*1 garding guidelines receipt pos- Further, pornography.
session child he
did not argue before the district court that guidelines accurately do not reflect the BARTNIKOWSKI, Individually Nicholas seriousness of those general offenses as a persons similarly and on behalf of all matter, only guidelines sentencing situated; Moore, Individually Aimee range greater necessary than in this persons similarly and on behalf of all Accordingly, case. he not convincingly situated; Wilcox, Individually Amber argued that the presumption of reason- persons similarly and on behalf of all ableness on appeal for a sentence within situated, Appellees, Plaintiffs — guidelines range apply should not here. However, applying any even without NVR, INCORPORATED, Defendant- reasonableness,
presumption of the district Appellant. court did not abuse its discretion. The No. 09-1063. district court the sentencing stated Appeals, United States Court of hearing that it had considered the Fourth Circuit. 3553(a) factors and Ross made extensive arguments upon based those factors in his Argued: Oct. variance, motion for a downward both in Decided: Jan.
writing and at sentencing hearing, expressly were considered the court in
determining his ultimate sentence. The properly
district court found that the fac- largely
tors Ross identified already were guidelines
reflected his offense level and
criminal history category, and that he subject upward
could have been to an de-
parture upon extremely based large
number images possessed. he Despite conduct,
the vast extent of his the district imposed
court a sentence that was twelve
to thirteen high months end of below advisory guidelines range for his of-
fenses. affirm judgment.
We the district court’s dispense argument
We with oral because
the facts legal contentions are ade-
quately presented in the materials before argument
the court and would not aid the process.
decisional
AFFIRMED.
GREGORY, Judge: Circuit case, to determine are asked In this we (“NVR”) defen- NVR, Inc. whether —the the amount-in- satisfied dant below—has re- for federal controversy requirement Action under the Class moval (“CAFA”), Act 28 U.S.C.A. Fairness (West 2008). 1332(d)(2) The district court, estimates finding NVR’s specula- too amount in were grant- jurisdiction, tive to removal Because motion for remand. Appellees’ ed the district court agree we with Miller, Barry Seyfarth J. & ARGUED: unsup- rely wholly on a estimates NVR’s Boston, Massachusetts, Shaw, L.L.P., for that members of the ported assumption Gifford, Dolin, Appellant. Annette M. worked an plaintiff class will claim to have Solomon, L.L.P., Rochester, Thomas & average of five hours of overtime York, BRIEF: Appellees. for ON New affirm week, the decision to remand Almon, Mishra, Devjani Seyfarth E. Lorie court. state L.L.P., York, York; Shaw, & New New Alfred, Shaw, Seyfarth Richard L. & I. Boston, L.L.P., Massachusetts; Keith M. litigation began in federal court This Dixon, Weddington, Joshua W. Parker Poe York, in the District of New Western Bernstein, L.L.P., Charlotte, & Adams (Case NVR, Tracy case of Patrick Inc. Carolina, Appellant. North J. Nelson DGL). inis No. 04-CV-06541 Thomas, Bahr, Dolin, A. Thomas Cristina constructing selling business of and new Solomon, L.L.P., Rochester, York; & New as a Tracy, homes. who worked Sales Caitlyn Fulghum, Fulghum Law (“SMR”)1 for Marketing Representative Firm, P.L.L.C., Durham, Carolina, North a federal Fair Labor and Stan- filed Appellees. (“FLSA”) against claim dards Act on behalf of a nationwide class company, GREGORY, Before and WILKINSON SMRs, provide for its failure to SMRs with K. Judges, Circuit MARTIN compensation. At re- REIDINGER, United States District quest, Tracy district court dismissed Judge for the District of North Western brought state law claims various Carolina, sitting by designation. members, declining class to exercise its by unpublished opinion. Affirmed them. To supplemental jurisdiction over Judge opinion, GREGORY wrote claims, Tracy class preserve these various joined. Judge REIDINGER Judge which state actions in members then initiated law dissenting opinion. WILKINSON wrote respective them state courts.2 21, 2007, Plaintiffs-Ap- Unpublished opinions binding September are not On Bartnikowski, pellees circuit. Nicholas Aimee precedent newly sign their new home. NVR handle lot in NVR’s de- and finish for 1. SMRs sales buyer. then constructs the home for the veloped communities. SMRs work from community, in the where model home action, law In addition to the instant buyers help them a de- meet select in Ohio actions have also been initiated (“Plaintiffs”) (e) Moore, attorneys [a]n and Amber Wilcox award of reasonable fees, expenses, expert fees and costs complaint against filed amended in vindicating plaintiffs’ rights; incurred Superior County, in the of Durham Court (f) pre-and post-judgment Plaintiffs, [a]n award present North Carolina. *3 interest; and SMRs, former North Carolina-based (g) legal other and further or eq- [s]uch wrongfully claimed that had denied NVR uitable relief as this to be Court deems them compensation hours just appropriate. and forty worked in excess of Plaintiffs, (J.A. 13.) complaint, their indi- week.
vidually and on behalf of a class of all
16, 2007,
On October
NVR removed the
and former
North
current
SMRs NVR’s
case to federal district court in the Middle
paid
been
Carolina locations who had not
Carolina, pursuant
District of North
to 28
overtime, claimed that
actions con-
1441(a)
NVR’s
(2000),
§
asserting
U.S.C.
of North
CAPA,
stituted a willful violation
Car-
codified in
part
relevant
at 28
1332(d)(2) (West
laws,
2008),
wage
including
gave
olina’s
and hour
N.C. U.S.C.A.
(2007),
original jurisdiction
the district court
Gen.Stat.
95-25.6
as well as a
over
removal,
the action.
In its notice of
NVR
breach of contract. Plaintiffs did not spec-
alleged
controversy
that the amount in
in
ify damages
complaint; they
in their
sim-
$5,000,000,
satisfy-
the case exceeded
thus
ply
they “frequently
stated that
requirements.
CAFA’s
(J.A. 12)
40 hours in a week”
and
over
Plaintiffs then filed a motion to remand to
following
asked for the
relief:
court, questioning
ability
NVR’s
(a)
by
that all matters so triable be tried
prove the amount
since the
jury;
complaint
Plaintiffs’
had left the amount of
(b)
preliminarily
perma-
an order
damages unspecified.
nently restraining defendant from en-
motion,
response
In its
to Plaintiffs’
gaging
pay
the aforementioned
vio-
[in]
attached a
NVR
declaration from Dennis
lations;
Littell,
payroll
NVR’s
director. Littell
(c)
plaintiffs’
award
value
average
stated
the declaration that the
benefits;
unpaid wages, including fringe
compensation paid
annual
to SMRs in
(d) all relief available under North Car-
two-year
North Carolina
time
law;
period
olina
to the
claims3
relevant
NVR, Inc.,
(Geers,
peri-
Court of Common
3. NVR has defined this “relevant
time
et al. v.
Pleas,
County,
Hamilton
Docket No. 07-6350
being August
July
od” as
2005 to
2007 be-
(Ge-
(filed
2007)),
July
Jersey
on
New
cause the statute of limitations for North Car-
bhardt,
NVR, Inc.,
v.
United States Dis-
et al.
years,
unpaid wages
olina's
statute is two
see
Jersey,
trict
the District of New
Court for
95-25.22(f)
(2007),
N.C. Gen Stat.
(filed
Superior
Docket No. 3:07-04456
disputed
have
this definition.
Plaintiffs
Court,
18, 2007,
County
July
on
Monmouth
separately suggested that
While NVR has also
11, 2007)), Maryland
then removed on Oct.
may
longer
Plaintiffs
seek to recover
for a
NVR, Inc.,
(Hart,
Dis-
et al. v.
United States
(because
unpaid
period of
their
Maryland, Dock-
trict Court for the District of
complaint
suggests that
their claims have
(filed
et No. 8:07-02744
in the Circuit Court
being
by
been tolled
dismissed
the dis-
since
18, 2007,
Montgomery County
July
on
New
trict court for the Western District of
11, 2007)),
on
and Penn-
then removed
Oct.
York),
we consider this assertion
(Graves,
sylvania
Court of
et al.
recovery period
and decline to consider a
Pleas, Allegheny County, Pennsylva-
Common
beyond
years
assessing the amount
two
nia,
(filed
July
No. 07-015569
Docket
controversy since NVR has offered no evi-
2007)).
tions,
damages under
estimated
$145,892,
that North Carolina
NVR
claim at an
“person-
breach of contract
a total
Plaintiffs’
SMRs worked
years.
$963,855.
Littell did
that attor-
Claiming
months”
those two
additional
nor
“person-months,”
the term
top
not define
of these
recoverable
neys’ fees were
oppos-
did NVR its memorandum law
calculations,
easily
argued that
ing the Plaintiffs’ motion to remand.
$5,000,000
hur-
cleared the
dle.
used Littell’s estimates to define
in excess of
amount-in-controversy
court,
unconvinced
The district
$5,000,000.
annual
Based on an
estimates,
mo-
Plaintiffs’
granted
*4
$145,892,
calculated
compensation of
NVR
2008,
19,
on June
2008 WL
tion to remand
that SMRs in North Carolina had an aver-
that
cal-
2512839. The court found
NVR’s
$70.14,
age hourly wage of
would
which
and that the
culations
too
were
average hourly
wage
make their
for a reason-
record was too bare
allow
(or
half times their
one and a
$105.21
able estimate of the amount
controver-
average hourly wage). NVR then as-
such,
noted,
sy.
propriety
the court
“the
As
putative
sumed that
class members will
jurisdiction
of
remains doubtful.”
federal
claim to
of 5
have worked
(J.A. 158.)
week,
per
creating dam-
overtime hours
appeal
for leave to
petition
NVR filed
$2,279.37
ages
per person-month.4
1453(c) (West
§
pursuant
to 28 U.S.C.A.
working
per-
With SMRs
a total of 1174
2008)
Appellate
Federal Rule of
Pro-
son-months,
NVR
for
estimated
30,
that
grant
cedure 5 on June
2008. We
$2,676,000.
statutory period
at about
timely filed5 and
de
petition as
review
Assuming then that Plaintiffs
seek
granting
novo the district court’s order
statutory
double
under the North
motion to remand this action to
Plaintiffs’
statute,
unpaid wages
Carolina
esti-
Tharp,
state court. See Lontz v.
413
F.3d
recovery
statutory
mated total
on the
$5,352,000.
435,
Using
claim at
similar calcula-
439
276,
(3d Cir.2006);
dence of overtime
dur-
v.
rates or hours worked
466 F.3d
277
Miedema
1322,
(11th
suggested
statutory period.
Maytag Corp.,
1326
Cir.
extended
450 F.3d
2006); Amalgamated Transit Union Local
1309,
Servs., Inc.,
=
AFL-CIO v. Laidlaw Transit
per
per
x
$105.21
hour
week
1140,
(9th Cir.2006);
435 F.3d
1145-46
per person-week.
$526.05
x
$526.05
4.333
1090,
Depot,
=
Pritchett v.
420 F.3d
$2,279.37
per person-
weeks
month
Office
(10th Cir.2005). At
one cir
1093 n. 2
least
month.
cuit, however,
ap
has declined to follow this
Vertrue, Inc.,
proach.
Spivey
F.3d
See
v.
1453(c)(1)
5. Section
28 of the United
of Title
982,
Cir.2008)
(7th
(choosing not to
983-85
appellate
States Code allows an
court
to ac-
1453(c)(1)
requiring petitions
§
for
read
as
cept
appeal
from a district court’s order
days
appeal to be filed "not more than” seven
denying
granting or
a motion to remand a
entry
agreeing
after
of a remand order but
long
petition
class action to state court so
as a
days
petitions filed within
should
seven
appeal
days
is filed "not less than 7
after
dismissed).
accepted
be
rather than
also
1453(c)(1)
entry
of the order.”
U.S.C.A.
(West 2008).
appeal
petition
NVR filed its
Most circuit courts that have
Because
entry
interpreted
statutory provision
exactly
days after
of the district
this
have con-
seven
order,
weekends,
excluding
phrase
days”
Mor-
cluded that the
"not less than 7
court's
see
typographical
provi-
gan,
we do
have to
was a
error and that the
II. diction bears the burden jurisdiction proper. Id. at claims that removal under 28 1441(a) (2000) because, proper U.S.C. under CAFA’s amendments to 28 U.S.C. question then becomes how (2000), origi- the district court has Generally, burden is to be satisfied. jurisdiction nal over this action. CAFA specified complaint amount in the will de requirements amended Title 28’s for diver- termine whether sity jurisdiction in the and removal case purposes is satisfied for removal. 1332(d)(2) actions. Section of Title class Wiggins Equitable v. North Am. As Life provides: 28 now (4th Co., surance Cir. original The district courts shall have 1981). Determining the amount in contro any action in civil which difficult, however, versy more becomes the matter exceeds the where, here, as Plaintiffs have left dam $5,000,000, sum or value of exclusive of in their ages unspecified complaint. costs, interest and is a class action case, parties agree de both ... which member of class of fendant’s burden these circumstances is plaintiffs is a citizen of a State different *5 by to establish the amount ,6 defendant... of the re preponderance evidence.7 We To determine whether view the evidence as to the amount satisfied, minimum is the district court controversy that standard in mind. aggregated looks to the of class value members’ claims. 28 U.S.C.A. III. 1332(d)(6)(West 2008). considering In Plaintiffs’ motion for re- seeking Defendants removal bear the mand, the district court seemed to find demonstrating jurisdiction burden of virtually spec- all of calculations too NVR’s T proper. Mobility is See Strawn v. AT & unsupported satisfy its bur- ulative (4th Cir.2008). LLC, 293, 530 F.3d 296-97 agree fully. den. do not A number of We This is true in the context of remov assumptions NVR’s calculations Strami, pursuant als CAFA. supported by reasonable and the record. that, found intend Court while CAFA was example, For NVR assumes open ed to the doors of the federal courts compensation base amount of al- litigants, to class action its lan legedly unpaid due under North Carolina’s guage long- did reverse $2,676,000, wages according to principle seeking settled that a defendant statute — de- juris- to invoke federal court’s removal NVR’s calculations—can be doubled to Co., 1332(d)(5)(B) 2006); Abrego Abrego 6. Section further limits federal v. Dow Chem. 443 676, curiam); original (9th Cir.2006) courts' under CAFA to (per F.3d 683 those class where the class actions size Garcia v. Koch Oil Co. Tex. 351 F.3d greater equal than or to 100 members. 636, (5th Cir.2003); 638-39 McCord v. Minn. (In Mut. Ins. Co. re Minn. Mut. Ins. Life Life explic 7. A number of our sister circuits have 830, Litig.), 346 F.3d Co. Sales Practices itly adopted preponderance of tire evidence require This case does not us appropriate as the burden to which standard stringent to decide whether a more standard removing prov be held in defendants should appropriate would be since we find that NVR controversy plain the amount where preponderance even a has failed to meet See, damages unspecified. e.g., tiffs leave v. Franklin the evidence burden. See Martin Co., Prop. v. & Cas. Ins. Smith Nationwide 1284, (10th Capital Corp., Cir. 251 F.3d (6th Cir.2007); v. 404-05 Miedema 2001). (11th Maytag Corp., 450 F.3d Cir. about no information proffered have because selves the amount termine they ex- damages, nor have expected them authorizes dou Carolina statute North why accepting the declaration plained complaint does damages. Plaintiffs’ ble an- average Payroll Director as liquidated claim for any specific make specula- be compensation nual SMR would for “all relief damages but it does ask estimating improper means tive or an law.” under North Carolina available expected hourly wage and (J.A. 13.) 95-25.22(al) SMRs’ of the Section have no difficul- hourly rate. We author General Statutes North Carolina figures. these ty accepting “in an liquidated damages izes an award found to be equal to the amount statistic “person-months” The use cases, subject only to wages in unpaid due” NVR left more troublesome since the com faith defense. Given that good the dis- in its brief before term undefined “loillfully violated plaint alleges However, has made trict court. obligations under North Carolina Law” its “per- that a to this clear its brief Court (J.A. added)), appears like (emphasis of a monthly equivalent is the son-month” sought. be ly liquidated “man-hour,” month’s meaning a unit of one (3d Morgan Gay, According to the by person. one work Cf. Cir.2006) (finding punitive damages not declaration, SMRs North Car- Littell properly includable in amount-in-contro collectively a total of 1174 olina versy calculation defendants eonclu where statutory period months person sorily alleged that millions of dollars years.8 Multiplying this number of two sought punitive monthly amount expected months specifically had claimed where (if this employees due to pay of overtime *6 million). would not exceed $5 discernible) yield a rea- number was Statutory properly are liquidated unpaid of the amount of sonable estimate jurisdic includable the calculation of the claims under the wages stake here, do not tional amount and we consider in this case. them too in this case to be of the amount ultimate estimate factored into that calculation. See 28 however, controversy, fatally under- (exclud 1332(d)(2) (West 2008) U.S.C.A. assump- by wholly unsupported mined ing only “interest and costs” from calcula ultimately calculations tion on which its aggregate controversy); tion of amount in members rest —that Plaintiffs and class Servs., Trailer see also Wall Fruehauf average each claim to worked an have Fed.Appx. per NVR of five hours of overtime week. argues “average also an- kept
NVR that it has no records of concedes average number compensation” nual class number of overtime hours worked worked, members,9 as the Plaintiffs themselves “person-months” provided ei- declaration, meas- no on the issue adequate Littell are have offered evidence in the only record from the amount ther. evidence ures which can is an point Plaintiffs them- fairly can be calculated. which per SMRs month correctly points out that turnover rate of about two The district court gives approxi- dividing by 24 months us to double the class. would suffice average mately number of SMRs 49 as the statutory peri- working per month NVR, According see need it did not od, mini- which is far short of the class-size to maintain such records because it under- But, supra persons. note 6. mum of 100 exempt position was stood that the SMR party the 100-member neither contests that pay. overtime Moreover, requirement a has been met. class = Tracy, the (equating per affirmation from Patrick named to 160 hours month minutes), plaintiff being litigated in the FLSA action such visits still took less Tracy, my in district court in York.10 than 1% of time in a month. New SMR, vague New York-based made refer- (J.A. added).) (emphasis The state- working ences in his affirmation to 55- ment made in the explain- context of NVR, According hour weeks. this percentage Tracy what of time spent that its assumption shows five hours on lot away visits from the model home in is, if anything, overtime a conservative es- given month. Tracy giving was not timate, Tracy, supposed since who is to be estimate of the number of overtime hours representative of a class of nationwide he per week. Plaintiffs, SMRS including suggests that Tracy’s only affirmation piece per he fifteen hours of works evidence offers to anchor its assump significant problems week. There are two plaintiff tion that class members worked argument. with this average per five
First, Tracy week, making assumption is located New York. highly speculative. Countrywide While is true that Plaintiffs are mem- Cf Brill v. Home . (7th Loans, Inc., class, Tracy Tracy bers of the is a com- Cir. 2005) (“Thus part removing party’s of the pletely separate Tracy’s “repre- action. only of the in burden is show not what the stakes sentativeness” nationwide class be, litigation could but also what the federal FLSA action does not make they given him, SMR, plaintiffs actual de York-based representa- New mands.”) (emphasis original). tive of a class of North Carolina-based Second, bringing SMRs state law claims. top statutory claims, On of Plaintiffs’ Tracy if repre- could be considered they have also raised a breach of contract case, sentative of the class his affir- unpaid claim for their overtime. Accord- actually mation does not state that he ing to the statute of limitations on worked an of 55 hours work years, Plaintiffs’ contract claim is three Instead, week. it states as follows: giving year them one additional for which Thus, lots, month, visiting in one two Using can recover. similar calcula- *7 equates to 40 minutes a month. claim, tion to that for the statutory used If in working four 55-hour weeks a month NVR estimates that the contract claim = (or 13,200 $963,855 220 hours minutes puts an additional at stake.11 But month) my lot outside the visits model unsup- estimate relies on the same ported took less than 1% of the time. Even if I of per “five hours overtime week” only assumption.12 had worked 40 hours a week $127,742, noting Tracy July yielding regularly It is worth that the affirma- 2005 was when, part hourly $61.41 tion was even a the record not rate of and an overtime rate of 10, 2007, Assuming averaged $92.11. on December NVR filed its brief in class members remand, week, opposition per to Plaintiffs’ motion for five hours of NVR esti- per "five which it first articulated the mates that Plaintiffs’ would be $1,995.56 per- assumption. only per week” The affirmation was month. SMRs worked 483 period, time filed with the district court for Western son-months relevant District of New York on December thus total available under the con- $963,855.48. NVR then submitted a motion for leave to tract claim would be evidentiary support submit it as “additional” attorneys' 12. NVR also suggests are fees on December 14. properly includable in the calculation of the compensation controversy Carolina's 11. The annual amount since North August unpaid wages SMRs in North Carolina from 2004 to statute authorizes their award.
737
obligation
under no
and are
assumption
circumstances
hours of overtime”
“five
See Birkenbuel
put
any
forth
evidence.
calcula-
quite
crucial to NVR’s
fact
F.Supp.
962
Corp.,
v. M.C.C. Constr.
If
controversy.
tions of the amount
(“MCC
(D.Mont.1997)
complains
claimed was
amount of overtime
actual
regarding
no evidence
‘Birkenbuel offers
week,
per
to three hours
only one
earnings, or
his interim
the amount of
methods, could
using its
calculation
own
or ever
that he has
indeed
evidence
minimum.13
satisfy
not
However, it is
interim income.’
will earn
hours,
juris-
clear the
At four
NVR would
Birkenbuel,
MCC,
which has the bur-
not
only by a hair.14 Given
dictional hurdle
if, as NVR con-
proof.”). Even
den of
number
centrality of the “five hours”
tends,
are the “sole custodians”
Plaintiffs
claims,
take
simply
cannot
to NVR’s
about the amount
over-
of information
a “conserva-
really
that this is
NVR’s word
Reply Br. at
(Appellant’s
time
12)
Br.
(Appellant’s
estimate
tive”
13),
give
pull
license to
this does not
NVR
hours that will be claimed
determining
thin air in
numbers from
Plaintiffs.
controversy.
Morgan,
The dissent contends that
has car-
NVR
(“CAFA
change
does
proof by
presenting
ried its burden
the master
plaintiff
proposition
issue,
credible evidence
the “five hours”
claim”); Brill,
See N.C. Gen.Stat. the class one hour week, specifies CAFA that the amount in controver- per the amount in contro- of overtime sy should be calculated "exclusive interests versy on the claims would 1332(d)(2) (West and costs.” 28 U.S.C.A. per x X per 1 hours week $105.21 hour However, 2008). since the North Carolina 1,174 x person- per weeks month 4.333 provides recovery attorneys' statute for the = $1,070,394.34. x months The amount right, they properly fees as substantive controversy claim would be on the contract includable in the amount in esti- x x per per 1 hour week 4.333 $92.11 hour Jones, mate. See Mo. Ins. Co. v. State Life = person-months x weeks month 199, 202, U.S. 54 S.Ct. 78 L.Ed. $192,771.40. The in controver- total amount *8 however, (1933). stage litigation, At this hours, $1,263,165.74. sy At two the then is attorneys’ pure specula- fees is an estimate $2,526,331.47 ($2,140,788.67 total becomes tion, thus, record, cannot be used and $385,542.80 statutory in + in con- amount-in-controversy augment calcu- hours, damages). At three the total be- tract lation. $3,789,497.21 ($3,211,183.01 in comes statu- Similarly, suggests passing in that $578,314.20 tory damages in + contract complaint “Plaintiffs’ includes a de- since damages). relief, injunctive the value of that mand injunction is included in the calculation of the hours, At four total becomes 14. 11.) (Appellant’s Neither Br. at 9 n. relief.” $5,052,662.94 ($4,281,577.34 statutory give party attempted to us estimate of $771,085.60 in contract dam- + injunctive sought, the value of the relief ages). assessing thus we will not consider it in controversy. obligation no readily note that distin and Plaintiffs under We this case is Strawn, assertion. guishable from that of 530 F.3d rebut this bare this Court where reversed district are more like the NVR’s calculations grant of a In court’s motion remand. rejected being speculative ones as too deed, this case is much more reminiscent case, plain- Miedema. In that the named of the facts of the Eleventh Circuit case involving negli- tiff filed a class action Maytag Corp., Miedema gence, express warranty, breach of against Maytag claims for a defect found in the motorized door latch of Straum, plaintiffs
In
claimed that
ranges/ovens
its
sold
Florida. Miede-
AT & T
illegally
opt-out poli-
had
used an
ma, 450
at
then
Maytag
1324-25.
cy for its “Roadside
program,
Assistance”
at
removed to federal court.
Id.
Virginia
it charged
under which
its West
Affirming
grant
the district court’s
of a
cellular customers
month auto-
$2.99
remand,
motion to
the Eleventh Circuit
matically
they affirmatively
unless
asked
Maytag
found
that
had failed
establish
to be
from the
after an
program
removed
controversy required
the amount in
under
period.
initial free-trial
739
2008).
Congress
spoken
not
strictly
has
of
constru-
Where
longstanding tradition
issue,
fall
jurisdiction suggests
directly
other-
the
we must
back
ing removal
to
that,
See,
Stratum,
feder
e.g.,
longstanding
530 F.3d
297
view
because
at
our
wise.
mat
legis-
subject
that
of
(rejecting
argument
CAFA’s
al courts are courts
limited
history
that
jurisdiction,
jurisdiction
lative
demonstrates
the stat-
our removal
ter
flip
presumption
ute intended to
strictly
construed. See Md. Sta
must
jurisdiction
about
are
doubts
resolved
Ellerbe
407
dium Auth. v.
Becket
Miedema,
court);
(4th Cir.2005) (“We
favor of remand to state
F.3d
(same).
at
450 F.3d
1328-29
obliged
construe removal
strictly
significant
of the
federal
because
our
to affirm
reach
decision
the dis
We
(internal cita
implicated.”)
ism concerns
difficulty
trict court
unmindful
omitted).
fed
quotations
tion and
Where
that CAFA defendants face
demonstrat
doubtful,
jurisdiction is
a remand
eral
controversy
that the
met
ing
is
traditionally
consid
state
has
been
court
them
damages
have left
when
of
proper
ered
course
action. Mulca
may
unspecified. Plaintiffs
well use their
Co., Inc.,
hey
Organic
Chems.
Columbia
tactically, leaving
pleadings
state court
This is no
unspecified to block
removal
true in
context of
than
less
CAFA
foreclosing
recovery
an ultimate
without
Strawn, 530
other
actions. See
removal
jurisdictional
than the
more
federal
mini
Miedema,
297;
F.3d at
areWe the fact IV. a that CAFA defendant who cannot meet stands, On the it record as find early for stages his burden removal at the its NVR has not satisfied burden of show- litigation may still have recourse to the amount in suffi- is later, Congress federal courts as has elimi jurisdictional cient to meet CAFA’s re- the one-year nated time limit on CAFA such, quirements. we affirm the order As removal actions.15 See U.S.C.A. remanding court this case to (West district 1453(b) 2008); Lowdermilk, § state court.16 F.3d at 1002-03. AFFIRMED. argues contrary it is to the
purpose subject CAFA to defendants WILKINSON, Judge, Circuit approach kind of this “wait and see” dissenting: court. quite explicit But CAFA prima it Petitioner forth facie case about how relaxes re- establishing issue quirements bringing a class action in this thresh- court. extent action meet the federal To the that Con- sought respon- old under the CAFA. gress response, relax CAFA defendant’s removal, petitioner’s it has done so dent offered to rebut explicit- burden 453(b) (West See, claims; e.g., ly. merely charged 28 U.S.C.A. that the claims 1446(b) Although one-year CAFA eliminates become removable.” U.S.C. actions, (2000); 1453(b) (West time limit on see also 28 U.S.C.A. removal defendant 2008). file must still a notice of removal "within thirty days receipt after ... defendant motion, copy pleading, an amended filed a Plaintiffs have also motion to strike paper may which it appendix, order or other first joint certain documents from tire deny be ascertained that the case is one which or and we motion as moot. *10 are too speculative. accepting sought this ar- claims pay overtime of one-and-a- gument, majority the conflates burdens of half times the regular further, rate of pay; proof production. with burdens of More- statutory the claim petitioner asserts that over, majority’s holding petition- the willfully, acted which under North Car- —that er has proof failed to meet its burden of olina law would allow court to award despite presenting a prima facie case that damages. double 28 U.S.C. respondent has not contradicted —is 1332(d)(2) (excluding only “interest and some precedent tension with circuit costs” from the amount in controversy un- LLC, Strawn v. T Mobility AT & CAFA); der the §§ N.C. Gen.Stat. 95- I respectful- therefore 25.22(al) for (providing liqui- the award of ly dissent. damages dated in an amount equal to the due). Finally, respondents claim
I.
fees,
attorneys’
which are recoverable un-
The
party seeking removal
a CAFA der North
wage
Carolina
and hour laws.
alleging
case has the burden of
federal
25.22(d);
See N.C. GemStat.
see also
95—
jurisdiction and
if
establishing
chal-
1332(d)(2).
28 U.S.C.
Based on these
Strawn,
lenged.
Similarly, in the CAFA
the bur
proof
den of
remains
the party
with
seek
recognize
I
may
that CAFA cases
turn
ing to invoke federal jurisdiction typical
questions
of state law and there is a
—
ly, the
(petitioner
class action defendant
policy argument,
I
with which
have some
here).
Strawn,
See
Finally, not requiring any response from
respondents lets them have their cake and avoiding
eat federal too— being by any
without bound declaration of might them in haunt state See,
court. e.g., Morgan Gay, v. (3d Cir.2006) (“[P]laintiffs
469, 477 in state America, permitted court should not be UNITED ostensibly STATES Appellee, limit their damages to avoid federal court Plaintiff — only to receive award excess of the federal amount in controversy require- PRINCE, Appellant. Don Defendant - ment.”). Further, requiring so No. 08-8127. much response game as a invites judicial ping-pong. point, At this the case States of Appeals, United Court proceed discovery court, will Fourth Circuit.
but petitioner surely its notice renew Submitted: Jan. claim, if respondents of removal later as no Decided: Jan. will, doubt million in over dam- $5 1446(b) ages. (stating U.S.C. may the defendant remove case notes relief, majority the which injunctive require more lead facie case. To would in controver- of the amount part and docu- constitute discovery requests voluminous 736-37, n. 12. Maj. Op. at sy. See stages preliminary at the production ment preliminary is itself a of what calculations, the Littell along with These deluge Encouraging this sort of issue. Declaration, petitioner’s prima up make already litigious litigiousness to adds more respon- on the put case and burden facie undertakings. class action something response. offer dents to Strawn, If the at 299. five-hour Moreover, estimate is not the five-hour in- or speculative too require a estimate was indeed as to not so even response accurate, it make would respondents. The affirma- response from respondents, who easier to tender. Tracy, plaintiff the named tion of Patrick regard- information of all possession are in proceeding in the Western parallel in a claims, could shoot down pay their York, many “in states that District New breaking a inaccurate estimate without [Tracy] beyond the model worked weeks have never respondents But then days” sweat. open home hours on scheduled [his] than requesting less days they are on his claimed and that he also came work fact, (JA 99.) respon- In damages. only refers to million off. He work- $5 (JA 96), litigating class action dents have been ing four 55-hour in a month weeks petitioner since pay against cases “frequently that he over overtime but states every 2004, passed opportuni- forty of his extra but have hours a week” because an affidavit or even make ty “the extra to submit hours the week and (JA 100) likely amount of dam- declaration as to the days hours” on his off. There- See, e.g., Tracy v. fore, they claim. Tracy’s peti- ages statements buttress the NVR, Inc., 6:04-06541, 2004 WL No. argument tioner’s that an estimate five 2004). (W.D.N.Y. filed on Oct. only a credible 3213031 per hours week is not sure, may be under no estimate, respondents To very but a one. conservative so, court is like- obligation to do but the And there is no reason to believe that them of obligation no to relieve Tracy’s experience in York differs wise under New consequences of inaction. that of SMRs in North Carolina: ac- named in the North Carolina of minimal re Requiring some sort Tracy repre- are of the class that part tion bur the ultimate sponse way in no shifts sents, respondents have stated recognizes respondents, but proof den of kept “very regimented policies” role to have some modest respondents “at all of its the same sales model followed adversary process func play making Support Pi’s Mem. of Law locations.” otherwise, majority ruling tion. Certification, Tracy v. of Mot. for Class proof bur confuses the burden (W.D.N.Y. NVR, Inc., No. 04-CV-06541 it states that re production when den 2008). filed Jan. obligation “are under no spondents Maj. Op. acknowledges forth evidence.” Finally, majority in the Title VII context Our cases respondents reach discussing As noted when per instructive. just if claimed four Douglas McDonnell framework Four Maj. Op. at 737. of overtime. week AAF-McQuay, little Burns v. precious hours overtime week