Opinion

McCluskey

Court
District Court, W.D. Washington
Filed
Jun 25, 2026
Cited by
0 cases
Authority
More cited than 41.5%

The opinion

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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8 AMY J. MCCLUSKEY,

9 Plaintiff, Case No. C26-1033-SKV

10 v. ORDER GRANTING MOTION TO

REMAND

11 ESA MANAGEMENT, LLC,

12 Defendant.

13

14 Amy McCluskey (“Plaintiff”), proceeding individually and on behalf of a proposed class,

15 moves to remand this action. See Dkt. 9. ESA Management, LLC (“Defendant”) opposes. See

16 Dkt. 13. The Court, having considered Plaintiff’s motion and all documents filed in support and

17 opposition, herein GRANTS the motion to remand upon finding jurisdiction in this Court has not

18 been established under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).

19 I. BACKGROUND

20 Plaintiff worked for Defendant, owner of hotels and extended stay lodgings in

21 Washington, as a Guest Services Representative from 2022 to October 2025. See Dkt. 3-10 at 3.

22 Throughout that time, Plaintiff alleges that she typically worked shifts eight to sixteen hours long

23 and, at times, worked more than forty hours per week. See id. at 7. Her base pay in 2025 totaled

1 $20.24 per hour. See id. Plaintiff alleges that, on account of Defendant’s scheduling and

2 timekeeping policies and practices, Defendant violated the Washington Industrial Welfare Act

3 and the Washington Minimum Wage Act. Specifically, she claims that Defendant failed to (1)

4 provide compliant meal and rest periods at the intervals required by Washington law and

5 compensate employees for missed or noncompliant breaks, (2) pay minimum wage for all hours

6 worked, due to off-the-clock work performed, and (3) pay overtime wages due. See id. at 8–13.

7 On January 8, 2026, Plaintiff filed this putative class action lawsuit in King County

8 Superior Court seeking compensatory and statutory damages, attorney’s fees, costs, and

9 prejudgment interest. See Dkt. 1-1 at 13–14. She proposed a class comprised of “[a]ll current

10 and former hourly-paid employees who worked for any one or more of the Defendants at any

11 location in Washington State at any time from three years prior to the filing of the Complaint

12 through the date of the Court’s order certifying the Class[.]” Id. at 4. On February 18, 2026,

13 Plaintiff amended her complaint to substitute ESA Management, LLC, as the sole defendant.

14 See Dkt. 1 at 2; Dkt. 3-10. On March 26, 2026, Defendant removed the case to this Court “based

15 upon complete diversity of citizenship of the parties, see 28 U.S.C. §§ 1332(a) and 1441, or

16 alternatively the . . . [CAFA], see 28 U.S.C. §§ 1332(d) and 1441[.]” Dkt. 1 at 1 (first emphasis

17 added). Plaintiff now moves for remand on grounds that the requirements for jurisdiction under

18 the CAFA are not met. See Dkt. 9 at 9.

19 II. LEGAL STANDARD

20 CAFA vests federal district courts with original jurisdiction over class actions involving

21 100 or more class members, minimal diversity, and an amount in controversy that exceeds $5

22 million. 28 U.S.C. § 1332(d). The amount in controversy refers to the “amount at stake” in the

23 litigation, which “does not mean likely or probable liability; rather, it refers to possible liability.”

1 Jauregui v. Roadrunner Transportation Servs., Inc., 28 F.4th 989, 994 (9th Cir. 2022) (cleaned

2 up) (quoting Greene v. Harley-Davidson, Inc., 965 F.3d 767, 772 (9th Cir. 2020)); see also Lewis

3 v. Verizon Communications, Inc., 627 F.3d 395, 400 (9th Cir. 2010) (“The amount in controversy

4 is simply an estimate of the total amount in dispute, not a prospective assessment of defendant’s

5 liability.”). There is no presumption against removal for cases removed under CAFA. See Dart

6 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014) (“[N]o antiremoval

7 presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of

8 certain class actions in federal court.”).

9 A notice of removal filed pursuant to CAFA “‘need include only a plausible allegation

10 that the amount in controversy exceeds the jurisdictional threshold,’ and need not contain

11 evidentiary submissions.” Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir.

12 2015) (quoting Dart Cherokee, 574 U.S. at 89). “Evidence establishing the amount is required

13 . . . only when the plaintiff contests, or the court questions, the defendant’s allegation.” Perez v.

14 Rose Hills Co., 131 F.4th 804, 808 (9th Cir. 2025) (alteration in original) (quoting Dart

15 Cherokee, 574 U.S. at 89). “If the allegation is disputed, then the party seeking removal—and

16 invoking the jurisdiction of the federal courts—bears the burden of demonstrating by a

17 preponderance of the evidence that the amount in controversy exceeds $5 million.” Id. (citing

18 Ibarra, 775 F.3d at 1199). Both parties may submit evidence outside the complaint, including

19 affidavits, declarations, and other summary-judgment-type evidence, and the Court decides

20 whether jurisdiction lies. See Ibarra, 775 F.3d at 1197.

21 When a removing defendant “relies on a chain of reasoning that includes assumptions to

22 satisfy its burden of proof, the chain of reasoning and its underlying assumptions must be

23 reasonable ones.” LaCross v. Knight Transp. Inc., 775 F.3d 1200, 1202 (9th Cir. 2015) (citing

1 Ibarra, 775 F.3d. at 1199). The assumptions “cannot be pulled from thin air but need some

2 reasonable ground underlying them.” Ibarra, 775 F.3d at 1199. “An assumption may be

3 reasonable if it is founded on the allegations of the complaint.” Arias v. Residence Inn by

4 Marriott, 936 F.3d 920, 925 (9th Cir. 2019) (citing Ibarra, 775 F.3d at 1198-99). The burden of

5 demonstrating the reasonableness of the assumptions “remain[s] at all times” with the defendant.

6 Harris v. KM Indus., Inc., 980 F.3d 694, 701 (9th Cir. 2020). However, the defendant “need not

7 make the plaintiff’s case for it or prove the amount in controversy beyond a legal certainty.” Id.

8 (citations omitted); see also 54-40 Brewing Co. LLC v. Truck Ins. Exch., C21-5586-BHS, 2021

9 WL 6124788, at *2 (W.D. Wash. Dec. 28, 2021) (“Though the burden remains with the

10 defendant, it is not a daunting one. Under this standard, a removing defendant is not obligated to

11 completely ‘research, state, and prove the plaintiff’s claims for damages.’” (quoted source

12 omitted)).

13 In applying the preponderance of the evidence standard, the district court “should weigh

14 the reasonableness of the removing party’s assumptions, not supply further assumptions on its

15 own.” Harris, 980 F.3d at 701. There is, however, “an important distinction between a court

16 offering entirely new or different assumptions itself versus modifying one or more assumptions

17 in the removing party’s analysis.” Jauregui, 28 F.4th at 996. Accordingly, while the Court may

18 reject an assumption that is “unreasonable on its face without comparison to a better alternative,”

19 where the reason for rejecting that assumption “is because a different, better assumption is

20 identified[,]” the court “should consider the claim under the better assumption—not just zero-out

21 the claim.” Id. Remanding a case where it “would still be inappropriate even under the better

22 assumption” would subvert the purpose of CAFA by resulting in the remand of cases that clearly

23 surpass the $5 million threshold. Id.

1 III. DISCUSSION

2 Plaintiff does not challenge Defendant’s allegations that the class size exceeds 100

3 individuals or that there is minimal diversity—only whether the CAFA’s $5 million amount in

4 controversy requirement is met. The only issue before the Court, then, is the amount in

5 controversy.1

6 Plaintiff does not allege an amount in controversy in her Amended Complaint. In its

7 Notice of Removal, Defendant alleged a $6,770,128.10 amount in controversy. See Dkt. 1 at 9.

8 It revised that estimate downwards to $5,346,925.00 in its Response to Plaintiff’s Motion to

9 Remand, following additional investigation. See Dkt. 13 at 10. To arrive at both figures,

10 Defendant asserts that it drew on allegations in the Amended Complaint and time clock records.

11 The Court first summarizes Defendant’s original calculations, and Plaintiff’s challenge thereto,

12 before evaluating the reasonableness of Defendant’s revised assumptions and jurisdictional

13 allegations.

14 A. Defendant’s Initial Calculations

15 Defendant asserted that its records indicate that it had approximately 678 hourly

16 employees in Washington who worked approximately 30,304 workweeks during the relevant

17 time period. See Dkt. 1 at 6. It then uses those figures to estimate its potential exposure for each

18 of Plaintiff’s three class claims.

19 1. Meal and Rest Period Claims

20 With respect to the meal period claim, Defendant assumed that Plaintiff and the putative

21 class worked five days per week at an average hourly rate of $20.09. See Dkt. 1 at 6–7. Based

22

23 1 While Defendant purports to have removed based on traditional diversity jurisdiction as well, it does not allege any

amount in controversy as to Plaintiff’s individual claims. See Dkt. 1 at 1. The Court is therefore not positioned to

assess whether traditional diversity jurisdiction lies.

1 on review of Plaintiff’s time records, Defendant averred that “she worked 695 shifts . . . during

2 the Putative Class Period of more than five hours and the time records do not show a compliant

3 meal period for 620 of those shifts[.]” Id. at 7. Defendant accordingly proposed that an 89%

4 noncompliance rate derived from Plaintiff’s time records be extrapolated to the proposed class.

5 Id. (“[]620 / 695 = 89% ‘noncompliance rate’”). Applying those assumptions, Defendant

6 concluded “[t]he amount in controversy for the missed meal period claim . . . totals

7 $1,354,596.38 ((30,304 workweeks * 5 workdays per week * 0.89 noncompliance rate) *

8 ($20.09 average hourly rate * 0.5 for 30-minutes per missed meal period)).” Id.

9 With respect to the rest period claim, Defendant proposes using a 50% noncompliance

10 rate based on language in the Amended Complaint alleging that “Defendants failed to provide a

11 second rest break before the eighth hour of work and failed to provide a third rest break prior to

12 the twelfth hour of work.” Id. (citing Dkt. 3-10 at 8). Defendant concluded “the amount in

13 controversy for the missed rest period claim totals $507,440.93 ((30,304 workweeks * 5

14 workdays per week * 2 rest breaks per workday * 0.50 percent noncompliance rate) * ($20.09 *

15 0.1667 hours in rest breaks)).” Id.

16 2. Minimum Wage Claim

17 Regarding the claim for off-the-clock work, Defendant proposes “[u]sing an estimate of

18 30 minutes of off-the-clock work per workweek and the average hourly rate for the Putative

19 Employee Class of approximately $20.09[.]” Id. Applying those assumptions, Defendant

20 represented that “the amount in controversy for the off-the-clock claim totals $304,403.68

21 (30,304 workweeks * 0.5 hour per workweek * $20.09).” Id. at 8.

22 ///

23 ///

1 3. Overtime Wages Claim

2 To approximate unpaid overtime wages, Defendant proposed “[u]sing a conservative

3 estimate of 50% overtime weeks (once the additional time for alleged missed meal periods and

4 rest periods and alleged off-the-clock work is added to hours worked)[.]” Id. With those

5 assumptions, Defendant estimated that “the amount in controversy for the unpaid overtime wage

6 claim totals $541,610.25 ($2,166,440.99 in back wages * 0.50 overtime weeks * 0.50 overtime

7 premium).” Id. (emphasis in original).

8 4. Double Damages and Attorney’s Fees

9 The sum of those estimated back wages totals $2,708,051.24. Because Plaintiff seeks an

10 award doubling those damages under RCW §§ 49.52.050 and 49.52.070, see Dkt. 3-10 at 6, 13,

11 Defendant fixed the damages due at $5,416,102.48, see Dkt. 1 at 9.

12 Plaintiff also seeks attorney’s fees and costs, which Defendant estimated at 25% of that

13 sum based on a “benchmark” percentage approved in other cases within this Circuit. Id. (first

14 citing Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989); then citing Lo

15 v. Oxnard Euro. Motors, LLC, 2012 WL 1932283, at *3 (S.D. Cal. May 29, 2012)). Twenty-five

16 percent of the doubled damages totals $1,354,025.62. Thus, Defendant removed the action based

17 on the sum of those figures, or a $6,770,128.10 amount in controversy. See id.

18 B. Plaintiff’s Initial Calculations

19 Plaintiff first challenges Defendant’s jurisdictional allegation on grounds that Defendant

20 did not put forth evidence with their Notice of Removal supporting their proposed violation rates

21 or assumptions that “any putative employee class member worked the requisite shift lengths that

22 would entitle them to meal and rest periods, . . . worked five shifts every single workweek, . . .

23 [or] worked the requisite forty (40) hours in a single workweek to be entitled to overtime pay.”

1 Dkt. 9 at 13–14, 18. Plaintiff invites the Court to assign a $0 amount-in-controversy value to her

2 meal and rest periods and overtime wages claims as a result. See id. at 16–17. Plaintiff also

3 asserts Defendant has not proven with evidence its 25% attorney’s fees estimate and asks the

4 Court to assume a $0 attorney’s fee instead. See id. at 22–23.

5 Despite advocating for a $0 amount in controversy estimate for other claims and

6 attorney’s fees, Plaintiff adopts Defendant’s $304,403.68 estimate regarding her minimum wage

7 claim, premised on the same variables she contests as unsupported, without explanation. See id.

8 at 24 & n.2 (“Solely for the purposes of this motion to remand, Plaintiff will adopt Defendant’s

9 estimated amount in controversy for the minimum wage claim regarding off-the-clock work.”).

10 Doubling that claim’s valuation, Plaintiff posits a $608,807.36 amount in controversy. Id. at 24

11 (“$0 (meal periods) + $0 (rest periods) + $304,403.68 (minimum wage) + $0 (overtime) +

12 $304,403.68 (exemplary damages) + $0 (attorneys’ fees) = $608,807.36”).

13 In the alternative, Plaintiff challenges Defendant’s proposed violation rates. She contests

14 Defendant’s extrapolation of an 89% meal period violation rate premised on her time records to

15 the class she seeks to represent on grounds that it is unreasonable to assume class members have

16 identical injuries. See id. at 18. She also disputes Defendant’s proposed 50% rest period

17 violation rate as untethered to the Amended Complaint, which she asserts alleges violations

18 occurred “often” or “at times.” See id. at 19–21. In lieu of Defendant’s proposed violation rates,

19 Plaintiff proposes using a 20% violation rate used by courts in other cases where the complaints

20 alleged a policy and practice of wage and hour violations. See id. at 20–21. Applying her

21 proposed 20% violation rate to all claims, and relying on Defendant’s other proposed variables,

22 she estimates a $2,232,405.30 amount in controversy. See id. at 25 (“$304,403.68 (meal periods)

23

1 + $202,976.38 (rest periods) + $304,403.68 (minimum wage) + $81,178.38 (overtime) +

2 $892,962.12 (exemplary damages) + $446,481.06 (attorneys’ fees) = $2,232,405.30”).

3 C. Jurisdictional Analysis

4 Before proceeding, the Court clarifies the nature of Plaintiff’s challenge. A plaintiff can

5 contest the amount in controversy alleged by a defendant by mounting either a “facial” or

6 “factual” attack on the defendant’s jurisdictional allegations. See Harris, 980 F.3d at 699. “A

7 facial attack accepts the truth of the [defendant’s] allegations but asserts that they are insufficient

8 on their face to invoke federal jurisdiction.” Id. (alteration in original) (quoting Salter v. Quality

9 Carriers, 974 F.3d 959, 964 (9th Cir. 2020)). By contrast, a “factual attack ‘contests the truth of

10 the . . . allegations’ themselves[]” “by making a reasoned argument as to why any assumptions

11 on which they are based are not supported by evidence.” Id. at 699–700. “When a plaintiff

12 mounts a factual attack, the burden is on the defendant to show, by a preponderance of the

13 evidence, that the amount in controversy exceeds the $5 million jurisdictional threshold.” Id. at

14 699 (citing Ibarra, 775 F.3d at 1197). “Both parties may [then] submit evidence supporting the

15 amount in controversy before the district court rules.” Id. (first citing Salter, 974 F.3d at 963;

16 and then citing Ibarra, 775 F.3d at 1197).

17 Defendant characterizes Plaintiff’s attack as facial because she largely focuses on a lack

18 of evidence filed in support of the Notice of Removal’s jurisdictional allegations. See Dkt. 13 at

19 15. It is true that, throughout her motion, Plaintiff repeatedly objects to Defendant’s purported

20 failure to provide evidence with the Notice of Removal. However, in her Motion to Remand and

21 Reply, Plaintiff asserts that she mounts a factual challenge “contest[ing] the truth of Defendant’s

22 specific assumptions with reasoned argument about why one employee’s records cannot

23 establish class-wide violation rates.” Dkt. 15 at 6; Dkt. 9 at 12.

1 Defendant was, of course, not obligated to support their jurisdictional allegations with

2 evidence in their notice of removal. See Perez, 131 F.4th at 808. As such, Plaintiff’s line of

3 argument fundamentally misstates the legal standard by repeatedly attacking the sufficiency of

4 Defendant’s initial evidentiary showing. Yet, Plaintiff also unmistakably rejects the truth of

5 Defendant’s allegations that extrapolate data from Plaintiff’s records to the class. The

6 discrepancy makes it somewhat difficult to categorize her challenge.

7 Despite urging the Court to classify the challenge as facial, Defendant treats the challenge

8 as factual and puts forth updated evidence with its Response in support of revised assumptions.

9 See Dkt. 14. As both parties construe Plaintiff’s challenge as factual, the Court does the same.

10 1. Defendant’s Revised Calculations

11 Faced with Plaintiff’s challenge, Defendant opted to supply evidence in the form of a

12 supplemental declaration by Nadia Herrera, Senior Director of Human Resources for Defendant,

13 and revised its jurisdictional allegations based on further review of its records. See Dkt. 14; Dkt.

14 13 at 10. Based on her review of personnel records, Ms. Herrera asserts that there are roughly

15 686 employees in the putative class. See Dkt. 14 at 2. Those employees worked approximately

16 28,835 weeks and specifically 120,354 shifts in the relevant period. See id. Based on the length

17 of putative class members’ shifts, Ms. Herrera states class members were entitled to 112,091

18 meal breaks and 170,819 rest breaks. See id.

19 Defendant looks once more to Plaintiff’s specific experience for violation rates. With

20 respect to meal breaks, it explains that,

21 Per Plaintiff’s time records, she worked 668 shifts which based on their length,

entitled her to 694 meal breaks (inclusive of second meal breaks) and 1,065 rest

22 breaks. Plaintiff’s time records reflect no clock out for a meal, a late clock out, or

a short meal break (i.e., a possible violation) 89% of the time for first meal breaks

23 only, and 97.2% of the time inclusive of second meal breaks. While a higher rate

is available based on Plaintiff’s records, Defendant nevertheless relied on the

1 lower assumed 89% violation rate for meal breaks at $20.09 per hour equaling

$1,002,099 in controversy before doubling [112,091 * $20.09 * .5 *.89 =

2 $1,002,099].

3 Dkt. 13 at 8–9 (citations omitted). After doubling, that claim totals $2,004,198.00.

4 With respect to rest breaks, Defendant reasserts its proposed 50% violation rate. Id. at 9.

5 Defendant asserts that, applying a 50% violation rate to the rest breaks due, “yields $286,551 in

6 controversy, before doubling [170,819 * $20.09 * .167 * .5 = $286,551]” or $573,102.00 after

7 doubling. Id.

8 Regarding the minimum wage claim, Defendant asserts that “having further refined the

9 workweeks for the putative class, the correct figure utilizing .5 hours per week is $289,648

10 before doubling [28,835 * $20.09 *.5 = $289,648]” or $579,296.00 total. Id.

11 Moving to the overtime wages claim, Defendant again revises its calculations based on

12 review of personnel records, splitting the claim into two calculations based on Plaintiff’s

13 allegations. First, it calculates the overtime triggered by the other alleged labor violations. It

14 explains that

15 Plaintiff’s time records show that she worked overtime almost 50% of the time

(48.92%). Notably, it is Plaintiff’s claim that overtime is underreported in the

16 time records, not only because of meal and rest breaks not taken and ones that

show as taken but she says were not, but also because she alleges that Defendant

17 engaged in time shaving and “deleting hours worked over 40.” Accordingly,

applying a 49% overtime rate understates Plaintiff’s claim as set out in the

18 Amended Complaint. Extrapolating a 49% overtime frequency across the class

yields $386,683 in controversy, before doubling. [($1,002,099 + $286,551 +

19 $289,648) * .49 * .5 = $386,683].

20 Id. at 10 (citations omitted). After doubling, that component of the overtime claim totals

21 $773,366.00. Next, it addresses Plaintiff’s time shaving or editing theory, assuming that

22 Defendant’s alleged deletion of time over 40 hours in a week[] . . . happened in

20% of workweeks, with one hour shaved/deleted each time, add[ing] $173,789

23 [28,835 * $20.09 * .2 * 1.5 = $173,789][]

1 to the amount in controversy, before doubling. Id. After doubling, that component of Plaintiff’s

2 overtime claim totals $347,578.00.

3 Adding those revised figures together, Defendant arrives at a sum of $2,138,770.00,

4 which after doubling yields a total of $4,277,540.00. Factoring in a 25% attorney’s fee of

5 $1,069,385.00, Defendant estimates the total amount in controversy to be $5,346,925.00. Id.

6 2. Plaintiff’s Reply

7 Presented with these revised figures, Plaintiff largely reiterates the same challenges to

8 violation rates and overtime frequency assumptions derived from Plaintiff’s time records and

9 urges the Court to apply a 20% violation rate across claims. Dkt. 15 at 8, 12, 15. Plaintiff also

10 disputes application of a 25% benchmark for attorney’s fees as speculative and not supported by

11 evidence. See id. at 18. Plaintiff did not file any evidence in support of her positions.

12 3. The Court’s Calculations

13 At the outset, the Court necessarily rejects Plaintiff’s first proposal—zeroing out all

14 claims but one, and presuming no attorney’s fees—as patently unreasonable and counter to Ninth

15 Circuit case law. See Jauregui, 28 F.4th at 996 (where a “better assumption is identified[,] . . .

16 the district court should consider the claim under the better assumption—not just zero-out the

17 claim.”); Arias, 936 F.3d at 928 (holding the district court erred by excluding prospective

18 attorney’s fees from the amount in controversy.”). The Court also rejects Plaintiff’s alternative

19 invitation to apply a 20% violation rate across all claims. As discussed below, the Amended

20 Complaint and evidence offered by Defendant do not support such a uniform approach. The

21 Court therefore moves directly to evaluating the reasonableness of Defendant’s revised

22 assumptions as to each variable and the evidentiary support underpinning them. To the extent

23 better assumptions have been identified or are apparent from the record, the Court applies them.

1 Regarding Defendant’s assumptions applied across claim estimates, Defendant assumes,

2 based on a review of time and employee records, that there are approximately 686 individuals in

3 the putative class, that those employees worked approximately 28,835 weeks and specifically

4 120,354 shifts in the relevant period. Defendant also assumes that those employees were entitled

5 to 112,091 meal breaks and 170,819 rest breaks based upon the length of their shifts. Defendant

6 based those assumptions on review of its time clock and personnel records and the state law at

7 issue, which prescribes one meal break for every five hours worked and one rest break for every

8 four hours worked. See Dkt. 14 at 2; WAC 296-126-092. The Court finds those preliminary

9 assumptions reasonable and adequately supported. However, it finds Defendant’s methodology

10 and proposed violation rates unreasonable in a few respects. The Court addresses those issues

11 claim by claim.

12 a. Meal and Rest Period Claims

13 In her Amended Complaint, Plaintiff alleges that meal period violations occurred

14 “routinely,” “often,” and “frequently.” She also asserts that, “at times,” especially during the

15 early part of her employment, she was not required to clock out for meal periods despite being

16 forced to work through them. Further, Plaintiff categorically alleges that “when” she worked

17 three or more hours beyond her normal workday, she did not receive a second meal period, and

18 that Defendant did not compensate her for missed meal periods. Dkt. 3-10 at 8.

19 “District courts in this circuit have found that when the alleged violations are defined as a

20 ‘pattern and practice,’ or similar language, a 20% to 60% violation rate is appropriate.”

21 Washington v. Kerry Inc., No. C25-0965-TL, 2025 WL 3089015, at *8 (W.D. Wash. Nov. 5,

22 2025) (collecting cases). “[A] ‘common practice’ of alleged violations has been found to be a

23 50% violation rate.” Id. (quoting Soratorio v. Tesoro Refining Mktg. Co., LLC, No. C17-1554,

1 2017 WL 1520416, at *3 (C.D. Cal. Apr. 26, 2017)). A “uniform practice” can support a 60% to

2 100% violation rate. Alvarez v. Off. Depot, Inc., No. CV177220PSGAFMX, 2017 WL 5952181,

3 at *3 (C.D. Cal. Nov. 30, 2017). In contrast, courts in this district have found that “‘at times,’

4 . . . generally implies the alleged illegal conduct. . . did not happen consistently,” and may

5 support a 20% violation rate. Washington, 2025 WL 3089015, at *8 (citing Young v. Lab’y

6 Corp. of Am., No. C23-5892-DGE, 2024 WL 689605, at *5 (W.D. Wash. Feb. 20, 2024)).

7 Here, Plaintiff alleges that meal break violations were routine or frequent, but she does

8 not go so far as to allege a uniform practice. Her allegations are substantively similar to the

9 “pattern” and “common practice” allegations recognized to allege more frequent violations than

10 vague “at times” allegations. See Young, 2024 WL 689605, at *5. As such, a violation rate

11 above 20% but below 60% would align with those applied in other cases.

12 Per Defendant, Plaintiff’s time records indicate at least an 89% violation rate for her meal

13 breaks. Plaintiff’s specific experience, while not reasonably extrapolated to the entire class

14 solely based on her claims’ alleged typicality of the class claims, could be instructive in

15 narrowing that broad range. See Vigna v. Allstate Ins. Co., No. C16-5474 BHS, 2016 WL

16 4361810, at *3 (W.D. Wash. Aug. 16, 2016) (“Rule 23’s typicality requirement concerns

17 whether each class member’s claim arises from the same course of events and involves similar

18 legal arguments. . . . [T]he typicality element of a class action, by itself, does not allow [the

19 Court] to infer that the amounts of the named plaintiffs’ claims are similar to those of other class

20 members.” (citations omitted)); see also Urias v. Labcorp Peri-Approval & Commercialization

21 Inc., 710 F. Supp. 3d 838, 846 (S.D. Cal. 2024) (“Defendant cannot support its violation rate

22 assumption solely by referencing Plaintiff's alleged work schedule. . . . [T]he typicality

23 condition set by Federal Rule of Civil Procedure 23(a)(3) requires only ‘that the named

1 plaintiff’s claims are reasonably coextensive with those of absent class members; they need not

2 be substantially identical.’ ‘Because the claims need not be identical, typicality provides no

3 grounds from which to extrapolate the amount in controversy.’” (citations omitted)). The Court

4 finds it reasonable, then, to apply a violation rate on the higher end of the aforementioned 20% to

5 60% range in lieu of Defendant’s proposed 89% violation rate.

6 In an alternative argument in the original notice of removal, Defendant applied a 50%

7 meal-break violation rate. See Dkt. 1 at 9 n.2. Based on the case law and a reasonable

8 assumption that Plaintiff’s experience somewhat reflects that of the proposed class, the Court

9 finds that violation rate reasonable and will apply it to the meal break claim. Applying that

10 modified violation rate to Defendant’s revised calculation yields a $562,977.05 value for this

11 claim before doubling [112,091 * $20.09 * .5 * .5 = $562,977.05], and $1,125,954.10 after

12 doubling.

13 Regarding Plaintiff’s rest break claim, the Amended Complaint alleges that Plaintiff and

14 proposed class members were “at times” denied rest periods or compliant rest periods. But, she

15 also states categorically that they “failed to provide a second rest break before the eighth hour of

16 work and failed to provide a third rest break prior to the twelfth hour of work[]” and did not

17 compensate her for missed rest periods. Dkt. 3-10 at 8. Thus, Plaintiff alleges that first rest

18 breaks were only denied “at times” while successive breaks, where due, were generally denied.

19 Defendant’s proposed 50% violation rate for rest breaks is not tethered to that language.

20 Nor is it supported by the evidence Defendant offers. Defendant calculated from its records that

21 the putative class worked 120,354 shifts in the removal period, entitling them to 170,819 rest

22 breaks. It did not estimate average shift lengths, minimum shift lengths, or otherwise specify

23 whether each shift’s length necessarily compelled entitlement to at least one break. At most, the

1 data Defendant provides indicates that, of the 170,819 rest breaks due, a maximum of 120,354

2 were first rest breaks and the balance, 50,465 breaks, were successive rest breaks.

3 The Court does not find it reasonable to assume the same violation rate for first and

4 successive breaks given the distinct allegations in the Amended Complaint and in view of the

5 better assumptions that may be applied to Defendant’s data by parsing out first and successive

6 breaks. The Court therefore takes the first break maximum—120,354 breaks—and the

7 successive break minimum—50,465 breaks—separately.

8 As to the first breaks, the Court finds Plaintiff’s proposed violation rate of 20%

9 appropriate and rooted in her “at times” allegation. Plugging that amended violation rate into

10 Defendant’s proposed formula yields a claim value of $161,516.52 after doubling for first rest

11 breaks [120,354 * $20.09 * .167 * .2 = $80,758.26].

12 For successive rest breaks, or 50,465 rest breaks, a 20% violation rate is not appropriate

13 given Plaintiff’s allegation of categorical denial. Defendant’s proposed 50% violation rate,

14 which presumably accounted somewhat for first break denials, may be too low. The Court need

15 not identify a more reasonable violation rate, however. Even assuming, arguendo, a 100%

16 violation rate for successive rest breaks, and accepting Defendant’s assumptions and

17 methodology for valuing Plaintiff’s remaining claims, the amount in controversy would not

18 surpass CAFA’s minimum. With a 100% violation rate, the second break claim totals

19 $338,623.18 after doubling [50,465 * $20.09 * .167 * 1 = $169,311.59]. Adding together the

20 first and successive break claim values after doubling, the amount in controversy for the rest

21 break claim totals $500,139.70.

22 ///

23 ///

1 b. Minimum Wage Claim

2 Plaintiff does not challenge Defendant’s minimum wage claim calculation and adopts its

3 estimate. The Court will do the same. Applying Defendant’s modified workweeks assumption

4 and formula, that claim totals $289,647.58 before doubling [28,835 * $20.09 *.5 = $289,647.58]

5 and $579,295.16 total after doubling.

6 Together, the meal period, rest period, and minimum wage claims after doubling total

7 $2,205,388.96.

8 c. Overtime Wages Claim

9 Defendant conceptualized Plaintiff’s overtime claim under two theories: (1)

10 uncompensated time represented by her other claims that, once accounted for, nudged weekly

11 hours worked over forty and triggered overtime rates, and (2) time over forty hours allegedly

12 shaved off time records and left uncompensated. That approach fairly reflects the Complaint’s

13 allegations, and the Court adopts it.

14 The Court starts with the second theory. Plaintiff alleges in her pleading that “based on

15 information and belief, Defendant[] engaged in unauthorized time editing and/or shaving,

16 including but not limited to, deleting hours worked over forty (40) in a workweek from the

17 system[.]” Dkt. 3-10 at 9. In her Reply, Plaintiff does not appear to take issue with Defendant’s

18 time shaving overtime calculation, which assumes a violation rate of 20% of workweeks, with

19 one hour compensable as time-and-a-half shaved/deleted each week. Those assumptions are not

20 unreasonable and the Court will credit them. Thus, that component of the overtime claim totals

21 $173,788.55 [28,835 * $20.09 * .2 * 1.5 = $173,788.55], or $347,577.10 after doubling.

22 Moving to the first theory, Defendant’s assumption that the entire class worked overtime

23 with the same frequency as Plaintiff, or 49% of the time, is not clearly supported by the language

1 in the Amended Complaint and undermined by data Defendant submits as evidence. In her

2 Amended Complaint, Plaintiff alleges that she and other putative class members “sometimes

3 worked more than forty hours per week for which they were not paid overtime compensation.”

4 Id. Defendant has not put forth evidence indicating the percentages of individuals in the class as

5 a whole that may have worked sufficient weekly hours to qualify for overtime pay or the

6 percentage of its workforce that held full versus part-time roles. See Dkt. 15 at 15. However, the

7 payroll data Defendant provides is somewhat instructive. The average number of shifts worked

8 per week, relying on the 120,354 shifts Defendant asserts were worked over the course of 28,835

9 workweeks, was 4.17. Assuming those shifts averaged eight hours long, then, on average,

10 workweeks would total 33.36 hours—a total that is substantially below the forty hours needed to

11 trigger overtime rates. And looking at the rest break data, which assumed eligibility for a rest

12 break after four hours, and continuing with the Court’s assumption that all shifts were at least

13 four hours long so as to trigger entitlement to at least one rest break, then a maximum 30% of

14 shifts overall triggered entitlement to a successive rest break by meeting or exceeding eight hours

15 [(170,819 - 120,354) / 170,819 = .3]. Considering those figures together, and that a sufficient

16 number of shifts of sufficient length would be needed to trigger overtime liability, the Court

17 finds that it is not reasonable to extrapolate Plaintiff’s individual overtime frequency of 49% to

18 the entire class. That rate ought to be revised downwards.

19 But, again, the Court need not actually decide a more reasonable violation rate because,

20 even applying a 49% violation rate, the amount in controversy does not meet the CAFA’s

21 minimum. Applying a 49% violation rate to Defendant’s proposed formula, and with

22 adjustments for other claim totals as determined supra, this component of the overtime claim

23 totals $1,080,640.60 after doubling [$2,205,388.96 x .49 x .5 = $540,320.30].

1 Together, both components of the overtime claim amount to $1,428,217.70 after

2 doubling. Adding up all claims after doubling, they total $3,633,606.66 [$1,125,954.10 (meal

3 breaks) + $500,139.70 (rest breaks) + $579,295.16 (minimum wage) + $1,428,217.70 (overtime)

4 = $3,633,606.66].

5 d. Attorney’s Fees

6 Defendant supports its 25% attorney’s fees assumption by pointing to a case indicating

7 Plaintiff’s counsel has sought over 25% of the recovery amount in fees in other employment

8 cases. See Dkt. 13 at 14; Greene, 965 F.3d at 774 n.4 (“Based on Harley-Davidson’s evidence

9 that Greene’s attorney sought 35 percent in a similar case, it is reasonable to assume that

10 Greene’s attorney would seek fees equal to 25 percent of the amount in controversy if he were to

11 prevail.”); Reynolds v. Autozone Parts, Inc., No. C25-5328-BHS, 2025 WL 2437267, at *3

12 (W.D. Wash. Aug. 25, 2025) (Defendant “persuasively provides evidence that Reynolds’s own

13 counsel[, Crosner Legal,] has sought up to one-third of the recovery in prior employment

14 actions.”). If Plaintiff’s counsel intended to take the case pro bono or seek less than 25% of the

15 recovery amount in fees, Plaintiff could have filed proof of their agreement or an affidavit to that

16 effect. She opted not to. Assuming arguendo a 25% attorney’s fee award, the amount in

17 controversy would fall far under the threshold, totaling only $4,542,008.33. Because the amount

18 in controversy is not met, remand is proper.

19 ///

20 ///

21 ///

22 ///

23 ///

1 IV. CONCLUSION

2 Defendant has not shown, by a preponderance of the evidence, that the amount in

3 controversy exceeds $5 million as required under CAFA. Plaintiff’s Motion to Remand, Dkt. 9,

4 is therefore GRANTED and this action REMANDED to King County Superior Court.

5 Dated this 25th day of June, 2026.

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A

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S. KATE VAUGHAN

8 United States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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