1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN HASKINS, Case No. 19cv0943-JAH (LL)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION TO REMAND TO STATE COURT (Doc. No. 8) 14 WALMART INC., et al., 15 Defendants. 16 17 INTRODUCTION 18 Pending before the Court is Plaintiff Justin Haskins’ (“Plaintiff”) Motion to Remand 19 to State Court (“Motion”). See Doc. No. 8. Defendant Wal-Mart Associates, Inc. 20 (“Defendant”) filed a response in opposition. See Doc. No. 10. The Motion is fully briefed. 21 After careful review of the pleadings submitted by both parties, and for the reasons set 22 forth below, the Court GRANTS Plaintiff’s Motion. 23 BACKGROUND 24 This case was removed to this Court on May 20, 2019. See Doc. No. 1. On June 25 17, 2019, Plaintiff filed the Motion to remand. See Doc. No. 8. Plaintiff’s class action 26 complaint alleges (1) failure to pay vested vacation at time of termination in violation of 27 Labor Code Section 227.3; (2) failure to pay unpaid wages at time of separation in violation 28 of Labor Code §§ 201 and 202; and (3) violation of Business Professions Code §§ 17200 1 et seq. Id. Defendant filed its response in opposition to the Motion on July 29, 2019. See 2 Doc. No. 10. Plaintiff filed a reply on August 1, 2019. See Doc. No. 11. 3 DISCUSSION 4 I. Legal Standard 5 The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. 6 v. New York,

(9th Cir. 1986). As such, it cannot reach the merits of any 7 dispute until it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a 8 Better Environ.,

(1998). “Jurisdiction is power to declare the law, 9 and when it ceases to exist, the only function remaining to the court is that of announcing 10 the fact and dismissing the cause.”

(quoting Ex parte McCardle,

, 11 614 (1868)). District courts must construe the removal statutes strictly against removal 12 and resolve any uncertainty as to removability in favor of remanding the case to state court. 13 Boggs v. Lewis,

(9th Cir. 1988). 14 Removal jurisdiction is governed by

et seq. A state court action 15 can only be removed if it could have originally been brought in federal court. Caterpillar, 16 Inc. v. Williams,

(1987). Under the Class Action Fairness Act of 2005 17 (“CAFA”), original federal jurisdiction is established over class action lawsuits where (1) 18 any member of the proposed plaintiff class is a citizen of a state different from any 19 defendant; (2) the proposed class consists of more than 100 members; and (3) the amount 20 in controversy exceed $5,000,000, aggregating claims and exclusive of interest and costs. 21 See

(d)(2), 1332(d)(5)(B), and 1332(d)(6). The burden is on the party 22 invoking the federal removal statute to demonstrate federal subject matter jurisdiction over 23 the case and that removal is proper, supporting its jurisdictional allegations with competent 24 proof. Emrich v. Touche Ross & Co.,

(9th Cir. 1988); Gaus v. Miles, 25 Inc.,

(9th Cir. 1992) (per curiam); Nishimoto v. Federman-Bachrach & 26 Assocs.,

, 712 n.3 (9th Cir. 1990). 27 // 28 // 1 II. Analysis 2 Plaintiff argues that Defendant provides no evidence or facts in support of removal 3 to this Court. Doc. No. 8-1 at pg. 2. Plaintiff contends that Defendants fail to meet its 4 burden of showing that the amount in controversy exceeds $5,000,000. Id. at pg. 3. 5 Plaintiff asserts that the complaint does not plead a specific amount or seek a specific 6 amount of damages, and Defendant has not made an attempt to satisfy its burden of proof 7 in showing the amount in controversy. Id. at pgs. 3-4. 8 In response, Defendant asserts that, as of April 30, 2019, there were 1,910 known 9 putative class members from California. Doc. No. 10 at pgs. 4-5. Defendant also asserts 10 that the state minimum wage on April 18, 2015 was $9.00 per hour, $10.00 per hour on 11 January 1, 2016, $10.50 on January 1, 2017, $11.00 on January 11, 2018, and $12.00 on 12 January 1, 2019. Id. Defendant posits that the average of these figures is $10.66 per hour. 13 Id. Defendant contends that applying a $10.66 per hour minimum wage, assuming an 14 eight-hour work day, to the 1,910 person putative class, would generate a total of 15 $4,866,544. Id. at pgs. 5-6. Defendant argues that attorneys’ fees can be included to 16 determine whether the $5,000,000 CAFA threshold is met, and assuming each putative 17 class member had a total of $59.40 in attorneys’ fees, the $5,000,000 requirement is easily 18 satisfied. Id. at pg. 6. 19 In his reply, Plaintiff argues that Defendant improperly relied on unreasonable 20 assumptions to establish the amount in controversy. Doc. No. 11 at pg. 5. Plaintiff asserts 21 that Defendant bears the burden of proof, and Defendant still has not produced sufficient 22 evidence to meet this burden. Id. at pg. 6. Plaintiff contends that Defendant has not 23 presented any sort of calculation for attorneys’ fees. Id. at pgs. 8-10. 24 The Court agrees with Plaintiff. The Court finds that Defendant has not met its 25 burden of establishing that a $5,000,000 amount in controversy exists. When trying to 26 establish Labor Code section 203 penalties, Defendant does not offer any specifics as to 27 which putative class members were employed during what period of time. See Doc. No. 28 10 at pgs. 5-6. Defendant also does not specify which putative class members were 1 ||employed at what wage level or offer a reasonable method of calculation in attempting to 2 ||demonstrate the amount in controversy. Id. Instead, Defendant uses an average state 3 ||minimum wage of $10.66, derived from wage figures from a four-year timespan, and 4 ||assumes that each putative class member worked eight-hour work days. Id. The Court 5 || finds that Defendant has not sufficiently demonstrated that the putative class accumulated 6 $4,886,544 in Labor Code section 203 penalties. 7 The Ninth Circuit has determined that attorneys’ fees can be included in assessing 8 || whether the $5,000,000 amount in controversy is met, but a court is not required to include 9 || attorneys’ fees in the calculation. See Fritsch v. Swift Transp. Co. of Ariz., LLC,

||3d 785 (9% Cir. 2018). Here, Defendant does not offer any competent evidence of attorney 11 |/hours to be spent on the case, the hourly rates to be charged or data to consider the loadstar 12 || approach in calculating fees. Defendant’s estimate of attorneys’ fees is as speculative as 13 estimate of damages. The court does not include attorneys’ fees in the calculation. 14 For these reasons, there is a lack of competent proof supporting Defendant’s 15 |/jurisdictional allegations. The Court finds that Defendant has not demonstrated with 16 ||}competent proof federal subject matter jurisdiction. 17 CONCLUSION 18 Based on the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs 19 || Motion to remand (Doc. No. 8) is GRANTED. 20 IT IS SO ORDERED. 21 || DATED: September 25, 2019 22 23 VU 24 het — 95 / United States District Judge 26 27 28