FILED

NOT FOR PUBLICATION

DEC 23 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELVIN AVILA, individually, and on No. 19-56300 behalf of all others similarly situated, D.C. No. 2:19-cv-01295-PJW Plaintiff-Appellee,

v. MEMORANDUM*

KIEWIT CORPORATION, a Delaware corporation,

Defendant-Appellant,

and

DOES, 1 through 10, inclusive,

Defendant.

Appeal from the United States District Court for the Central District of California Patrick J. Walsh, Magistrate Judge, Presiding

Argued and Submitted December 13, 2019 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,** District Judge.

Kiewit Corporation appeals the district court’s Order remanding this case to

state court. We have jurisdiction under 28 U.S.C. § 1453(c), and we reverse.

A remand order in a CAFA case is reviewed de novo. Arias v. Residence

Inn by Marriott, 936 F.3d 920, 924 (9th Cir. 2019). “To remove a case from a state

court to a federal court, a defendant must file in the federal forum a notice of

removal ‘containing a short and plain statement of the grounds for removal.’”

Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 83 (2014) (quoting 28

U.S.C. § 1446(a)). In class action cases, the amount in controversy threshold for

removal is $5 million. 28 U.S.C. § 1332(d)(2). Where, as here, “the plaintiff’s

complaint does not state the amount in controversy, the defendant’s notice of

removal may do so.” Dart, 574 U.S. at 84 (citing 28 U.S.C. § 1446(c)(2)(A)).

“The amount in controversy is simply an estimate of the total amount in

dispute, not a prospective assessment of defendant’s liability.” Arias, 936 F.3d at

927 (quoting Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010)).

And because “the amount in controversy reflects the maximum recovery the

plaintiff could reasonably recover[,] [a]n assertion that the amount in controversy

** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 2 exceeds the jurisdictional threshold is not defeated merely because it is equally

possible that damages might be less than the requisite . . . amount.” Id. (cleaned

up).

In this case, Plaintiff Avila’s Complaint does not state the amount in

controversy. Kiewit sought removal, estimating that just four of the seven causes

of action (exclusive of attorney’s fees) were potentially worth upwards of $37

million—far more than the $5 million threshold. Because Avila contests the

amount in controversy, “removal . . . is proper” only “if the district court finds, by

the preponderance of the evidence, that the amount in controversy exceeds” the $5

million jurisdictional threshold. 28 U.S.C. § 1446(c)(2)(B); see also Dart, 574

U.S. at 88.

Kiewit “bears the burden to show by a preponderance of the evidence” that

its estimate “is a reasonable one” and meets the amount in controversy

jurisdictional threshold. Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th

Cir. 2015). Such evidence can include declarations like those used by Kiewit in

this case. See id. Additionally, though “a defendant cannot establish removal

jurisdiction by mere speculation and conjecture, with unreasonable assumptions,”

id., unproven “assumptions [can be] made part of the defendant’s chain of

3 reasoning” so long as they “have ‘some reasonable ground underlying them,’”

Arias, 936 F.3d at 927 (quoting Ibarra, 775 F.3d at 1199).

In its four-page Order remanding the case, the district court determined that

Kiewit “ha[d] not met its burden” in establishing the amount in controversy. The

district court concluded that the language of the Complaint “runs contrary to

Defendant’s assumption that all class members suffered at least one violation and

is enough to defeat removal under CAFA.” However, the qualifying language in

the Complaint that the district court quoted in support of this

conclusion—“frequently” and “regularly, but not always”—refers to the frequency

of the alleged violations, not whether each member of the class was at one time or

another subjected to the alleged violations. Based on the language of the

Complaint, Kiewit reasonably could have assumed that each of the class members

suffered the violations alleged.

Moreover, we conclude that Kiewit has carried its burden to show that its

assumptions in calculating the amount in controversy are “reasonable,” because

they are sufficiently grounded in the allegations of the Complaint and the evidence

provided. For example, Kiewit’s conservative estimate (related only to the

overtime compensation claim) is grounded in the declaration it provided, tied

directly to Avila’s broad allegations in the Complaint, and easily surpasses the $5

4 million jurisdictional threshold. Therefore, we reverse the district court’s Order of

removal, and hold that the district court has jurisdiction over this case.

REVERSED.

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