NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 27 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHANIELLE ENOMOTO, individually and No. 22-56062 on behalf of all others similarly situated, D.C. No. Plaintiff-Appellee, 8:22-cv-00334-DOC-KES

v.

MEMORANDUM*

SIEMENS INDUSTRY, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted December 8, 2023 Pasadena, California

Before: WARDLAW and BUMATAY, Circuit Judges, and KENNELLY,** District Judge.

Siemens Industry, Inc. (“Siemens”) appeals from the district court’s

dismissal order. Chanielle Enomoto (“Enomoto”), a former Siemens employee,

filed an action in the Central District of California alleging that Siemens had a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. practice of failing to pay overtime wages in violation of the Fair Labor Standards

Act. Enomoto then brought a putative class action against Siemens in Alameda

County Superior Court alleging, among other claims, state-law claims regarding

unpaid overtime wages, missed meal and rest breaks, and untimely final wage

payments. Siemens removed that case to the Northern District of California based

on the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)(A). After

meeting and conferring, the parties filed a joint stipulation whereby Enomoto

agreed to dismiss her complaint in the Northern District case and file an amended

complaint in the Central District case adding the state-law claims there.

Siemens moved to dismiss Enomoto’s amended complaint or, in the

alternative, strike class, collective, and representative allegations under Federal

Rules of Civil Procedure 12(b)(6), 12(f), and 23(d)(1)(D). At a motion hearing, the

district court sua sponte questioned whether it had subject-matter jurisdiction over

the action and ordered the parties to file simultaneous briefs on the issue. Siemens

asserted in its briefing that even if the district court declined to exercise

supplemental jurisdiction over the state-law claims, the district court had subject-

matter jurisdiction over Enomoto’s state-law claims under CAFA. In an order

dismissing Enomoto’s federal claim under Rule 12(b)(6), the district court declined

to exercise supplemental jurisdiction over Enomoto’s remaining state-law claims,

held that it lacked subject-matter jurisdiction under CAFA because “[d]efendants

2 have not shown the combined claims of all class members exceed $5 million,” and

directed Enomoto to re-file the case in state court.

1. We have jurisdiction under 28 U.S.C. § 1291 to review the district

court’s dismissal order. We review a dismissal for lack of subject-matter

jurisdiction de novo. Scholastic Ent., Inc. v. Fox Ent. Grp., Inc., 336 F.3d 982, 985

(9th Cir. 2003). Siemens asks us to take judicial notice of various litigation

documents to support its position that it has standing to appeal the district court’s

order. We conclude that Siemens has standing to appeal because the dismissal

order deprived it of a federal forum, which was Siemens’s preferred forum. Cf.

Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77

(1991) (holding that plaintiffs’ loss of their ability to sue in the “forum of their

choice” constituted sufficient “injury” to establish standing to challenge a removal

order); Cella v. Togum Constructeur Ensembleier en Industrie Alimentaire, 173

F.3d 909, 911–12 (3d Cir. 1999) (applying International Primate to conclude that a

defendant has standing to challenge a dismissal order that deprives the defendant

of the opportunity to litigate in a preferred forum); Nicodemus v. Union Pac.

Corp., 318 F.3d 1231, 1235 (10th Cir. 2003). We therefore deny Siemens’s

motion for judicial notice (Dkt. 10) as moot.

2. Enomoto’s amended complaint did not allege the amount in

controversy. Siemens retained a data analyst, Ariel Kumpinsky, to review its

3 payroll and employee records and calculate an estimated amount in controversy.

Because Enomoto did not provide specifics about the frequency of Siemens’s

alleged labor and wage law violations in her amended complaint, Kumpinsky

relied on various assumptions to estimate the amount of damages for which

Siemens was potentially liable. Based on these assumptions, Kumpinsky

concluded that the amount in controversy for Enomoto’s overtime wage, meal

period, rest break and waiting period violation claims totaled $7,435,163.24.

Siemens also contended that attorneys’ fees should be included in the calculation,

which brought its total estimated amount in controversy to $9,293,960.30.

The district court clearly erred in determining that Siemens failed to

demonstrate that the amount in controversy exceeded $5,000,000, as required for

jurisdiction under CAFA. Siemens “bears the burden to show by a preponderance

of the evidence” that its estimate meets the amount in controversy jurisdictional

threshold. Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). A

defendant “may rely on reasonable assumptions” to establish the potential amount

in controversy. Arias v. Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir.

2019). “Where a defendant’s assumption is unreasonable on its face without

comparison to a better alternative, a district court may be justified in simply

rejecting that assumption and concluding that the defendant failed to meet its

burden.” Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th 989, 996 (9th Cir.

4 2022).

When a removing defendant alleges that the district court has jurisdiction

under CAFA, “the plaintiff can contest the amount in controversy by making either

a ‘facial’ or a ‘factual’ attack on the defendant’s jurisdictional allegations.” Harris

v. KM Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020) (citing Salter v. Quality

Carriers, Inc., 974 F.3d 959, 964 (9th Cir. 2020)). It is unclear from the district

court’s order whether it analyzed Enomoto’s challenge as a facial or factual attack.

But Siemens met its burden either way.

A defendant is permitted to rely on a declaration from an individual who has

reviewed relevant employee payroll and wage data to support its amount in

controversy allegations. See Salter, 974 F.3d at 963-64 (rejecting the plaintiff’s

argument that the defendant must provide business records to support its

declaration); Jauregui, 28 F.4th at 991 (accepting a declaration as sufficient

“summary judgment style evidence” to support amount in controversy

calculations). Kumpinsky’s declaration provided information regarding the

business records reviewed as well as the methodology used for the amount in

controversy calculations. We conclude that Kumpinsky’s declaration provided

sufficient evidence to support Siemens’s calculations.

Furthermore, Siemens’s assumptions were reasonable given the information

Enomoto included in her amended complaint. Enomoto alleged that Siemens had a

5 common practice of misclassifying her and other similarly situated employees as

exempt from overtime, and she alleged that “she worked at least 65 minutes to 150

minutes of overtime each and every week” during her tenure at Siemens but

received no overtime pay. Based on this, Siemens reasonably assumed each

putative class member was owed one hour of unpaid overtime per 40-hours worked

or scheduled to work. Enomoto also alleged that Siemens “regularly” required

employees to work through their meal period. Siemens’s assumption that each

putative class member suffered at least one meal and rest period violation per week

was a conservative estimate given Enomoto’s allegation that Siemens consistently

failed to provide these periods to employees.

We have declined to adopt a per se rule that the amount of attorneys’ fees in

controversy equals twenty-five percent of all other alleged recovery. Fritsch v.

Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 796 (9th Cir. 2018). We need not

address what amount of attorneys’ fees would be reasonable here because the

amount in controversy exceeds $5,000,000 even if attorneys’ fees are excluded

from the estimated total.

We conclude that Siemens has sufficiently shown that there is more than

$5,000,000 in controversy and that the district court had diversity jurisdiction

under CAFA. We therefore reverse the portion of the district court’s order

pertaining to CAFA jurisdiction and remand for further proceedings.

6 REVERSED and REMANDED.

7