                                                                               FILED
                            NOT FOR PUBLICATION                                 FEB 24 2011

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DEBRA M. JOHNSON, on behalf of                    No. 11-55020
herself and all others similarly situated,
                                                  D.C. No. 3:10-cv-00690-BEN-
              Plaintiff - Appellant,              CAB

  v.
                                                  MEMORANDUM*
U.S. VISION, INC., a Delaware
corporation and USV OPTICAL, INC., a
Texas corporation,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted February 9, 2011
                               Pasadena, California

Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.

       Debra Johnson, as a potential class representative, appeals the district court’s

order denying her motion to remand this case to state court. She claims

Defendants failed to demonstrate the necessary jurisdictional amount in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
controversy under the Class Action Fairness Act of 2005. We have jurisdiction

pursuant to 28 U.S.C. § 1453(c)(1) and we REVERSE and REMAND.

      In order to demonstrate the necessary jurisdictional amount in controversy,

Defendants must prove to a “legal certainty” that the amount in controversy in this

case exceeds $5,000,000. See Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994,

999 (9th Cir. 2007). “The ‘legal certainty’ standard sets a high bar for the party

seeking removal, but it is not insurmountable.” Id. at 1000. While the “legal

certainty” standard is difficult to define, at a minimum, Defendants must produce

enough evidence to allow a court “to estimate with [some] certainty the actual

amount in controversy.” Id. at 1001. The Defendants failed to meet this standard.

      As in Lowdermilk, Defendants provided “some evidence that the Plaintiff’s

actual claims necessarily exceed $5,000,000.” See id. at 998. However, they

produced very little or no evidence that would allow for an accurate approximation

of the amount in controversy. Defendants produced evidence giving only a

snapshot of a potential workday for optechs and a potential workweek for

managers. Defendants also frequently “assume[] that all class members would be

entitled to maximum damages under [California] law” and provide no evidence to

support their assumptions in violation of Lowdermilk. 479 F.3d at 1001. Even

where Defendants do not assume maximum damages, they do not provide


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sufficient evidence to meet their burden of proving the amount in controversy to a

legal certainty. Specifically, Defendants have provided no evidence regarding (1)

the number of days per year worked by optechs, (2) the number of vacation days

lost by employees due to the “use it or lose it policy,” (3) how many employees’

shifts exceeded five hours in length (which would determine their eligibility for

meal breaks under California law), (4) how many employees may have used check

cashing services, making them eligible to sue under California Labor Code §§ 212

and 213, and (5) the average hourly pay of employees who were actually separated

from their employment during the four-year period at issue.

      Without such necessary evidence to support their calculations, Defendants

have failed to carry their burden to demonstrate the amount in controversy exceeds

$5,000,000.

      REVERSED and REMANDED with instructions to remand to state court.




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