Roberto Aviña v. Lew Thompson & Son Trucking, Inc., et al.

• Court: District Court, E.D. California
• Decided: May 22, 2026
• Docket: 1:25-cv-01665
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTO AVIÑA, Case No. 1:25-cv- 1665 JLT EGC

12 Plaintiff, ORDER GRANTING MOTION TO REMAND 13 v. (Doc. 6) 14 LEW THOMPSON & SON TRUCKING, 15 INC., et al.,

16 Defendants. 17 18 Lew Thompson & Son Trucking removed this wage and hour lawsuit from the state 19 superior court under the Class Action Fairness Act. It has not carried its burden to show that the 20 amount in controversy is greater than the jurisdictional threshold, however, so Plaintiff Roberto 21 Aviña’s motion to remand is GRANTED. 22 BACKGROUND 23 Aviña asserts several claims against Lew Thompson and a second defendant, Covenant 24 Transport LLC, under the California Labor Code and the Business and Professions Code. (See 25 Docs. 1 at 3; 1-7 at 4.) He alleges Lew Thompson and Covenant did not pay him and other 26 employees at least minimum wages for all of the time they worked, did not compensate them at 27 overtime rates when they worked more than eight hours in a day or more than forty hours in a 28 week, did not permit them to take meal breaks and rest breaks, and did not reimburse them for 1 business expenses, among other similar allegations. (See id. at 14–25.) 2 Aviña filed this case as a proposed class action in Merced County Superior Court in 3 October 2025. (See id. at 1.) Lew Thompson removed the case to this Court based under CAFA 4 the next month. (See Doc. 1 at 2.) It alleged that the two defendant companies are citizens of 5 Arkansas and Tennessee, that Aviña is a citizen of California, that the proposed class includes 6 more than 100 members, and that the complaint puts more than $5 million in controversy. (See 7 id. at 4–14. Covenant had not been served when Lew Thompson removed the case, so it did not 8 join in the removal, but Covenant would have joined if it had been served. (See Doc. 1 at 3.) 9 Aviña does not allege in his complaint that he is seeking any particular amount of money 10 on behalf of the proposed class, nor that the proposed class includes a particular number of 11 people. Lew Thompson relied on its own employee records to support its allegations about the 12 number of people in the proposed class. (See id. at 6.) Lew Thompson also relied on its 13 employee records to support its allegations about the amount in controversy, and it drew on 14 Aviña’s allegations. (See id. at 7–14.) It estimated that just a few of Aviña’s claims—those 15 related to overtime pay, meal breaks, and rest breaks—put more than $7 million in controversy. 16 (See id. at 9–11.) In total, after adding other estimates related to potential statutory penalties, 17 Lew Thompson alleged that more than $8.8 million was at stake. (See id. at 14.) Lew Thompson 18 did not include any dollar-value estimates about Aviña’s other claims, such as his claims about 19 unpaid wages and unreimbursed business expenses. (See id. at 14.) Nor did Lew Thompson 20 include any specific allegations about the amounts of attorneys’ fees and costs that might be at 21 stake. (See id.) It “reserved the right to quantity these amounts based on the allegations in the 22 Complaint if necessary.” (Id.) 23 Aviña now moves to remand the case to the state superior court. He argues Lew 24 Thompson’s estimates of the amount in controversy are unreasonably high, do not match his own 25 experiences as an employee, and are based on speculation. (Doc. 6.) He does not dispute, 26 however, that the proposed class includes more than 100 people, nor that he and the defendants 27 are from different states. (See id.) Lew Thompson opposes the motion. (Doc. 8.) It found an 28 error in one of its estimates, but it corrected that error and stands by its broader allegations about 1 the amount in controversy. (Id. at 12–19.) Lew Thompson also bolstered its allegations with a 2 few previously undisclosed estimates of the potential value of Aviña’s claims related to minimum 3 wages, liquidated damages, unreimbursed business expenses, and attorneys’ fees. (See id. at 19– 4 22.) Aviña filed a reply, and the Court took the motion under submission without hearing oral 5 arguments. (See Docs. 9, 10.) 6 STANDARD OF DECISION 7 Federal law allows a defendant to remove a case from a state court to the appropriate 8 federal district court if that court would originally have had jurisdiction. 28 U.S.C. § 1441(a). To 9 accomplish the removal, the defendant must file a notice in the federal district court, which must 10 contain among other things “a short and plain statement of the grounds for removal.” Dart 11 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 83 (2014) (quoting 28 U.S.C. § 12 1446(a)). It is not necessary for the defendant to submit evidence with this notice. Plausible 13 allegations suffice. See Arias v. Residence Inn by Marriott, 936 F.3d 920, 927 (9th Cir. 2019)). 14 If the plaintiff later contests the defendant’s allegations about the amount in controversy, 15 as Aviña does in this case, then that defendant must prove “by a preponderance of the evidence 16 that the aggregate amount in controversy exceeds $5 million,” i.e., that the amount in controversy 17 is more likely to exceed the $5 million threshold than to fall short of it. Ibarra v. Manheim 18 Investment, Inc., 774 F.3d 1193, 1197 (9th Cir. 2015). The defendant can, for example, offer 19 declarations, exhibits, and other “summary-judgment-type evidence.” Id. A defendant can also 20 rely on reasonable assumptions, including those based on the plaintiff’s own allegations. Harris 21 v. KM Indus., Inc., 980 F.3d 694, 701 (9th Cir. 2020); Arias, 936 F.3d at 926–27. It may not rely 22 on speculation or conjecture, however, nor assumptions “pulled from thin air.” Ibarra, 775 F.3d 23 at 1197. An assumption must have “some reasonable ground” beneath it. Id. Plaintiffs may 24 respond by submitting their own evidence in reply, or by arguing the defendants’ assumptions are 25 not unreasonable. See Harris, 980 F.3d at 699. The court then weighs the evidence, considers 26 whether the defendant’s assumptions are reasonable, and decides whether the amount in 27 controversy is more likely to exceed the jurisdictional threshold than to fall short of it. See id. 28 at 701. 1 The question the court must answer is not whether the plaintiff will probably recover any 2 particular amount of money or secure some particular injunction. See Chavez v. JPMorgan 3 Chase & Co., 888 F.3d 413, 417 (9th Cir. 2018). Courts cannot demand that a defendant predict 4 the “eventual award with one hundred percent accuracy.” Jauregui v. Roadrunner Transp. Servs., 5 Inc., 28 F.4th 989, 993 (9th Cir. 2022) (quoting Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 6 (9th Cir. 2004)). Nor is the goal to reach some “prospective assessment of the defendant’s 7 liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 401 (9th Cir. 2010). The amount is 8 controversy “is simply an estimate of the total amount in dispute.” Id. If the defendant shows 9 that value is more likely to exceed $5 million than otherwise, it has carried its burden. See id. 10 DISCUSSION 11 Lew Thompson has not carried its burden. First, it has relied on several theories and 12 arguments about the amount in controversy that it did not include in its notice of removal. Lew 13 Thompson has not explained why it did not include all of its current arguments and estimates in 14 its notice of removal. It appears to have simply held some arguments in reserve. The Court will 15 not entertain them now. Doing that would not only be unfair to Aviña; it would also permit a late 16 amendment to the notice of removal. See Mohammed v. Am. Airlines, Inc., No. 19-01540, 2019 17 WL 5887105, at *5 (N.D. Cal. Nov. 12, 2019) (rejecting defendant’s similar invitation to consider 18 “additional causes of action” when calculating the amount in controversy). 19 Many of Lew Thompson’s assumptions are also based on guesswork rather than 20 reasonable interpretations of the complaint. This is most clearly apparent when its estimates are 21 reviewed claim by claim. 22 A. Meal and Rest Breaks 23 To estimate the amount in controversy for Aviña’s claims about missed meal and rest 24 break, Lew Thompson assumes employees never had uninterrupted meal breaks, and it assumes 25 they missed at least one rest break every day. (See Doc. 8 at 12–16.) It relies on four allegations 26 to support this assumption. 27 First, it cites Aviña’s allegation that its actions were part of general set of “policies” or 28 “practices” that applied to all employees (Doc. 1-7 at 4). But it is well known that “a ‘pattern and 1 practice’ of doing something does not necessarily mean always doing something.” Ibarra, 775 2 F.3d at 1198–99. 3 Second, Lew Thompson cites Aviña’s allegation that “Defendants required Employees to 4 keep their cell phone on during their meal breaks and respond to them resulting in on-duty and 5 interrupted meal periods.” (Id. at 9). Phones do not interrupt breaks if they sit silently in a 6 pocket. Lew Thompson does not cite any allegations or evidence about how often employees’ 7 breaks were actually interrupted by calls or text messages. 8 Third, Lew Thompson cites Aviña’s allegation that “Defendants required Employees to 9 record exactly thirty minutes for their meal periods regardless of whether the meal period was 10 exactly thirty minutes” (Id.). A policy of submitting inaccurate timesheets might show that Lew 11 Thompson’s timekeeping records are not to be trusted, but it does not show how often meals were 12 actually shorter than thirty minutes. Some breaks might have been longer than thirty minutes. 13 The complaint does not say, and Lew Thompson has not identified any allegations or evidence 14 that could shed light on this uncertainty. 15 Fourth, Lew Thompson cites Aviña’s allegation that he and other employees “were unable 16 to take all the rest breaks they were entitled to due to their work loads.” (Doc. 1-7 at 9–10). In 17 Lew Thompson’s reading, this allegation means employees could not take any rest breaks. (See 18 Doc. 8 at 14.) If Aviña had intended to allege that no employees were never permitted to take a 19 duty-free break, he would have written exactly that, i.e., “employees were unable to take any of 20 the rest breaks they were entitled to.” Instead, he wrote that employees could not take “all the 21 rest breaks they were entitled to.” In other words, they missed some rest breaks. Not all. 22 Aviña’s allegation that Lew Thompson had a common “policy” or “practice” that 23 deprived employees of duty-free breaks does support the assumption that he will ultimately 24 attempt to prove at trial that employees missed one or maybe two meal and rest breaks per week 25 on average. See Jimenez v. Land O’Lakes, Inc., No. 23-00891, 2025 WL 2992313, at *6 (E.D. 26 Cal. Oct. 24, 2025) (collecting authority). This would lead to an estimate of about $1.7 million 27 for the amount in controversy at the very most.1

28 1 B. Overtime Wages 2 Lew Thompson relies on three passages in the complaint to estimate the amount that 3 Aviña’s overtime wage claims put in controversy. First, it cites Aviña’s allegation that 4 employees “were required to work during their meal and rest breaks” without compensation, 5 leading to work in excess of eight hours per day or forty hours per week. (Doc. 8 at 16–17 (citing 6 Doc. 1-7 at 6, 8).) Second, it cites Aviña’s allegation that employees “were regularly required to 7 work for more than 10 hours in a given shift without receiving a second thirty (30) minute meal 8 period.” (Id. at 17 (citing Doc. 1-7 at 18).) Third, it cites Aviña’s allegation that employees were 9 not paid for the time they “spent working off-the-clock by completing and dropping off their 10 paper time sheets.” (Id. (citing Doc. 1-7 at 6.) Based on these allegations, Lew Thompson 11 assumed that employees worked off the clock for an hour every day. That is not a reasonable 12 assumption. As explained above, Aviña’s allegations do not imply that employees missed every 13 meal break, not that they missed at one or more rest breaks every day, for years. Aviña’s 14 allegations do not specify how many days per week plaintiffs worked overtime, and it is 15 unreasonable to assume that employees filled out time sheets for half an hour to an hour every 16 single day. 17 Lew Thompson’s estimates also conflict with Aviña’s own experience. He recalls 18 spending only “about twenty minutes once per week performing work while clocked out for meal 19 periods” and “about five minutes off-the-clock every day completing and submitting [his] time 20 sheets.” (Doc. 6-3 at 2.) Lew Thompson argues it would be inappropriate to take Aviña’s 21 recollections into account because “jurisdiction is determined at the time of removal, and a 22 plaintiff cannot defeat CAFA jurisdiction through post-removal attempts to minimize damages.” 23 (Doc. 8 at 18 (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)).) 24 Aviña’s recollections are a description of the world at the time of removal, not after. He 25 describes events that occurred long before the case was removed, so admitting his declaration 26 would not run afoul of the rule that jurisdiction is determined at the time of removal. The 27 Supreme Court and the Ninth Circuit have also both held expressly that “both sides” may submit 28 evidence to support their claims about the amount in controversy. Dart Cherokee, 574 U.S. at 88; 1 Harris, 980 F.3d at 699. 2 At most, based on Aviña’s allegations that employees “regularly” worked more than ten 3 hours per day without a second meal break, that employees filled out timesheets after hours 4 without pay, and that Lew Thompson had a common “practice” or “policy” of depriving 5 employees of their meal and rest breaks, it would be reasonable to assume that employees worked 6 overtime without pay for a few minutes per day, i.e., up to an hour per week on average. This 7 would lead to an estimate of about $632,000 in controversy.2 8 C. Other Amounts 9 It was reasonable for Lew Thompson to assume that Aviña is seeking the maximum 10 available “waiting time” and wage statement penalties for each member of the class over the 11 whole of the proposed class period. (See Doc. 8 at 18–19.) These allegations put an additional 12 $597,060 and $466,350 in controversy, respectively. (See id.) 13 As noted above, Lew Thompson offered some estimates for the first time in opposition to 14 Aviña’s motion. These newly disclosed estimates relate to unpaid minimum wages, liquidated 15 damages, unreimbursed business expenses, and attorneys’ fees. The Court will not add these 16 estimates to the total but notes for purposes of a creating a clear and complete record that they 17 would fall short of the jurisdictional threshold in any event.3 18 Some of Lew Thompson’s new estimates are also based on guesswork, not reasonable 19 assumptions. That is true most clearly of its estimate of unreimbursed business expenses and 20 potential attorneys’ fees. It is impossible to make any alternative estimate or assumption on this 21 record without resorting to speculation. For that reason, it would be appropriate to reduce them to 22 zero even if Lew Thompson had included them in its notice of removal. See Jauregui v. 23 Roadrunner Transp. Servs., Inc., 28 F.4th 989, 996 (9th Cir. 2022) (“Where a defendant’s 24 2 One hour per week × $40.13 overtime pay per hour × 15,747 workweeks = $631,927.11. 25 3 $1,684,929 for meal and rest breaks + $631,927.11 for unpaid overtime wages + $597,060.00 in waiting 26 time penalties + $466,350.00 in wage statement penalties = $3,380,266.11, approximately $1.6 million below the $5 million threshold. Lew Thompson’s new estimates include $210,616 in unpaid minimum 27 wages, $210,616 in liquidated damages, $78,735 in unreimbursed business expenses, and a 25% 28 benchmark attorneys’ fee. See Doc. 8 at 21–22. Adding these amounts would lead to an estimate of about 1 | assumption is unreasonable on its face without comparison to a better alternative, a district court 2 | may be justified in simply rejecting that assumption and concluding that the defendant failed to 3 | meet its burden.”); Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 796 (9th 4 | Cir. 2018) (“[T]he defendant must prove the amount of attorneys’ fees at stake by a 5 || preponderance of the evidence; we may not relieve the defendant of its evidentiary burden by 6 | adopting a per se rule for one element of the amount at stake in the underlying litigation.”). 7 CONCLUSION 8 Lew Thompson has not carried its burden to show that more than $5 million is in 9 | controversy. The court lacks jurisdiction under § 1332(d). The motion to remand (Doc. 6) is 10 | GRANTED. This action is REMANDED to the Merced County Superior Court. 1] D IT IS SO ORDERED. 13 | Dated: _ May 22, 2026 Cerin | Tower TED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28