Rippee v. Boston Market Corp.

• Decision Date: 14 October 2005
• Docket Number: No. 05-CV-1359BTMJMA.,05-CV-1359BTMJMA.
• Citation: 408 F.Supp.2d 982
• Court: U.S. District Court — Southern District of California
• Parties: Jaclyn RIPPEE, an individual, et al., Plaintiffs, v. BOSTON MARKET CORPORATION, et al., Defendants.

408 F.Supp.2d 982

Jaclyn RIPPEE, an individual, et al., Plaintiffs, v. BOSTON MARKET CORPORATION, et al., Defendants.

No. 05-CV-1359BTMJMA.

United States District Court, S.D. California.

October 14, 2005.

Raul Cadena, Esq. and L. Tracee Lorens, Esq., San Diego, CA; for Plaintiff's Counsel.

Mark D. Kemple, Esq., Irvine, CA, for Defense Counsel.

ORDER DENYING PLAINTIFF'S REQUESTS FOR CLASS SURVEY AND LAST KNOWN ADDRESS AND TELEPHONE NUMBER OF MEMBERS OF THE PROPOSED CLASS IN CONNECTION WITH EXPEDITED DISCOVERY ON THE AMOUNT IN CONTROVERSY

ADLER, United States Magistrate Judge.

On July 5, 2005, Defendant Boston Market Corporation removed this action pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2) ("CAFA"). On July 12, 2005, the Court issued an Order to Show Cause ("OSC") why the case should not be remanded for lack of jurisdiction. After conducting a hearing on the OSC, the Honorable Barry Ted Moskowitz ordered the parties to engage in limited expedited discovery over the course of ninety days on the issue of the amount in controversy, and to attend a discovery conference before Magistrate Judge Jan M. Adler.

This Court required the parties to meet and confer in advance of the discovery conference and submit a joint statement regarding the proposed scope of discovery pertaining to the amount in controversy. Rather than submitting a joint statement as ordered by the Court, the parties submitted separate statements to the Court on August 31, 2005, During the course of the Discovery Conference, held on September 7, 2005, this Court confirmed the scope of discovery which had previously been agreed upon by the parties, issued rulings on those areas that had not been agreed upon by the parties, and set deadlines as appropriate. The Court's Orders filed on September 23, 2005 and September 29, 2005 set forth the pertinent agreements, decisions, and deadlines relating to jurisdictional discovery. See Doc. Nos. 26, 29. Plaintiffs requests for (a) a class survey and (b) the last known address and telephone number of each member of the proposed class were contested by Defendant and were taken under submission by the Court.

The parties do not dispute that Plaintiff shall, at some point, be permitted to send a survey to all members of the proposed class. Indeed, Judge Moskowitz made this abundantly clear during the August 11, 2005 hearing on the OSC. See Transcript of OSC at 31:19-21, 39:10-42:3.¹ The issue that the parties do not agree upon, and that is presently before the Court, is whether a class survey should be permitted forthwith, during the period of expedited jurisdictional discovery.

For the reasons set forth below, Plaintiff's request to send a survey to the members of the proposed class is denied. Additionally, because Plaintiff's only articulated reason for seeking the last known address and telephone number of each member of the proposed class relates to sending a class survey, this request is also denied.

A. LEGAL STANDARDS

1. Amount in controversy

Generally, the amount in controversy is to be decided from the complaint itself. Richmond v. Allstate Ins. Co., 897 F.Supp. 447, 449 (S.D.Cal.1995). See also Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir.1986) ("The amount in controversy is normally determined from the face of the pleadings.") The calculation of the amount in controversy takes into account claims for "general" damages, "special" damages, punitive damages if recoverable as a matter of law, and attorneys' fees recoverable by statute or contract. Id. (citations omitted). The amount in controversy does not include accruing or accrued interest or the costs of the suit. Id. (citation omitted). According to the Report of the Senate Committee on the Judiciary on CAFA, the requirement under CAFA that the amount in controversy exceed $5,000,000 in the aggregate may be established "either from the viewpoint of the plaintiff or the view-point of the defendant, and regardless of the type of relief sought (e.g., damages, injunctive relief, or declaratory relief)." S. Comm. on the Judiciary, Class Action Fairness Act of 2005, S.Rep. No. 109-14, at 42 (Feb. 28, 2005), reprinted in 2005 U.S.C.C.A.N. 3, 40, 2005 WL 627977.

The procedure in the Ninth Circuit for determining the amount in controversy on removal requires a district court to first consider whether it is "facially apparent" from the complaint that the jurisdictional amount is in controversy. See Singer v. State Farm, Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir.1997). If it is not, the court may consider facts in the removal petition as well as evidence submitted by the parties, including "summary-judgment-type evidence relevant to the amount in controversy at the time of removal." Id. A defendant who bears the burden of proving the propriety of removal must provide facts supporting its assertions as to the minimum jurisdictional requirement. See e.g., Alexander v. FedEx Ground Package System, Inc., 2005 WL 701601, at *1 (N.D.Cal.2005), citing Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.1992).²

2. Jurisdictional discovery

Jurisdictional discovery is permissible when the Court is unable to determine, on the existing record, whether it has jurisdiction. See generally Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n. 24 (9th Cir.1977); GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1351-52 (D.C.Cir.2000). Such discovery should be "precisely focused" and "aimed at addressing matters relating to [] jurisdiction." See GTE, 199 F.3d at 1352; see also Crane v. Carr, 814 F.2d 758, 764 (D.C.Cir.1987) (finding that "reasonable discovery addressed to the jurisdictional issue" should be permitted). The Senate Committee on the Judiciary made clear that jurisdictional discovery under CAFA is to be limited in scope:

The Committee understands that in assessing the various criteria established in all these new jurisdictional provisions, a federal court may have to engage in some fact-finding, not unlike what is necessitated by the existing jurisdictional statutes. The Committee further understands that in some instances, limited discovery may be necessary to make these determinations. However, the Committee cautions that these jurisdictional determinations should be made largely on the basis of readily available information. Allowing substantial, burdensome discovery on jurisdictional issues would be contrary to the intent of these provisions to encourage the exercise of federal jurisdiction over class actions. For example, in assessing the citizenship of the various members of a proposed class, it would in most cases be improper for the named plaintiffs to request that the defendant produce a list of all class members (or detailed information that would allow the construction of such a list), in many instances a massive, burdensome undertaking that will not be necessary unless a proposed class is certified. Less burdensome means (e.g., factual stipulations) should be used in creating a record upon which the jurisdictional determinations can be made.

S.Rep. No. 109-14, at 44, 2005 U.S.C.C.A.N. at 42 (emphases added). Jurisdictional discovery in CAFA cases, as in pre-CAFA cases, therefore, should be "sufficiently tailored" to lead to information concerning the jurisdictional issue. See, e.g., Schwartz v. Comcast Corp., 2005 WL 1799414, at *7 (E.D.Pa. July 28, 2005).

B. DISCUSSION

During the OSC hearing, Judge Moskowitz focused on Plaintiff's "big ticket" claims, i.e., Plaintiff's overtime and "waiting time penalty" claims under the California Labor Code, for purposes of analyzing the amount in controversy. As Judge Moskowitz observed, the potential amount of "waiting time penalties" at stake can be calculated by multiplying the number of former employees in the proposed class by thirty days' wages; thirty days' wages can be calculated by multiplying the average number of hours worked by the average rate of pay. See Cal. Labor Code § 203. These are calculations that can therefore be performed by using Defendant's own numbers. Transcript of OSC at 23:18-24:18. Although the results of a class survey could reveal the bases for the assessment of waiting time penalties, e.g., by providing information concerning the number of missed meal and rest breaks alleged by the employees, this information is not necessary to ascertain the amount of waiting time penalties at stake.

Similarly, a significant component of Plaintiff's overtime claims can be ascertained using Defendant's own numbers. Under California Labor Code section 510, an employee is entitled to overtime at the rate of no less than one-and-one-half times his or her regular rate of pay if the employee works in excess of eight hours per day or forty hours per week. Cal. Labor Code § 510. Unpaid overtime is therefore only potentially an issue for those employees who work either a "full-time" schedule or close to such a schedule. Presumably, a "part-time" employee, e.g., an employee who works only a few hours per shift, would not likely ever reach the eight hours per day or forty hours per week threshold for overtime pay. Determining,...