Re: ECF No. 12
ORDER GRANTING MOTION TO REMAND
I. INTRODUCTION
Defendant Nike Retail Services, Inc. removed this action from the Alameda County Superior Court on diversity jurisdiction grounds. ECF No. 1. Plaintiff Payal Patel now moves to remand it. ECF No. 12. At issue is whether the federal “amount in controversy” requirement has been satisfied. The matter came for hearing on May 8, 2014.
The Court will grant the motion.
II. BACKGROUND
A. Procedural and Factual History
Plaintiff alleges that she was employed by Defendant as an Assistant Store Manager from November 2010 to August 2013. Complaint ¶ 4 (Exh. A to Notice of Removal, ECF No. 1). In November 2013, she brought an action against her former employer, asserting claims under California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq., failure to pay overtime compensation in violation of Cal. Labor §§ 510, 1194 & 1198, failure to provide accurate wage statements in violation of Cal. Labor Code § 226, failure to make timely wage payments in violation of California Labor Code §§ 201-03, and a cause of action pursuant to California Private Attorney General Act (“PAGA”), Cal Lab. Code § 2698, et seq.
Defendant removed to this Court, asserting diversity jurisdiction over this action. Plaintiff now moves to remand.
B. Legal Standard
“[A]ny civil action brought in a [sjtate court of which the district courts of the United States have original jurisdiction, may be removed by a defendant ... to [a] federal district court.” 28 U.S.C. § 1441(a). “A defendant may remove an action to federal court based on federal question jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA,
III. ANALYSIS
Defendant asserts, and Plaintiff does not deny, that Defendant is a citizen only of Oregon and that Plaintiff is a citizen of California. Notice of Removal, ¶¶ 6-12. However, Plaintiff disputes whether Defendant has established that at least $75,000 is in controversy.
Plaintiff does not specify what damages she is entitled to for each specific cause of action she brings. She alleges overall that “[t]he amount in controversy for the PLAINTIFF individually does not exceed the sum or value of $75,000.” Complaint ¶24. However, under California law, a plaintiff is not limited to the amount set forth in his or her complaint. Damele v. Mack Trucks, Inc.,
In the Notice of Removal, Defendant calculates the amount Plaintiff is seeking for meal and rest period penalties as at least $38,464.80 and the amount Plaintiff is seeking for untimely wages as at least $6,962.40. Plaintiff does not dispute these amounts, and the court agrees that they are appropriate. But Plaintiff does dispute Defendant’s argument that Plaintiffs other claims place at least $29,572.80 in controversy.
To resolve this dispute, the Court first discusses the applicable standard of proof, see Part III-A, infra, and then considers whether Plaintiff is legally required to seek less than $75,000, see Part III-B, infra. With those issues out of the way, determining the amount in controversy requires the Court to answer three questions:
1. How to determine the amount the proper amount Plaintiff has put in controversy with her allegation that she was “regularly” required to work uncompensated overtime, and for the amount she may elect to recover for the enhanced penalties available for “subsequent,” knowing, Labor Code violations. See III-C, infra.
2. Whether the amount in controversy for a PAGA cause of action is the total amount of penalties attributable to an individual plaintiff, or whether the amount in controversy should be reduced by 75% to reflect the fact that 75% of PAGA penalties are paid to California’s Labor & Workforce Development Agency rather than the individual plaintiff. See III-D, infra.
3. What amount of attorney’s fees should be attributed to the amount in controversy. See III-E, infra.
Surprisingly, none of these questions have well-established answers.
To begin with, the Court must address the proper standard of proof for establishing the amount in controversy. Relying primarily upon a CAFA case, Lowdermilk v. U.S. Bank Nat’l Ass’n,
The Ninth Circuit recently held “that Lowdermilk has been effectively overruled [by Standard Fire Ins. Co. v. Knowles, — U.S.-,
More importantly, however, the answer to this question is now a matter of statute. In 2011, Congress amended the federal removal statute to specify that, where the underlying state practice “permits recovery of damages in excess of the amount demanded ... removal of the action is proper on the basis of an amount in controversy asserted ... if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).” Pub.L. 112-63, December 7, 2011,125 Stat. 758, § 103(b)(3)(C) {codified at 28 U.S.C. § 1446(c)(2) (emphasis added)). The legislative history indicates that Congress acted to eliminate the “legal certainty” standard that courts previously applied in situations when state law permits recovery in excess of the amount demanded in the complaint:
Proposed new paragraph 1446(c)(2) allows a defendant to assert an amount in controversy in the notice of removal if the initial pleading seeks non-monetary relief or a money judgment, in instances where the state practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded. The removal will succeed if the district court finds by a preponderance of the evidence that the amount in controversy exceeds' the amount specified in 28 U.S.C. s 1332(a), presently $75,000.
[...]
In adopting the preponderance standard, new paragraph 1446(c)(2) would follow the lead of recent cases. See McPhail v. Deere & Co.,529 F.3d 947 (10th Cir.2008); Meridian Security Ins. Co. v. Sadowski,441 F.3d 536 (7th Cir.2006). As those cases recognize, defendants do not need to prove to a legal certainty that the amount in controversy requirement has been met. Rather, defendants may simply allege or assert that the jurisdictional threshold has been met.
Discovery may be taken with regard to that question. In case of a dispute, the district court must make findings of jurisdictional fact to which the preponder-anee standard applies. If the defendant establishes by a preponderance of the evidence that the amount exceeds $75,000, the defendant, as proponent of Federal jurisdiction, will have met the burden of establishing jurisdictional facts.
H.R. REP. 112-10, 15-16, 2011 U.S.C.C.A.N. 576, 580; see also Wright & Miller, 14AA Fed. Prac. & Proc. Juris. § 3702.1 (4th ed.) (“in many situations the notice of removal will assert ... that state law permits recovery in excess of the ad damnum. Removal will be proper under Section 1446(c)(2)(B) if the district court finds by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional minimum”).
As shall become clear in the discussion infra, a significant dispute remains between the parties about-how the preponderance of the evidence standard applies to Plaintiffs complaint. But after the 2011 amendment of the removal statute, preponderance of the evidence, rather than “legal certainty,” is the standard for determining whether the amount in controversy is satisfied when state law permits the plaintiff to recover in excess of the amount alleged in the complaint.
B. Is Plaintiff Legally Bound to Seeking Less Than $75,000?
“[Fjederal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement.” Standard Fire,
“Some courts have required that these affidavits or stipulations be executed prior to the notice of removal as a sign of their bona tides and cannot await the motion to remand.” Id. “[TJhough ... the plaintiff after removal, by stipulation, by affidavit, or by amendment of his pleadings, reduces the claim below the requisite amount, this does not deprive the district court of jurisdiction.” St. Paul,
Notwithstanding this, district courts within this circuit have remanded actions on the condition that a plaintiff stipulate to seeking less than the jurisdictional minimum or submitting an affidavit binding him or her not to accept any amount meet
“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.,
At oral argument, the Court asked Plaintiffs counsel if Plaintiff would stipulate to seek no more than $75,000, inclusive of attorney’s fees attributable to her claim alone. Plaintiffs counsel declined, and in the two months since the matter has been under submission, no stipulation has been submitted to this Court.
A refusal to stipulate to receive less than $75,000 certainly does not conclusively establish that the amount of controversy is met. Conrad Associates v. Hartford Acc. & Indem. Co.,
C. Overtime and Subsequent Violations
The parties dispute how much is in controversy regarding two of Plaintiffs substantive claims: Plaintiffs allegation that she was “regularly” required to work uncompensated overtime hours, and her allegation that she could be entitled to recover the enhanced PAGA penalties that apply to “subsequent” PAGA violations.
1. Overtime
As her second cause of action, Plaintiff alleges that Defendant failed to pay her overtime compensation in violation of California Labor Code §§ 510, 1194 & 1198. Complaint, ¶¶ 64-88. Plaintiff does not allege precisely how often this occurred, or how much she is seeking in damages for this violation. But she does allege that “at all relevant times,” she was “regularly required to work, and did in fact work, overtime hours.” Complaint, ¶¶ 49, 77.
In its notice of removal, Defendant construes this as an allegation that Plaintiff was made to work between 1-5 hours of overtime a week. Notice of Removal, ¶¶ 20-24. On the basis of a declaration from a Nike employee about Plaintiffs scheduled working hours, Defendant ealcu-
In her motion to remand, Plaintiff does not dispute the accuracy of Defendant’s calculations. Nor does she aver what amount should properly be considered to be in controversy for her second cause of action. And she certainly does not disclaim that she is seeking to recover the amount Defendant identifies. Instead, she asks this Court to attribute no amount in controversy for this cause of action, since Defendant “provided no facts establishing the calculation of overtime at one hour a week.” Mem. Pts. & Auth. In Support of Motion to Remand 5:6-9, ECF No. 12-1. “The word ‘regularly’ could be construed to mean once a week, but there is no evidence proving whether the overtime was one (1) hour a week or thirty (30) minutes a week or even something less.” Id. In other words, Plaintiff faults Defendant for failing to prove what Plaintiff means by the term “regularly,” and for failing to prove the truth of Plaintiffs allegations. As another court of this district put it, this is a “have ... [your] cake and eat it too” argument, Navarro v. Servisair, LLC, No. 08-cv-02716-MHP,
“Not surprisingly, the federal courts have had some difficulty in ascertaining the amount in controversy when the [plaintiffs state-court] complaint is silent or inconclusive on the subject.” Wright & Miller, 14C Fed. Prac. & Proc. Juris. § 3725.1 (4th ed.).
The question at this stage of the litigation is not how many overtime hours Plaintiff actually worked, but how many hours Plaintiff alleges that she did. Plaintiff is in a much better position to know this information than Defendant.
Defendant argues that “once Nike sets forth a prima facie case establishing jurisdiction, the onus shifts to Plaintiff to offer some kind of proof that jurisdiction is lacking.” Defendant’s Opposition to Plaintiffs Motion to Remand (“Opp.”) 4:25-26, ECF No. 13 (citing Lewis,
In Lewis, plaintiff Delores Lewis brought a class action alleging that Veri
To the extent Lewis is not directly controlling, this Court is also persuaded by other courts of this district that when facing an allegation like the one in this case, if a defendant prepares a well-founded evi-dentiary record, a defendant’s reasonable extrapolations from the plaintiffs allegations suffice to establish the amount in controversy, if unrebutted by the plaintiff. In facing a similar wage-and-hour violation, the Navarro court held:
In light of these numbers, this court is convinced that the amount in controversy requirement is met. Athough plaintiff claims defendant simply invents numbers in order to meet the amount in controversy requirement, he offers no alternative. For instance, he claims that defendant’s calculations take into account three meal period violations per week without arguing that the same is untrue. He does not limit his claim by stating that only a certain number of hours went uncompensated. Nevertheless, he seeks remand. Plaintiff cannot have his cake and eat it too.
Plaintiff argues that the revised calculations are inflated because they assume, as one example, that plaintiff worked 13 hours a day every day that plaintiffworked for Godiva. However, as defendant notes, these calculations are consistent with plaintiffs allegation that during the relevant time period, he “regularly and/or consistently worked in excess of 12 hours per day.” Compl. ¶50. While defendant’s use of a 13 hour day is perhaps not conservative, defendant’s calculations do not assume—as they could consistent with plaintiffs allegations—that he worked seven days in a row and thus would be entitled to even additional overtime. Plaintiff also argues that defendant’s calculations are flawed because they are based on estimates of hours worked, and that defendant should have based its calculations based on the information in defendant’s records. However, ‘a removing defendant is not obligated to “research, state, and prove the plaintiffs claims for damages.’ ” Korn v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199 , 1204-05 (E.D.Cal.2008) (quoting McCraw v. Lyons,863 F.Supp. 430 , 434 (W.D.Ky.1994).
Lippold v. Godiva Chocolatier, Inc., No. 10-cv-00421 SI,
Defendant cited both Navarro and Lip-pold in its opposition to this motion. In response, Plaintiff argues that “all those cases found the removal burden satisfied by evidence that is not present in this case, including deposition and declarant testimony regarding hours actually worked.” Reply 3:7-9. Neither Navarro nor Lippold discussed any deposition or declarant testimony regarding the hours the plaintiffs actually worked. And, as described supra, the number of hours actually worked is not the relevant inquiry at this stage of the litigation.
Plaintiff alleges that she was regularly required to work overtime, and seeks damages for having been made to do so. Defendant has put forward a very reasonable estimate of how much a “regular” overtime violation would place in controversy, grounded in specific facts regarding Plaintiffs work schedule and salary. In the face of this, Plaintiff cannot simply sit silent and take refuge in the fact that it is Defendant’s burden to establish the grounds for federal jurisdiction. This is especially the case since the knowledge in question—how often Plaintiff claims she was made to work overtime—is uniquely within Plaintiffs possession.
The Court considers $5,767.69, or 1 hour a week of overtime, to be appropriately considered toward the amount in controversy for the second cause of action.
2. “Subsequent” Violations
Plaintiff alleges that Defendant failed to provide accurate itemized wage statements in violation of section 226 of the California Labor Code. Complaint ¶¶ 82-85. Plaintiff states in her complaint that she may elect to recover $50 for the initial pay period in which the violation occurred, and $100 for each “subsequent” violation. Id. ¶ 85. She also alleges that Defendant committed ten different statutory violations to which PAGA penalties apply. Id. ¶¶ 94-98. As to those violations, enhanced penalties for “subsequent” violations are also available, although Plaintiff does not specifically state in her complaint that she is seeking them.
The word “subsequent” has a specific meaning under the California Labor Code. “Until the employer has been notified that it is violating a Labor Code provision ... the employer cannot be presumed to be aware that its continuing underpayment of employees is a ‘violation’ subject to penalties.” Amaral v. Cintas Corp. No. 2,
Defendant proposes to calculate the amount in controversy as though all alleged Section 226 and PAGA violations after the first pay period will be penalized at the enhanced rate for “subsequent” violations. But this situation is not like the one presented by Plaintiffs overtime claims, in which Plaintiff has chosen not to clarify the extent of her own allegations. Here, Plaintiff alleges (and provides a letter evidencing) that she informed Defendant in writing by mail on September 24, 2013 that its actions violated the Labor Code. Id. ¶ 97; see also Exhibit 1 to Complaint. There are no other factual allegations in the complaint suggesting that Defendant knew its actions violated the Labor Code before that date. At the hearing, Plaintiffs counsel stated specifically that Plaintiff “disclaims” her right to recover the enhanced penalties for any pay periods that occurred before the letter was sent. As Plaintiff explains in paragraph 85 of her complaint, she seeks only to reserve the right to claim possible “subsequent” penalties for any future, continued violations of the Labor Code which occurred after the letter was sent, and while this litigation is ongoing. For purposes of considering remand, the court considers “the amount in controversy at the time of removal.” Singer v. State Farm Mut. Auto. Ins. Co.,
Therefore, the court calculates the amount in controversy for these claims on the basis of the initial, rather than “subsequent” rate. The Court considers only $1,750 to be in controversy for the § 226 claim, and $12,700 to be in controversy for the PAGA claims.
C. Reduction of PAGA penalties
In a PAGA suit, “[i]f the representative plaintiff prevails, the aggrieved employees are statutorily entitled to 25% of the civil penalties recovered while the LWDA [Labor & Workforce Development Agency] is entitled to 75%.” Urbino,
“The traditional rule is that multiple plaintiffs who assert separate and distinct claims are precluded from aggregating them to satisfy the amount in controversy requirement.” Urbino,
Federal courts have had some difficulty determining how a PAGA suit fits within this typology. See Hernandez v. Towne Park, Case No. CV 12-02972 MMM (JCGx),
In Urbino, the Ninth Circuit issued an opinion addressing the amount in controversy in a PAGA suit, and concluded in pertinent part:
Aggrieved employees have a host of claims available to them — e.g., wage and hour, discrimination, interference with pension and health coverage — to vindicate their employers’ breaches of California’s Labor Code. But all of these rights are held individually. Each employee suffers a unique injury — an injury that can be redressed without the involvement of other employees. Troy Bank,222 U.S. at 41 ,32 S.Ct. 9 (explaining that an interest is common and undivided when “neither [party] can enforce [the claim] in the absence of the other”). Defendants’ obligation to them is not “as a group,” but as “individuals severally.” Gibson,261 F.3d at 944 (quotation omitted). Thus, diversity jurisdiction does not lie because their claims cannot be aggregated.
Defendants contend, however, that the interest Urbino asserts is not his individual interest but rather the state’s collective interest in enforcing its labor laws through PAGA. See, e.g., Arias v. Superior Court,46 Cal.4th 969 ,95 Cal.Rptr.3d 588 ,209 P.3d 923 , 934 (2009); Amalgamated Transit Union, Local 1756, AFL-CIO v.Super. Ct.,46 Cal.4th 993 ,95 Cal.Rptr.3d 605 ,209 P.3d 937 , 943 (2009). Accordingly, they argue this is effectively a “case[ ] in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant,” Snyder,394 U.S. at 335 ,89 S.Ct. 1053 , and that those claims can be combined to satisfy the minimum amount in controversy requirement of the diversity statute, id. To the extent Plaintiff can — and does — assert anything but his individual interest, however, we are unpersuaded that such a suit, the primary benefit of which will inure to the state, satisfies the requirements of federal diversity jurisdiction. The state, as the real party in interest, is not a “citizen” for diversity purposes. See Navarro Sav. Ass’n v. Lee,446 U.S. 458 , 461,100 S.Ct. 1779 ,64 L.Ed.2d 425 (1980) (courts “must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.”); Mo., Kan. & Tex. Ry. Co. v. Hickman,183 U.S. 53 , 59,22 S.Ct. 18 ,46 L.Ed. 78 (1901); see also Moor v. Cnty. of Alameda,411 U.S. 693 , 717,93 S.Ct. 1785 ,36 L.Ed.2d 596 (1973) (explaining that “a State is not a ‘citizen’ for purposes of the diversity jurisdiction”).
Urbino,
At least two district courts in non-CAFA diversity actions have read the second Ur-bino paragraph cited above as addressing the issue of whether the State of California’s interest in a PAGA suit must be disaggregated from the interest of the employees. Those courts have concluded that, after Urbino, only 25% of the employees’ PAGA recovery counts towards the jurisdictional minimum. Willis v. Xerox Bus. Servs., LLC, No. 1:13-cv-01353-LJO-JLT,
To begin with, Urbino nowhere explicitly discussed the argument that the amount in controversy attributable to a representative plaintiff in a PAGA suit must be reduced by 75%. That question was not before the court. The Urbino court described the question in front of it as “whether the penalties recoverable on behalf of all aggrieved employees may be considered in their totality to clear the jurisdictional hurdle.”
Once the Urbino court concluded that representative plaintiff John Urbino’s claims must be calculated separately from the claims pertaining to his fellow aggrieved employees, reducing “his” amount in controversy further by 75% would not have changed the outcome. The penalties attributable to Urbino’s claims only totaled $11,602.40, well short of the jurisdictional minimum even before any further reduction.
Moreover, not only did the Urbino court not address the same issue presented here, but that issue was not even before the court. The defendant in Urbino did not argue that the State of California asserted 75% of the interest in Urbino’s claims. It argued that the State of California asserted 100% of the interest in all employees’ claims: “the interest asserted in a PAGA suit is the undivided interest of the LWDA to enforce California labor laws and recover civil penalties for violations of those laws,” and therefore “the amount in controversy is the full measure of civil penalties sought — not some subset of those penalties attributable to alleged violations involving a single employee.” Urbino, Third Brief on Cross-Appeal of Defendants-Counter-Plaintiffs-Appellants/Cross-Appellees,
In assessing the defendant’s argument that a plaintiff asserts “not his individual interest but rather the state’s collective interest in enforcing its labor laws,” Urbi-no allowed only that “to the extent Plaintiff can — and does — assert anything but his individual interest, however, we are unpersuaded that such a suit, the primary benefit of which will inure to the state, satisfies the requirements of federal diversity jurisdiction,” since “[t]he state, as the real party in interest, is not a ‘citizen’ for diversity purposes.”
For the foregoing reasons, this court does not read Urbino to hold that individual employees’ PAGA claims must be reduced by 75% for purposes of calculating the amount in controversy. And for the following reasons, the court also does not understand Urbino’s rationale to require that result.
It is possible, of course, that the Ninth Circuit might later determine that the portion of penalties paid to a worker should be disaggregated from the portion paid to the LWDA, applying a logic similar to the one used by Urbino to determine that the portion of penalties attributable to other employees must not be aggregated with the penalties attributable to the representative plaintiff. Urbino does partially undermine one rationale that some pre-Urbi-no courts used to explain why they did not reduce the requisite amount in controversy by 75%. District courts who combined the LWDA’s share of the recovery with the employees’ share had “likened PAGA claims to derivative shareholder suits, in which a shareholder has no individual rights to recovery but rather seeks recovery on behalf of the corporation.” Quintana v. Claire’s Stores, Inc., No. 13-cv-0368-PSG,
But it does not follow from this that the State of California and the employees must split the claims. An equally plausible inference from Urbino is that the Ninth Circuit rejected the proposition that the State of California has any interest at all in a PAGA suit for purposes of considering the amount in controversy. The State of California, after all, is not actually
The other possibility Urbino considered was that PAGA claims should be viewed as State property. But, again, the possibility Urbino considered was that the entirety of a PAGA claim belonged to the state, not the possibility that 75% of the claim does. Urbino’s analysis was all-or-nothing; either a PAGA suit belongs to individual workers or it belongs entirely to the state. Given the procedural posture of the case, Urbino did not decide the question because either result would require remand.
However, even assuming that the State of California does not own the entirety of the claims, but still remains part of the amount in controversy calculation, the question of whether employees share their claims with the LWDA is importantly different than the question of whether employees share their claims with each other. “[T]he aggregation of employees’ individual rights does not compel their aggregation with the rights of a state agency, the LWDA.” Hernandez,
Urbino concluded that the workers’ rights in a PAGA suit “are held individually,” because “[e]ach employee suffers a unique injury.”
Applying Gibson v. Chrysler Corp.,
In Gibson, the Ninth Circuit considered “paradigm aggregation cases” to be those that “involv[e] ‘a single indivisible res’ and concern[ ] ‘matters that cannot be adjudicated without implicating the rights of everyone involved with the res.’ ”
One factor considered by Urbino appears to push in the other direction. When claims are aggregated, it is usually the case that “neither [party] can enforce [the claim] in the absence of the other.” Urbino,
After Urbino, it is unclear whether the State of California has any interest in PAGA suits for the purposes of calculating the amount in controversy. But if it does hold any such interest, the interest is held in common with the individual workers. For these reasons, the entire amount of PAGA penalties attributable to Patel’s claims count towards the amount in controversy.
D. Attorney’s Fees
Before considering attorney’s fees, the amount in controversy stands at $65,644.89. The only remaining question is whether Defendant has met its burden to establish that attorney’s fees of at least $9,355.11 can also be considered in controversy.
“The amount in controversy includes ... attorney’s fees, if authorized by statute or contract.” Kroske v. U.S. Bank Corp.,
In support of removal, Defendant “conservatively estimates that attorneys’ fees through trial will exceed at minimum $39,500, using the lowest hourly rate for Plaintiffs counsel.” Opp. at 13 (citing Notice of Removal ¶ 47). Defendant bases
In response, Plaintiff makes two arguments. First, she notes that there is a circuit split, and a split of authority within the Ninth Circuit, over “whether the courts may consider only fees incurred as of the time of removal, or also a reasonable estimate of future attorneys’ fees to be incurred in the action, when determining the amount in controversy.” Wright & Miller, 14C Fed. Prac. & Proc. Juris. § 3725 (4th ed.). She urges this court to adopt the former view. This argument is unavailing on its own. Plaintiffs counsel has declared that attorneys’ fees and costs accrued through removal amount to $9,641.25. Bhowmik Declaration ¶ 2. This would bring Plaintiff $286.14 over the jurisdictional minimum.
But Plaintiffs second argument is well-founded. As the undersigned recently concluded in another PAGA removal action, only the portion of attorney’s fees attributable to Patel’s claims count towards the amount in controversy. See Garrett v. Bank of Am., N.A., No. 13-cv-05263-JST,
Therefore, even taking Defendant’s estimate of $39,500 as the appropriate estimate of the attorney’s fees incurred in taking a PAGA lawsuit through trial, that amount in total is not appropriately added to Patel’s claims. The amount must distributed pro rata to all aggrieved employees Patel seeks to represent.
In her complaint, Plaintiff seeks to represent “all other individuals who are or previously were employed by DEFENDANT as Assistant Store Managers in California and were classified as exempt from overtime wages during the applicable statutory period.” Complaint ¶ 96. If there are even five such employees within the state of California, that would make Patel’s share of the fees only $7,900. .This would be insufficient to meet the $75,000 amount in controversy. It seems likely that many more than five employees fit within this category. But in any case, the evidentiary burden is on Defendant to prove otherwise, and Defendant has failed to produce evidence necessary to meet its burden of showing that the amount in controversy attributable just to Patel’s claims meets the amount in controversy. The representative plaintiffs are defined by objective criteria based on information that is within Defendant’s possession, and demonstrating the number of employees who meet the criteria would not require Defendant to prove its own liability.
Defendant has failed to demonstrate that at least $9,355.11 in attorney’s fees are in controversy for Plaintiff Patel’s claims.
For the foregoing reasons, Defendant has failed to meet its burden to demonstrate that the amount in controversy necessary to establish federal diversity jurisdiction is established. This action is hereby REMANDED to Alameda Superi- or Court.
IT IS SO ORDERED.
Notes
. Other aspects of the applicable legal standard are disputed by the parties and are discussed more fully infra.
. This practice is in some tension with the Supreme Court’s holding in St. Paul, 303 U.S at 292,
. While Plaintiff’s state-court complaint alleges that she seeks less than $75,000, it is still legally “inconclusive” on this point since California law permits her to recover in excess of the amount she alleges.
. There are some contrary indications in Lewis. For example, the court held that the Ninth Circuit’s law "expressly contemplate[s] the district court’s consideration of some evi-dentiary record.”
. That $11,602.40 figure reflects the full amount of penalties attributable to John Urbi-no's claims. It is notable that the Ninth Circuit did not list the amount attributable to him as $2,900.60, as it would have if it viewed his claims as subject to a further 75% markdown.
. Quintana, too, was a CAFA case, but its rationale and its analysis of other cases remains applicable.
. Halliwell characterization of Urbino is accurate, although it applied the analysis to a different context. Halliwell was considering whether PAGA claims were sufficiently similar to a class actions to require the plaintiff to fulfill Rule 23 in federal court. On that point, Halliwell's conclusion was undermined by the Ninth Circuit’s later finding that “[a] PAGA action is at heart a civil enforcement action filed on behalf of and for the benefit of the state, not a claim for class relief.” Baumann v. Chase Inv. Servs. Corp.,