FILED
NOT FOR PUBLICATION FEB 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA M. JOHNSON, on behalf of No. 11-55020
herself and all others similarly situated,
D.C. No. 3:10-cv-00690-BEN-
Plaintiff - Appellant, CAB
v.
MEMORANDUM*
U.S. VISION, INC., a Delaware
corporation and USV OPTICAL, INC., a
Texas corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted February 9, 2011
Pasadena, California
Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.
Debra Johnson, as a potential class representative, appeals the district court’s
order denying her motion to remand this case to state court. She claims
Defendants failed to demonstrate the necessary jurisdictional amount in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
controversy under the Class Action Fairness Act of 2005. We have jurisdiction
pursuant to 28 U.S.C. § 1453(c)(1) and we REVERSE and REMAND.
In order to demonstrate the necessary jurisdictional amount in controversy,
Defendants must prove to a “legal certainty” that the amount in controversy in this
case exceeds $5,000,000. See Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994,
999 (9th Cir. 2007). “The ‘legal certainty’ standard sets a high bar for the party
seeking removal, but it is not insurmountable.” Id. at 1000. While the “legal
certainty” standard is difficult to define, at a minimum, Defendants must produce
enough evidence to allow a court “to estimate with [some] certainty the actual
amount in controversy.” Id. at 1001. The Defendants failed to meet this standard.
As in Lowdermilk, Defendants provided “some evidence that the Plaintiff’s
actual claims necessarily exceed $5,000,000.” See id. at 998. However, they
produced very little or no evidence that would allow for an accurate approximation
of the amount in controversy. Defendants produced evidence giving only a
snapshot of a potential workday for optechs and a potential workweek for
managers. Defendants also frequently “assume[] that all class members would be
entitled to maximum damages under [California] law” and provide no evidence to
support their assumptions in violation of Lowdermilk. 479 F.3d at 1001. Even
where Defendants do not assume maximum damages, they do not provide
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sufficient evidence to meet their burden of proving the amount in controversy to a
legal certainty. Specifically, Defendants have provided no evidence regarding (1)
the number of days per year worked by optechs, (2) the number of vacation days
lost by employees due to the “use it or lose it policy,” (3) how many employees’
shifts exceeded five hours in length (which would determine their eligibility for
meal breaks under California law), (4) how many employees may have used check
cashing services, making them eligible to sue under California Labor Code §§ 212
and 213, and (5) the average hourly pay of employees who were actually separated
from their employment during the four-year period at issue.
Without such necessary evidence to support their calculations, Defendants
have failed to carry their burden to demonstrate the amount in controversy exceeds
$5,000,000.
REVERSED and REMANDED with instructions to remand to state court.
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