Jasmine Brown v. BQ Operations Holding, LLC

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-2293-DMG (JCx) Date May 13, 2021

Title Jasmine Brown v. BQ Operations Holding, LLC, et al. Page 1 of 5

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN NOT REPORTED

Deputy Clerk Court Reporter

Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)

None Present None Present

Proceedings: IN CHAMBERS—ORDER GRANTING PLAINTIFF’S MOTION TO

REMAND ACTION TO STATE COURT [20]

On February 3, 2021, Plaintiff Jasmine Brown filed a Complaint in the Los Angeles

County Superior Court against Defendants BQ Operations Holding, LLC; Sunbridge Hallmark

Health Services, LLC; Fountain View Subacute and Nursing Center, LLC; Genesis Healthcare;

Genesis Healthcare, Inc.; and GHC Payroll, LLC, alleging violation California’s Unfair

Competition Law (“UCL”) and the following violations of the California Labor Code: (1) failure

to provide meal periods; (2) failure to permit rest breaks; (3) failure to provide accurate wage

statements; (4) failure to indemnify; (5) wage statement penalties; and (6) waiting time penalties.

Not. of Removal, Ex. A (Compl.) [Doc. # 1-1]. Plaintiff brings this action on behalf of the

following proposed class: “All individuals Defendants employed in California as hourly

employees including, but not limited to, certified nursing assistants (“CNAs”), restorative

nursing assistants (“RNAs”), and persons in comparable positions at any time during the period

beginning four years prior to the filing of this action and ending on the date that final judgment is

entered in this action.” Id. at ¶ 15.

On or about March 15, 2021, Defendants removed the action to this Court, asserting

original jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”). [Doc. # 1.] On

April 14, 2021, Plaintiff filed the instant motion to remand (“MTR”) the case to state court on

the ground that the amount in controversy does not exceed $5 million, as required for CAFA

jurisdiction. [Doc. # 20.] The MTR is fully briefed. [Doc. ## 21, 23.]

For the reasons stated below, the Court GRANTS the motion.

I.

LEGAL STANDARD

CAFA affords district courts jurisdiction “over class actions in which the class members

number at least 100, at least one plaintiff is diverse in citizenship from any defendant, and the

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-2293-DMG (JCx) Date May 13, 2021

Title Jasmine Brown v. BQ Operations Holding, LLC, et al. Page 2 of 5

aggregate amount in controversy exceeds $5 million, exclusive of interest and costs.” Ibarra v.

Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir. 2015) (citing 28 U.S.C. § 1332(d)). Pursuant

to 28 U.S.C. section 1441(a), an action may be removed from a state court to a federal district

court if the latter would have had “original jurisdiction” over the action had it been filed in that

court.

If a complaint does not specify a particular amount of damages and the plaintiff

challenges jurisdiction after removal, the removing defendant “bears the burden to show by a

preponderance of the evidence that the aggregate amount in controversy exceeds $5 million

. . . .” Id. at 1197. “[R]emoval ‘cannot be based simply upon conclusory allegations where the

[complaint] is silent’” as to the amount of damages.” Singer v. State Farm Mut. Auto. Ins. Co.,

116 F.3d 373, 377 (9th Cir. 1997) (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335

(5th Cir. 1995)).

II.

DISCUSSION

Plaintiff argues that Defendants have not sufficiently shown that the amount in

controversy exceeds the $5 million jurisdictional threshold for CAFA.

Defendants assert that the amount in controversy is $7,631,063.62. See Not. of Removal

at ¶ 39. This figure is comprised of the following items: (1) $1,941,979.25 for meal period

violations, (2) $1,941,979.25 for rest period violations, (3) $1,759,142.40 for waiting time

penalties, (4) $461,750 for inaccurate wage statements, and (5) $1,526,212.72 in attorneys’ fees.

See id. at ¶¶ 45, 51, 58, 64, 67; Opp. at 17 n.4 (updating calculations). Item (1) is predicated on

the assertion that each member of the putative class suffered two meal period violations per

workweek, whereas item (2) depends upon Defendants’ assumption that each proposed class

member suffered two rest period violations per workweek. See Not. of Removal at ¶¶ 45, 51.

Further, Defendants assert that item (5) is a reasonable estimation of Plaintiff’s recoverable

attorneys’ fees because “[t]he attorneys’ fees benchmark in the Ninth Circuit is 25 percent.” Id.

at ¶ 66.

The Complaint does not specify the frequency of the alleged meal or rest break violations

and alleges only that “Defendants maintained a policy, practice, or a lack of a policy which

resulted in Defendants not providing Plaintiff and the Class” with all timely meal periods, rest

periods, or wages for missed meals or rest periods. Compl. at ¶¶ 42-43, 52-53. Defendants rely

on these allegations and the declarations of Gwendolyn Eagen, Vice President for Corporate

Human Resources of one Defendant and agent for two others, to assume two meal period

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-2293-DMG (JCx) Date May 13, 2021

Title Jasmine Brown v. BQ Operations Holding, LLC, et al. Page 3 of 5

violations and two rest break violations per workweek, per putative class member. But Eagen

initially attests only to the number of putative class members, their weighted average hourly rate

of pay, and the number of workweeks these employees worked. See Eagen Decl. at ¶¶ 9-14

[Doc. # 1-6]. Eagen’s supplemental declaration contains additional facts regarding the minimum

shift lengths of putative class members who worked full-time and part-time, including that the

minimum shift length was 7.5 hours, and some employees worked 12-hour shifts. See Eagen

Supp. Decl. at ¶¶ 6-17 [Doc. # 21-2]. None of Defendants’ evidence, or allegations in Plaintiff’s

Complaint, supports an assumption of two meal period violations and two rest period violations

every single week for every full-time and part-time hourly employee at Defendants’ facilities.

Consequently, Defendants’ calculation of items (1) and (2) rests on “mere speculation and

conjecture, with unreasonable assumptions.” Ibarra, 775 F.3d at 1197; see also Garibay v.

Archstone Communities LLC, 539 F. App’x 763, 764 (9th Cir. 2013) (rejecting the defendants’

“assumption that each employee missed two rest periods per week” because “the only evidence

the defendants proffer[ed] to support their calculation of the controversy [was] a declaration by

their supervisor of payroll, which sets forth only the number of employees during the relevant

period, the number of pay periods, and general information about hourly employee wages”).

The authorities upon which Defendants rely do not undermine this conclusion. Arias v.

Residence Inn by Marriott, 936 F.3d 920 (9th Cir. 2019), involved a sua sponte remand, not a

contested motion to remand. “[A] removing defendant's notice of removal ‘need not contain

evidentiary submissions’ but only plausible allegations of the jurisdictional elements.” Id. at 922

(quoting Ibarra, 775 F.3d at 1197). Only when removal jurisdiction is challenged does it

become Defendants’ burden to show by a preponderance of the evidence, “some reasonable

ground” underlying their assumptions about the rates of violation. Ibarra, 775 F.3d at 1199; see

Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014) (“Evidence

establishing the amount [in controversy] is required . . . only when the plaintiff contests, or the

court questions, the defendant’s allegation.”). Another case Defendants cite, Black v. T-Mobile

USA, Inc., No. CV 17-04151-HSG, 2017 WL 5257110 (N.D. Cal. Nov. 2, 2017), found that in

calculating the amount in controversy of wage and hour claims, “Defendant’s extrapolation from

Plaintiff’s average work schedule is reasonable here in light of the other evidence in the record

that indicates Plaintiff and the putative class worked similar schedules.” Id. at *4 (citing

Campbell v. Vitran Exp., Inc., 471 F. App’x 646, 649 (9th Cir. 2012) (finding removal proper

where the defendant relied on the named plaintiffs’ schedules in calculating the amount in

controversy)).

In this case, by contrast, the only excerpt of any employee’s schedule on the record is

named Plaintiff’s, which indicates that she sometimes worked shorter than 7.5-hour shifts, and

worked less than 8 hours on each reported day. See Reply, Ex. A [Doc. # 23-1]. She therefore

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-2293-DMG (JCx) Date May 13, 2021

Title Jasmine Brown v. BQ Operations Holding, LLC, et al. Page 4 of 5

would not be eligible for the same number of meal or rest periods as an employee working 12-

hour shifts. Relying on Plaintiff’s schedule, it is not reasonable to assume she experienced two

meal and rest period violations per week, or to extrapolate that other putative class members did.

Assuming arguendo that an estimate of one meal period and one rest period violation per

workweek per proposed class member is appropriate, then the putative class’s (1) potential meal

period violations would be $970,989.63 and (2) potential rest period violation would be

$970,989.63. Combined with the sums for (3) and (4), for waiting time penalties and inaccurate

wage statements, the total becomes $4,162,871.65.1

As for the final item (5), Defendants assume without discussion that the attorneys’ fee

award would amount to 25% of the total class recovery, even though the Ninth Circuit has

refused to adopt a per se rule that “the amount of attorneys’ fees in controversy in class actions is

25 percent of all other alleged recovery.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d

785, 796 (9th Cir. 2018). Furthermore, Defendants do not attempt to calculate Plaintiff’s

counsel’s lodestar. See Opp. at 22. Instead, they cite to wage and hour class action settlement

approval orders in which Plaintiff’s counsel was awarded 33% of the total settlement amount—

or $150,000—in one, and 25% of the total settlement amount—or $133,750—in the other. Id.

(citing La Fleur v. Med. Mgmt. Int'l, Inc., No. ED CV 13-00398-VAP, 2014 WL 2967475, at *6

(C.D. Cal. June 25, 2014) and Clarke v. Insight Glob., Inc., No. CV 13-0357-H (BLM), 2015

WL 13828417, at *1 (S.D. Cal. Jan. 5, 2015)). The cited examples make clear why a 25% fee

calculation of the maximum possible recovery, as opposed to likely recovery or lodestar amount,

is not a reasonable figure with which to calculate the amount in controversy. The Court sees no

reason to assume at this point that the attorneys’ fees in this action will amount to $1.5 million,

as Defendants suggest, rather than the $150,000 or less previously awarded in other wage and

hour actions brought by this counsel.

Therefore, Defendants have failed to discharge their burden of proving by a

preponderance of the evidence that Plaintiff’s attorneys’ fee award would cause the amount in

controversy to exceed the $5 million jurisdictional threshold.

III.

CONCLUSION

In light of the foregoing and the strong presumption against removal jurisdiction, the

Court GRANTS Plaintiff’s MTR and REMANDS this case to Los Angeles County Superior

1 The Court assumes, without deciding, that Defendants’ calculations of items (3) and (4) are accurate.

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-2293-DMG (JCx) Date May 13, 2021

Title Jasmine Brown v. BQ Operations Holding, LLC, et al. Page 5 of 5

Court for lack of jurisdiction. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).

The May 14, 2021 hearing and scheduling conference are VACATED.

IT IS SO ORDERED.