Blanca Argelia Arias v. Residence Inn by Marriott

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BLANCA ARGELIA ARIAS, No. 19-55803

individually and on behalf of herself

and others similarly situated, D.C. No.

Plaintiff-Appellee, 2:18-cv-08818-

RGK-JPR

v.

RESIDENCE INN BY MARRIOTT, a OPINION

Delaware limited liability company;

MARRIOTT INTERNATIONAL, INC., a

Delaware corporation,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted August 13, 2019

Pasadena, California

Filed September 3, 2019

Before: Consuelo M. Callahan, D. Michael Fisher, *

and Morgan Christen, Circuit Judges.

Opinion by Judge Callahan

*

The Honorable D. Michael Fisher, United States Circuit Judge for

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

2 ARIAS V. RESIDENCE INN BY MARRIOTT

SUMMARY **

Class Action Fairness Act / Amount in Controversy

The panel vacated the district court’s order sua sponte

remanding to state court a putative class action brought by

employees against Residence Inn by Marriott, which had

been removed to federal court under the Class Action

Fairness Act.

The panel held that when a notice of removal plausibly

alleges a basis for federal court jurisdiction, a district court

may not remand the case back to state court without first

giving the defendant an opportunity to show by a

preponderance of the evidence that the jurisdictional

requirements were satisfied. Marriott’s notice of removal

alleged that the amount in controversy requirement was

satisfied, and the district court did not conclude that

Marriott’s allegations were implausible. The panel held that

by remanding the case to state court sua sponte, the district

court deprived Marriott of a fair opportunity to submit proof.

The panel concluded that this error warranted vacatur of the

remand order.

The panel held that when a defendant’s allegations of

removal jurisdiction are challenged, the defendant’s

showing on the amount in controversy may rely on

reasonable assumptions. The panel held that Marriott’s

notice of removal included personnel and payroll data, and

with that data, Marriott estimated the amount-in-controversy

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ARIAS V. RESIDENCE INN BY MARRIOTT 3

by making assumptions that were plausible and may prove

to be reasonable in light of allegations in the complaint. The

panel held that on remand Marriott must show that its

estimated amount in controversy relied on reasonable

assumptions.

The panel held that when a statute or contract provides

for the recovery of attorneys’ fees, prospective attorneys’

fees must be included in the assessment of the amount in

controversy.

The panel rejected plaintiff’s contention that the position

taken by Marriott in its summary judgment motion in state

court – that plaintiff’s claims are barred by a release from a

prior class action settlement – defeated federal court

jurisdiction.

The panel remanded on an open record for the district

court to permit the parties to submit evidence and arguments

on the amount in controversy.

COUNSEL

Brian P. Long (argued), Seyfarth Shaw LLP, Los Angeles,

California; William Dritsas, Seyfarth Shaw LLP, San

Francisco, California; for Defendants-Appellants.

Samvel Gashgian (argued) and Ramin R. Younessi, Law

Offices of Ramin R. Younessi, Los Angeles, California, for

Plaintiff-Appellee.

4 ARIAS V. RESIDENCE INN BY MARRIOTT

OPINION

CALLAHAN, Circuit Judge:

Blanca Arias filed a putative class action against

Residence Inn by Marriott, LLC and Marriott International,

Inc. (“Marriott”) in California superior court, alleging that

Marriott failed to compensate its employees for wages and

missed meal breaks and failed to issue accurate itemized

wage statements. Marriott removed the action to federal

court alleging diversity jurisdiction under the Class Action

Fairness Act (“CAFA”). The district court sua sponte

remanded the case back to state court, and Marriott appeals.

In some of our early cases interpreting CAFA, we

adopted legal standards that were influenced by a general

“presumption against federal jurisdiction.” See Lowdermilk

v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 999 (9th Cir. 2007).

The Supreme Court has made clear that regardless of

whether such a presumption exists in run-of-the-mill

diversity cases, “no antiremoval presumption attends cases

invoking CAFA.” Dart Cherokee Basin Operating Co., LLC

v. Owens, 135 S. Ct. 547, 554 (2014). Because some

remnants of our former antiremoval presumption seem to

persist, 1 we reaffirm three principles that apply in CAFA

removal cases. First, a removing defendant’s notice of

removal “need not contain evidentiary submissions” but

only plausible allegations of the jurisdictional elements.

Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197

1

A recent example of this persistence is reflected in a district court

decision we reversed in Ehrman v. Cox Communications Inc., No. 19-

55658, 2019 WL 3720013 (9th Cir. Aug. 8, 2019). See id. at *3

(“Because ‘no antiremoval presumption attends cases invoking CAFA,’

Dart Cherokee, 135 S. Ct. at 554, courts should be especially reluctant

to sua sponte challenge a defendant’s allegations of citizenship.”).

ARIAS V. RESIDENCE INN BY MARRIOTT 5

(9th Cir. 2015). Second, when a defendant’s allegations of

removal jurisdiction are challenged, the defendant’s

showing on the amount in controversy may rely on

reasonable assumptions. See id. at 1197–99. Third, when a

statute or contract provides for the recovery of attorneys’

fees, prospective attorneys’ fees must be included in the

assessment of the amount in controversy. Fritsch v. Swift

Transp. Co. of Ariz., LLC, 899 F.3d 785, 794 (9th Cir. 2018).

We vacate the district court’s order remanding the action to

state court, and we remand for further proceedings to allow

the parties to present evidence and argument on the amount

in controversy.

I.

Arias works for defendant Residence Inn by Marriott,

LLC in Los Angeles, California. On August 23, 2018, Arias

filed a putative class action in state court against Marriott

alleging that Marriott failed to pay wages, provide rest

breaks, and provide itemized wage statements, all in

violation of state wage and hour laws. Arias seeks

certification of a class of all employees of Marriott “who

were subjected to individual wage and hour violations,

during the period within four years from the filing of th[e]

Complaint and continuing through trial.” In addition to

compensatory damages, Arias seeks civil penalties under the

California Private Attorney General Act, disgorgement of

“ill-gotten gains” under California’s Unfair Competition

Law, and attorneys’ fees.

On October 12, 2018, Marriott removed the case to

federal district court, invoking CAFA jurisdiction. 2

2

The removal statute requires that a notice of removal be filed

within 30 days after the defendant is served with the complaint.

6 ARIAS V. RESIDENCE INN BY MARRIOTT

Specifically, Marriott alleged that the district court had

original jurisdiction over the matter because the class action

satisfied CAFA’s requirements of minimum diversity (any

member of the class is a citizen of a state different from any

defendant), class size (at least 100), and amount in

controversy (exceeding $5,000,000). See 28 U.S.C.

§ 1332(d)(2), (d)(5)(B). To show minimum diversity,

Marriott alleged that it is a citizen of Maryland and Delaware

and it relied on the allegation in the complaint that Arias is a

citizen of California. To satisfy the class size requirement,

Marriott provided a declaration from a human resources

officer stating that Marriott employed at least 2193

nonexempt employees during the period identified in the

complaint.

To satisfy the amount-in-controversy requirement,

Marriott relied on a combination of the complaint’s

definition of the class, Marriott’s employee data (e.g.,

number of nonexempt employees, hourly rate of pay, and

number of workweeks worked by putative class members),

and assumptions about the frequency of the violations

alleged in the complaint. Based on its assumptions and

calculations, Marriott alleged a potential amount in

controversy exceeding $15 million with its most

“conservative estimate” totaling over $5.5 million,

excluding attorneys’ fees (which Marriott alleged should be

included in the calculation). Marriott’s calculation in its

notice of removal breaks down as follows:

28 U.S.C. § 1446(b). Marriott alleged that its notice of removal was

timely because Marriott was served with the complaint on September 12,

2018.

ARIAS V. RESIDENCE INN BY MARRIOTT 7

Unpaid Overtime. Marriott cited Arias’s allegation that

Marriott “routinely” failed to pay its employees overtime

wages. Using an assumption of 30 minutes per week

(6 minutes per day) of unpaid overtime wages, Marriott

calculated an amount in controversy for this claim of

$1,617,017.70. Marriott suggested that, based on the

allegations in the complaint, an assumed violation rate of

60 minutes per week would be reasonable and would double

the estimated amount in controversy for unpaid overtime.

Rest Break Premiums. Marriott cited Arias’s allegation

that Marriott failed to provide employees with uninterrupted

rest periods and failed to compensate employees for missed

rest periods. In Marriott’s most conservative estimate, it

assumed a denial of one rest break per week and calculated

an amount in controversy for this claim of $2,155,493.

Marriott also suggested that assuming three missed rest

periods per week would also be “conservative” and would

yield an amount in controversy of $6,466,480 “in potential

damages for penalties alone.” Marriott also suggested that

the complaint could reasonably be interpreted as seeking one

rest period premium per day, in which case the amount in

controversy for this claim alone would be over $10 million.

Wage Statement Penalties. Marriott cited Arias’s

allegation that Marriott failed to provide employees timely

and accurate wage statements and that none of the paystubs

actually given to employees complied with the Labor Code.

Based on the penalties provided by statute, Marriott

calculated an amount in controversy for this claim of

$1,788,150.

8 ARIAS V. RESIDENCE INN BY MARRIOTT

Attorneys’ Fees. Marriott argued that a reasonable

estimate of attorneys’ fees likely to be recovered should be

included in the estimate of the amount in controversy. It

argued that 25 percent of the amount of estimated damages

should be added to the amount in controversy to account for

attorneys’ fees.

Table 1. Marriott’s Estimate of Amount in Controversy

em k

ts

s

% h

m

Pr rea

es

e

en

25 wi t

O aid

St age

al

m

iu

fe

m

B

ot

rti

np

l

W

ate

ta

st

bt

ve

U

Re

To

Su

“Conservative”

$ 1,617,018 $ 2,155,493 $ 1,788,150 $ 5,560,661 $ 6,950,826

Estimate

Higher Estimate $ 3,234,035 $ 10,777,466 $ 1,788,150 $ 15,799,651 $ 19,749,564 -

One month after Marriott filed the notice of removal, the

district court issued an order sua sponte remanding the case

to state court. The district court found Marriott’s

calculations of the amount in controversy “unpersuasive,”

concluding that the calculations rested on speculation and

conjecture. The court faulted Marriott for not offering

evidentiary support for its assumptions of violation rates and

reasoned that “[e]qually valid assumptions could be made

that result in damages that are less than the requisite

$5,000,000 amount in controversy.” The court also

concluded that “prospective attorneys’ fees are too

speculative” to be included in the amount in controversy.

The court thus concluded that Marriott “failed to satisfy [its]

burden that the amount in controversy meets the

jurisdictional requirement.”

ARIAS V. RESIDENCE INN BY MARRIOTT 9

The parties report that since the district court’s remand

order, litigation has gone forward in the state court.

According to the parties, on July 18, 2019, Marriott filed a

motion for summary judgment, arguing that a release from a

related class action settlement bars all of Arias’s claims.

Marriott timely filed a petition for permission to appeal

under 28 U.S.C. § 1453(c)(1), which we granted.

II.

“We review remand orders in CAFA cases de novo.”

Fritsch, 899 F.3d at 792.

“Congress designed the terms of CAFA specifically to

permit a defendant to remove certain class or mass actions

into federal court. 28 U.S.C. § 1332(d). Congress intended

CAFA to be interpreted expansively.” Ibarra, 775 F.3d

at 1197. As in Ibarra, the parties here “do not contest

CAFA’s jurisdictional requirements of minimum diversity

and class numerosity on appeal; the sole dispute is whether

CAFA’s requirement that the amount in controversy exceed

$5 million is met here.” Id. at 1196–97.

Marriott raises several challenges to the district court’s

remand order. First, Marriott argues the district court

imposed an erroneous burden of proof by sua sponte

remanding the case to state court without allowing Marriott

an opportunity to support its allegations with evidence.

Second, Marriott argues the district court erred in

disallowing Marriott’s use of assumed violation rates in its

estimate of the amount in controversy. Third, it argues the

district court erred by “refusing to consider prospective

attorneys’ fees in the amount in controversy.”

10 ARIAS V. RESIDENCE INN BY MARRIOTT

A.

We agree with Marriott that when a notice of removal

plausibly alleges a basis for federal court jurisdiction, a

district court may not remand the case back to state court

without first giving the defendant an opportunity to show by

a preponderance of the evidence that the jurisdictional

requirements are satisfied.

“[W]hen a defendant seeks federal-court adjudication,

the defendant’s amount-in-controversy allegation should be

accepted when not contested by the plaintiff or questioned

by the court.” Dart Cherokee, 135 S. Ct. at 553. “[A]

defendant’s notice of removal need include only a plausible

allegation that the amount in controversy exceeds the

jurisdictional threshold.” Id. at 554.

Marriott’s notice of removal alleged that the amount-in-

controversy requirement was satisfied. The notice of

removal discussed each of the claims alleged in the

complaint and explained the components of Marriott’s

estimate of the amount in controversy (e.g., number of class

members as defined in the complaint, number of workweeks

worked during the class period, and assumed violation rates).

The notice of removal thus provided “a short and plain

statement of the grounds for removal.” Id. at 551 (quoting

28 U.S.C. § 1446(a)); see also Ibarra, 775 F.3d at 1197.

The district court did not conclude that Marriott’s

allegations were implausible. Instead, the district court

stated that Marriott failed to meet its burden of proving the

amount in controversy. In rejecting Marriott’s assumed

violation rates, the district court cited a lack of “evidence

supporting [Marriott’s] assumptions.” But a notice of

removal “need not contain evidentiary submissions.” Dart

Cherokee, 135 S. Ct. at 551. Instead, evidence showing the

ARIAS V. RESIDENCE INN BY MARRIOTT 11

amount in controversy is required “only when the plaintiff

contests, or the court questions, the defendant’s allegation.”

Id. at 554. “[W]hen a defendant’s assertion of the amount in

controversy is challenged . . . both sides submit proof and

the court decides, by a preponderance of the evidence,

whether the amount-in-controversy requirement has been

satisfied.” Id. The district court clearly questioned

Marriott’s allegation, but by remanding the case to state

court sua sponte, the district court deprived Marriott of “a

fair opportunity to submit proof.” Ibarra, 775 F.3d at 1200.

This error warrants vacatur of the remand order. 3

B.

We also agree with Marriott that in assessing the amount

in controversy, a removing defendant is permitted to rely on

“a chain of reasoning that includes assumptions.” Id.

at 1199. Such “assumptions cannot be pulled from thin air

but need some reasonable ground underlying them.” Id. An

assumption may be reasonable if it is founded on the

allegations of the complaint. See id. at 1198–99. For

example, in Ibarra, we noted that the complaint alleged “a

‘pattern and practice’ of labor law violations but d[id] not

allege that this ‘pattern and practice’ is universally followed

every time the wage and hour violation could arise.” Id. at

1199. Because “a ‘pattern and practice’ of doing something

does not necessarily mean always doing something,” we

reasoned, the defendant’s assumed violation rate of 100%

may or may not have been valid. Id. at 1198–99. We thus

3

Marriott conceded at oral argument that the notice of removal did

not identify how many potential class members worked part-time and

how many worked full-time. But Marriott was entitled to an opportunity

to make this showing in response to a challenge by Arias or the district

court.

12 ARIAS V. RESIDENCE INN BY MARRIOTT

vacated the district court’s remand order and remanded “to

allow both sides to submit evidence related to the contested

amount in controversy.” Id.

LaCross v. Knight Transportation, Inc., 775 F.3d 1200

(9th Cir. 2015), a case decided the same day as Ibarra,

provides an example of when a maximum assumption is

reasonable in light of the plaintiff’s allegations. The plaintiff

in LaCross alleged that the defendant misclassified truck

drivers as independent contractors and sought, on behalf of

a putative class, reimbursement of expenses related to

ownership and operation of the trucks, including fuel costs.

Id. at 1202. The defendant included all fuel costs during the

class period in its calculation of the amount in controversy,

and we held that the assumption was reasonable because the

plaintiff alleged that all class members were truck drivers.

Id. at 1203 (reversing the district court’s remand order and

determining as a matter of law that the amount-in-

controversy requirement was satisfied).

Marriott’s notice of removal included personnel and

payroll data (e.g., number of employees meeting class

description, average rate of pay, and number of workweeks

worked during the class period). With that data, Marriott

estimated the amount in controversy by making assumptions

about the frequency of violations of the sort alleged in the

complaint. Marriott tied its assumed violation rates to the

complaint as follows:

ARIAS V. RESIDENCE INN BY MARRIOTT 13

Allegations of the Marriott’s

Complaint Lowest

Assumed

Violation Rate

Unpaid “Defendants routinely 6 minutes

Overtime failed to pay Plaintiffs unpaid overtime

and other aggrieved per day (30

employees . . . overtime minutes unpaid

wages . . . .” ¶ 35overtime per

(emphasis added). week).

Rest Break “Defendants 1 missed rest

Premiums routinely failed to pay break per week

Plaintiffs and other

aggrieved employees

. . . compensation for

missed rest and meal

breaks . . . .” ¶ 35

(emphasis added).

Wage “Defendants failed to 100% of wage

Statements provide the Plaintiffs statements

with timely and

accurate wage and hour

statements . . . . Not one

of the paystubs that

Plaintiffs received

complied with Labor

Code § 226 . . . .” ¶ 48

(emphasis added).

Marriott’s assumptions are plausible and may prove to

be reasonable in light of the allegations in the complaint.

The district court rejected Marriott’s assumptions because it

was reasonably possible that the damages at issue might be

14 ARIAS V. RESIDENCE INN BY MARRIOTT

less than $5 million. 4 This reasoning recognized that

Marriott, as the removing party, will bear the burden of

proof, but it also reflects a misapprehension of the amount-

in-controversy requirement.

“The amount in controversy is simply an estimate of the

total amount in dispute, not a prospective assessment of

defendant’s liability.” Lewis v. Verizon Commc’ns, Inc.,

627 F.3d 395, 400 (9th Cir. 2010). In that sense, the amount

in controversy reflects the maximum recovery the plaintiff

could reasonably recover. See Chavez v. JPMorgan Chase

& Co., 888 F.3d 413, 417 (9th Cir. 2018) (explaining that the

amount in controversy includes all amounts “at stake” in the

litigation at the time of removal, “whatever the likelihood

that [the plaintiff] will actually recover them”). An assertion

that the amount in controversy exceeds the jurisdictional

threshold is not defeated merely because it is equally

possible that damages might be “less than the requisite . . .

amount,” as the district court reasoned. Where a removing

defendant has shown potential recovery “could exceed

$5 million and the [p]laintiff has neither acknowledged nor

sought to establish that the class recovery is potentially any

less,” the defendant “has borne its burden to show the

amount in controversy exceeds $5 million.” Lewis, 627 F.3d

at 401 (emphasis added).

The district court characterized Marriott’s assumed

violation rates as being “speculation and conjecture,”

apparently because Marriott did not provide evidence

proving the assumptions correct. The district court seems to

have imposed a requirement that Marriott prove it actually

violated the law at the assumed rate. But assumptions made

4

The district court did not identify the “[e]qually valid assumptions”

that might result in an amount in controversy of less than $5 million.

ARIAS V. RESIDENCE INN BY MARRIOTT 15

part of the defendant’s chain of reasoning need not be

proven; they instead must only have “some reasonable

ground underlying them.” Ibarra, 775 F.3d at 1199; see also

Lewis, 627 F.3d at 400 (“To establish the jurisdictional

amount, Verizon need not concede liability for the entire

amount, which is what the district court was in essence

demanding by effectively asking Verizon to admit that at

least $5 million of the billings were ‘unauthorized’ within

the meaning of the complaint.”). On remand, Marriott will

“bear[] the burden to show that its estimated amount in

controversy relie[s] on reasonable assumptions.” Ibarra,

775 F.3d at 1199.

C.

The district court suggested that courts within the circuit

are split on whether attorneys’ fees should be considered in

the amount in controversy. The district court sided with

other district courts that have concluded “prospective

attorneys’ fees are too speculative for inclusion into amount

in controversy.”

In perceiving a split of authority, the district court

overlooked our precedent. As we stated in Fritsch, “[w]e

have long held (and reiterated [in early 2018]) that attorneys’

fees awarded under fee-shifting statutes or contracts are

included in the amount in controversy.” 899 F.3d at 794. In

Fritsch, we reaffirmed that “a court must include future

attorneys’ fees recoverable by statute or contract when

assessing whether the amount-in-controversy requirement is

met.” Id. “The defendant retains the burden, however, of

proving the amount of future attorneys’ fees by a

preponderance of the evidence.” Id. at 788.

Here, by her complaint, Arias seeks recovery of

attorneys’ fees, and there is no dispute that at least some of

16 ARIAS V. RESIDENCE INN BY MARRIOTT

the California wage and hour laws that form the basis of the

complaint entitle a prevailing plaintiff to an award of

attorneys’ fees. See id. (citing Cal. Labor Code §§ 218.5,

226, 1194). The district court thus erred in excluding

prospective attorneys’ fees from the amount in controversy.

Marriott argues that attorneys’ fees should be estimated

at 25 percent of the potential damages. Although such an

estimate might be reasonable, we have declined 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, 899 F.3d at 796; cf. id. n.6 (“We do not hold that a

percentage-based method is never relevant when estimating

the amount of attorneys’ fees included in the amount in

controversy, only that a per se rule is inappropriate.”). As

we did in Fritsch, “we leave the calculation of the amount of

the attorneys’ fees at stake to the district court on remand.”

Id. 5

D.

Arias argues that the position taken by Marriott in its

summary judgment motion in state court—that Arias’s

claims are barred by a release from a prior class action

settlement—defeats federal court jurisdiction. Arias is

wrong for two reasons. First, “[i]t is well settled that ‘post-

filing developments do not defeat jurisdiction if jurisdiction

was properly invoked as of the time of filing.’” Visendi v.

Bank of Am., N.A., 733 F.3d 863, 868 (9th Cir. 2013)

(quoting United Steel, Paper & Forestry, Rubber, Mfg.,

5

Of course, if the district court on remand were to find Marriott’s

lowest estimate of potential damages reasonable, there would be no need

to calculate attorneys’ fees because the damages in controversy would

exceed the jurisdictional threshold.

ARIAS V. RESIDENCE INN BY MARRIOTT 17

Energy, Allied Indus. & Serv. Workers Int’l Union v. Shell

Oil Co., 602 F.3d 1087, 1091–92 (9th Cir. 2010)). Second,

the strength of any defenses indicates the likelihood of the

plaintiff prevailing; it is irrelevant to determining the amount

that is at stake in the litigation. Arias’s argument

“conflat[es] the amount in controversy with the amount of

damages ultimately recoverable.” LaCross, 775 F.3d at

1203. As we stated in Ibarra,

Even when defendants have persuaded a

court upon a CAFA removal that the amount

in controversy exceeds $5 million, they are

still free to challenge the actual amount of

damages in subsequent proceedings and at

trial. This is so because they are not

stipulating to damages suffered, but only

estimating the damages that are in

controversy.

775 F.3d at 1198 n.1.

Arias also suggests that jurisdiction is defeated because

she “has stipulated that this action is not valued at

$5,000,000 for CAFA jurisdiction or otherwise.” Even if

this vague statement in Arias’s appellate brief were binding

on her, 6 it would be irrelevant to the CAFA analysis. The

Supreme Court has held that when “a class-action plaintiff

. . . stipulates, prior to certification of the class, that he, and

the class he seeks to represent, will not seek damages that

exceed $5 million in total,” the district court should “ignore[]

6

It is not clear that the value of a case is the same as the amount at

stake in the case. More likely, the value of a case—unlike the amount in

controversy—reflects both the amount at stake and the plaintiff’s

likelihood of prevailing.

18 ARIAS V. RESIDENCE INN BY MARRIOTT

that stipulation” when assessing the amount in controversy.

Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 590, 596

(2013). This is so because although individual plaintiffs “are

the masters of their complaints” and may “stipulat[e] to

amounts at issue that fall below the federal jurisdictional

requirement,” the same is not true for a putative class

representative, who “cannot yet bind the absent class.” Id.

at 595–96.

III.

We vacate the district court’s judgment and remand on

an open record for further proceedings consistent with this

opinion. The district court may hold such further

proceedings as it deems appropriate to permit the parties to

submit evidence and arguments on the amount in

controversy. The parties shall bear their own costs on

appeal. 7

VACATED and REMANDED.

7

Arguing that this appeal is frivolous, Arias requests sanctions. We

deny the request.