                             NOT FOR PUBLICATION                         FILED
                                                                          JUN 21 2017
                      UNITED STATES COURT OF APPEALS
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



    RICKEY HENRY, on behalf of himself and       No.    17-15993
    all persons similarly situated,
                                                 D.C. No. 2:16-cv-0280-JAM-EFB
          Plaintiff - Appellee,

     v.                                          MEMORANDUM*

    CENTRAL FREIGHT LINES, INC.,

          Defendant - Appellant.

                     Appeal from the United States District Court
                         for the Eastern District of California
                      John A. Mendez, District Judge, Presiding

                         Argued and Submitted June 13, 2017
                              San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and BATTAGLIA,**
District Judge.




*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.

**
      The Honorable Anthony J. Battaglia, United States District Judge for the
Southern District of California, sitting by designation.
      Defendant-Appellant Central Freight Lines (“CFL”) appeals the district

court’s order remanding this case to California state court for lack of jurisdiction

under the Class Action Fairness Act (“CAFA”). At issue here is whether CFL carried

its burden of establishing that CAFA’s amount-in-controversy requirement is

satisfied. 28 U.S.C. § 1332(d)(2). We have jurisdiction pursuant to 28 U.S.C. §

1453(c)(1), and we reverse and remand.

      CFL is a company that provides transportation services in North America.

Henry worked for CFL as a truck driver from April 2014 to February 2015. Henry

contends that CFL misclassified him, as well as all other truck drivers during the

class period, as independent contractors.

      In the operative complaint, Henry seeks to represent “all individuals who

worked for [CFL] in California as Truck Drivers and who were classified by [CFL]

as independent contractors [] at any time during the period beginning four (4) years

prior to the filing of this Complaint and ending on the date as determined by the

Court . . . .” Accordingly, the only limits on the class that are explicitly stated in the

complaint are that class members (1) worked in California for CFL (2) as a truck

driver (3) during the four years preceding the complaint’s filing and (4) were

classified as an independent contractor.

      In post-removal proceedings, Henry asserted that the class is comprised of

only California residents who drove in California and seeks reimbursement only for

                                            2
work performed in California. However, the complaint itself does not contain these

limitations. It is axiomatic that “whether remand is proper must be ascertained on

the basis of the pleadings at the time of removal.” Broadway Grill, Inc. v. Visa Inc.,

856 F.3d 1274, 1277 (9th Cir. 2017). Henry’s post-removal change to the complaint

was not merely a clarification, but instead was an amendment that altered the scope

of the class itself. As such, Henry’s post-removal amendment does not affect the

district court’s jurisdiction.

       In the complaint, Henry seeks, among other things, reimbursement for “all

costs and expenses of owning and/or leasing, repairing, maintaining, and fueling the

trucks and vehicles [that the truck drivers] drove while conducting work for [CFL]

in violation of California Labor Code Section 2802.” In opposing Henry’s motion to

remand, CFL provided evidence of the amount that California-resident truck drivers

paid in “lease-related payments.”

       In support of remand, Henry argued that lease payments cannot be considered

for purposes of the amount in controversy because they are not recoverable as a

matter of law. However, “[t]he amount in controversy is simply an estimate of the

total amount in dispute,” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th

Cir. 2010), and is a concept distinct from “the amount of damages ultimately

recoverable[,]” LaCross v. Knight Transp. Inc., 775 F.3d 1200, 1203 (9th Cir. 2015).

In determining the amount in controversy, the Court accepts the allegations

                                          3
contained in the complaint as true and assumes the jury will return a verdict in the

plaintiff’s favor on every claim. See, e.g., Campbell v. Vitran Express, Inc., 471 F.

App’x 646, 648 (9th Cir. 2012). The complaint states multiple times that Henry seeks

reimbursement for “all costs and expenses of . . . leasing” the trucks. As such, lease-

related payments have been placed into controversy and are properly considered for

purposes of CAFA jurisdiction. See LaCross, 775 F.3d at 1202–03 (reversing district

court’s remand order, noting that “[w]ere plaintiffs to succeed on their claim that

they are employees, Knight will need to reimburse them for expenditures related to

the ownership and operation of their trucks, including lease-related costs and fuel

costs”).

      Reviewing the district court’s remand order de novo, id. at 1203, we conclude

that CFL has produced sufficient evidence to establish by a preponderance of the

evidence that the amount in controversy exceeds $5 million. CFL provided a

declaration from Todd Militzer, CFL’s Vice President and Chief Financial Officer.

Militzer attested that during the class period, independent-owner truck drivers who

provided a California address as his or her primary residence and worked in

California paid more than $2,250,000 in lease-related payments and more than

$7,450,000 in deductions for fuel. The Militzer declaration is sufficient to carry

CFL’s burden. We therefore reverse and remand with the instruction to the District

Court that CFL has established CAFA jurisdiction.

                                          4
REVERSED and REMANDED.




                         5
