Michael Fenske v. Fresenius USA Manufacturing, Inc.

• Court: District Court, C.D. California
• Decided: July 21, 2021
• Docket: 5:21-cv-00811
• Status: Unknown

Opinion

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL FENSKE, individually and Case No. 5:21-cv-00811-JWH-SPx on behalf of all others similarly 12 situated, ORDER ON PLAINTIFF’S 13 Plaintiff, MOTION TO REMAND [ECF No. 14] 14 v.

15 FRESENIUS USA MANUFACTURING, INC.; and 16 DOES 1 through 20, inclusive,

17 Defendants.

18 19 20 21 22 23 24 25 26 27 1 I. INTRODUCTION 2 Before the Court is the motion to remand of Plaintiff Michael Fenske.1 3 The Court conducted a hearing on the Motion on June 25, 2021. For the 4 reasons explained below, the Court GRANTS the Motion. 5 II. BACKGROUND 6 Fenske filed this putative class action in San Bernardino Superior Court 7 on February 9, 2021.2 In his Complaint, Fenske alleges that he was employed by 8 Defendant Fresenius USA Manufacturing, Inc.,3 which is “in the kidney dialysis 9 centers and medical supply industry.”4 Fenske individually, and on behalf of 10 others similarly situated, alleges that Fresenius violated various provisions of the 11 California Labor Code. The Complaint includes claims for relief for: (1) Failure 12 to Pay Minimum Wages; (2) Failure to Pay Overtime Wages; (3) Failure to 13 Provide Meal Periods; (4) Failure to Provide Rest Breaks; (5) Failure to Provide 14 Accurate Itemized Wage Statements; (6) Failure to Pay All Wages Due Upon 15 Separation of Employment; and (7) Violation of Business and Professions Code 16 §§ 17200, et seq. 17 On May 7, 2021, Fresenius removed the action to this Court,5 asserting 18 jurisdiction under the Class Action Fairness Act (“CAFA”).6 See 28 U.S.C. 19 § 1332(d)(2). On May 28, 2021, Fenske filed the instant Motion. Fresenius 20 filed its opposition on June 4,7 and Fenske filed his reply on June 11.8 21 22

23 1 Mot. to Remand of Pl. Michael Fenske (the “Motion”) [ECF No. 14]. 2 Compl. (the “Complaint”) [ECF No. 1-2]. 24 3 Id. at ¶ 27. 25 4 Id. at ¶ 2. 26 5 Notice of Removal [ECF No. 1]. 6 See generally id. 27 7 Def.’s Opp’n (the “Opposition”) [ECF No. 16]. 1 III. LEGAL STANDARD 2 Under CAFA, the Court has “original jurisdiction of any civil action in 3 which the matter in controversy exceeds the sum or value of $5,000,000, 4 exclusive of interest and costs, and is a class action in which” there is minimal 5 diversity. 28 U.S.C. § 1332(d)(2). To remove a case to federal court under 6 CAFA, the defendant must demonstrate that the amount in controversy exceeds 7 $5 million, exclusive of interest and costs. Id. The general rule is that a 8 removing defendant’s well-pleaded amount in controversy allegations “should 9 be accepted when not contested by the plaintiff or questioned by the court.” 10 Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014); see 11 also Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (in 12 evaluating the amount in controversy, the court first looks to the complaint). 13 However, where the plaintiff challenges the removing defendant’s 14 jurisdictional allegation, under 28 U.S.C. § 1446(c)(2)(B), “removal . . . is 15 proper on the basis of an amount in controversy asserted” by the defendant only 16 “if the district court finds, by the preponderance of the evidence, that the 17 amount in controversy exceeds” the jurisdictional threshold. Dart Cherokee, 574 18 U.S. at 88. “In such a case, both sides submit proof and the court decides . . . 19 whether the amount-in-controversy requirement has been satisfied.” Id. The 20 preponderance of the evidence standard means that the “defendant must 21 provide evidence establishing that it is ‘more likely than not’ that the amount in 22 controversy” meets or exceeds the jurisdictional threshold. Sanchez v. 23 Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (emphasis added). 24 The defendant must set forth the underlying facts supporting its assertion that 25 the amount in controversy exceeds the statutory minimum. Gaus, 980 F.2d at 26 567. In addition to the contents of the notice of removal, the Court may 27 consider “summary-judgment-type evidence relevant to the amount in 1 775 F.3d at 1197; Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). 2 There is no presumption against removal jurisdiction in CAFA cases. Dart 3 Cherokee, 574 U.S. at 89. 4 IV. DISCUSSION 5 In his Motion, Fenske argues that Fresenius has failed to establish that 6 this Court has subject matter jurisdiction because the amount in controversy 7 requirement of $5 million under CAFA has not been met. See 28 U.S.C. 8 § 1332(d)(2). In its Notice of Removal, Fresenius calculated the amount in 9 controversy as $5,337,748.9 Fenske, however, argues that the actual amount in 10 controversy is only $4,367,337.10 11 Fresenius avers that the amount in controversy for Fenske’s first through 12 sixth claims for relief “alone total $4,270,199.”11 To this sum, Fresenius adds 13 potential attorneys’ fees of 25% to arrive at its total amount in controversy of 14 $5,337,748.12 “[A] court must include future attorneys’ fees recoverable by 15 statute or contract when assessing whether the amount-in-controversy 16 requirement is met.” Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 17 F.3d 785, 794 (9th Cir. 2018). “[I]f the law entitles the plaintiff to future 18 attorneys’ fees if the action succeeds, then there is no question that future 19 attorneys’ fees are ‘at stake’ in the litigation, and the defendant may attempt to 20 prove that future attorneys’ fees should be included in the amount in 21 controversy.” Id. (citation, quotation, and alteration omitted). 22 While the removing party is entitled to include attorneys’ fees in its 23 calculation of the amount in controversy, it is entitled to do so only if such fees 24 25 9 Notice of Removal at ¶ 32. 26 10 See Reply at 3:4-15. 27 11 Notice of Removal at ¶ 32. Fresenius later revised this amount downward. See Opposition. 1|| are included in the “relief to which the plaintiff is entitled if the action 2\|| succeeds.” Jd. at 795. To support its amount in controversy calculation, Fresenius relies upon an assumption that an across-the-board estimate of 25% of 4|| the total recovery is appropriate. As Fenske notes, however, the Ninth Circuit 5|| has rejected such a per se rule. Rather, “the defendant must prove the amount of □□ attorneys’ fees at stake by a preponderance of the evidence.” Jd. at 796. There 7|| 1s no per se rule that relieves the removing party of this “evidentiary burden.” Id. 9 Importantly, “the attorneys’ fees shifting provisions in California Labor || Code §§ 218.5 and 1194 do not apply to legal work relating to meal and rest 11|| period claims.” Jd. (citing Kirby v. Immoos Fire Prot., Inc., 53 Cal. 4th 1244, 1255 12|| (2012)). But here, Fresenius arrives at an amount in controversy in excess of 13) $5 million by multiplying by 25% the total amount it estimates that Fenske seeks 14|| for all of his claims, including “meal and rest period violations.” ’ When these 15|| fees are removed from the calculation, the amount in controversy falls below || $5 million, and the Court does not have jurisdiction under CAFA. The Court || therefore concludes that Fresenius has not met its burden to establish that the 18 || amount-in-controversy requirement has been met. 19 V. CONCLUSION 20 For the foregoing reasons, the Court GRANTS the Motion and 21|| REMANDS this action to the San Bernardino County Superior Court. 22 IT IS SO ORDERED. MX “LY 23 ® 24|| Dated:_July 21, 2021 25 GNITED STATES DISTRICT JUDGE 26 27 © See Opposition at 17:10-14,