to be removed, the
total amount in controversy must exceed five million dollars. 28
U.S.C. § 1332(d). The amount in controversy is determined with
respect to the time of removal. Collins v. Flynn, 2008 U.S. Dist.
LEXIS 109877, *17 (W.D.N.Y. 2008). The calculation of the amount in
controversy at the time of removal depends, in turn, on state law.
See Jeter v. Jim Walker Homes, Inc., 414 F. Supp. 791, 792 (W.D.
Ok. 1976) (finding that the amount in controversy was insufficient
because the claim for future wages was invalid under state law).
Because New York law prohibits recovery of liquidated damages in
class action suits, no liquidated damages were in consideration at
the time of removal. Andrade, 2009 U.S. Dist. LEXIS 80836, at *8.
In setting monetary requirements for diversity jurisdiction,
Congress has demonstrated a clear intent to preserve the resources
of the federal judiciary for only claims that exceed a certain
amount. Snyder v. Harris, 394 U.S. 332, 340 (1969). It would be
inconsistent with Congress’s intent to allow removal to federal
courts of state suits which do not meet the statutory amount
satisfying the jurisdictional requirement. See Smith v. Am. Gen.
Life & Accident Ins. Co., 337 F.3d 888 (7th Cir. 2003) (holding
that diversity jurisdiction was inappropriate when, to a legal
certainty, the requisite level of damages could not be claimed).
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Because Plaintiff legally could not claim liquidated damages in the
state court in which the case was proceeding, liquidated damages
may not be included to calculate whether the amount in controversy
satisfied the requirements for removal to federal courts’ diversity
jurisdiction.
3)
Lost Wages
For purposes of determining the “lost wage” component of the
amount in controversy, Defendants have estimated the number of
class members that will seek damages, and multiplied that number by
the estimated average amount of overtime worked and the average
rate of pay that would be owed for overtime hours. Defendants
introduce sworn declarations to establish that 118 potential class
members exist, that they were employed within the statutory period
for an average of 1.46 years each, and that the average overtime
wages of the class members would have been $39.64 per hour.
Plaintiff does not challenge these figures. The Court accepts
Defendants’
estimates
of
the
average
overtime
wage,
average
duration of employment, and potential number of class members.
The
parties
do,
however,
sharply
dispute
the
amount
of
overtime hours that class members will claim to have worked. In
attempting to establish the number of hours that class members will
claim to have worked, Defendants rely on the sworn statements of
two plaintiffs from a FLSA class action suit proceeding in the
Northern District of Illnois, Kelly, et al. v. Bank of America,
N.A. et al., N.D. Ill. Case No. 1:10-cv-05332 (“Kelly”). Defendants
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contend that the affidavits establish that class members will claim
to have worked enough overtime hours on average to meet the five
million
dollar
requirement
for
diversity
jurisdiction.
The
plaintiffs in Kelly claimed to have worked an average of 25 and
30 hours overtime per week, respectively, throughout their period
of employment. Defendants argue that these statements justify the
inference that potential class members in this action will claim
sufficient
overtime
requirement.
hours
Specifically,
to
meet
the
Defendants
amount
claim
in
it
is
controversy
reasonably
probable that class members will claim on average to have worked at
least eleven and as many as thirty hours overtime per week, for
fifty weeks per year of employment.
Plaintiff argues that Defendants’ estimate of the overtime
hours worked is too speculative to meet their burden of proof.
Plaintiff, citing to Bartnikowski v. NVR, Inc., 307 Fed Appx. 730
(4th Cir. 2009), and Ellis v. Pacific Bell Telephone Co., 2011 .S.
Dist.
LEXIS
16045
(C.D.
Cal.
2011),
argues
that
two
sworn
statements from a different lawsuit are insufficient evidence on
which to ground sweeping inferences about the class members of this
suit as a whole. Plaintiff argues that Defendants have failed to
introduce any evidence that the Kelly Plaintiffs are representative
of the class members in this class action suit. Plaintiff also
notes
that
in
the
Kelly
suit,
the
Defendants
disparaged,
as
“conclusory and speculative declarations,” the statements on which
they now rely. Defendants cite to Blomberg v. Serv. Corp. Int’l,
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2011 U.S. App. LEXIS 7681 (7th Cir. 2011), in support of their
contention that the sworn statements provide sufficient support for
their estimates. Defendants also argue that their estimates should
be treated as valid since Plaintiff does not offer any evidence to
the contrary.
Bartnikowski and Ellis conflict with Blomberg as to whether
individual claims can be used as evidence of the potential damages
to the members as a whole of a different, but similar, class
action. In Bartnikowski, the Fourth Circuit affirmed a district
court’s ruling that the defendant had failed to show that the
amount in controversy was sufficient for removal to federal court.
307 Fed. Appx. at 739. The court held that the defendant’s estimate
that class members would claim to have worked at least five hours
of overtime per week was a “wholly unsupported assumption” when it
was based only on the affidavit of the plaintiff of a different
suit. Id. at 736. The court held that reliance on the affidavit was
unjustified
both
because
there
was
no
evidence
that
it
was
representative of the class members in Bartnikowski, and because it
did not explicitly claim that any class member had worked 15 hours
overtime per week, as suggested by the defendant. Id. at 736.
In Ellis, the Central District of California granted remand of
a class action suit for unpaid wages to state court. 2011 U.S.
Dist. LEXIS 16045, *12. The court ruled that the defendants’
estimate that class members would claim to have worked 3.74 hours
overtime per week was “not based on any evidence of actual hours
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worked by potential class members... but merely [made] to arrive at
$5,000,000.” Id. at *8 (internal quotations removed). The court
held that the defendants could not base their estimate on similar
claims made in a related suit, because 1) the evidence from the
other suit was produced only as hearsay 2) the defendants did not
produce
evidence
that
claims
from
the
other
suit
would
be
representative of claims in Ellis, and 3) because the hours worked
in the other suit were “hotly disputed”. Id. at *11. The court
ruled
that
it
could
not
ground
jurisdiction
on
such
shaky
“speculation and conjecture.” Id. at 10.
In Blomberg, the Seventh Circuit overruled a district court
decision remanding a class action suit to state court for lack of
jurisdiction. 2011 U.S. App. LEXIS 7681. The defendant had cited
depositions of two plaintiffs involved in a related class action
suit
claiming
that
the
two
had
worked
2600
hours
overtime,
combined, over the course of a year. Id. at *4. The district court
had held that defendant could not rely on these depositions to
establish that class members would likely claim to have worked an
average of at least 552 hours each, because the defendant had not
produced any evidence that the depositions were representative of
the claims in Blomberg. Id. at *4-5. The Seventh Circuit ruled that
this view was “too narrow”. Id. at *5. It held that the depositions
showed “the nature of the hours sought and to demonstrate how the
amount in controversy was met based on the scope of the Plaintiff’s
claims.” Id. So long as defendants provide a plausible explanation,
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“the case belongs in federal court unless it is legally impossible
for the plaintiff to recover that much.” Id. at 6.
The
statements
from
the
Kelly
case
lack
some
of
the
evidentiary weaknesses of the evidence relied upon in Bartnikowski
and Ellis. Unlike Bartnikowski, the Kelly statements explicitly
claim that individual plaintiffs worked an average of 25-30 hours
overtime per week. Unlike Ellis, Defendants have produced actual
statements, rather than mere hearsay.
Nonetheless, the Kelly statements are broadly similar to the
evidence used in Bartnikowski, Ellis, and Blomberg. As in those
cases,
Defendants
here
rely
on
individual
statements
from
a
different but similar case as the only factual support for their
estimate of the number of unpaid hours overtime that will be
claimed on average by the members of Plaintiff’s class action suit.
As in those cases, Defendants do not introduce any evidence that
the claims of individual plaintiffs in a separate state will be
representative of Plaintiff’s class as a whole.
The Court acknowledges the “difficulty a defendant faces when
the plaintiffs, who control the allegations of the complaint, do
not want to be in federal court and provide little information
about the value of their claims.” Blomberg, 2011 U.S. App. LEXIS
7681, *2-3; see also Bartnikowski, 307 Fed. Appx. at 734. However,
that difficulty simply means that defendants may not meet their
burden, especially when “doubts about jurisdiction are resolved in
favor of remand to state court.” Bartnikowski, 307 Fed. Appx. at
-15-
739. Like the majority in Bartnikowski, this Court is “reassured...
by the fact a CAFA defendant who cannot meet his burden for removal
at the early stages of litigation may still have recourse to the
federal courts later, as Congress has eliminated the one-year time
limit on CAFA removal actions.” Id. at 739.
This Court finds the holdings of Bartnikowski and Ellis more
persuasive than that of Blomberg. In Blomberg, the Seventh Circuit
suggests that a “plausible, good faith estimate” satisfies a
defendant’s burden. Blomberg, 2011 U.S. App. LEXIS 7681, at *6.
However,
the
Court
could
find
any
number
of
potentially
counterfactual inferences to be merely “plausible” without finding
Defendants have produced actual evidence supporting that inference
to a reasonable probability. Bartnikowski, 207 Fed. Appx at 737.
The Seventh Circuit found the Blomberg defendant’s estimate to be
made in “good faith”, 2011 U.S. App. LEXIS 7681, at *6. Given the
Defendants’ repeated failures to assume enough unpaid overtime
hours to satisfy the requirements for diversity jurisdiction, it is
easier to construe their estimate as “merely [made] to arrive at
$5,000,000.” Ellis, 2011 U.S. Dist. LEXIS 16045 at *8.2
2
Defendant’s original estimate of ten overtime hours per
week yielded only $4,542,549.83 in damages ($39.65 x 10 x 50 x
1.46 x 118 x 1.33). Defendants’ revised estimate of eleven hours
overtime per week yields only $4,996,804,81 in damages ($39.65 x
11 x 50 x 1.46 x 118 x 1.33). Class members must claim on average
about 11.008 hours overtime per week in order to satisfy the
jurisdictional requirement.
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Finally, Defendants ask the Court to make a stronger inference
then any of the defendants in Bartnikowski, Ellis, or Blomberg.3 I
am unwilling to grant deference to the hearsay evidence of two
plaintiffs from another suit pending in a different state to
satisfy this Court’s jurisdictional requirement. Defendants cannot
bootstrap a calculation in determining the amount in controversy
upon the extraneous testimony of unrelated litigants in another,
albeit similar, pending lawsuit.
Defendants have not provided sufficient evidence to support
their estimate of the number of overtime hours likely to be claimed
by class members. Without this figure, Defendants cannot establish
that actual damages and attorneys’ fees exceed the required amount
in controversy. I thus find that Defendants have failed to meet
their burden to show to a reasonable probability that the amount in
controversy exceeds five million dollars.
Conclusion
For the above reasons, I hold that Defendants have failed to
show to a reasonable probability that this Court has jurisdiction
to hear this case. I grant Plaintiff’s motion to remand the case to
3
The defendants in Ellis and Bartnikowski assumed that
class members would claim to have worked 3.74 and 5 hours per
week, respectively. Ellis, 2011 U.S. Dist. LEXIS 16045, *8;
Bartnikowski, 307 Fed. Appx. at 736. The defendant in Blomberg
estimated that each class member would claim on average to have
worked 552 overtime hours total. Blomberg 2011 U.S. App. LEXIS
7681, at *4. Here, Defendants estimate that each class member
will claim on average to have worked 11 hours overtime per week,
or 803 hours overtime total.
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state court and deny Defendants’ request for costs and attorneys’
fees in connection with this motion. Plaintiff makes no motion for
attorneys’
fees
in
connection
with
this
motion
and
none
granted.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
July 11, 2011
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