                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           OCT 02 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MICHAEL CHAVEZ, as an individual                 No. 13-56017
and on behalf of all others similarly
situated,                                        D.C. No. 2:12-cv-05291-RGK-RZ

              Plaintiff - Appellant,
                                                 MEMORANDUM*
  v.

TIME WARNER CABLE ENTERPRISES
LLC; TIME WARNER
ENTERTAINMENT COMPANY, LP;
TIME WARNER CABLE SHARED
SERVICES,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                          Submitted September 3, 2015**
                              Pasadena, California

Before: O’SCANNLAIN, TROTT, and BYBEE, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff-Appellant Michael Chavez timely appeals from an order of the

district court granting summary judgement in favor of Defendants-Appellees Time

Warner Cable LLC, Time Warner Entertainment Company, and Time Warner

Shared Services (collectively, “TWC”). In January 2011, Chavez filed a class

action complaint against TWC in California state court, alleging violations of

California labor law. In May 2012, after satisfying state administrative exhaustion

requirements, Chavez amended his complaint to include penalties under

California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”), Cal.

Lab. Code §§ 2699(a), 2699.3. TWC removed to federal court, where the district

court found jurisdiction under the Class Action Fairness Act (“CAFA”) based on

the additional claims for PAGA penalties. TWC calculated the required

$5,000,000 amount in controversy by determining the number of allegedly

aggrieved employees and then determining the penalties that each individual would

be awarded for the PAGA claim. In total, this amounted to over $5.5 million, and

the district court concluded that TWC had satisfied its burden of proving the

jurisdictional amount.

      On appeal, after the initial briefing in this case was completed, the panel

ordered supplemental briefing to determine whether federal jurisdiction was proper

in light of intervening Ninth Circuit precedent prohibiting the aggregation of


                                          2
PAGA penalties to satisfy federal jurisdictional amounts. See Yocupicio v. PAE

Grp., LLC, 795 F.3d 1057 (9th Cir. 2015) (PAGA claims cannot be aggregated

with class claims to satisfy the jurisdictional amount required under CAFA);

Urbino v. Orkin Servs. of Cal., Inc., 726 F.3d 1118 (9th Cir. 2013) (PAGA

recoveries sought on behalf of non-party aggrieved employees may not be

aggregated to meet the $75,000 amount-in-controversy requirement for diversity

actions under 28 U.S.C. § 1332(a)); Baumann v. Chase Inv. Servs. Corp., 747 F.3d

1117 (9th Cir. 2014) (PAGA is not sufficiently similar to Rule 23 to establish the

original jurisdiction of a federal court under CAFA). In its supplemental brief,

TWC concedes that Yocupicio and Baumann preclude the method the district court

relied on to calculate the jurisdictional amount, and thus preclude CAFA as a basis

for removal jurisdiction. We agree that the district court’s finding of CAFA

jurisdiction was improper in light of these cases. See Yocupicio, 795 F.3d at 1062;

Baumann, 747 F.3d at 1122.

      TWC argues, however, that diversity jurisdiction also exists under 28 U.S.C.

§ 1332(a). Although TWC raised the argument that diversity jurisdiction existed in

its Notice of Removal before the district court, the district court never reached this

issue because it found that jurisdiction was proper under CAFA. We decline to

resolve in the first instance the legal and factual issues presented by this argument,


                                           3
including whether the one-year limitations period bars removal. There also

appears to be a question, not raised by the parties, as to which version of the

removal statute properly governs this case, and whether an equitable tolling

exception existed under the previous version. Compare 28 U.S.C. § 1446(c)(1)

with former 28 U.S.C. § 1446(b) (2011); see also Federal Courts Jurisdiction and

Venue Clarification Act of 2011, Pub. L. No. 112-63, § 105, 125 Stat. 758, 762

(2011) (providing the effective date of the current removal statute).

      We therefore vacate the district court’s order granting summary judgment in

favor of TWC, and remand to the district court to determine whether diversity

jurisdiction is present. The parties shall bear their own costs on appeal.

      VACATED AND REMANDED.




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