Baretich v. Everett Financial, Inc. et al, No. 3:2018cv01327 - Document 15 (S.D. Cal. 2018)
Court Description: ORDER Granting 5 Plaintiff's Motion to Remand. The Court grants Plaintiff's motion to remand, and remands this action back to state court. The Court denies Plaintiff's request for attorneys' fees. The Clerk of Court is instructed to terminate all pending motions, deadlines, and hearings. Signed by Judge Michael M. Anello on 9/25/2018. (rmc)(Certified copy sent to State Court via US Mail Service.)
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Baretich v. Everett Financial, Inc. et al Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 16 SOUTHERN DISTRICT OF CALIFORNIA RICHARD BARETICH, individually, and on behalf of other members of the general public similarly situated, v. Case No.: 18cv1327-MMA (BGS) ORDER GRANTING PLAINTIFF’S MOTION TO REMAND Plaintiff, [Doc. No. 5] EVERETT FINANCIAL, INC. d/b/a SUPREME LENDING, a Texas Corporation, Defendant. 17 18 Plaintiff Richard Baretich (“Plaintiff”) filed this putative class action against 19 Defendant Everett Financial, Inc. d/b/a Supreme Lending (“Defendant”) in the Superior 20 Court of California, County of San Diego. See Doc. No. 1-2 (hereinafter “Compl.”). On 21 June 19, 2018, Defendant removed the action to this Court pursuant to the Class Action 22 Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Doc. No. 1. On July 19, 2018, 23 Plaintiff filed a motion to remand this action back to state court. See Doc. No. 5. 24 Defendant filed an opposition, to which Plaintiff replied. See Doc. Nos. 6, 9. The Court 25 further permitted Defendant to file a sur-reply, which Defendant filed on August 31, 26 2018. See Doc. No. 14. The Court found the matter suitable for determination on the 27 papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 10. 28 For the reasons set forth below, the Court GRANTS Plaintiff’s motion to remand. -1- 18cv1327-MMA (BGS) Dockets.Justia.com 1 BACKGROUND 2 Plaintiff, a California resident, previously worked for Defendant as a non-exempt 3 employee in California from October 2016 through March 2017. See Compl. ¶¶ 17-18. 4 On May 18, 2018, Plaintiff filed this putative class action in San Diego Superior 5 Court on behalf of himself and all other similarly situated California employees, alleging 6 eight claims for relief: (1) failure to pay overtime wages, in violation of Cal. Lab. Code 7 §§ 510, 1198; (2) failure to provide meal periods, in violation of Cal. Lab. Code §§ 226.7, 8 512(a); (3) failure to provide rest periods, in violation of Cal. Lab. Code § 226.7; (4) 9 failure to pay minimum wages, in violation of Cal. Lab. Code §§ 1194, 1197, 1197.1; (5) 10 failure to timely pay wages, in violation of Cal. Lab. Code §§ 201, 202; (6) failure to 11 provide complete and accurate wage statements, in violation of Cal. Lab. Code § 226(a); 12 (7) failure to reimburse necessary business-related expenses and costs, in violation of Cal. 13 Lab. Code §§ 2800, 2802; and (8) unfair and unlawful business practices, in violation of 14 Cal. Bus. & Prof. Code § 17200 et seq. See Compl. Plaintiff defines the proposed class 15 as “[a]ll current and former non-exempt employees who worked for any of the 16 Defendants within the State of California at any time during the period from four years 17 preceding the filing of this Complaint to final judgment.” Id. ¶ 13. 18 19 20 21 Defendant removed the action to this Court on June 19, 2018. See Doc. No. 1. Plaintiff filed the instant motion to remand on July 19, 2018. See Doc. No. 5. LEGAL STANDARD “As a general matter, defendants may remove to the appropriate federal district 22 court ‘any civil action brought in a State court of which the district courts of the United 23 States have original jurisdiction.’ 28 U.S.C. § 1441(a). The propriety of removal thus 24 depends on whether the case originally could have been filed in federal court.” City of 25 Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). The “propriety of removal” in 26 this case arises under “CAFA[, which] gives federal courts jurisdiction over certain class 27 actions, defined in § 1332(d)(1), if the class has more than 100 members, the parties are 28 minimally diverse, and the amount in controversy exceeds $5 million.” Dart Cherokee -2- 18cv1327-MMA (BGS) 1 2 Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 552 (2014). A notice of removal must contain a “short and plain statement of the grounds for 3 removal.” 28 U.S.C. § 1446(a). There is no presumption against removal jurisdiction in 4 CAFA cases. Dart, 135 S. Ct. at 554 (noting “CAFA’s provisions should be read 5 broadly, with a strong preference that interstate class actions should be heard in a federal 6 court if properly removed by any defendant.”) (internal quotations omitted). The burden 7 of establishing removal jurisdiction under CAFA lies with the proponent of federal 8 jurisdiction. See Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1199 (9th Cir. 9 2015). 10 “[W]hen a defendant seeks federal-court adjudication, the defendant’s amount-in- 11 controversy allegation should be accepted when not contested by the plaintiff or 12 questioned by the court.” Dart, 135 S. Ct. at 553. “Evidence establishing the amount is 13 required” where, as here, the plaintiff challenges the defendant’s amount in controversy 14 assertion. Id. at 554. “In such a case, both sides submit proof and the court decides, by a 15 preponderance of the evidence, whether the amount-in-controversy requirement has been 16 satisfied.” Id. (citing 28 U.S.C. § 1446(c)(2)(B)). “Under the preponderance of the 17 evidence standard, a defendant must establish ‘that the potential damage could exceed the 18 jurisdictional amount.’” Bryant v. NCR Corp., 284 F. Supp. 3d 1147, 1149 (S.D. Cal. 19 2018) (quoting Rea v. Michaels Stores Inc., 742 F.3d 1234, 1239 (9th Cir. 2014)). 20 DISCUSSION 21 There is no dispute that this action involves more than 100 employees, or that 22 minimal diversity exists. The sole issue before the Court is whether Defendant has 23 shown by a preponderance of the evidence that the amount in controversy exceeds $5 24 million. The Court proceeds by analyzing Defendant’s burden in removing the action, 25 and then addresses the amount in controversy with respect to Plaintiff’s claims for relief. 26 1. Defendant Satisfied its Burden in the Notice of Removal 27 Plaintiff asserts that “the evidence Defendant offers [in its notice of removal] is 28 woefully inadequate for this Court to determine whether Defendant satisfied its burden by -3- 18cv1327-MMA (BGS) 1 a preponderance of the evidence.” Doc. No. 5-1 at 4. Moreover, in his reply brief, 2 Plaintiff contends that “Defendant failed to meet its initial burden, thereby relieving 3 Plaintiff of having to submit evidence in support of remand.” Doc. No. 9 at 2. 4 In its notice of removal, Defendant indicates that the amount in controversy 5 exceeds $5 million based on the class definition and the fact that in his Complaint, 6 Plaintiff seeks actual, consequential, and incidental damages, as well as unpaid wages, 7 premium wages, interest, civil (waiting time and other) penalties and statutory damages, 8 liquidated damages, restitution, disgorgement, injunctive relief, and attorneys’ fees. See 9 Doc. No. 1 at 2. 10 Contrary to Plaintiff’s assertions, the Supreme Court has made clear that in a 11 notice of removal, “[a] statement ‘short and plain’ need not contain evidentiary 12 submissions.” Dart, 135 S. Ct. at 551. “Evidence establishing the amount is required by 13 § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s 14 allegation.” Id. at 554 (emphasis added). Defendant provided a “short and plain 15 statement of the grounds for removal” as required, and was not obligated to submit 16 evidence in support of its notice of removal. 28 U.S.C. § 1446(a); see also Dart, 135 S. 17 Ct. at 554 (“[A] defendant’s notice of removal need include only a plausible allegation 18 that the amount in controversy exceeds the jurisdictional threshold.”); Gardner v. GC 19 Servs., LP, No. 10-CV-997-IEG (CAB), 2010 WL 2721271, at *3 (S.D. Cal. July 6, 20 2010) (“Contrary to Plaintiff’s contentions, however, there is no obligation on Defendant 21 to submit any declarations or ‘summary-judgment type evidence’ in support of its 22 assertion that the jurisdictional amount is met in the present case.”). Once Plaintiff 23 challenged Defendant’s amount in controversy calculations, Defendant submitted 24 evidence in support of its assertion that the amount in controversy exceeds $5 million. 25 Accordingly, the Court finds that Defendant met its initial burden in removing the 26 instant action, and remand on this basis is improper. 27 /// 28 /// -4- 18cv1327-MMA (BGS) 1 2. Amount in Controversy Calculations 2 Plaintiff’s Complaint is silent with respect to damages sought, aside from 3 indicating that Plaintiff’s individual damages do not exceed seventy-five thousand dollars 4 ($75,000). Compl. ¶ 1. Plaintiff argues that the Court should remand this action because 5 Defendant “failed to prove by a preponderance of the evidence that the amount in 6 controversy exceeds $5,000,000.” Doc. No. 5-1. In opposition to the instant motion, 7 Defendant submitted the declaration of Emily Dworshak, Director of Human Resources 8 for Defendant. See Doc. No. 6-1. Based on Ms. Dworshak’s declaration, Defendant 9 calculates the amount in controversy to range from $7,954,081 to $9,217,153. See Doc. 10 No. 6 at 23. Plaintiff further argues that Defendant’s estimate of the amount in 11 controversy figures are inflated and speculative because Defendant applies violation rates 12 of 60% to 100% to Plaintiff’s various causes of action. See Doc. No. 9 at 3. Plaintiff 13 asserts that “pattern and practice” allegations do not support any particular violation rate. 14 See id. at 5. 15 16 a. Minimum Wage, Overtime, Meal, and Rest Break Claims Plaintiff alleges that Defendant “had a pattern and practice of failing to pay [its] 17 hourly-paid or non-exempt employees within the State of California for all hours worked, 18 missed (short, late, interrupted, and/or missed altogether) meal periods and rest breaks in 19 violation of California law[.]” Compl. ¶ 16(b). Plaintiff further alleges that Defendant 20 “engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt 21 employees within the State of California, involving, inter alia, failing to pay them for all 22 regular and/or overtime wages earned, missed meal periods and rest breaks in violation of 23 California law.” Id. ¶ 25. 24 Defendant contends that application of a 100% violation rate is warranted based on 25 Plaintiff’s allegations. See Doc. No. 6 at 8-9. Defendant maintains that in any event, it 26 “need only apply a 60% violation rate for the amount in controversy to well exceed the 27 jurisdictional threshold.” Id. at 9. Utilizing a 60% violation rate, Defendant calculates 28 that these four claims place at least $4,203,531 at issue. See id. at 11-14. Plaintiff asserts -5- 18cv1327-MMA (BGS) 1 that “pattern and practice” allegations do not support any particular violation rate. Doc. 2 No. 9 at 4. However, without waiving his position that “pattern and practice” allegations 3 do not support any particular violation rate, Plaintiff contends that application of a “25% 4 violation rate would be a ‘conservative and reasonable assumption’ based on his 5 allegations.” Id. 6 Here, in determining the appropriate violation rate to apply to calculate the amount 7 in controversy, the Court begins by looking to Plaintiff’s allegations in the Complaint. 8 See Ibarra, 775 F.3d at 1197 (“In determining the amount in controversy, courts first 9 look to the complaint.”); LaCross v. Knight Transp. Inc., 775 F.3d 1200, 1202 (9th Cir. 10 2015) (“[O]ur first source of reference in determining the amount in controversy [is] 11 plaintiff’s complaint”). Contrary to Defendant’s assertion, although Plaintiff’s 12 allegations indicate that the violations were regular, such allegations cannot “only be 13 taken to mean that the violations were universal and at a 100% rate.” Doc. No. 6 at 9 14 (emphasis added). Indeed, the Ninth Circuit has made clear that “a ‘pattern and practice’ 15 of doing something does not necessarily mean always doing something.” Ibarra, 775 16 F.3d at 1198-99 (emphasis in original). 17 The Court notes that Plaintiff’s Complaint includes additional allegations that 18 Defendant “intentionally and willfully failed to pay all overtime wages owed to Plaintiff 19 and the other class members” (Compl. ¶ 49), “intentionally and willfully required 20 Plaintiff and the other class members to work during meal periods and failed to 21 compensate Plaintiff and the other class members the full meal period premium” (id. ¶ 22 59), and “failed to pay minimum wage to Plaintiff and the other class members as 23 required” (id. ¶ 74). Such allegations, read in connection with Plaintiff’s pattern and 24 practice allegations, support the interpretation that Plaintiff and putative class members 25 were appropriately compensated some, but not all, of the time. Most importantly, 26 Plaintiff “does not allege that [Defendant] universally, on each and every shift, violates 27 labor laws[.]” Ibarra, 775 F.3d at 1199. Thus, application of a 100% violation rate is not 28 supported by Plaintiff’s express allegations in the Complaint. -6- 18cv1327-MMA (BGS) 1 Defendant next contends that application of a 60% violation rate is reasonable with 2 respect to Plaintiff’s overtime, minimum wage, meal, and rest break claims. See Doc. 3 No. 6 at 9-10. Defendant bears the burden to show that application of a 60% violation 4 rate is based on reasonable assumptions. See Ibarra, 775 F.3d at 1199 (noting that the 5 defendant “bears the burden to show that its estimated amount in controversy relied on 6 reasonable assumptions.”). 7 Defendant primarily relies on Bryant, where the district court found the 8 defendant’s assumed violation rates of 60% and 30% to be reasonable particularly 9 because the complaint “offered no guidance as to the frequency of the alleged violations, 10 only that Defendant had a ‘policy and practice’ of meal and rest period violations.” 284 11 F. Supp. 3d at 1151; see also Hull v. Mars Petcare US, Inc., No. 18-CV-1021 PSG 12 (KKx), 2018 WL 3583051, at *4 (C.D. Cal. July 25, 2018) (finding a 60% violation rate 13 reasonable where the alleged violations are based on a standard policy); Stanley v. 14 Distribution Alts., Inc., No. 17-CV-2173 AG (KKx), 2017 WL 6209822, at *2 (C.D. Cal. 15 Dec. 7, 2017) (accepting assumed violation rates of “three missed rest breaks, and three 16 missed meal breaks per week” where the complaint offered no guidance as to the 17 frequency of the alleged violations); Alvarez v. Office Depot, Inc., No. 17-CV-7220 PSG 18 (AFMx), 2017 WL 5952181, at *3 (C.D. Cal. Nov. 30, 2017) (finding 60% violation rate 19 reasonable where the complaint “alleges a uniform practice of meal and rest period 20 violations.”). 21 Plaintiff, however, cites to cases wherein district courts considered “pattern and 22 practice” allegations, and rejected application of such violation rates. See Basile v. Aaron 23 Bros., Inc., No. 17-CV-485-L (NLS), 2018 WL 655360, at *2 (S.D. Cal. Feb. 1, 2018) 24 (finding that while the plaintiff’s pattern and practice allegations indicate that the 25 “violations were regular,” such allegations “do not speak to their frequency, and are 26 therefore insufficient to support the assumption of any particular rate violation.”) 27 (emphasis added); Sanders v. Old Dominion Freight Line, Inc., No. 16-CV-2837-CAB- 28 NLS, 2017 WL 5973566, at *4 (S.D. Cal. Feb. 2, 2017) (“[W]ithout evidence to support -7- 18cv1327-MMA (BGS) 1 this violation rate, the use of a 50% violation rate (or virtually any violation rate for that 2 matter) is completely arbitrary and little more than speculation and conjecture.”). 3 Moreover, the Ninth Circuit has articulated that “CAFA’s requirements are to be tested 4 by consideration of real evidence and the reality of what is at stake in the litigation, using 5 reasonable assumptions underlying the defendant’s theory of damages exposure.” Ibarra, 6 775 F.3d at 1198. “[A] damages assessment may require a chain of reasoning that 7 includes assumptions. When that is so, those assumptions cannot be pulled from thin air 8 but need some reasonable ground underlying them.” Id. at 1199. Thus, because 9 Plaintiff’s Complaint contains “pattern and practice” allegations, the Court finds the line 10 of cases relied on by Plaintiff to be persuasive, and in line with binding Ninth Circuit 11 authority. 12 Upon review of the pleadings and evidence submitted, Defendant offers no reason 13 “grounded in real evidence” as to why a 60% violation rate is appropriate. Ibarra, 775 14 F.3d at 1199. While Defendant has submitted the declaration of Ms. Dworshak, she does 15 not have any information regarding “how frequently putative class members missed meal 16 periods, were offered late meal periods, or were offered meal periods of a duration 17 shorter than required by law.” Morris v. Camden Dev., Inc., No. 18-CV-3089- 18 GW(FFMx), 2018 WL 4156593, at *5 (C.D. Cal. Aug. 27, 2018). The same is true with 19 respect to the violation rates for Plaintiff’s rest period, overtime, and minimum wage 20 claims. In sum, Ms. Dworshak’s declaration does not address Defendant’s alleged 21 violation rates and thus “offers no information by which the Court may conclude that 22 Defendant’s assumptions were not ‘pulled from thin air.’” Id. (quoting Ibarra, 775 F.3d 23 at 1199). Notably, Plaintiff does not submit a declaration indicating he experienced less 24 frequent violations, but argues for application of a 25% violation rate that is similarly not 25 “grounded in real evidence.” Ibarra, 775 F.3d at 1199; see also Sanders, 2017 WL 26 5973566, at *4 (“Because use of either a 25% violation rate or a 50% violation rate 27 would at a minimum be equally reasonable (or equally unreasonable), it is impossible for 28 the Court to decide that [the defendant] has satisfied its burden . . . .”). -8- 18cv1327-MMA (BGS) 1 Further, the Court acknowledges Defendant’s concern that removing defendants 2 should not be required to “submit evidence of their liability—i.e., evidence of a violation 3 rate[.]” Doc. No. 6 at 6. Many courts have considered this “fundamental tension” and 4 have reached differing conclusions. Morris, 2018 WL 4156593, at *6. However, “the 5 Court may not simply ignore the Ninth Circuit’s directive that it should not rely [on] ‘an 6 assumption about the rate of [defendant’s] alleged labor law violations that [is] not 7 grounded in real evidence.’” Id. (quoting Ibarra, 775 F.3d at 1199). 8 Accordingly, the Court finds that Defendant has not satisfied its burden, by a 9 preponderance of the evidence, as to the amount in controversy with respect to Plaintiff’s 10 overtime, minimum wage, meal, and rest period claims. See Ibarra, 775 F.3d at 1199.1 11 12 b. Wage Statement Violations Claim Plaintiff claims Defendant “intentionally and willfully failed to provide Plaintiff 13 and the other class members with complete and accurate wage statements.” Compl. ¶ 86. 14 Defendant, applying a 100% violation rate, contends that this claim places at least 15 $227,150 at issue. See Doc. No. 6 at 16. Plaintiff argues a 100% violation rate is not 16 justified. See Doc. No. 9 at 7-8. 17 Defendant explains that Plaintiff’s allegations, when “[r]easonably read,” support 18 the interpretation that all wage statements provided to all alleged class members were 19 non-compliant for the entire alleged class period. Doc. No. 6 at 16. However, Plaintiff’s 20 allegations do not speak to the frequency of the alleged violations. See Compl. ¶ 32 21 (noting Plaintiff and the other class members “did not receive complete and accurate 22 wage statements from Defendant[].”). Moreover, Defendant presents no evidence in 23 support of its assumption regarding the frequency of the alleged wage statement 24 violations. Defendant’s “assumption is therefore unsupported,” and the Court finds that 25 26 27 28 1 Because the Court finds that Defendant has not satisfied its burden with respect to the violation rate, the Court need not address Plaintiff’s argument that Defendant improperly calculated the regular rate of pay, thereby resulting in inflated figures for Plaintiff’s meal and rest break claims. See Doc. No. 9 at 7. -9- 18cv1327-MMA (BGS) 1 Defendant has not satisfied its burden, by a preponderance of the evidence, as to the 2 amount in controversy with respect to Plaintiff’s wage statement claim. Basile, 2018 WL 3 655360, at *3; see also Sanders, 2017 WL 5973566, at *5 (finding the defendant failed to 4 satisfy its burden to demonstrate, by a preponderance of the evidence, that a 98.7% 5 violation rate is reasonable). 6 c. Waiting Time Penalties Claim 7 Plaintiff alleges Defendant “intentionally and willfully failed to pay Plaintiff and 8 the other class members who are no longer employed by Defendant[] their wages, earned 9 and unpaid, within seventy-two (72) hours” of leaving Defendant’s employ. Compl. ¶ 10 80. Defendant, applying a 100% violation rate, asserts this claim places at least 11 $1,881,000 at issue. See Doc. No. 6 at 15. Plaintiff argues a 100% violation rate is 12 unwarranted. See Doc. No. 9 at 7-8. 13 Defendant asserts “it is reasonable to assume that the full penalty of 30-days wages 14 is in controversy for those putative class members” based on Plaintiff’s allegations. Doc. 15 No. 6 at 16. However, Plaintiff’s allegations do not speak to the frequency of the alleged 16 violations. Specifically, Plaintiff contends that he and the other class members “are 17 entitled to recover” from Defendant “the statutory penalty wages for each day they were 18 not paid, up to a thirty (30) day maximum pursuant to California Labor Code section 19 203.” Compl. ¶ 83 (emphasis added). Defendant again fails to provide any evidence that 20 it is reasonable to assume that the full penalty of 30-days wages is in controversy. Thus, 21 Defendant has not satisfied its burden, by a preponderance of the evidence, as to the 22 amount in controversy with respect to Plaintiff’s waiting time penalties claim. See 23 Amirian v. Umpqua Bank, No. 17-CV-7574 FMO (FFMx), 2018 WL 3655666, at *5 24 (C.D. Cal. July 31, 2018) (“In the absence of evidence regarding how many class 25 members were not allowed to take meal and rest breaks, how many were not paid in a 26 timely manner after termination, and how many otherwise were not paid for all hours 27 work[ed], the court has no basis from which to infer a 100% violation rate.”). 28 /// -10- 18cv1327-MMA (BGS) 1 d. Unreimbursed Business Expenses Claim 2 Plaintiff alleges that he and the other class members “incurred necessary business- 3 related expenses and costs that were not fully reimbursed by Defendant[].” Compl. ¶ 93. 4 Nonetheless, Defendant “conservatively estimates” a violation rate of $1 to $10 a week in 5 unpaid expenses, through the maximum class period, for 60% of the employees. Doc. 6 No. 6 at 17. Defendant asserts that Plaintiff’s unreimbursed business expenses claim 7 places at least $51,584 (applying a $1 violation rate) to $515,840 (applying a $10 8 violation rate) at issue. See id. Plaintiff claims such estimates are “purely conjectural” 9 and asserts that Defendant “appears to pull numbers out of thin air.” Doc. No. 9 at 8. 10 As Defendant concedes, Plaintiff’s Complaint does not specify what expenditures 11 were not fully reimbursed, or their respective values. See Doc. No. 6 at 17. Defendant 12 submits no evidence to support the figures presented. As such, because Defendant’s 13 calculations are unsupported, Defendant has failed to meet its burden, by a preponderance 14 of the evidence, as to the amount in controversy with respect to Plaintiff’s unreimbursed 15 business expenses claim. See Morgan v. Childtime Childcare, Inc., No. 17-CV-1641 AG 16 (KESx), 2017 WL 5198160, at *5 (C.D. Cal. Nov. 10, 2017) (rejecting the defendant’s 17 calculations with respect to the plaintiff’s unreimbursed business expenses claim, and 18 stating that “high or low, the violation rate must be rooted in fact, and it’s not clear why 19 Defendant chose $50 as the violation rate for this claim.”). 20 21 e. Attorneys’ Fees2 Defendant argues that Plaintiff’s request for attorneys’ fees places at least 22 $1,590,816 in controversy. Doc. No. 6 at 18. Defendant calculates this figure by 23 applying a 25% benchmark to the damages in controversy. See id. at 18-19. Plaintiff 24 25 26 27 28 2 Defendant requests the Court take judicial notice of the declaration of Douglas Han in support of Defendant’s argument that Plaintiff’s counsel have obtained 35% of their client’s recovery in attorneys’ fees in similar actions. See Doc. No. 6-2. The Court need not rely on this document in reaching its conclusion that Defendant’s calculations for attorneys’ fees are unsupported. As such, the Court DENIES AS MOOT Defendant’s request for judicial notice. -11- 18cv1327-MMA (BGS) 1 contends Defendant’s estimate is “especially unreliable considering it is based on the 2 underlying impermissible speculation regarding its amount in controversy calculations” 3 for Plaintiff’s claims. Doc. No. 9 at 9. The Court agrees. Because Defendant “did not 4 meet [its] burden to establish the amount in controversy as to any of the claims”3 5 discussed in its opposition to the instant motion, Defendant’s fee calculation is “therefore 6 unsupported.” Basile, 2018 WL 655360, at *4. 7 f. Summary 8 In sum, the Court finds that Defendant has failed to carry its burden to demonstrate 9 by a preponderance of the evidence that the amount in controversy exceeds $5 million. 10 As such, the Court lacks subject matter jurisdiction and remand is proper. See Ibarra, 11 775 F.3d at 1197 (“[A] defendant cannot establish removal jurisdiction by mere 12 speculation and conjecture, with unreasonable assumptions.”). 13 3. Plaintiff’s Request for Attorneys’ Fees Pursuant to 28 U.S.C. § 1447(c) 14 Finally, Plaintiff seeks and award of attorneys’ fees incurred in filing the instant 15 motion because Defendant lacked an objectively reasonable basis in removing this action 16 pursuant to 28 U.S.C. § 1447(c). See Doc. No. 5-1 at 9-10. Upon due consideration, the 17 Court finds that Defendant did not lack an objectively reasonable basis for removing this 18 case to federal court. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) 19 (“Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only 20 where the removing party lacked an objectively reasonable basis for seeking removal.”). 21 Accordingly, the Court DENIES Plaintiff’s request for attorneys’ fees. 22 /// 23 /// 24 25 26 27 28 3 Defendant also argues that the value of Plaintiff’s request for disgorgement of profits and injunctive relief are also properly included in the amount in controversy. However, Defendant fails to submit any evidence, or provide any calculation, that would enable the Court to determine the value of such relief. -12- 18cv1327-MMA (BGS) 1 2 CONCLUSION Based on the foregoing, the Court GRANTS Plaintiff’s motion to remand, and 3 REMANDS this action back to state court. The Court DENIES Plaintiff’s request for 4 attorneys’ fees. The Clerk of Court is instructed to terminate all pending motions, 5 deadlines, and hearings. 6 7 IT IS SO ORDERED. 8 9 10 11 12 Dated: September 25, 2018 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- 18cv1327-MMA (BGS)
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