1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 DEVANTAE AGUIRRIE, individually, No. 2:23-cv-00516 WBS DB and on behalf of other members 13 of the general public similarly situated, 14 MEMORANDUM AND ORDER RE: Plaintiff, PLAINTIFF’S MOTION TO REMAND 15 v. 16

OAK HARBOR FREIGHT LINES, INC.,

17 a Washington corporation; and DOES 1 through 100, inclusive, 18 Defendants. 19

20 ----oo0oo---- 21 Plaintiff Devantae Aguirrie initiated this putative 22 labor class action against defendant Oak Harbor Freight Lines, 23 Inc. (See Compl. (Docket No. 1-2).) Defendant removed the 24 action to this court from the San Joaquin County Superior Court. 25 (Docket No. 1.) Plaintiff now moves to remand, arguing that 26 defendant has failed to establish the requirements for 27 jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 28 1 1332(d). (Docket No. 7.) 2 “[A]ny civil action brought in a State court of which 3 the district courts of the United States have original 4 jurisdiction, may be removed by the defendant or the defendants, 5 to the district court of the United States for the district . . . 6 where such action is pending.” 28 U.S.C. § 1441(a). If “it 7 appears that the district court lacks subject matter 8 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 9 The Class Action Fairness Act (“CAFA”) “gives federal 10 district courts original jurisdiction over class actions in which 11 the class members number at least 100, at least one plaintiff is 12 diverse in citizenship from any defendant, and the aggregate 13 amount in controversy exceeds $5 million, exclusive of interest 14 and costs.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 15 (9th Cir. 2015) (citing 28 U.S.C. § 1332(d)(2)). “[A]lthough a 16 presumption against federal jurisdiction exists in the usual 17 diversity case, ‘no antiremoval presumption attends cases 18 invoking CAFA.’” Greene v. Harley-Davidson, Inc., 965 F.3d 767, 19 772 (9th Cir. 2020) (quoting Dart Cherokee Basin Operating Co., 20 LLC v. Owens, 574 U.S. 81, 89 (2014)). Plaintiff argues that 21 defendant has failed to satisfy the class size and amount in 22 controversy requirements. The diversity of citizenship element 23 is uncontested. 24 In assessing whether jurisdictional requirements are 25 satisfied, “[courts] may consider allegations in the complaint 26 and in the notice of removal, as well as summary-judgment-type 27 evidence relevant to the amount in controversy.” See Chavez v. 28 JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018). 1 The Ninth Circuit has identified two categories of 2 challenges to removal. In a “factual” attack, the plaintiff 3 contests “the truth of the defendant’s jurisdictional 4 allegations.” Harris v. KM Indus., Inc., 980 F.3d 694, 700 (9th 5 Cir. 2020). In response to a factual attack, the removing 6 defendant must establish, by a preponderance of the evidence, 7 that the jurisdictional requirements are satisfied. See id. at 8 699; Arias v. Residence Inn by Marriott, 936 F.3d 920, 925 (9th 9 Cir. 2019) (citing Dart, 574 U.S. at 88). A “facial” attack, by 10 contrast, “‘challenges the form, not the substance, of [the 11 defendant’s] showing.’” Harris, 980 F.3d at 699–700 (quoting 12 Salter v. Quality Carriers, Inc., 974 F.3d 959, 961 (9th Cir. 13 2020)) (alteration in original). In response to a facial attack, 14 the removing defendant is only required to “‘include a plausible 15 allegation that the amount in controversy exceeds the 16 jurisdictional threshold.’” Salter, 974 F.3d at 965 (quoting 17 Dart, 574 U.S. at 89). 18 Here, plaintiff argues that the evidence relied upon by 19 defendant -- the declaration of an Oak Harbor employee -- is 20 alone not sufficient to establish the class size and amount in 21 controversy requirements. Plaintiff does not appear to contest 22 the veracity of any of the content of the declaration, nor does 23 he appear to object to any of the assumptions made by defendant 24 in calculating the amount in controversy. Plaintiff does not 25 even include a bare allegation that there are factually fewer 26 than 100 class members or that the amount in controversy is less 27 than $5 million. 28 Plaintiff’s argument clearly appears to constitute a 1 facial, rather than factual, attack. See Harris, 980 F.3d at 2 699–700. Accordingly, defendant need only provide a “plausible 3 allegation” that the jurisdictional requirements are satisfied. 4 See Salter, 974 F.3d at 965. Defendant has plausibly alleged 5 that the class size is greater than 100 and the amount in 6 controversy exceeds $5 million, supported by reasonable 7 calculations and the declaration of an experienced employee. 8 (See Notice of Removal (Docket No. 1) at 5-9; Mot. at 8-20; Decl. 9 of Jackie Knox (“Knox Decl.”) (Docket No. 9-1)). Defendant has 10 therefore satisfied its burden. See Arias, 936 F.3d at 927 11 (“Where a removing defendant has shown potential recovery ‘could 12 exceed $5 million and the [p]laintiff has neither acknowledged 13 nor sought to establish that the class recovery is potentially 14 any less, the defendant ‘has borne its burden to show the amount 15 in controversy exceeds $5 million.’”) (quoting Lewis, 627 F.3d at 16 401). 17 Even if plaintiff had mounted a factual attack, 18 defendant has provided sufficient evidence and reasoning to 19 establish by a preponderance of the evidence that the 20 jurisdictional requirements are satisfied. Defendant has 21 submitted a declaration by Jackie Knox, an Oak Harbor employee 22 who held the position of Human Resources Manager from August 2014 23 through January 2020; the position of Director of Human Resources 24 from January 2020 through March 2023; and the position of Vice 25 President of Administration from March 2023 to the present. (See 26 Knox Decl. ¶ 2.) Ms. Knox’s declaration provides information 27 28 1 concerning the putative class size,1 as well as the putative 2 class’s total number of workweeks, average number of days worked 3 per week, average hourly wage, and the number of putative class 4 members who became former employees during the putative class 5 period. (Id. ¶¶ 6-7.) 6 Based on Ms. Knox’s years of experience with human 7 resources and administrative matters at Oak Harbor and her review 8 of records maintained in the ordinary course of business (see id. 9 ¶¶ 2-6), she is well-qualified to opine on these matters. 10 Accordingly, the Knox declaration provides adequate evidentiary 11 foundation for defendant’s jurisdictional conclusions. See Avila 12 v. Rue21, Inc., 432 F. Supp. 3d 1175, 1186-87 (E.D. Cal. 2020) 13 (O’Neill, J.) (a declaration concerning the amount in controversy 14 alone is not per se insufficient, but rather, the sufficiency of 15 the declaration depends on the knowledge of the declarant and the 16 nature of the allegations in the complaint); Andrade v. Beacon 17 Sales Acquisition, Inc., No. 19-cv-06963 CJC RAO, 2019 WL 18 4855997, at *4 (C.D. Cal. Oct. 1, 2019) (“a declaration from a 19 knowledgeable employee based on her analysis of regularly kept 20 and created business records” was sufficient evidence to 21 establish amount in controversy in putative wage and hour class 22 action); Muniz v. Pilot Travel Centers LLC, No. 07-cv-0325 FCD 23 EFB, 2007 WL 1302504, at *5 (E.D. Cal. May 1, 2007) (“There is no 24 obligation by defendant to support removal with production of 25

26 1 The putative class period runs from January 19, 2019 to final judgment. (See Compl. ¶ 13.) Ms. Knox’s declaration 27 includes individuals employed between January 19, 2019 and January 19, 2023, the date the action was filed. (See Knox Decl. 28 ¶ 6.) 1 extensive business records to prove or disprove liability and/or 2 damages with respect to plaintiff or the putative class members 3 at this premature (pre-certification) stage of the litigation.”) 4 In calculating the amount in controversy, defendant 5 assumed a violation rate of 20%. Given that plaintiff alleges “a 6 pattern and practice of wage abuse” (see Compl. ¶ 25), this 7 underlying assumption is reasonable. See Salter, 974 F.3d at 963 8 (“‘when a defendant’s allegations of removal jurisdiction are 9 challenged, the defendant’s showing on the amount in controversy 10 may rely on reasonable assumptions’”) (quoting Arias, 936 F.3d at 11 920); Cruz v. Mohawk Indus., No. 1:20-cv-01510 JLT EPG, 2022 WL 12 93338, at *5 (E.D. Cal. Jan. 9, 2022) (in calculating the amount 13 in controversy in putative wage and hour class actions, 14 “[d]istrict courts have found . . . that violation rates of 25% 15 to 60% can be reasonably assumed as a matter of law based on 16 ‘pattern and practice’ or ‘policy and practice’ allegation[s]”) 17 (quoting Avila, 432 F. Supp. 3d at 1189 (collecting cases)). 18 Notably, plaintiff did not raise any objection to the assumptions 19 or methodology employed by defendant in calculating the amount in 20 controversy. 21 With a putative class size of 1,365 individuals (see 22 Knox. Decl. ¶ 6) -- well over the minimum class size of 100 23 individuals -- the assumed 20% violation rate results in a total 24 of $6,218,208 in damages for the minimum wage, liquidated 25 damages, meal period, rest period, waiting time, and overtime 26 claims. (See Mot. at 11-20.) The damages associated with these 27 claims exceed the $5 million amount in controversy threshold. 28 Accordingly, the court concludes that the jurisdictional nee nee OS GE OE OE OS OO

1 requirements of CAFA are satisfied. 2 IT IS THEREFORE ORDERED that plaintiff’s motion to 3 remand (Docket No. 7) be, and the same hereby is, DENIED. he ble 7H. (LA. 5 | Dated: July 11, 2023 WILLIAMB.SHUBB .}.}©}©§=©—©)—.—” 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28