The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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12 DEVANTAE AGUIRRIE, individually, No. 2:23-cv-00516 WBS DB
and on behalf of other members
13 of the general public similarly
situated,
14 MEMORANDUM AND ORDER RE:
Plaintiff, PLAINTIFF’S MOTION TO REMAND
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v.
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OAK HARBOR FREIGHT LINES, INC.,
17 a Washington corporation; and
DOES 1 through 100, inclusive,
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Defendants.
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Plaintiff Devantae Aguirrie initiated this putative
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labor class action against defendant Oak Harbor Freight Lines,
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Inc. (See Compl. (Docket No. 1-2).) Defendant removed the
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action to this court from the San Joaquin County Superior Court.
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(Docket No. 1.) Plaintiff now moves to remand, arguing that
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defendant has failed to establish the requirements for
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jurisdiction under the Class Action Fairness Act, 28 U.S.C. §
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1 1332(d). (Docket No. 7.)
2 “[A]ny civil action brought in a State court of which
3 the district courts of the United States have original
4 jurisdiction, may be removed by the defendant or the defendants,
5 to the district court of the United States for the district . . .
6 where such action is pending.” 28 U.S.C. § 1441(a). If “it
7 appears that the district court lacks subject matter
8 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
9 The Class Action Fairness Act (“CAFA”) “gives federal
10 district courts original jurisdiction over class actions in which
11 the class members number at least 100, at least one plaintiff is
12 diverse in citizenship from any defendant, and the aggregate
13 amount in controversy exceeds $5 million, exclusive of interest
14 and costs.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195
15 (9th Cir. 2015) (citing 28 U.S.C. § 1332(d)(2)). “[A]lthough a
16 presumption against federal jurisdiction exists in the usual
17 diversity case, ‘no antiremoval presumption attends cases
18 invoking CAFA.’” Greene v. Harley-Davidson, Inc., 965 F.3d 767,
19 772 (9th Cir. 2020) (quoting Dart Cherokee Basin Operating Co.,
20 LLC v. Owens, 574 U.S. 81, 89 (2014)). Plaintiff argues that
21 defendant has failed to satisfy the class size and amount in
22 controversy requirements. The diversity of citizenship element
23 is uncontested.
24 In assessing whether jurisdictional requirements are
25 satisfied, “[courts] may consider allegations in the complaint
26 and in the notice of removal, as well as summary-judgment-type
27 evidence relevant to the amount in controversy.” See Chavez v.
28 JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018).
1 The Ninth Circuit has identified two categories of
2 challenges to removal. In a “factual” attack, the plaintiff
3 contests “the truth of the defendant’s jurisdictional
4 allegations.” Harris v. KM Indus., Inc., 980 F.3d 694, 700 (9th
5 Cir. 2020). In response to a factual attack, the removing
6 defendant must establish, by a preponderance of the evidence,
7 that the jurisdictional requirements are satisfied. See id. at
8 699; Arias v. Residence Inn by Marriott, 936 F.3d 920, 925 (9th
9 Cir. 2019) (citing Dart, 574 U.S. at 88). A “facial” attack, by
10 contrast, “‘challenges the form, not the substance, of [the
11 defendant’s] showing.’” Harris, 980 F.3d at 699–700 (quoting
12 Salter v. Quality Carriers, Inc., 974 F.3d 959, 961 (9th Cir.
13 2020)) (alteration in original). In response to a facial attack,
14 the removing defendant is only required to “‘include a plausible
15 allegation that the amount in controversy exceeds the
16 jurisdictional threshold.’” Salter, 974 F.3d at 965 (quoting
17 Dart, 574 U.S. at 89).
18 Here, plaintiff argues that the evidence relied upon by
19 defendant -- the declaration of an Oak Harbor employee -- is
20 alone not sufficient to establish the class size and amount in
21 controversy requirements. Plaintiff does not appear to contest
22 the veracity of any of the content of the declaration, nor does
23 he appear to object to any of the assumptions made by defendant
24 in calculating the amount in controversy. Plaintiff does not
25 even include a bare allegation that there are factually fewer
26 than 100 class members or that the amount in controversy is less
27 than $5 million.
28 Plaintiff’s argument clearly appears to constitute a
1 facial, rather than factual, attack. See Harris, 980 F.3d at
2 699–700. Accordingly, defendant need only provide a “plausible
3 allegation” that the jurisdictional requirements are satisfied.
4 See Salter, 974 F.3d at 965. Defendant has plausibly alleged
5 that the class size is greater than 100 and the amount in
6 controversy exceeds $5 million, supported by reasonable
7 calculations and the declaration of an experienced employee.
8 (See Notice of Removal (Docket No. 1) at 5-9; Mot. at 8-20; Decl.
9 of Jackie Knox (“Knox Decl.”) (Docket No. 9-1)). Defendant has
10 therefore satisfied its burden. See Arias, 936 F.3d at 927
11 (“Where a removing defendant has shown potential recovery ‘could
12 exceed $5 million and the [p]laintiff has neither acknowledged
13 nor sought to establish that the class recovery is potentially
14 any less, the defendant ‘has borne its burden to show the amount
15 in controversy exceeds $5 million.’”) (quoting Lewis, 627 F.3d at
16 401).
17 Even if plaintiff had mounted a factual attack,
18 defendant has provided sufficient evidence and reasoning to
19 establish by a preponderance of the evidence that the
20 jurisdictional requirements are satisfied. Defendant has
21 submitted a declaration by Jackie Knox, an Oak Harbor employee
22 who held the position of Human Resources Manager from August 2014
23 through January 2020; the position of Director of Human Resources
24 from January 2020 through March 2023; and the position of Vice
25 President of Administration from March 2023 to the present. (See
26 Knox Decl. ¶ 2.) Ms. Knox’s declaration provides information
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1 concerning the putative class size,1 as well as the putative
2 class’s total number of workweeks, average number of days worked
3 per week, average hourly wage, and the number of putative class
4 members who became former employees during the putative class
5 period. (Id. ¶¶ 6-7.)
6 Based on Ms. Knox’s years of experience with human
7 resources and administrative matters at Oak Harbor and her review
8 of records maintained in the ordinary course of business (see id.
9 ¶¶ 2-6), she is well-qualified to opine on these matters.
10 Accordingly, the Knox declaration provides adequate evidentiary
11 foundation for defendant’s jurisdictional conclusions. See Avila
12 v. Rue21, Inc., 432 F. Supp. 3d 1175, 1186-87 (E.D. Cal. 2020)
13 (O’Neill, J.) (a declaration concerning the amount in controversy
14 alone is not per se insufficient, but rather, the sufficiency of
15 the declaration depends on the knowledge of the declarant and the
16 nature of the allegations in the complaint); Andrade v. Beacon
17 Sales Acquisition, Inc., No. 19-cv-06963 CJC RAO, 2019 WL
18 4855997, at *4 (C.D. Cal. Oct. 1, 2019) (“a declaration from a
19 knowledgeable employee based on her analysis of regularly kept
20 and created business records” was sufficient evidence to
21 establish amount in controversy in putative wage and hour class
22 action); Muniz v. Pilot Travel Centers LLC, No. 07-cv-0325 FCD
23 EFB, 2007 WL 1302504, at *5 (E.D. Cal. May 1, 2007) (“There is no
24 obligation by defendant to support removal with production of
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1 The putative class period runs from January 19, 2019 to
final judgment. (See Compl. ¶ 13.) Ms. Knox’s declaration
27 includes individuals employed between January 19, 2019 and
January 19, 2023, the date the action was filed. (See Knox Decl.
28 ¶ 6.)
1 extensive business records to prove or disprove liability and/or
2 damages with respect to plaintiff or the putative class members
3 at this premature (pre-certification) stage of the litigation.”)
4 In calculating the amount in controversy, defendant
5 assumed a violation rate of 20%. Given that plaintiff alleges “a
6 pattern and practice of wage abuse” (see Compl. ¶ 25), this
7 underlying assumption is reasonable. See Salter, 974 F.3d at 963
8 (“‘when a defendant’s allegations of removal jurisdiction are
9 challenged, the defendant’s showing on the amount in controversy
10 may rely on reasonable assumptions’”) (quoting Arias, 936 F.3d at
11 920); Cruz v. Mohawk Indus., No. 1:20-cv-01510 JLT EPG, 2022 WL
12 93338, at *5 (E.D. Cal. Jan. 9, 2022) (in calculating the amount
13 in controversy in putative wage and hour class actions,
14 “[d]istrict courts have found . . . that violation rates of 25%
15 to 60% can be reasonably assumed as a matter of law based on
16 ‘pattern and practice’ or ‘policy and practice’ allegation[s]”)
17 (quoting Avila, 432 F. Supp. 3d at 1189 (collecting cases)).
18 Notably, plaintiff did not raise any objection to the assumptions
19 or methodology employed by defendant in calculating the amount in
20 controversy.
21 With a putative class size of 1,365 individuals (see
22 Knox. Decl. ¶ 6) -- well over the minimum class size of 100
23 individuals -- the assumed 20% violation rate results in a total
24 of $6,218,208 in damages for the minimum wage, liquidated
25 damages, meal period, rest period, waiting time, and overtime
26 claims. (See Mot. at 11-20.) The damages associated with these
27 claims exceed the $5 million amount in controversy threshold.
28 Accordingly, the court concludes that the jurisdictional
nee nee OS GE OE OE OS OO
1 requirements of CAFA are satisfied.
2 IT IS THEREFORE ORDERED that plaintiff’s motion to
3 remand (Docket No. 7) be, and the same hereby is, DENIED.
he ble 7H.
(LA.
5 | Dated: July 11, 2023 WILLIAMB.SHUBB .}.}©}©§=©—©)—.—”
6 UNITED STATES DISTRICT JUDGE
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