In the
United States Court of Appeals
For the Seventh Circuit
No. 11-8009
E ARL B LOMBERG , et al.,
Plaintiffs-Respondents,
v.
S ERVICE C ORPORATION INTERNATIONAL, et al.,
Defendants-Petitioners.
Petition for Permission to Appeal from
the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 8026—Sharon Johnson Coleman, Judge.
S UBMITTED M ARCH 7, 2011—D ECIDED A PRIL 14, 2011
Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. Service Corporation International,
SCI Funeral and Cemetery Purchasing Cooperative, Inc.,
and related individuals and entities (collectively “SCI”)
have asked us to accept an appeal from the district
court’s remand of this case to state court pursuant to
the Class Action Fairness Act, 28 U.S.C. § 1453(c)(1)
(“CAFA”). The plaintiffs, employees of SCI, brought this
2 No. 11-8009
proposed class action in Illinois state court, alleging that
SCI maintained national policies and practices that
failed to compensate its employees for all hours worked,
in violation of the Illinois Wage Payment and Collection
Act and the Illinois Minimum Wage Law; they also
raised other state claims. Asserting CAFA jurisdiction,
SCI removed the case to federal court, but the district
court concluded that SCI has failed to demonstrate by
a preponderance of the evidence that the amount in
controversy exceeds $5,000,000, as required to establish
original jurisdiction under that statute. 28 U.S.C.
§ 1332(d)(2). The parties agree that CAFA’s other juris-
dictional requirements are satisfied. For the following
reasons, we grant the petition for permission to appeal
and reverse the district court’s order remanding the
case to state court.
If the party opposing federal jurisdiction contests the
amount in controversy, the proponent must “prove those
jurisdictional facts by a preponderance of the evidence.”
Meridian Security Ins. Co. v. Sadowski, 441 F.3d 536, 543
(7th Cir. 2006); see also Oshana v. Coca-Cola Co., 472 F.3d
506, 511 (7th Cir. 2006). The district court here required
more of SCI than it should have. A good-faith estimate
is acceptable if it is plausible and adequately sup-
ported by the evidence. Oshana, 472 F.3d at 511. We have
acknowledged the difficulty a defendant faces when
the plaintiffs, who control the allegations of the com-
plaint, do not want to be in federal court and provide
little information about the value of their claims. Id. The
party seeking removal does not need to establish what
damages the plaintiff will recover, but only how much is
No. 11-8009 3
in controversy between the parties. Brill v. Countrywide
Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005). This
burden thus “is a pleading requirement, not a demand
for proof.” Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th
Cir. 2008), citing Brill, 427 F.3d at 449.
SCI’s Notice of Removal sets forth several estimates in
an attempt to establish the amount in controversy. Its
effort to remove is supported with pleadings from other
related lawsuits, counsel’s affidavit, and a list of SCI’s
538 Illinois employees. Not everything was helpful. The
district court properly rejected SCI’s unsupported argu-
ment that the proposed class must include more than
10,000 employees of SCI and its subsidiaries simply
because the complaint does not limit the class only to
employees within Illinois. As the district court noted,
SCI made no attempt to show that all of its 10,000 em-
ployees nationwide could recover under the alleged
violations of Illinois law. SCI’s other estimates, how-
ever, are based on the 538 Illinois employees listed in
the attachment to the Notice of Removal. SCI relies on
information obtained from related lawsuits in other
jurisdictions as the best evidence of the amount in con-
troversy. It cites to the depositions of two of the three
named class plaintiffs taken in an Arizona federal Fair
Labor Standards Act action in which the class members
collectively asserted that they were not paid for 2,600
hours of work during a one-year time period. SCI calcu-
lated that each of the 538 Illinois employees would need
to seek payment for a total of only 552 hours over the
entire class period, using the average of its employees’
hourly pay rates, in order for CAFA’s jurisdictional
4 No. 11-8009
amount to be met. The potential class period could be
between three (Illinois Minimum Wage Law) and five
(Illinois Wage Payment and Collection Act) years; the
plaintiffs’ complaint argues that the pertinent statutes of
limitations were tolled by the filing of a 2006 lawsuit.
The district court thought that SCI failed to present any
competent evidence that the named plaintiffs’ claims
were typical of the other class members from the stand-
point of the number of unpaid hours and the number of
years employed, but it viewed that data too narrowly.
SCI used these figures in an attempt to show the nature
of the hours sought and to demonstrate how the
amount in controversy was met based on the scope of the
plaintiffs’ claims.
SCI also attempts to demonstrate the amount in contro-
versy by comparing this case with a Virginia federal
district court case that makes similar allegations against
SCI and has an identical proposed class definition. The
Virginia plaintiffs allege CAFA jurisdiction even though
a class with only Virginia employees would contain
approximately 300 members. Because the plaintiffs
allege that these 300 potential Virginia members would
meet the CAFA jurisdictional amount, SCI declares that
“[i]t is axiomatic” that the potential 538 Illinois members
likewise would meet that requirement. It may not be
axiomatic in the Euclidean sense of the term, but the
evidence is useful nonetheless. The district court objected
that SCI failed to present evidence that the potential
recovery in both states is comparable, but it actually
did so. SCI compared the potential recovery in Illinois to
that in Virginia in its opposition to plaintiffs’ motion to
remand and explained that its liability under Illinois law
No. 11-8009 5
is greater because the Illinois Minimum Wage Law
permits recovery for an additional two percent of any
underpayments in employees’ wages for each month
that the amount remains unpaid. The Virginia action
does not allege a comparable state wage law violation.
Once the proponent of federal jurisdiction has ex-
plained plausibly how the stakes exceed $5,000,000, cf.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the
case belongs in federal court unless it is legally impos-
sible for the plaintiff to recover that much. Spivey, 528
F.3d at 986; Brill, 427 F.3d at 448, citing St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938). Al-
though there certainly is more that SCI could have done,
such as offering a better comparison of the plaintiffs’
claims and potential recovery under Virginia law with
Illinois law, estimating the amount of overtime and
liquidated damages sought by the plaintiffs, or esti-
mating the attorneys’ fees and punitive damages recover-
able in unpaid wage cases, see Oshana, 472 F.3d at 512,
we are satisfied that SCI provided plausible, good-
faith estimates demonstrating how the stakes exceed
$5,000,000. Spivey, 528 F.3d at 986, citing Bell Atlantic, 550
U.S. 544. The plaintiffs did not attempt to demonstrate
that it was legally impossible for them to recover that
amount.
Accordingly, we G RANT the petition for permission to
appeal, R EVERSE the district court’s decision, and R EMAND
the case with instructions to resolve the dispute on the
merits.
4-14-11