                                                                             FILED
                           NOT FOR PUBLICATION
                                                                              JUN 19 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ABEL CANTARO CASTILLO,                           No.   18-15398

              Plaintiff-Appellant,               D.C. No.
                                                 3:16-cv-00237-RCJ-VPC
 v.

WESTERN RANGE ASSOCIATION,                       MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                        Argued and Submitted May 13, 2019
                             San Francisco, California

Before: THOMAS, Chief Judge, IKUTA, Circuit Judge, and MOLLOY,** District
Judge.

      Appellant Abel Cantáro Castillo, a nonimmigrant guestworker shepherd

employed by Appellee Western Range Association (WRA) through the H-2A visa

program, appeals the dismissal of his claims for lack of federal question

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
jurisdiction, and for failure to satisfy the jurisdictional requirements of the Class

Action Fairness Act (CAFA). Because the parties are familiar with the facts and

the procedural history, we need not recount those here. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse.1

        “[W]e review de novo the district court’s ultimate legal conclusion that the

underlying factual allegations are insufficient to establish CAFA jurisdiction[.]”

Watkins v. Vital Pharms., Inc., 720 F.3d 1179, 1181 (9th Cir. 2013). “[W]e review

for clear error any factual determinations necessary to establish jurisdiction.” Id.

The district court’s application of state law, here application of the appropriate

statute of limitations, is reviewed de novo. In re Hawaii Fed. Asbestos Cases, 871

F.2d 891, 893 (9th Cir. 1989).

                                             I

        The district court erred in applying a two-year statute of limitations to

Cantáro’s breach of contract claims. Nevada law provides that the applicable

statute of limitations is six years on breach of contract actions “founded upon an

instrument in writing.” Nev. Rev. Stat. § 11.190(1)(b). We have previously noted

the applicability of Nevada’s six-year statute of limitations to H-2A farmworkers’



        1
            WRA’s motion to file further excerpts of record (Doc. 73) is denied as
moot.
                                             2
claims for failure to pay wages owed under employment contracts. Rivera v. Peri

& Sons Farms, Inc., 735 F.3d 892, 901 n.6 (9th Cir. 2013). The district court erred

by instead applying the “gravamen of the action” test to determine that the two-

year minimum wage claim statute of limitations applied to Cantáro’s claims for

breach of the explicit terms of a written employment contract. The Nevada

Supreme Court has applied this test in the context of personal injury cases pleaded

as breach of implied contract. See Crabb v. Harmon Enters., Inc., No. 60634, 2014

WL 549834, at *2 (Nev. Feb 10, 2014) (determining that a claim for food

poisoning pleaded as breach of implied contract sounded in tort, applying tort

statute of limitations for personal injury). However, it has not applied it to breach

of contract claims.

                                            II

       Although the district court did not analyze whether Cantáro met CAFA’s

requirements under the six-year statute of limitations, the court clearly erred in

determining that Cantáro failed to meet the requirements under even a two-year

statute of limitations. CAFA provides federal jurisdiction over class actions where:

(1) the class has more than 100 members; (2) the parties are minimally diverse; and

(3) the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d). Minimal

diversity is not at issue in this appeal.


                                             3
                                           A

      The district court did not determine explicitly that Cantáro failed to establish

by a preponderance of the evidence that the WRA class contained at least 100

members. To the extent that the district court found Cantáro’s WRA estimate

“questionable because it assumes that every labor certification the WRA obtained

was actually used,” however, such finding was clearly erroneous. “A district court

makes factual findings regarding jurisdiction under a preponderance of the

evidence standard.” Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 (9th

Cir. 2013). Cantáro pleaded that WRA employed 173 shepherds in Nevada in

2014, based on Department of Labor Disclosure Data. Nothing in the record

suggests WRA secured DOL certifications and subsequently failed to employ

herders. Further, Cantáro omitted from the class size estimate himself and any

other shepherds certified as California herders but working in Nevada. Therefore,

the district court clearly erred to the extent it determined that Cantáro failed to

demonstrate by a preponderance of the evidence that the WRA class included more

than 100 members.

                                           B

      The district court clearly erred in determining that Cantaro failed to satisfy

CAFA’s $5 million amount in controversy requirement. “When a plaintiff invokes


                                            4
federal-court jurisdiction, the plaintiff’s amount-in-controversy allegation is

accepted if made in good faith.” Dart Cherokee Basin Operating Co., LLC v.

Owens, ___ U.S. ___, 135 S. Ct. 547, 553 (2014) (internal citation omitted).

Generally, where a complaint makes a good faith allegation, the requirement is

“presumptively satisfied unless it appears to a ‘legal certainty’ that the plaintiff

cannot actually recover that amount.” Guglielmino v. McKee Foods Corp., 506

F.3d 696, 699 (9th Cir. 2007). “Faced with a factual attack on subject matter

jurisdiction,” however, “no presumptive truthfulness attaches to plaintiff’s

allegations . . . [and] the plaintiff will have the burden of proof that jurisdiction

does in fact exist.” Thornhill Publ’g Co., Inc. v. General Tel. & Elecs. Corp., 594

F.2d 730, 733 (9th Cir. 1979) (internal citation omitted).

      The district court determined that Cantáro failed to meet his burden to

demonstrate the amount in controversy because Cantáro’s calculations were based

on the “unreasonable” assumption that “every certified Nevada shepherd actually

worked,” or was entitled to compensation for, “every hour of every day of every

year during which he or she was certified.” We need not evaluate the

reasonableness of these assumptions, however, because the amount in controversy

exceeds $5 million even under the 56-hour work week accepted by the district

court as a reasonable estimate. The court committed clear error for failing to


                                            5
recalculate the amount in controversy before concluding that “the preponderance

lies with Defendants.”

                                         II

      Because we hold that the district court possessed diversity jurisdiction under

CAFA, we need not address federal question jurisdiction.



      REVERSED AND REMANDED.




                                         6
                                                                          FILED
                                                                           JUN 19 2019
                                                                       MOLLY C. DWYER, CLERK
Cantaro Castillo v. Western Range Ass’n, No. 18-15398                    U.S. COURT OF APPEALS
IKUTA, Circuit Judge, dissenting

       “Faced with a factual attack on subject matter jurisdiction . . . [n]o

presumptive truthfulness attached to the plaintiff’s allegations,” Thornhill Pub. Co.

v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979), and the

plaintiffs must demonstrate that they meet the requirements for Class Action

Fairness Act (CAFA) jurisdiction by a preponderance of the evidence, see

Mondragon v. Capital One Auto Finance, 736 F.3d 880, 884–85 (9th Cir. 2013).

Because the plaintiffs have failed to adduce the evidence necessary to show that

they meet the amount-in-controversy requirement, I dissent.

       The majority asserts that the district court erred by applying a two-year

statute of limitations, rather than a six-year statute of limitations, to plaintiffs’

claims, on the ground that a six-year statute of limitations applies to breach of

contract claims in Nevada. Maj. at 2. While Nevada’s six-year statute of

limitations may apply to wages owed under employment contracts, Maj. at 2,

plaintiffs have failed to prove that they have such a contract with the Western

Range Association (WRA). There is no employment contract between any

plaintiff and WRA in the record, and the majority cites none. Even if a contract

between the plaintiffs and WRA is implied by law, the statute of limitations for a

breach of implied contract in Nevada is four years, not six. See Nev. Rev. Stat.
§ 11.190(2)(c); see also Saylor v. Arcotta, 225 P.3d 1276, 1278–79 (Nev. 2010).

Given the lack of evidence of a contract (and the plaintiffs’ failure to argue that the

statute of limitations for quasi-contract applies), the district court could reasonably

conclude that the two-year statute of limitations applies to plaintiffs’ wage-and-

hour claims. See Nev. Rev. Stat. § 608.260.

         Under a two-year statute of limitations, the plaintiffs have failed to meet

their burden of proving they satisfy the amount-in-controversy requirement by a

preponderance of the evidence. First, the plaintiffs failed to prove the number of

plaintiffs in the class by a preponderance of the evidence. Although plaintiffs

allege that WRA employed between 98 and 173 shepherds, the only evidence in

the record shows that WRA obtained certifications that would enable it to hire that

number of shepherds; there is no evidence as to the number of shepherds actually

hired.

         Second, the plaintiffs failed to prove the number of hours they worked in

Nevada over the course of the applicable time period. In the absence of contrary

evidence, the district court did not clearly err by crediting the declarations

indicating that the shepherds worked eight-hour days, rather than twenty-four-hour

days, and that shepherds generally worked half the year in Nevada and half the

year in California. Indeed, even Abel Cantáro Castillo acknowledged that he split


                                             2
his time between Nevada and California. Even assuming there are 100 shepherds

in the class at issue here, they cannot satisfy the $5 million amount in controversy

required under CAFA if they worked six months per year, eight hours per day, for

two years, for the Nevada minimum wage. See 28 U.S.C. § 1332(d)(2). Indeed,

the plaintiffs cannot satisfy the amount in controversy even if they worked for four

years, under the longer statute of limitations for quasi-contracts.

      Because the plaintiffs have not established that they meet the amount-in-

controversy requirement by a preponderance of the evidence, I would affirm the

district court’s dismissal for lack of subject matter jurisdiction under CAFA. I

would also affirm the district court’s dismissal for lack of federal-question

jurisdiction because the application of the federal regulations to the facts here does

not fall into the “special and small category” of cases that present a “substantial”

question of federal law that is necessarily raised. Gunn v. Minton, 568 U.S. 251,

258 (2013). Accordingly, I dissent.




                                           3
