1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VIET NGUYEN, Case No. 21-cv-00800-JD

8 Plaintiff, ORDER RE REMAND AND CASE 9 v. MANAGEMENT CONFERENCE

10 SMITHS DETECTION INC., Re: Dkt. No. 15 Defendant. 11

12 13 Plaintiff Viet Nguyen, on behalf of himself and a putative class of non-exempt hourly 14 employees, sued defendant Smiths Detection, Inc., for wage and hour claims under California state 15 law. Dkt. No. 1-1. The complaint was originally filed in the Alameda County Superior Court, and 16 was removed by Smiths Detection under the Class Action Fairness Act (CAFA),

1332(d). Dkt. No. 1.1 Nguyen has asked for the case to be remanded on the ground that Smiths 18 Detection has not plausibly established the $5 million minimum amount in controversy required 19 for CAFA jurisdiction. Dkt. No. 15. The parties’ familiarity with the record is assumed, and a 20 remand is denied. The request for judicial notice, Dkt. No. 1-4, is denied, and the Court did not 21 rely on any of the proffered materials. 22 DISCUSSION 23 The Court has detailed the standards for CAFA removal in several decisions, and 24 incorporates the standards here. See Moore v. Dnata US Inflight Catering LLC, Case No. 20-cv- 25

26 1 Smiths Detection removed the case on February 1, 2021, Dkt. No. 1, which was 32 days after it was served with the complaint on December 31, 2020, see Dkt. No. 1-1 at 2. Even so, Smiths 27 Detection says that removal was timely. Dkt. No. 1 ¶ 7. Nguyen did not argue otherwise or 1 08028,

, at *1 (N.D. Cal. July 19, 2021); Anderson v. Starbucks Corp., No. 2 3:20-cv-01178-JD,

, at *2 (N.D. Cal. Dec. 31, 2020). Nguyen does not contest 3 the minimum diversity of citizenship required under CAFA, nor does he contend that the putative 4 class is less than 100 individuals. The only disputed issue is whether Smiths Detection has 5 plausibly demonstrated that the amount in controversy exceeds the $5 million statutory threshold 6 for CAFA jurisdiction. 7 Smiths Detection has carried its burden. To start, Nguyen’s objection to the evidentiary 8 declaration by the vice president of human resources at Smiths Detection, Dkt. No. 1-10 9 (Wideman Decl.), is overruled. Declarations of this type are routinely considered in remand 10 motions. See, e.g., Anderson,

, at *3 (declaration by a human resources 11 administrator admissible where the “statements about the number of prospective class members, 12 and their collective work months, are grounded in [defendant’s] business records”). Nguyen has 13 not offered a good reason to call this evidence into question, and there is nothing in the record 14 presently before the Court that indicates the contents of the declaration are in any way unreliable. 15 To the extent Nguyen demands more detailed and specific data, the request is misdirected. See 16 Arias v. Residence Inn by Marriott,

(9th Cir. 2019) (an employer does not need 17 to “provide evidence proving the assumptions” it relies on are correct because there is no 18 requirement that an employer “prove it actually violated the law at the assumed rate”). 19 To establish the amount in controversy for CAFA jurisdiction, a defendant need only 20 “‘plausibly show that it is reasonably possible that the potential liability exceeds $5 million.’” 21 Anderson,

, at *2 (quoting Greene v. Harley-Davidson, Inc.,

, 772 22 (9th Cir. 2020)). “‘[P]rospective attorneys’ fees must be included in the assessment of the amount 23 in controversy.’”

(quoting Arias,

). A plaintiff need not introduce extrinsic 24 evidence of his own to challenge the defendant’s estimates. He may rely entirely on “‘a reasoned 25 argument as to why any assumptions on which [defendant’s numbers] are based are not supported 26 by evidence.’”

at *2 (quoting Harris v. KM Indus., Inc.,

(9th Cir. 2020)). 27 That is what Nguyen has done here. He contests Smiths Detection’s evidence and reasoning, 1 In the notice of removal, Smiths Detection posited that the amount in controversy for the 2 four Labor Code claims in the complaint, plus an estimated 25% recovery for attorney’s fees, 3 totaled over $9.2 million. Dkt. No. 1 ¶ 35. For purposes of opposing remand, Smiths Detection 4 offered a more conservative estimate of approximately $5.3 million or more based on reductions 5 that arguably favor plaintiff’s perspective. Dkt. No. 15 at 14. 6 Smiths Detection has plausibly shown that the amount in controversy for the meal break 7 violations is approximately $1.79 million. Dkt. No. 16 at 7-8. The Wideman declaration used 8 payroll records to identify a putative class of approximately 191 non-exempt hourly employees in 9 California from the period between April 17, 2017, to January 29, 2021. Dkt. No. 1-10 at ¶7.2 10 Smiths Detection determined that it employed approximately 89 workers for each pay period, who 11 worked an average of 8.18 hours per shift at an average rate of $33.75 per hour. Id. ¶ 8. In the 12 opposition brief, Smiths Detection estimated a 60% violation rate for the meal break claim, 13 substantially down from the 80% violate rate stated in the notice of removal. Smiths Detection did 14 not posit an unreasonable 100% violation rate, which has been cause for a remand in other cases. 15 See, e.g., Moore,

at *2; Collins v. Hilton Mgmt. LLC, No. 21-CV-02523-JD, 16

, at *2 (N.D. Cal. July 15, 2021) (employer’s assumptions were reasonable 17 where it “did not assume a 100% violation rate at all times” but instead “estimated a much lower 18 rate of violations, which fully accord[ed] with the allegations in the complaint and [was] 19 reasonable in these circumstances.”); see also Ibarra v. Manheim Invs., Inc.,

, 1197 20 (9th Cir. 2015) (“In determining the amount in controversy, courts first look to the complaint.”). 21 Nguyen does not meaningfully impeach the reasonableness of this evidence or reasoning. 22 The allegations in the complaint are consistent with a 60% violation rate. Nguyen alleges that 23 Smiths Detection “had a policy of automatically deducting thirty minutes” from plaintiffs’ 24 2 This period was not “conjured out of thin air with no evidentiary support,” as Nguyen contends, 25 Dkt. No. 15 at 10, but is within the class period alleged in the complaint, see Dkt. No. 1-1 ¶ 13, with some shortening in a remand-friendly manner. As stated in the declaration, this time period 26 is based on Smiths Detection’s employee records, from which Wideman compiled “a report of the number of non-exempt California employees employed by Smiths Detection between April 7, 27 2017, to January 29, 2021.” Dkt. No. 1-10 ¶ 7. It is further stated, without dispute, that April 7, 1 paychecks for “unpaid meal periods which they were systemically denied.” Dkt. No. 1-1 ¶ 22. 2 Putative class members are said to have been denied meal periods because of Smiths Detection’s 3 “policy of not scheduling or recording each meal period as part of each work shift.” Id. ¶ 23. In 4 addition, “what meal periods were taken by putative class members were consistently interrupted 5 by work . . . [and were] consistently taken after the completion of their fifth hour of work.” Id. As 6 these excerpts demonstrate, the theme of the complaint is that meal breaks were “systemically” 7 denied and “consistently” noncompliant, and that Smiths Detection maintained a “common policy 8 and practice of automatically deducting 30 minutes” of time from plaintiffs’ paychecks for meal 9 breaks that were not taken. Id. 10 Smiths Detection has also shown that the reasonable maximum recovery for the rest break 11 claim is approximately $2.98 million. See Arias,

(maximum recovery); Dkt. No. 12 16 at 9. For this claim, Smiths Detection did posit a 100% violation rate based on allegations in 13 the complaint that putative class members “were never provided the opportunity to take 14 uninterrupted rest breaks.” Dkt. No. 1-1 ¶ 24 (emphasis added). The assumed violation rate is 15 reasonable on light of this claim. See Anderson,

, at *4 (finding a 100% 16 violation rate appropriate based on the allegations in the complaint). 17 Taken together, the meal and rest break claims reasonably put $4.77 million at stake in the 18 litigation. Smiths Detection crosses the $5 million CAFA threshold by estimating a 25% award of 19 attorneys’ fees and costs based on these claims. The complaint expressly seeks “reasonable 20 attorneys’ fees,” Dkt. No. 1-1, Prayer for Relief, and the Court has concluded that a 25% award is 21 reasonable in these circumstances. See Anderson,

, at *4; Collins,

2981977, at *3. Consequently, the amount in controversy for removal purposes is properly 23 increased by $1.19 million in fees and costs (25% of $4.77 million), which brings the total amount 24 at stake above the statutory minimum. The Court need not take up the valuation of the unpaid 25 wages and waiting time penalties, but they presumably would raise the amount in controversy 26 even higher. 27 1 CONCLUSION 2 The case was properly removed to federal court under CAFA. A remand is denied. The 3 || parties are directed to schedule an initial case management conference in June 2022. 4 IT IS SO ORDERED. 5 Dated: March 9, 2022 6 7 JAMES ATO 8 United Sates District Judge 9 10 11 12

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