Willene Lowdermilk v. United States Bank National Association

In this case we are called upon to resolve a question of first impression: Under the Class Action Fairness Act of 2005 *996 (“CAFA”), Pub.L. 109-2, 119 Stat. 4 (2005), when the plaintiff has pled damages less than the jurisdictional amount, what must the defendant prove in order to remove the case to federal court? We reserved this question in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676 , 683 n. 8 (9th Cir.2006) (per curiam). We answer that the party seeking removal must prove with “legal certainty” that the amount in controversy is satisfied, notwithstanding the prayer for relief in the complaint. We conclude that the defendant in this case failed to meet this burden, and we affirm the judgment of the district court.

I

Willene Lowdermilk (“Plaintiff’) filed a complaint in Oregon state court on March 28, 2006, on behalf of herself and a class of employees “who worked for U.S. Bank as hourly employees in the past six years.” Plaintiff sought relief for two alleged violations of Oregon law. First, she claimed U.S. Bank (“Defendant”) denied her full compensation for the hours she worked because Defendant had a policy of rounding actual hours worked down to the nearest tenth…

dissenting.

I respectfully dissent.

Our analysis must begin with the pleading. The pleading requires no new law, just the well reasoned decisions in Abrego Abrego, 1 Sanchez, 2 and Singer. 3 The complaint did not plead a specific amount in controversy.

Plaintiff filed the case in state court. For the defendant to avoid remand after removing the case to federal court, it had to show that the matter in controversy “exceeds” $5 million. 4 In the days when complaints stated specific ad damnums, cases concerning amount in controversy requirements were simple to resolve by following St Paul Mercury. 5 Now that complaints often do not state specific ad damnums, we (and our sister circuits) have developed an extensive body of precedent governing how to apply amount in controversy requirements.

The complaint in this case is poorly drafted. It contradicts itself about the amount in controversy. In the caption area, the complaint says that “THE AGGREGATE OF CLAIMS DOES NOT EXCEED 5 MILLION DOLLARS.” In paragraph 4, under a heading “JURISDICTION AND VENUE,” it says the “[t]he aggregate total of the claims pled herein do [sic] not exceed five million dollars.” So far, clear as a bell,…

479 F.3d 994 Willene LOWDERMILK, Plaintiff-Appellee, v. UNITED STATES BANK NATIONAL ASSOCIATION, Defendant-Appellant. No. 06-36085. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 8, 2007. Filed March 2, 2007. Timothy R. Volpert, Davis Wright Tremane LLP, Portland, OR, for the defendant-appellant. Jacqueline L. Koch, Koch & Deering, Portland, OR, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-06-00592-ALH. Before THOMPSON, KLEINFELD, and BYBEE, Circuit Judges. BYBEE, Circuit Judge. 1 In this case we are called upon to resolve a question of first impression: Under the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. 109-2, 119 Stat. 4 (2005), when the plaintiff has pled damages less than the jurisdictional amount, what must the defendant prove in order to remove the case to federal court? We reserved this question in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676 , 683 n. 8 (9th Cir.2006) (per curiam). We answer that the party seeking removal must prove with "legal certainty" that the amount in controversy is satisfied,…