Gardner v. GC Services, LP, No. 10-CV-997-IEG (CAB), 2010 WL 2721271 (S.D. Cal. July 06, 2010).

A District Court in California declined to remand the action to state court holding that the defendant is not bound to submit “summary-judgment-type evidence” as long as the jurisdictional amount was either “facially apparent” from the complaint or was shown to be “more likely than not” by the facts alleged in the removal petition.

The plaintiff, Brooke Gardner, employee, brought a class action in the Superior Court of California against the defendant GC Services LP, alleging five causes of action–failure to pay straight-time wages, overtime wages, all compensation due and owing at termination in violation of California Labor Code; violation of the California Business and Professions Code §17200 et seq.; and quantum meruit.

Earlier, two similar overtime actions were filed against GC Services in different district courts by Darryl Easley and Lora Meyers et al. The Easley complaint alleged causes of actions under the FLSA, as well as under Missouri’s wage and hour laws; whereas, the Meyers complaint alleged only a cause of action pursuant to the FLSA involving a nationwide class. After the Easley and the Meyers actions were consolidated, the combined plaintiffs filed an amended consolidated complaint alleging a single claim for violation of the FLSA, and specifically excluded CG Services’ California employees from the putative plaintiff class. Accordingly, this case–Gardner action was filed.

GC Services removed the action to the federal court under CAFA.

Gardner sought to remand arguing that GC Services had failed to meet its burden of establishing that the amount in controversy exceeded $5 million.

The Court remarked that contrary to Gardner’s contentions, however, there was no obligation on GC Services to submit any declarations or “summary-judgment-type evidence” in support of its assertion that the jurisdictional amount was met in the present case.  Rather, GC Services could meet its burden as long as the jurisdictional amount was either “facially apparent” from the complaint or was shown to be “more likely than not” by the facts alleged in the removal petition, Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 690 (9th Cir. 2006).  (Editors’ Note: See the CAFA Law Blog analysis of Abrego Abrego posted on May 25, 2006).

The Court observed that GC Services’ notice of removal adequately alleged the underlying facts to show it was “more likely than not” that the amount in controversy exceeded $5 million.

First, GC Services pointed to Gardner’s claim for overtime pay under Lab. Code §510, noting that it currently employed 303 full-time employees who met the proposed class definition.  According to GC Services, if those employees, earning on average $14.50 per hour, worked 30 minutes of overtime per day over four years, the unpaid overtime owed would exceed $3 million.

Second, GC Services pointed to Gardner’s claim for failure to timely pay termination wages under Lab. Code §203, for which the penalty is 30 days of wages.  GC Services noted that it had employed approximately 1,385 account representatives and employees in equivalent positions since April 2006 who had their employment with GC Services terminated.  According to GC Services, the potential recovery by those employees would be approximately $4,800,000.  Together, the recovery on just these two claims would be approximately $7,800,000.

Accordingly, the Court concluded that GC Services provided sufficient underlying facts to demonstrate that the combined amount in controversy exceeded $5 million.