NOT FOR PUBLICATION FILED

JUN 30 2017

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EYON NEAL CHRISTMAS, on behalf No. 15-56888 of himself and all other similarly situated individuals, D.C. No. 2:15-cv-02612-AB-PLA Plaintiff-Appellant,

v. MEMORANDUM*

UNION PACIFIC RAILROAD

COMPANY, a Delaware corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted June 7, 2017 Pasadena, California

Before: THOMAS, Chief Judge, REINHARDT, Circuit Judge, and KORMAN,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Plaintiff-Appellant Elon Christmas (“Christmas”) filed a class action

complaint in the Superior Court of California on February 5, 2015 alleging that

Defendant Union Pacific Railroad (“Union Pacific”) required certain employees to

work 12-hour shifts in violation of California Labor Code § 604. On March 12,

2015, Christmas amended his complaint to include four individual defendants,

George R. Davis, Zachary J. Pittman, John E. Yettaw, and Kenneth R. Fair

(collectively “Local Defendants”), who are, respectively, the Superintendent,

Director of Intermodal Terminal Operations, Senior Manager of Intermodal

Terminal Operations, and Manager of Intermodal Terminal Operations at the rail

yard location where Christmas works as a Manager of Intermodal Operations.

Union Pacific removed to the district court pursuant to the Class Action Fairness

Act (“CAFA”), 28 U.S.C.A. § 1332(d). The district court denied Christmas’s

motion to remand based on CAFA’s “local controversy” exception, 28 U.S.C.A. §

1332(d)(4)(A), and granted judgment on the pleadings, with prejudice, to Union

Pacific on preemption grounds.

We reverse the district court, vacate its judgment on the pleadings, and

remand with instructions to remand to the Superior Court of California.

Under CAFA’s “local controversy” exception, district courts are required to

remand certain cases that are truly local in focus, a determination based on several

2 statutory factors. 28 U.S.C.A. § 1332(d)(4)(A)(i). The parties dispute only two

factors in this case: whether “significant relief” is sought from at least one of the

Local Defendants, 28 U.S.C.A. § 1332(d)(4)(A)(II)(aa), and whether the conduct

of at least one of the Local Defendants formed a “significant basis” for the claims

asserted, 28 U.S.C.A. § 1332(d)(4)(A)(II)(bb). In determining whether these

requirements are satisfied, “a federal district court is limited to the complaint.”

Coleman v. Estes Express Lines, 631 F.3d 1010, 1012 (9th Cir. 2011).

The district court erred in finding that “significant relief” “cannot be derived

from” the Local Defendants. “To determine if the Plaintiffs claim ‘significant

relief’ from” a defendant, “we look to the remedies requested by the Plaintiffs.”

Benko v. Quality Loan Serv. Corp., 789 F.3d 1111, 1119 (9th Cir. 2015).

Christmas’s complaint claims entitlement to statutory damages. It alleges that

under Cal. Labor Code § 606, the Local Defendants are liable for statutory

penalties of $100-$1000 per violation. Union Pacific, by contrast, is liable for

penalties of $500-$5000 per violation. There are four Local Defendants, meaning

that the amount sought against the collective group represents 80% of the total

penalties for which Union Pacific could be liable. The complaint also seeks

injunctive relief against the individual defendants, which weighs in favor of

“significant relief.” See Benko, 789 F.3d at 1119; Coleman, 631 F.3d at 1020. The

3 relief requested against the Local Defendants is “significant” both comparatively

and absolutely.

The district court further erred in finding that the Local Defendants’ conduct

did not form a “significant basis” for the claims asserted. “To determine if the

‘basis for the claims’ against” a defendant is “significant,” “we compare the

allegations against [that defendant] to the allegations made against the other

Defendants,” looking specifically at “[that] defendant’s ‘basis’ in the context of the

overall ‘claims asserted.’” Benko, 789 F.3d at 1118. The complaint alleges that the

Local Defendants are “responsible for scheduling hours and days of work.” This is

precisely the conduct that plaintiffs claim is illegal. Even if the conduct of the

Local Defendants is controlled by Union Pacific, and even if they act solely

pursuant to Union Pacific’s policies, the conduct of the Local Defendants

“nonetheless remains the conduct of [the Local Defendants], for which [they] may

be held liable.” See Coleman, 631 F.3d at 1020. Additionally, as explained above,

the complaint alleges that each Local Defendant is liable for an amount equal to

20% of the penalties Union Pacific could face; collectively, their conduct far

exceeds the local defendant’s liability ̶ 15-20% of total claims ̶ that was found

“significant” in Benko. 789 F.3d at 1119. However it is measured, the conduct of

4 the Local Defendants provides a “significant basis” for the claims set forth in

Christmas’s complaint.

Although district courts may consider other evidence to make jurisdictional

decisions with respect to other CAFA provisions, for the purposes of the local

controversy exception “the district court is to look to the complaint rather than to

extrinsic evidence.” Coleman, 631 F.3d at 1016 (emphasis added). Here, there is

no other way to measure Local Defendants’ “significance” without further fact-

finding, speculation, or perhaps a deep and current knowledge of Union Pacific’s

operations. The dissent would take judicial notice of the sixteen separate railyards

Union Pacific operates in California. It uses this fact both to impugn the complaint,

which it claims implies “that Union Pacific operates only a single railyard in the

state of California,” and to construct hypotheticals about the distribution and

scheduling of Union Pacific’s workforce throughout all of California.

Extrapolating the distribution of management, employees, and alleged violations of

California Labor Code § 604 from the number of railyards goes well beyond what

we “know as judges.” Rusak v. Holder, 734 F.3d 894, 897 (9th Cir. 2013) (quoting

Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D.Cal. 1879)). Based on the

dissent’s notice of extrinsic evidence regarding the number of railyards in the state,

it remains no more likely that there are equal violations at each of Union Pacific’s

5 sixteen railyards than that violations are concentrated at a central or dispatching

railyard where Christmas and the named Local Defendants work.1 However, based

on the complaint, which we must look to “rather than to extrinsic evidence” in this

inquiry, Coleman, 631 F.3d at 1016, the violations Christmas alleges and seeks

relief from on behalf of the class occur at the railyard where he works as a result of

the conduct of Local Defendants.

Finally, the dissent asserts that on the complaint alone, even without sua

sponte fact-finding, it would conclude Local Defendants are “unambiguously []

small change” because they cannot be expected to provide “significant monetary

relief.” Like in Coleman, there is “nothing in the complaint to suggest that” the

Local Defendants are “nominal” or have “so few assets” that Christmas does not

seek “significant monetary relief,” nor is there anything to suggest that the

injunctive relief sought against the Local Defendants is “insignificant.” Id. at 1020.

Just because the local defendant in Coleman was a corporation and Local

Defendants here are individuals does not allow us to presume their indigence. The

dissent would have us convert this Court’s observation of an absence of

1 Even if the dissent were correct about an even distribution of class members and violations, Christmas includes 50 additional unnamed defendants who may well be the local counterparts of the named Local Defendants for all sixteen of the Union Pacific railyards in the state. 6 information in the Coleman complaint to an affirmative requirement of information

in Christmas’s complaint. Further inquiry would become the “mini-trial on the

merits” which Coleman explicitly prohibits. Id. at 1017.

Because the claims against the Local Defendants are “significant” for the

purposes of CAFA’s “local controversy” exception, the district court was required

to remand the case to the state court. We therefore vacate its order granting Union

Pacific’s motion for judgment on the pleadings.

REVERSED, REMANDED, and VACATED.

7 Eyon Neal Christmas v Union Pacific Railroad 15-56888 FILED Korman, Senior District Judge, dissenting: JUN 30 2017

MOLLY C. DWYER, CLERK

Eyon Christmas sues on behalf of a class encompassing every U.S. oneCOURT OF APPEALS of Union

Pacific’s California-based dispatchers. He names five defendants. Four are local

managers at a single Los Angeles railyard. The fifth is one of four major American

railroads, worth about $90 billion, with operations reaching, in California alone,

from the Mexican border to the San Francisco Bay. Relative to the behemoth, do its

local agents have a “significant” role in this statewide case? Observable reality and

common sense say no, but Christmas, and the majority, say yes.

The question matters because the Class Action Fairness Act (CAFA)—

Christmas’s only path to federal jurisdiction since the parties here are only minimally

diverse—deprives district courts of jurisdiction over so-called “local controversies.”

Assuming that other requirements not in dispute here are met, the local controversy

exception applies in cases where there is at least one defendant who 1) is a citizen

of the state where the suit was originally filed—that is to say, who is “local”;

2) “from whom significant relief is sought” by the plaintiff class; and 3) “whose

alleged conduct forms a significant basis” for the class’s claims. 28 U.S.C.

§ 1332(d)(4)(A)(i)(II) (emphasis added). The Ninth Circuit has long since settled

that Christmas, as the party seeking remand, has the burden of pleading facts proving the exception’s applicability. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th

Cir. 2007).

“Significance,” for purposes of CAFA, is a comparative test. That is, the

question is whether the relief requested against the local defendant(s) is significant

relative to the total relief sought, and whether the factual allegations against the local

defendant(s) are a significant basis for the class’s claims when compared to the

overall allegations against all the defendants. See Benko v. Quality Loan Serv.

Corp., 789 F.3d 1111, 1118–19 (9th Cir. 2015). The individual defendants here are

citizens of California, where the case was originally filed. If the local controversy

exception’s two significance tests are satisfied as well, then the district court lacked

subject-matter jurisdiction, and we would have to vacate and remand with

instructions to return the case to the California courts.

At the threshold, I note the importance of Congress’s decision to limit the

local controversy exception to cases with a “significant” local defendant. As the

Supreme Court has explained, the whole point of CAFA is to “facilitate adjudication

of certain class actions in federal court.” Dart Cherokee Basin Operating Co., LLC

v. Owens, 135 S. Ct. 547, 554 (2015) (emphasis added). In keeping with that purpose,

courts have consistently held that “exceptions to CAFA are to be strictly

interpreted . . . and that CAFA should be read with a strong preference that interstate class actions should be heard in a federal court if properly removed.” Allen v. Boeing

Co., 784 F.3d 625, 632–33 (9th Cir. 2015) (internal quotation marks omitted).

So understood, vigorous judicial enforcement of the significance requirement

vindicates CAFA’s purpose by ensuring that the local controversy exception does

not swallow Congress’s directive that interstate class actions should be heard in

federal courts. Merely naming a local defendant is easy, and if Congress had required

no more than that to defeat CAFA jurisdiction, the statute would have been a

practical nullity—plaintiffs wishing to avoid federal court would only have needed

to identify a nominal local defendant in order to secure their favored forum. This is

a case in point: Christmas has deployed exactly that tactic in a transparent attempt

to escape federal jurisdiction—naming four local managers in a suit clearly targeted,

for every practical purpose, at their colossus of an employer—and the majority’s

decision to shrink from CAFA’s safeguards is letting him get away with it.

That approach is based on a blinkered reading of our decision in Coleman v.

Estes Express Lines, in which we held that CAFA directs district courts “to look only

to the complaint in deciding whether” the “significant relief” and “significant basis”

requirements of the local controversy exception are satisfied. 631 F.3d 1010, 1015

(9th Cir. 2011). The complaint does not allege in haec verba that Union Pacific

operates only a single railyard in the state of California. Nevertheless, that is the only

logical inference to be drawn from the complaint’s pointed failure to allege that Union Pacific has multiple California locations. Indeed, Christmas responds to one

of Union Pacific’s arguments by asking us to draw exactly that inference. See

Christmas’s Reply Br. at 9 (“Union Pacific argues that Christmas could not possibly

be seeking substantial relief from the local defendants because the location where

they worked is only one of many Union Pacific locations in California . . . . Neither

the complaint nor Union Pacific’s removal notice state that Union Pacific has

multiple locations in California.”).

Having cut Union Pacific down to size by omitting to plead the obvious,

Christmas rests his significance analysis on the claim that, in essence, the railroad

can only be as big as he says it is. On those artificial terms, the local defendants do

seem comparatively significant. Unlike the majority, the district judge rejected this

sleight of hand, and I would affirm. Although Coleman limits us to considering

Christmas’s complaint, “when we take our seats on the bench we are not struck with

blindness, and forbidden to know as judges what we see as men and women.” Rusak

v. Holder, 734 F.3d 894, 897 (9th Cir. 2013) (quoting Ho Ah Kow v. Nunan, 12 F.

Cas. 252, 255 (C.C.D.Cal. 1879)) (internal modifications omitted).

Indeed, Coleman left a safety valve for just this situation. In holding that the

plaintiff in that case sought significant relief from the local defendant, the court

relied in part on the fact that there was “nothing in the complaint to suggest that” the

local defendant was a “nominal defendant,” or that it had “so few assets” that the plaintiff was “not seeking significant monetary relief from it.” Nor was there

anything in the complaint “to suggest . . . that the injunctive relief sought [was] itself

insignificant.” 631 F.3d at 1020. Put differently, to rely on the complaint alone is not

to blind ourselves entirely to the underlying realities of the universe. As Coleman

recognized, it would be folly to apply the local controversy exception on the basis

of a local defendant who is so obviously “small change,” as a practical matter, that

“any experienced lawyer or judge reading the complaint would . . . know[] that

‘significant relief’ was not being sought against [it].” Id. at 1019–1020.

The local defendants here are—unambiguously—small change. This is not a

case, like Coleman itself, Benko v. Quality Loan Service Corp., 789 F.3d 1111 (9th

Cir. 2015), or Allen v. Boeing Co., 821 F.3d 1111 (9th Cir. 2016), in which the local

defendant is an active business, and there is no indication that it either lacks

significant assets, or is such a flyspeck relative to the out-of-state defendant(s) that

its presence in the case is functionally irrelevant. Rather, the local parties are four

individuals—local managers at a single railyard—sued alongside a company that

employs 46,000 people in 23 states, by a complaint alleging (and seeking at least

$5,000,000 in damages stemming from) supposedly systematic conduct that took

place throughout California.

Nobody—including, I would venture, counsel for the class—genuinely

believes that these individuals are “significant” in any practical sense other than to defeat federal jurisdiction. Indeed, CAFA’s amount-in-controversy requirement

gives us a measure of certainty as to the stakes of this case; the notion that these men

will ever pay any significant portion of a $5,000,000-plus award verges on

delusional.1 Coleman does not require us to ignore that reality—or the reality that

Union Pacific is named as a defendant because it does have pockets deep enough to

satisfy such a judgment—merely because Christmas has carefully plead around it.

Where Congress has directed that subject-matter jurisdiction turns on the presence

or absence of a federal question, it is uncontroversial that plaintiffs may not defeat

removal by artful omissions, see, e.g., JustMed, Inc. v. Byce, 600 F.3d 1118, 1124

(9th Cir. 2010), and although CAFA confers a form of diversity jurisdiction, nothing

in the statute or in Coleman suggests a different rule should apply to facile attempts

to avoid its application in derogation of Congress’s purposes. So based on the

complaint alone, I would deny Christmas’s motion to remand.

But even if the only sensible reading of the complaint itself did not support

that conclusion, I would reach it by another route—judicial notice of public records

establishing that Union Pacific operated numerous California railyards during the

class period. A motion to remand for lack of subject-matter jurisdiction is the

functional equivalent of a motion to dismiss on the same ground under Rule 12(b)(1),

1 Although Christmas’s complaint—filed in a state court that did not require him to plead an amount in controversy—does not seek a particular amount of money, he does not challenge the defendants’ analysis, in the notice of removal filed with the district court, showing that his complaint clearly satisfies CAFA’s $5,000,000 jurisdictional minimum. and, as Christmas’s counsel conceded at oral argument, it is settled practice under

that rule that courts may consider facts subject to judicial notice. See, e.g., La. Mun.

Police Emps. Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016); CopyTele, Inc.

v. E Ink Holdings, Inc., 962 F. Supp. 2d 1130, 1135–36 (N.D. Cal. 2013).

Coleman, on which the majority relies, did not alter the ordinary practice of

considering, on motions to dismiss, certain material that is “extrinsic” in the sense

of not being attached to the complaint itself, but that does not threaten to turn

motions to dismiss into mini-trials on the merits. Trials, after all, are there to

determine disputed facts, and judicial notice only applies to facts that can “be

accurately and readily determined from sources whose accuracy cannot reasonably

be questioned.” Fed. R. Evid. 201(b)(2). Put in the doctrine’s terms, I understand

CAFA to allow “facial” disputes over subject-matter jurisdiction, but prohibit

“factual” ones, and it appears settled within this circuit that consideration of

judicially noticeable facts does not turn the former into the latter. See CopyTele, 962

F. Supp. 2d at 1135–36 (collecting examples). Where appropriate, we may take

judicial notice on appeal and on our own initiative. See Dockray v. Phelps Dodge

Corp., 801 F.2d 1149, 1152 n.3 (9th Cir. 1986).

Records of the California Air Resources Board retrieved from that agency’s

publicly accessible website, whose authenticity and accuracy cannot reasonably be

questioned, indicate that during the class period Union Pacific operated sixteen separate railyards within California. See CALIFORNIA AIR RESOURCES BOARD, MAPS

OF 32 UP AND BNSF MAJOR AND SMALLER RAILYARDS IN CALIFORNIA (2013),

archived at https://perma.cc/4XAM-YDNS. Indeed, when asked about these records

at oral argument, Christmas did not dispute their existence or accuracy.

Measured against the massive scope of Union Pacific’s California operations,

the individual defendants’ role in this case can only be characterized as insignificant.

Every one of the class members has a claim against Union Pacific—regardless of

where a dispatch worker was stationed during the class period, Union Pacific was

responsible for his or her schedule, and liable for any hours-of-service violations.2

To use CAFA’s language, Union Pacific’s allegedly systematic conduct is the basis

for the claims of every class member. The local defendants’ conduct, however, will

only be at issue with respect to the limited set of class members that they actually

supervised—employees at the single California railyard (out of sixteen) at which

Christmas worked. As we recognized in Coleman, where “liability is premised on”

conduct by the diverse defendant that is common to the whole class, “the conduct of

the local [defendants] will not form a significant basis for the plaintiffs’ claims.” 631

F.3d at 1018.

2 At oral argument, Christmas’s counsel gave a narrower description of the class, asserting that it only includes workers involved, as Christmas himself was, in “intermodal” operations, which only take place at a certain subset of railyards. Paragraph 19 of the amended complaint, however, clearly states that the class includes “[all] persons . . . who dispatch, report, transmit, receive or deliver orders pertaining to or affecting train movements.” By the same token, the relief sought against Union Pacific dwarfs that sought

against the local defendants. The math the majority deploys to hold otherwise

depends on the provably erroneous assumption that Union Pacific operates only one

railyard, at which it employs the local defendants. Consider that counterfactual—the

one which Christmas posits and on which the majority relies: Every violation of Cal.

Labor Code § 606 would generate a $5000 penalty for the railroad, and a $1000

penalty for each of the four yard managers. Union Pacific could have no additional

liability for violations outside the local defendants’ control, because in a one-yard

world, there would be no dispatcher scheduling for which those managers were not

responsible. Under those circumstances, the local defendants’ combined liability

would indeed total 80% ($4000/$5000) of Union Pacific’s—surely a significant

number. The problem with the majority’s approach, however, is that Union Pacific

operates fifteen other yards, none of which involve the four local defendants.

Imagine that there was one violation of § 606 at each of Union Pacific’s

sixteen railyards. The four named local defendants’ (all employees of Union Pacific)

combined maximum liability for the single violation under their watch would be

$4000 in civil penalties. Union Pacific’s maximum liability would be $5000 per

violation, multiplied by sixteen violations, for a total of $80,000 in penalties—

twenty times the total penalties for which the local defendants could be liable. The

same dramatic imbalance holds true for Christmas’s request for classwide injunctive relief: an injunction against the four local defendants would affect the workings of a

single railyard in Los Angeles, an injunction against Union Pacific would bind

operations at sixteen yards stretching from Stockton to the City of Industry. Again,

as Coleman pointed out, where the diverse defendant “will be liable to every member

of the class,” but the local defendants “will only be liable to, at most, the particular

class members with whom they interacted . . . , it is obvious . . . that the great bulk

of any damage award is sought from the [diverse defendant] rather than from the

[local ones].” 631 F.3d at 1018. Here, the monetary relief against the local

defendants would amount to at most 5% of that against Union Pacific, and the scope

of injunctive relief would be sixteen times smaller. Under such circumstances, the

question of significance answers itself.

The illustrative example above assumes that no local defendant works at a

railyard other than Christmas’s, and that violations of § 606 are not concentrated at

Christmas’s yard, but spread systematically (to borrow the complaint’s language)

across Union Pacific’s California facilities. The majority objects to those

assumptions on two grounds, one based on the distribution of defendants and one

based on the distribution of violations. First, as to the distribution of defendants, the

majority argues that the Doe defendants may very well be the named defendants’

counterparts at Union Pacific’s other 16 railyards spread far and wide across the

state. But that would be inconsistent with the complaint’s venue allegations, which state that “DEFENDANTS either reside, maintain offices, transact business, and/or

have agents in Los Angeles County.” (emphasis added). The allegation as to

residence is clearly the one applicable to the individual defendants, and it beggars

belief to imagine that Christmas meant to plead the possible existence of a John Doe

Angeleno working as a superintendent in Stockton, Roseville, Oakland, or any other

distant Union Pacific facility. Second, as to the distribution of violations, the

majority argues that the complaint leaves it no more likely that violations were

dispersed across Union Pacific’s railyards than that they were concentrated where

Christmas worked. That point is self-defeating: If, indeed, the allegations of the

complaint, combined with judicially noticeable facts about Union Pacific’s facilities,

make it equally likely that the named local defendants have liability amounting to

80% or 5% of Union Pacific’s, then I fail to see how the complaint meets Christmas’s

burden of proving the local controversy exception’s applicability.

The remainder of this case is controlled by settled principles of preemption.

The Hours of Service Act (now codified at 49 U.S.C. § 21101–09) dates to 1907,

and has long been held to preempt the field of railroad working hours regulation. See

S. Ry. Co. v. R.R. Comm’n of Ind., 236 U.S. 439, 447 (1915). Although the Act has

been recodified several times, most recently by the Federal Railroad Safety Act

(FRSA), its preemptive scope has not changed. In Kurns v. R.R. Friction Products

Corp., the Supreme Court explained that the FRSA’s recodification of an existing railroad safety law—the Locomotive Inspection Act—did not change its preemptive

effect. 565 U.S. 625, 633 (2012) (citing Marshall v. Burlington Northern, Inc., 720

F.2d 1149, 1152–53 (9th Cir. 1983) (Kennedy, J.) (addressing the preemptive force

of the Boiler Inspection Act)). Like the Locomotive Inspection Act, the Hours of

Service Act “was already in effect when the FRSA was enacted,” and as such, its

“[field-preemptive] scope remains unaltered.” Id.

The district court properly retained jurisdiction, and correctly dismissed

Christmas’s preempted claims on the merits. I respectfully dissent.