Case 2:20-cv-10860-FLA-JPR Document 47 Filed 03/22/22 Page 1 of 17 Page ID #:968

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RHONDA MILLS, Case No. 2:20-cv-10860-FLA (JPRx)

12 Plaintiff,

ORDER DENYING PLAINTIFF’S

13 v. MOTION TO REMAND [DKT. 11] 14 15 RESCARE WORKFORCE SERVICES, et al., 16 Defendants. 17

18 19

20 21 22 23 24 25 26 27 28

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1 RULING 2 Before the court is Plaintiff Rhonda Mills’ (“Plaintiff”) Motion to Remand 3 (“Motion”). Dkt. 11. For the reasons set forth below, the court DENIES Plaintiff’s 4 Motion. 5 BACKGROUND 6 Plaintiff filed this action in Los Angeles County Superior Court on September 7 16, 2020 against Defendants Rescare Workforce Services; Rescare, Inc.; Bright 8 Spring Health Services; Equus Workforce Solutions; Rescare Homecare; Rescare 9 Residential Services; and Rescare California, Inc. Dkt. 1 at 22 (Exhibit A, 10 “Compl.”).1 Plaintiff filed a First Amended Complaint (“FAC”) on January 7, 2021. 11 Dkt. 13 (“FAC”).2 Defendants Res-care, Inc. (“ResCare”), Res-care California, Inc. 12 (“ResCare California”), and Arbor E&T, LLC, d/b/a Equus Workforce Solutions 13 (“Equus”), (collectively, “Defendants”) filed Answers to the FAC on January 28, 14 2021.3 Dkts. 15, 16, 17. 15

16 1 The court refers herein to page numbers of documents by the page numbers assigned 17 by the court’s CM/ECF header. 18 2 On December 8, 2020, the court granted Plaintiff leave to file an amended complaint pursuant to stipulation by the parties. Dkt. 10. “[A]n amended complaint supersedes 19 the original, the latter being treated thereafter as non-existent.” Ramirez v. Cnty. of 20 San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (citations and quotation marks omitted). In their opposition, Defendants argue that the FAC “changes nothing with 21 regard to the method in which the amount in controversy should properly be 22 calculated.” Dkt. 14 (Opp.) at 5 n. 1. Plaintiff does not dispute this point in her reply or otherwise demonstrate that the filing of the FAC affects the court’s consideration of 23 the subject Motion. See generally Dkt. 21 (Reply). Accordingly, the court will 24 evaluate the parties’ arguments based on the allegations of the FAC. 25 3 Defendants state that Res-care, Inc., Res-care California, Inc., and Arbor E&T, LLC are the correct names for the Defendants that were sued as “Rescare, Inc.,” “Rescare 26 California Inc.,” and “Equus Workforce Solutions” and further contend that the named 27 Defendants “Rescare Workforce Services,” “Rescare Homecare,” and “Rescare Residential Services” are not legal entities and cannot be served with process or 28

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1 Plaintiff brings the following causes of action against all Defendants: (1) 2 violations of Cal. Lab. Code §§ 510 and 1198 for unpaid overtime; (2) violations of 3 Cal. Lab. Code §§ 226.7 and 512(a) for unpaid meal period premiums; (3) violations 4 of Cal. Lab. Code § 226.7 for unpaid rest period premiums; (4) violations of Cal. Lab. 5 Code §§ 1194, 1197, and 1197.1 for failure to pay minimum wages; (5) violations of 6 Cal. Lab. Code §§ 201 and 202 for failure to pay final wages timely; (6) violations of 7 Cal. Lab. Code § 204 for failure to pay all wages earned during employment timely; 8 (7) violations of Cal. Lab. Code § 226(a) for non-compliant wage statements; 9 (8) violation of Cal. Lab. Code § 1174(d) for failure to keep accurate and complete 10 payroll records; (9) violations of Cal. Lab. Code §§ 2800 and 2802 for failure to 11 reimburse necessary business expenses; and (10) violations of Cal. Bus. & Prof. Code 12 § 17200, et seq. (the Unfair Competition Law, “UCL”). Dkt. 13 (FAC) ¶¶ 53-127. 13 Plaintiff proposes the following class in the FAC: “All current and former 14 hourly-paid or non-exempt employees who worked for any of the Defendants within 15 the State of California at any time during the period from September 16, 2016 to final 16 judgment and who reside in California.” Id. ¶ 19. 17 Defendants removed the action to federal court on November 30, 2020. Dkt. 1. 18 In the Notice of Removal, Defendants stated this court has jurisdiction over the action 19 under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). Id. at 4. 20 Plaintiff filed the instant Motion to Remand on December 30, 2020. Dkt. 11 (Mot.). 21

22 otherwise answer or respond to the Complaint. Dkt. 1 (Not. Rem.) at 2-3; Dkt. 1-2 23 (Eisenmenger Decl.) ¶¶ 2-5. Defendants further state that BrightSpring Health Services is an assumed name of ResCare and cannot separately be served with process 24 or answer the Complaint. Dkt. 1 (Not. Rem.) at 3; Dkt. 1-2 (Eisenmenger Decl.) ¶ 3. 25 Plaintiff does not specifically address this assertion in the Motion and did not name ResCare, ResCare California, and Equus as Defendants in the subsequently-filed 26 FAC. See generally Mot.; Dkt. 13 (FAC). Nevertheless, Plaintiff’s Motion appears to 27 accept ResCare, ResCare California, and Equus as the proper Defendants in this action. See Mot. 1. Accordingly, the court will accept ResCare, ResCare California, 28 and Equus as the real parties in interest, for purposes of the subject Motion.

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1 The action was transferred to this court on January 5, 2021. Dkt. 12. Defendants filed 2 an opposition to the Motion on January 21, 2021, and Plaintiff filed a reply on 3 February 3, 2021. Dkt. 14 (Opp.); Dkt. 21 (Reply). On May 24, 2021, the court 4 ordered the parties to submit supplemental briefing regarding the amount in 5 controversy, which the parties filed on June 4, 2021. Dkts. 29, 32, 33. The Motion 6 came to hearing on June 18, 2021. Dkt. 36. 7 DISCUSSION 8 I. Procedural Considerations and Timeliness of Opposition 9 Plaintiff argues the court should disregard Defendants’ opposition because it 10 was filed one day after the operative deadline pursuant to the Initial Standing Order in 11 effect at the time the Motion was filed. Dkt. 21 (Reply) at 5.4 Under the Initial 12 Standing Order, the opposition to a motion set for hearing more than 70 days from the 13 date of the filing of the motion was due no later than 21 days after the filing of the 14 motion. Dkt. 6 at 8. Plaintiff filed the Motion on December 30, 2020, with a noticed 15 hearing date of May 3, 2021. Dkt. 11. As May 3, 2021 was more than 70 days from 16 December 30, 2020, Defendants’ opposition was due on or before January 20, 2021. 17 See Dkt. 6 at 8. 18 Defendants filed their opposition on January 21, 2021, without any explanation 19 for the delayed filing; thus, the opposition was untimely. Dkt. 14. Nevertheless, the 20 court recognizes that January 21, 2021 was Inauguration Day, and while the court 21 remained open on that date, some calendars marked that date as a holiday.5 22 Accordingly, the court will exercise its discretion to consider the opposition (Dkt. 14) 23 and attached Supplemental Eisenmenger Declaration (Dkt. 14-1). 24 / / / 25

26 4 This court entered the operative Standing Order on February 23, 2021. Dkt. 23. 27 5 Pursuant to 5 U.S.C. § 6103(c), Inauguration Day qualifies as a federal holiday only 28 for federal employees in the Washington, D.C. area.

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1 II. Jurisdiction Under CAFA 2 “Federal courts are courts of limited jurisdiction, possessing only that power 3 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 4 (citations and quotation marks omitted). Pursuant to 28 U.S.C. § 1441(a), a defendant 5 may remove a civil action filed in state court to federal court only where the district 6 court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 7 392 (1987). “A defendant seeking removal must file in the district court a notice of 8 removal ‘containing a short and plain statement of the grounds for removal….’” 9 Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (citing 28 U.S.C. § 10 1446(a)). 11 The Class Action Fairness Act provides that a federal district court may 12 exercise subject matter jurisdiction over a putative class action in which: (1) the 13 aggregate number of members of all proposed plaintiff classes is 100 or more persons; 14 (2) the parties are “minimally diverse” (where any one plaintiff is a citizen of a state 15 different from any defendant); and (3) the amount in controversy exceeds $5,000,000. 16 28 U.S.C. § 1332(d); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1020-21 (9th Cir. 17 2007). Congress intended CAFA to be interpreted expansively. Ibarra, 775 F.3d at 18 1197. “[N]o antiremoval presumption attends cases invoking CAFA, which Congress 19 enacted to facilitate adjudication of certain class actions in federal court.” Dart 20 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). 21 A. Class Size 22 Defendants contend the action meets the minimum class size limit for CAFA 23 jurisdiction because ResCare employed approximately 674 non-exempt, hourly 24 employees in California during the relevant time period. Dkt. 1 (Not. Rem.) at 4-5; 25 Dkt. 1- (Eisenmenger Decl.) ¶ 7. Plaintiff does not challenge the removal of this 26 action on this basis. See generally Dkt. 11 (Mot.). Accordingly, the court finds the 27 putative class meets the minimum size requirements of CAFA. See 28 U.S.C. 28 § 1332(d)(5)(B).

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1 B. Minimal Diversity 2 Defendants contend minimal diversity exists because Plaintiff is a resident of 3 the State of California while Defendants are not California residents. Dkt. 1 (Not. 4 Rem.) 16; Dkt. 1-2 (Eisenmenger Decl.) ¶¶ 3-5; see also Dkt. 13 (FAC) ¶¶ 3-5. 5 According to Defendants, ResCare and Equus are Kentucky corporations, ResCare 6 California is a Delaware corporation, and all Defendants maintain their principal 7 places of business in the State of Kentucky. Dkt. 1 (Not. Rem.) 16; Dkt. 1-2 8 (Eisenmenger Decl.) ¶¶ 3-5. Plaintiff does not challenge the removal of this action on 9 this basis. See generally Dkt. 11 (Mot.). The court, therefore, finds the action meets 10 the minimal diversity requirements of CAFA. See 28 U.S.C. § 1332(d)(2)(A). 11 C. Amount in Controversy 12 1. Legal Standard Regarding the Amount in Controversy 13 “In determining the amount in controversy, courts first look to the complaint.” 14 Ibarra, 775 F.3d at 1197. “Generally, ‘the sum claimed by the plaintiff controls if the 15 claim is apparently made in good faith.’” Id. (quoting St. Paul Mercury Indem. Co. v. 16 Red Cab Co., 303 U.S. 283, 289 (1938)). “[A]s specified in [28 U.S.C.] § 1446(a), a 17 defendant’s notice of removal need include only a plausible allegation that the amount 18 in controversy exceeds the jurisdictional threshold.” Dart, 574 U.S. at 89. “[T]he 19 defendant’s amount-in-controversy allegation should be accepted when not contested 20 by the plaintiff or questioned by the court.” Id. at 87. “Evidence establishing the 21 amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court 22 questions, the defendant’s allegation.” Id. 23 The Ninth Circuit has identified “three principles that apply in CAFA removal 24 cases.” Arias v. Residence Inn, 936 F.3d 920, 922 (9th Cir. 2019). 25 First, a removing defendant’s notice of removal “need not contain 26 evidentiary submissions” but only plausible allegations of the jurisdictional elements. Second, when a defendant’s allegations of 27 removal jurisdiction are challenged, the defendant’s showing on the 28 amount in controversy may rely on reasonable assumptions. Third,

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when a statute or contract provides for the recovery of attorneys’ 1 fees, prospective attorneys’ fees must be included in the assessment 2 of the amount in controversy. 3 Id. (citations omitted). “[I]n assessing the amount in controversy, a removing 4 defendant is permitted to rely on ‘a chain of reasoning that includes assumptions.’” 5 Id. at 925 (quoting Ibarra, 775 F.3d at 1199). “Such ‘assumptions cannot be pulled 6 from thin air but need some reasonable ground underlying them.’” Id. (quoting 7 Ibarra, 775 F.3d at 1199). “An assumption may be reasonable if it is founded on the 8 allegations of the complaint.” Id. 9 “[T]he plaintiff can contest the amount in controversy by making either a 10 ‘facial’ or a ‘factual’ attack on defendant’s jurisdictional allegations.” Harris v. KM 11 Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020) (citing Salter v. Quality Carriers, Inc., 12 974 F.3d 959, 964 (9th Cir. 2020)). “A ‘facial’ attack accepts the truth of the 13 defendant’s allegations but asserts that they are insufficient on their face to invoke 14 federal jurisdiction.” Id. (citing Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 15 2014) (quotation marks and brackets omitted)). “For a facial attack, the court, 16 accepting the allegations as true and drawing all reasonable inferences in the 17 defendant’s favor, ‘determines whether the allegations are sufficient as a legal matter 18 to invoke the court’s jurisdiction.’” Salter, 974 F.3d at 964 (quoting Leite, 749 F.3d at 19 1121). 20 “A factual attack ‘contests the truth of the … allegations’ themselves. Harris, 21 980 F.3d at 699. “When a plaintiff mounts a factual attack, the burden is on the 22 defendant to show, by a preponderance of the evidence, that the amount in 23 controversy exceeds the $5 million jurisdictional threshold.” Id. (citing Ibarra, 775 24 F.3d at 1197). Although a plaintiff may rely on evidence to mount a factual attack, 25 “[a] factual attack … need only challenge the truth of the defendant’s jurisdictional 26 allegations by making a reasoned argument as to why any assumptions on which they 27 are based are not supported by evidence.” Harris, 980 F.3d at 700. When a 28 defendant’s assertion of the amount in controversy is challenged, both sides may

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1 submit proof, and “the court decides, by a preponderance of the evidence, whether the 2 amount-in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1197 3 (citing Dart, 574 U.S. at 88). 4 2. Whether Plaintiff Raises a Facial or a Factual Challenge to 5 Defendants’ Notice of Removal 6 Defendants contend Plaintiff lodges only a facial attack on the Notice of 7 Removal, rather than a factual attack, because Plaintiff has not offered a declaration or 8 any other type of evidence to challenge the evidence contained in the Notice of 9 Removal. Dkt. 14 (Opp.) at 9; Dkt. 32 (Def. Suppl. Br.) at 7. Defendants cite Salter, 10 974 F.3d at 963, to argue that the Ninth Circuit has held in comparable circumstances 11 that a plaintiff mounted only a facial attack to a removal notice alleging CAFA 12 jurisdiction, where the plaintiff “did not offer any declaration or evidence that 13 challenged the factual bases of [the defendant’s] plausible allegations” and “argued 14 only that [the defendant] ‘must support its assertion with competent proof.’” Dkt. 14 15 (Opp.) at 7-8. Defendants, thus, assert they were required only to “include a plausible 16 allegation that the amount in controversy exceeds the jurisdictional threshold,” and 17 that the court should determine whether the allegations are sufficient to invoke the 18 court’s jurisdiction under CAFA after accepting their allegations, assumptions, and 19 calculations as true. Dkt. 14 (Opp.) at 8-9 (citing Salter, 974 F.3d at 964); Dkt. 32 20 (Def. Suppl. Br.) at 3-4.6 21 Plaintiff does not directly address this argument or Salter in her reply but argues 22 instead that the Ninth Circuit has recently held in Harris, 980 F.3d at 700, that a 23 defendant failed to meet its burden to establish jurisdiction because it failed to provide 24 any evidence to support its assumptions. Dkt. 21 (Reply) 2-3 (citing Wilson v. IKEA 25

26 6 According to Defendants, their obligation to present summary judgment-type 27 evidence would arise only after Plaintiff made a similar summary judgment-quality factual challenge to the court’s jurisdiction, which they contend has not occurred here. 28 Dkt. 14 (Opp.) at 8.

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1 N. Am. Servs., LLC, Case No. 20-cv-09075-CJC (ASx), 2020 WL 7334486, at *2 2 (discussing Harris, 980 F.3d at 701)). After considering the parties’ arguments, the 3 court agrees with Defendants that Plaintiff has presented a facial attack on the 4 jurisdictional allegations, rather than a factual attack, with one exception which will 5 be discussed separately below. 6 In Salter, 974 F.3d at 964, the Ninth Circuit held that the plaintiff mounted a 7 facial attack only, where the plaintiff “did not challenge the rationality, or the factual 8 basis, of [the defendant’s] assertions” and argued only that the defendant failed to 9 support its assertions with competent proof. There, the district court granted the 10 plaintiff’s motion to remand after “fault[ing] [the defendant’s] presentation as relying 11 on the ‘unsupported and conclusory statements in [a supporting] declaration.’” The 12 Ninth Circuit reversed the district court’s order, recognizing that “a removing 13 defendant’s notice of removal need not contain evidentiary submissions but only 14 plausible allegations of jurisdictional elements,” id. (citing Arias, 936 F.3d at 922) 15 (internal quotation marks omitted), and that “a defendant may simply allege or assert 16 that the jurisdictional threshold has been met,” id. (citing Dart, 574 U.S. at 88-89) 17 (internal quotation marks omitted). 18 The Ninth Circuit issued Harris, 980 F.3d 694, the following year. Harris 19 began by reaffirming Salter, and its distinction between a “facial” and “factual” attack 20 on a defendant’s jurisdictional allegations.7 Harris, however, distinguished Salter 21 based on the pleadings and facts at hand, and held that the Harris plaintiff had 22 23 7 Plaintiff cites cases including Rodriguez v. US Bank Nat’l Ass’n, Case No. 2:16-cv- 05590-CAS (RAOx), 2016 WL 5419403 (C.D. Cal. Sept. 26, 2016), to argue that 24 Defendants are required to produce “summary-judgment type evidence” of the amount 25 in controversy, if it is indeterminate from the face of the complaint that the jurisdictional threshold is met. Dkt. 11 (Mot.) 11; Dkt. 21 (Reply) 4. Plaintiff’s cited 26 cases predate the Ninth Circuit’s rulings in Harris, 980 F.3d 694, Salter, 974 F.3d 27 959, and Arias, 936 F.3d 920. To the extent these cases are submitted for the proposition that summary-judgment type evidence is required on a facial challenge to 28 the court’s CAFA jurisdiction, these cases no longer represent good law.

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1 sufficiently presented a factual challenge to the defendant’s notice of removal because 2 he presented a reasoned argument disputing the factual basis of the defendant’s 3 jurisdictional allegations. Id. at 700-01. 4 There, the plaintiff had asserted representative claims on behalf of multiple 5 putative classes and subclasses of employees, including a cause of action for labor 6 violations suffered by an “Hourly Employee Class” and separate causes of action 7 based on subclasses including a “Meal Period-Sub-Class” and a “Rest Period Sub- 8 Class.” Id. at 697. The Harris defendant removed the action to federal court, 9 invoking CAFA jurisdiction. Id. The plaintiff filed a motion to remand, challenging, 10 inter alia, the defendant’s assumption that all putative Hourly Employee Class 11 members were also members of the Meal Period subclass and the Rest Period subclass 12 throughout the relevant time period. Id. at 698-99. The district court granted the 13 plaintiff’s motion to remand, finding the defendant “had failed to establish the 14 amount-in-controversy by a preponderance of the evidence because no evidence 15 supported [the defendant’s] assumption that the 442 potential class members 16 regularly, or at least more often than not worked the requisite numbers of hours that 17 would have entitled them to meal or rest periods.” Id. at 699 (quotation marks and 18 brackets omitted). 19 The Ninth Circuit affirmed, holding that the plaintiff had lodged a factual 20 attack, as he “sufficiently disputed the factual basis of [the defendant’s] assumption 21 that all Hourly Employee Class members had suffered one meal and two rest period 22 violations per workweek across 39,834 workweeks by attacking the assumption’s 23 factual underpinnings.” Id. at 701. The court further held that the defendant failed to 24 carry its burden on a factual challenge, because it relied on assumptions regarding the 25 Meal Period and Rest Period subclasses that were unsupported by evidence and, thus, 26 unreasonable. Id. 27 Harris, however, does not establish that a defendant cannot rely on declarations 28 and must present underlying evidence in support of its jurisdictional allegations, as

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1 Plaintiff would suggest, but that a plaintiff can mount a factual challenge without 2 presenting evidence by presenting a reasoned argument that demonstrates that a 3 factual assumption on which the defendant relies is not supported by the defendant’s 4 plausible allegations of the jurisdictional elements or any other evidence. See id. at 5 700-01. 6 Here, Defendants’ Notice of Removal states ResCare employed approximately 7 674 putative class members who worked an aggregate total of 54,002 workweeks 8 during the relevant time period. Dkt. 1 (Not. Rem.) at 5 (citing Dkt. 1-2 (Eisenmenger 9 Decl.) ¶¶ 7, 10). Like Salter, Plaintiff does not challenge the factual truth of 10 Defendants’ jurisdictional assertions and, instead, argues that the supporting 11 Eisenmenger declaration does not constitute summary judgment-type evidence 12 sufficient to establish Defendants’ burden on a factual challenge. 8 See generally Dkt. 13 11 (Mot); Dkt. 21 (Reply); Dkt. 33 (Pl. Supp. Br.). 14 Plaintiff’s arguments center on Eisenmenger’s personal knowledge of the 15 information contained in Defendants’ employment records and her failure to include 16

17 8 Plaintiff cites cases including Contreras v. J.R. Simplot Co., Case No. 2:17-cv- 18 00585-KJM-EFB, 2017 U.S. Dist. LEXIS 166359, at *7-8 (E.D. Cal. Oct 5, 2017) and Rinaldi v. Dolgen Cal. LLC, Case No. 2:16-cv-02501-KJM-EFB, 2017 U.S. Dist. 19 LEXIS 126540, at *9 (E.D. Cal. Aug. 8, 2017), to argue that a defendant’s amount in 20 controversy calculation is unjustified where the only evidence provided by the defendant is a declaration by a payroll supervisor and no corroborating documents are 21 provided. Dkt. 11 (Mot.) 6-9. Plaintiff additionally cites Weston v. Helmerich & 22 Payne Int’l Drilling Co., Case No. 1:13-cv-01092-LJO-JLT (E.D. Cal. Sept. 17, 2013), to argue that Eisenmenger’s assertions are deficient because she did not 23 provide any explanation of her calculations. Dkt. 11 (Mot.) 14. 24 Plaintiff’s cited cases predate Harris, 980 F.3d 694, and Salter, 973 F.3d 959, 25 and, to the extent these cases are submitted for the proposition that summary- judgment type evidence is required on a facial challenge to the court’s CAFA 26 jurisdiction, no longer represent good law. The continued validity of Weston is further 27 questionable, given the Supreme Court’s clarification in Dart, 574 U.S. at 89, that “no antiremoval presumption attends cases invoking CAFA, which Congress enacted to 28 facilitate adjudication of certain class actions in federal court.”

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1 detailed calculations or to attach supporting evidence to her declaration, rather than 2 the validity of her factual assertions of the putative class size and potential number 3 and scope of violations.9 See generally Dkt. 11 (Mot); Dkt. 21 (Reply). The 4 circumstances here, however, are more similar to Salter than Harris, as the Complaint 5 identifies only one putative class, and Plaintiff has not pleaded separate subclasses or 6 identify any jurisdictional allegations that are inconsistent with or not supported by 7 Eisenmenger’s declaration. See generally Dkt. 11 (Mot); Dkt. 21 (Reply). 8 Plaintiff contends she has raised a factual attack by challenging Defendants’ 9 unsupported assumptions regarding the rate of violations with respect to each claim. 10 See generally Dkt. 11 (Mot); Dkt. 21 (Reply). The court disagrees and finds that 11 Defendants’ assumptions are reasonable given that the Complaint and FAC do not 12 state any facts to apprise Defendants of an alleged violation rate and that Plaintiff does 13 not identify any such facts in her Motion. See, e.g., Dkt. 1 at 29 (Compl.) ¶ 30 14 (“Plaintiff is informed and believes, and based thereon alleges, that Defendants 15 engaged in a pattern and practice of wage abuse against their hourly-paid or non- 16 exempt employees within the State of California”); see generally Dkt. 13 (FAC); Dkt. 17 11 (Mot.); Dkt. 21 (Reply). 18 “The amount in controversy is simply an estimate of the total amount in 19 dispute, not a prospective assessment of [a] defendant’s liability” and “reflects the 20 maximum recovery [a] plaintiff could reasonably recover.” Arias, 936 F.3d at 927 21 (italics in original). Absent any facts presented, Plaintiff’s challenge to Defendants’ 22 estimated violation rate is purely speculative and does not qualify as “a reasoned 23

24 9 The court finds Eisenmenger sufficiently establishes personal knowledge of the facts 25 stated in her declaration because she attests she is a Senior Vice President of Cash Disbursements for ResCare and is familiar with the corporate organization, workforce 26 distribution, payroll information, and general business affairs of ResCare and its 27 subsidiaries and affiliate entities, and declares she personally reviewed the records and compiled the data to which she testifies. Dkt. 1-2 (Eisenmenger Decl.) ¶¶ 1, 6; Dkt. 28 14-1 (Suppl. Eisenmenger Decl.) ¶¶ 3-4.

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1 argument as to why any assumptions on which [Defendants’ jurisdictional allegations] 2 are based are not supported by evidence,” as contemplated by Salter and Harris. See 3 Salter 974 F.3d at 965 (finding plaintiff mounted a facial challenge where he failed to 4 show any of defendant’s essential assumptions were unreasonable); cf. Harris, 980 5 F.3d at 700-01 (finding plaintiff made a reasoned argument by challenging 6 defendant’s assumption that the members of subclasses were identical to and worked 7 the same number of workweeks as main class). 8 If Plaintiff wanted to limit Defendants’ assumed rate of violations, Plaintiff 9 could have alleged facts within the Complaint or FAC sufficient to reasonably apprise 10 Defendants of the scope of her claims.10 Furthermore, Plaintiff does not actually 11 challenge the truth of Defendants’ factual assertions and instead challenges only 12 whether Defendant has presented summary judgment-type evidence sufficient to 13 prove these assertions by a preponderance of the evidence. This argument is 14 insufficient to convert Plaintiff’s facial attack on Defendants’ jurisdictional allegations 15 into a factual attack.11 16

17 10 In her supplemental brief, Plaintiff provides estimates for her individual damages 18 based on the Plaintiff’s time and wage records produced by Defendants. Dkt. 33 (Pl. Supp. Br.) 2. Plaintiff states that she otherwise does not have sufficient information to 19 accurately prepare damages calculations and has not presented a declaration or 20 otherwise stated that Defendants’ records accurately reflect her individual damages. Id. Furthermore, Plaintiff does not offer any reasoned argument or evidence to 21 establish that her former position with Defendants, her individual claims, the rate of 22 violations she allegedly suffered, and her individual damages are representative of the potential class members. To the contrary, she expressly admits that she does not have 23 sufficient information to accurately prepare damages calculations at this time. Id. 24 The court, thus, finds that any estimate of class damages extrapolated from Plaintiff’s asserted individual damages would be too speculative and uncertain to present a 25 factual challenge to Defendants’ jurisdictional allegations. 26 11 Any contrary holding would allow class action plaintiffs to turn every facial 27 challenge to a defendant’s notice of removal asserting CAFA jurisdiction into a factual challenge, simply by being vague as to the scope of their claims and claimed 28

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1 The one exception to Plaintiff’s facial attack in the Motion is her argument 2 regarding Defendants’ statement in the Notice of Removal that “Defendant’s records 3 report that 2,238 alleged class members worked an aggregate total of 82,358 4 workweeks from October 19, 2014 through December 3, 2018,” for a total estimated 5 amount of $999,826,12 in unpaid wages. Dkt. 11 (Mot.) at 14. According to Plaintiff, 6 this statement renders Defendants’ amount in controversy calculations inaccurate 7 because such information is not present in the Eisenmenger Declaration and is 8 calculated beginning on a date outside the covered period of this action. Id. As in 9 Harris, 980 F.3d at 700-01, this argument challenges the factual assumptions 10 underlying a portion of the Notice of Removal and constitutes a factual challenge to 11 the jurisdictional allegations. 12 The identified statement, however, appeared only once in the Notice of 13 Removal, and the asserted amount in controversy ($999,826.12) was not included in 14 Defendants’ final calculation of the total amount in controversy. See Dkt. 1 (Not. 15 Rem.) at 14. All other calculations, and all of the estimated amounts on which 16 Defendants rely, were based on an estimated putative class size of 674 members and 17 an aggregate total of 54,002 workweeks worked between September 16, 2016 through 18 November 23, 2020. See generally, Dkt. 1 (Not. Rem.). The identified paragraph is 19 completely divorced from Defendants’ conclusions regarding the amount in 20 controversy and appears to have been included in the Notice of Removal in error. See 21 Dkt. 1 (Not. Rem.) at 14. The court, therefore, finds that Plaintiff’s argument 22

23 damages and arguing that the defendants’ maximum estimate of the plaintiffs’ 24 recovery is unreasonable without presenting any facts, as Plaintiff attempts here. Such 25 a result would force defendants to present evidence under a summary judgment standard in every instance, rendering null the principles that a defendant’s notice of 26 removal “need not contain evidentiary submissions but only plausible allegations of 27 jurisdictional elements” and that a defendant “may simply allege or assert that the jurisdiction threshold has been met,” as stated in Dart, 574 U.S. at 88-89, Arias, 936 28 F.3d at 922, and Salter, 641 F.3d at 964-65.

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1 regarding this paragraph does not affect the court’s analysis or convert the Motion to a 2 factual challenge. 3 As Plaintiff, in relevant part, does not challenge the truth of Defendants’ factual 4 allegations and challenges only the sufficiency of their presentation under a summary 5 judgment-type standard, these arguments present only a facial attack on the notice of 6 removal, rather than a factual attack. See Salter, 974 F.3d at 964. The court, 7 therefore, finds the Motion, in relevant part, mounts only a facial attack on 8 Defendants’ jurisdictional allegations. 9 3. Sufficiency of Defendants’ Jurisdictional Allegations 10 As stated, “[f]or a facial attack, the court, accepting the allegations as true and 11 drawing all reasonable inferences in the defendant’s favor, ‘determines whether the 12 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.’” Salter, 13 974 F.3d at 964 (quoting Leite, 749 F.3d at 1121). “The amount in controversy is 14 simply an estimate of the total amount in dispute, not a prospective assessment of 15 defendant’s liability” and “reflects the maximum recovery the plaintiff could 16 reasonably recover.” Arias, 936 F.3d at 927 (emphasis in original). 17 Plaintiff’s first cause of action is for unpaid overtime in violation of Cal. Labor 18 Code §§ 510 and 1198. Dkt. 1 at 32-33 (Compl.) ¶¶ 52-60; Dkt. 13 (FAC) ¶¶ 53-61. 19 Plaintiff alleges, in relevant part: 20 During the relevant time period, Defendants failed to pay overtime 21 wages to Plaintiff and the other class members for all overtime hours worked. Plaintiff and the other class members were required to 22 work more than eight (8) hours per day and/or forty (40) hours per 23 week without overtime compensation for all overtime hours worked. 24 Dkt. 13 (FAC) ¶ 43; see also id. ¶¶ 58-59. Plaintiff seeks to recover “unpaid overtime 25 compensation, as well as interest, costs, and attorneys’ fees.” Dkt. 13 (FAC) ¶ 61. 26 Plaintiff’s second and third causes of action are for unpaid meal period and rest 27 break premiums in violation of Cal. Labor Code §§ 226.7 and 512(a). Dkt. 1 at 32-33 28

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1 (Compl.) ¶¶ 61-80; Dkt. 13 (FAC) ¶¶ 62-84. In support of her second claim for 2 missed meal breaks, Plaintiff alleges: 3 During the relevant time period, Defendants intentionally and 4 willfully required Plaintiff and the other class members to work during meal periods and failed to compensate Plaintiff and the other 5 class members the full meal period premium for work performed 6 during meal periods. 7 Dkt. 13 (FAC) ¶ 69. Similarly, in support of her third claim for missed rest breaks, 8 Plaintiff alleges: 9 During the relevant time period, Defendants willfully required Plaintiff and the other class members to work during rest periods 10 and failed to pay Plaintiff and the other class members the full rest 11 period premium for work performed during rest periods. 12 Id. ¶ 81. Plaintiff seeks to recover “one additional hour of pay at the employee’s 13 regular rate of compensation for each work day” that the meal or rest period was not 14 provided. Id. ¶¶ 74, 84. 15 Defendants assert that ResCare employed approximately 674 putative class 16 members during the relevant time period, who worked an aggregate total of 54,002 17 workweeks during the identified class period. Dkt. 1 (Not. Rem.) at 5 (citing Dkt. 1-2 18 (Eisenmenger Decl.) ¶¶ 7, 10). For the first cause of action, Defendants assume each 19 class member worked one hour of overtime per week, for a potential amount in 20 controversy of $1,684,862.40 on this claim. Dkt. 1 (Not. Rem.) at 7; Dkt. 14 (Opp.) at 21 17-18. For the second and third causes of action, Defendants assume each putative 22 class member missed one meal break per shift longer than 5 hours and missed one rest 23 break per shift longer than 3.5 hours, for total estimated potential damages of 24 $3,676,982.40 and $3,755,689.60, respectively, on these claims. Dkt. 1 (Not. Rem.) 25 at 7-8; Dkt. 14 (Opp.) at 11-14. Defendants’ calculated potential liability for the first 26 three causes of action exceeds $9 million, and their total estimate on all of Plaintiff’s 27 claims exceeds $13 million (rising to over $16.5 million when anticipated attorney’s 28 fees of 25% are additionally considered). Dkt. 14 (Opp.) at 14.

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I The court finds Defendants’ assumptions are plausible and present a reasonable 2 || estimate of Defendants’ maximum potential liability and the maximum damages the 3 | putative class could reasonably recover. See Salter, 974 F.3d at 965 (recognizing 4 | “plausible allegations” rely on “reasonable assumptions” and vacating district court’s 5 | remand order); Arias, 936 F.3d at 926-27 (vacating district court’s remand order and 6 | remanding case to district court after finding total amount in controversy calculations 7 || based on personnel and payroll data presented in a declaration from human resources 8 | officer plausible). Defendants, thus, have met their burden to demonstrate that the 9 | amount in controversy satisfies the $5 million jurisdictional minimum for CAFA 10 | jurisdiction. See 28 U.S.C. § 1332(d)(2).” 11 CONCLUSION 12 For the foregoing reasons, the court DENIES Plaintiff's Motion to Remand. 13 14 IT IS SO ORDERED. 15 16 | Dated: March 22, 2022 17 18 FERNANDO L. AENLLE-ROCHA United States District Judge 19 20 2]. lp: □ '2 The court’s conclusion would remain the same even if it were to evaluate Plaintiff’s 22 challenge as a factual attack to Defendants’ jurisdictional allegations. While Plaintiff 93 | argues that Defendants’ estimates should be completely disregarded because they are speculative and not supported by competent evidence, the Ninth Circuit recently held 24 | in Jauregui v. Roadrunner Transportation Services, No. 22-55058, 2022 U.S.App. 95 | LEXIS 6932, F.4th __, at *10-15, that a district court should not simply reject a removing defendant’s estimate of a claim when it disagrees with a single assumption 26 underlying the claim valuation and should, instead, consider the defendant’s 27 || assumptions in light of assumptions presented by the plaintiff. For the reasons stated, Defendants’ presented evidence is clearly sufficient to satisfy the $5 million 28 jurisdictional threshold. 17