Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 1 of 23
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`EVAN R. MOSES, CA Bar No. 198099
`evan.moses@ogletree.com
`CHRISTOPHER W. DECKER, CA Bar No. 229426
`christopher.decker@ogletree.com
`OGLETREE, DEAKINS, NASH, SMOAK &
`STEWART, P.C.
`400 South Hope Street, Suite 1200
`Los Angeles, CA 90071
`Telephone:
`213-239-9800
`Facsimile:
`213-239-9045
`Attorneys for Defendant
`NUTRIEN AG SOLUTIONS, INC.
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`
`BOBBY GRAYSON, III, individually, and on
`behalf of other members of the general public
`similarly situated,
`Plaintiff,
`
`v.
`NUTRIEN, a Colorado corporation;
`NUTRIEN AG SOLUTIONS, INC., an
`unknown business entity; WESTERN FARM
`SERVICE, INC., an unknown business entity;
`and DOES 1 through 100, inclusive,
`Defendants.
`
`Case No. ______________________
`DEFENDANT NUTRIEN AG SOLUTIONS,
`INC.’S NOTICE OF REMOVAL OF CIVIL
`ACTION TO UNITED STATES DISTRICT
`COURT
`[Filed concurrently with Civil Cover Sheet;
`Certification of Interested Parties and Corporate
`Disclosure Statement; and Declarations of
`Amanda Vandagriff-Rounds, Christopher W.
`Decker, and Kegan Reiswig in Support of
`Removal]
`
`Complaint Filed: April 2, 2021
`Trial Date:
`None
`District Judge:
`__________________
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`47487296_4.docx
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`Case No. ______________________
`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO
`UNITED STATES DISTRICT COURT
`
`

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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 2 of 23
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`TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
`CALIFORNIA AND TO PLAINTIFF BOBBY GRAYSON, III AND HIS ATTORNEYS OF
`RECORD:
`PLEASE TAKE NOTICE THAT defendant Nutrien Ag Solutions, Inc. (“Nutrien” or
`“Defendant”), by and through the undersigned counsel, hereby removes the above-entitled action
`from the Superior Court of the State of California for the County of Tulare, Visalia Courthouse, to
`the United States District Court for the Eastern District of California, Fresno Division, pursuant to
`28 U.S.C. sections 1332, 1441(a), 1446, and 1453.1 In support of such removal, Defendant states
`as follows:
`I.
`BACKGROUND
`1.
`On or about April 2, 2021, plaintiff Bobby Grayson III (“Plaintiff”) commenced this
`action by filing an unverified Class Action Complaint (“Complaint”) in the Superior Court of
`California, County of Tulare, captioned Bobby Grayson III v. Nutrien; Nutrien AG Solutions, Inc.;
`Western Farm Service, Inc.; et. al., and bearing case number 286503. (True and correct copies of
`the Summons, Complaint, and Civil Case Cover Sheet are attached as Exhibit A to this Notice of
`Removal (“Notice”).)
`2.
`On May 19, 2021, Plaintiff served Defendant with the Summons, Complaint, and
`Civil Case Cover Sheet. (Declaration of Christopher W. Decker [“Decker Decl.”], ¶ 2.)
`3.
`The Complaint asserts claims for: (1) Violation of California Labor Code sections
`510 and 1198 (Unpaid Overtime); (2) Violation of California Labor Code sections 226.7 and 512
`(Unpaid Meal Period Premiums); (3) Violation of California Labor Code section 226.7 (Unpaid
`Rest Period Premiums); (4) Violation of California Labor Code sections 1194, 1197, and 1197.1
`(Unpaid Minimum Wages); (5) Violation of California Labor Code sections 201and 203 (Final
`Wages Not Timely Paid); (6) Violation of California Labor Code section 204 (Wages Not Timely
`Paid During Employment); (7) Violation of California Labor Code section 226 (Non-Compliant
`
`1 As noted below, Defendant may remove this action “without the consent of all defendants.”
`28 U.S.C. § 1453(b).
`
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`Case No. ______________________
`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 3 of 23
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`Wage Statements); (8) Violation of California Labor Code section 1174 (Failure to Keep Requisite
`Payroll Records); (9) Violation of California Labor Code sections 2800 and 2802 (Unreimbursed
`Business Expenses); and (10) Violation of California Bus. Prof. Code sections 17200 et seq.
`4.
`On June 14, 2021, Defendant filed and served a Declaration of Demurring or
`Moving Party in Support of Automatic Extension in Tulare County Superior Court. A true and
`correct copy of Defendant’s Declaration of Demurring or Moving Party in Support of Automatic
`Extension is attached as Exhibit B to this Notice.
`5.
`As set out more fully below, based on the allegations of the Complaint and other
`evidence collected by Defendant, this Court has original jurisdiction over this action under the
`Class Action Fairness Act (“CAFA”) 28 U.S.C. section 1332(d) and hence the action may be
`removed by Defendant pursuant to 28 U.S.C. section 1441. Original jurisdiction exists here
`because there are at least 100 class members in all proposed plaintiffs classes, the combined claims
`of all class members exceed $5,000,000 exclusive of interest and costs, and Defendant is a citizen
`of a different state than at least one class member.
`II.
`DEFENDANT HAS SATISFIED THE PROCEDURAL REQUIREMENTS FOR
`REMOVAL
`A.
`Timeliness
`6.
`The time to remove under 28 U.S.C. section 1446(b) does not begin to run until
`receipt by the defendant, through service or otherwise, of a pleading, motion, order or other paper
`from which it may first be ascertained that the case is one which is or has become removable.
`Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). Here, the four corners of
`the Complaint do not provide readily ascertainable grounds for removal. The Complaint does not
`allege sufficient facts to calculate the amount in controversy with reasonable certainty as to the
`individually named plaintiff or as to the putative class. The Complaint does not allege the size of
`any putative class nor does it allege any claim under federal law. Accordingly, as mentioned, it is
`not possible to ascertain from the Complaint that this case is removable, and, to date, Defendant
`has not received any other document which would constitute an "other pleading, motion, order or
`other paper" providing this missing information. (Decker Decl. ¶ 5.) Accordingly, the time to
`2
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`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 4 of 23
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`remove this action has not yet begun. Where the time to remove has not yet expired, a defendant
`may remove at any time if it uncovers evidence establishing that the case is removable. Roth v.
`CHA Hollywood Medical Center, L.P., 720 F.3d 1121, 1125 (9th Cir. 2013). As set forth below,
`Defendant has only recently discovered such evidence after an arduous collection and review of all
`records of potential class members and a complex analysis of the estimated damages allocated to
`each cause of action. Therefore, Defendant is timely removing this case based on that discovery.
`7.
`This Notice is timely filed as Defendant filed the Notice before the time for removal
`passed. The Complaint and Summons were served on Defendant on May 19, 2021. (Decker Decl.
`¶ 2.) As such, the time to remove could not expire, at the earliest, until June 21, 2021, the first
`court day which is 30 days after service of the Summons and Complaint. This Notice is therefore
`timely, as it was filed on that date.
`B.
`Venue
`8.
`The Superior Court of California for the County of Tulare is located within the
`Eastern District of California, Fresno Division. Therefore, the action is properly removed to this
`Court pursuant to 28 U.S.C. section 84(d) because it is the “district and division embracing the
`place where such action is pending.” 28 U.S.C. § 1441(a).
`C.
`Procedural Requirements
`9.
`Pursuant to 28 U.S.C. section 1446(a), copies of all process, pleadings, and orders
`served upon Defendant and filed by Defendant are attached as Exhibits A and B to this Notice of
`Removal. (Decker Decl. ¶ 4.)
`10.
`Pursuant to 28 U.S.C. section 1446(d), a copy of this Notice of Removal is being
`served upon counsel for Plaintiff and a copy is being filed with the Clerk of the Superior Court of
`California in the County of Tulare and with the Clerk of the Eastern District of California. True
`and correct copies of the Notice to the Plaintiff and the state court shall be filed promptly.
`III.
`THE CASE IS REMOVABLE PURSUANT TO CAFA
`11.
`As set forth below, Plaintiff’s claims as alleged in the Complaint are removable
`under 28 U.S.C. § 1332(d).
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`Case No. ______________________
`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 5 of 23
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`12.
`
`Under CAFA, the Federal District Court has jurisdiction if:
`(a)
`There are at least 100 class members in all proposed plaintiff classes; and
`(b)
`The combined claims of all class members exceed $5 million exclusive of
`interest and costs; and
`13.
`Any class member (named or not) is a citizen of a different state than any defendant.
`28 U.S.C. §§ 1332(d)(2), 1332(d)(5)(B), and 1453(a).
`14.
`In Dart Cherokee Basin Operating Co. v. Owens, 132 S.Ct. 547 (2014), the U.S.
`Supreme Court provided significant clarification to the standards applicable to notices of removal
`in CAFA cases, establishing a much more liberal standard in favor of removing defendants. In
`Dart Cherokee, the U.S. Supreme Court held that a removal must only contain “a short and plain
`statement of the grounds for removal.” Id. at 553 (quoting 28 U.S.C. § 1446(a)). The Court noted
`that this same language is used for the pleading standard in Rule 8(a) of the Federal Rules of Civil
`Procedure. Id. The use of this language in the removal statute was intentional—clearly indicating
`that courts should apply the same liberal pleading standards to notices of removal as they should to
`plaintiffs’ complaints and other pleadings. Id. The Court further held that a removing defendant
`need not submit evidence with its pleading that establishes that the elements of federal subject
`matter jurisdiction are met. Id. at 552-53. Only if the court or another party challenges jurisdiction
`should the court require a removing defendant to prove, under the applicable “preponderance”
`standard, that the jurisdictional requirements are met. Id. at 553-54. The Court summarized its
`holding as follows: “[i]n sum, as specified in § 1446(a), a defendant’s notice of removal need
`include only a plausible allegation that the amount in controversy exceeds the jurisdictional
`threshold. Evidence establishing the amount is required by § 1446(c)(2)(B) only when the plaintiff
`contests, or the court questions, the defendant’s allegation.” Id. at 554. Also, there is no
`“presumption against removal” in CAFA cases, because CAFA was specifically enacted by
`Congress “to facilitate adjudication of certain class actions in federal court.” Id.
`A.
`There are at least 100 class members in all Proposed Plaintiff Classes.
`15.
`In this action, Plaintiff seeks to represent a proposed class defined as follows: “All
`current and former hourly-paid or non-exempt employees who worked for any of the Defendants
`4
`Case No. ______________________
`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 6 of 23
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`within the State of California at any time during the period from four years preceding the filing of
`this Complaint to final judgment and who reside in California.” (Compl. ¶ 15.)
`16.
`Plaintiff’s Complaint omits any reference to the specific number of individuals in
`the putative class, alleging only the number of class members exceeds the minimum requirements
`for numerosity under California law. (Compl. ¶ 17(a).) Based on a review and analysis of the
`business records of Defendant and its predecessor companies (collectively, the “Company”), the
`Company has employed 1,869 individuals in non-exempt positions in California from April 2,
`2017 to present. (Declaration of Kegan Reiswig [“Reiswig Decl.”] ¶ 9.) Thus, the first
`requirement for CAFA jurisdiction is satisfied.
`17.
`Based on the above, there are more than 100 class members in all proposed
`plaintiffs classes.
`B.
`The Combined Claims of all class members Exceed $5 Million Exclusive of
`Interest and Costs.
`Based on Plaintiff’s allegations in the Complaint and other evidence collected by
`18.
`Defendants, the aggregate value of the claims of the proposed plaintiffs class exceeds the
`$5 million threshold needed to establish federal jurisdiction under the Class Action Fairness Act.
`The $5 million jurisdictional minimum may be based on aggregation of the claims of all potential
`class members. 28 U.S.C. § 1132(d)(6).
`19. With respect to CAFA’s $5,000,000 threshold for the “amount in controversy,” it is
`not the same as the amount ultimately recovered. Lara v. Trimac Transp. Servs. Inc., 2010 WL
`3119366, Case No. 3:19-cv-04592-JCS, at *3 (C.D. Cal. Aug. 6, 2010). Rather, in assessing the
`amount in controversy, a court must “assume that all the allegations of the complaint are true and
`assume that a jury will return a verdict for the plaintiffs on all claims made in the complaint.”
`Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D. Cal.
`2002). The ultimate inquiry is what amount is put “in controversy” by Plaintiff’s Complaint, not
`what Defendants will actually owe. Rippee v. Boston Market Corp., 408 F.Supp.2d 982, 986 (S.D.
`Cal. 2005). In other words, “the amount in controversy is simply an estimate of the total amount in
`dispute, not a prospective assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc.,
`5
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`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`627 F.3d 395, 400 (9th Cir. 2010) (citing McPhail v. Deere & Co., 529 F.3d 947, 956 (10th Cir.
`2008). “The amount in controversy is determined by the universe of what the Plaintiff puts at-issue
`in the complaint.” Schiller v. David’s Bridal, Inc., 2010 WL 2793650, at *6 (E.D. Cal. July 14,
`2010).
`
`To establish the amount in controversy, a defendant “need not concede liability for
`20.
`the entire amount,” and it is error for a district court to require such a showing. Lewis, supra, 627
`F.3d at 400; see also Angus v. Shiley, Inc., 989 F.2d 142, 146 (3d Cir. 1993) (“the amount in
`controversy is not measured by the low end of an open-ended claim, but rather by a reasonable
`reading of the value of the rights being litigated.”); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117
`(9th Cir. 2004) (stating that “[t]he amount-in-controversy inquiry in the removal context is not
`confined to the face of the complaint,” and that the court may also consider summary-judgment-
`type evidence relevant to the amount in controversy at the time of removal) (citations omitted).
`21.
`Furthermore, a defendant’s assumptions in an amount in controversy calculation do
`not require actual proof, but rather it need only show “reasonable grounds” for the assumptions.
`Arias v. v. Residence Inn, 936 F.3d 920, 927 (9th Cir. 2019). Defendant’s estimate of the amount-
`in-controversy, as set forth below, is conservative in nature as it relies on conservative assumptions
`as to the frequency of the meal period and rest break violations alleged in the Complaint.2
`22.
`As shown below, the evidence shows that Plaintiff’s causes of action place more
`than $5 million in controversy.
`1.
`Plaintiff’s First Cause of Action for Failure to Pay Overtime Wages
`Places at least $2,621,670 in Controversy.
`Plaintiff’s First Cause of Action seeks unpaid overtime wages for the time that
`23.
`Plaintiff and putative class members were engaged, suffered or permitted to work without being
`paid wages for all of the time in which they were subject to Defendants’ control.
`
`2 Defendants reserve the right to present additional information regarding the amount placed in
`controversy by Plaintiff’s causes of action in response to any Motion to Remand or Order to Show
`Cause challenging the propriety of this Removal.
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`Case No. ______________________
`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 8 of 23
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`Plaintiff alleges that, “Defendants engaged in a pattern and practice of wage abuse
`24.
`against their hourly-paid or non-exempt employees within the State of California" that included
`“fail[ure] to compensate them for all hours worked” and “failure to pay them for all regular and/or
`overtime wages earned.” (Compl. ¶¶ 21 and 27.) Plaintiff further alleges that, “Defendants
`intentionally and willfully failed to pay overtime wages owed to Plaintiff and the other class
`members” and “[p]ursuant to California Labor Code 1194, Plaintiff and the other class members
`are entitled to recover unpaid overtime compensation, as well as interest, costs, and attorney’s
`fees.” (Compl. ¶¶ 55 and 57.)
`25.
`The statute of limitations for a claim seeking wages for failure to pay overtime wage
`for all hours worked is three years. Cal. Lab. Code § 203; Cal. Civ. Proc. § 338. This statute of
`limitations is extended to four years where, as here, the Complaint includes a claim for Unfair
`Business Practices under Bus. & Prof. Code § 17200. Accordingly, if the allegations of the
`Complaint are true, Defendants owe additional remuneration to each individual employed in a non-
`exempt position in California who were not paid overtime wages wage for all overtime hours
`worked. Defendants would owe additional remuneration for all such time from April 2, 2017 to the
`present.
`The Complaint does not allege the number of hours for which additional
`26.
`remuneration is due, the amount of the underpayment, or how that amount could be determined,
`except to say that the failure to compensate Plaintiff and the class was the result of “a pattern and
`practice of wage abuse.” (Compl. ¶ 27.)
`27.
`Plaintiff alleges various failure to pay wages and although there is no specification
`as to how frequently this occurred or the extent of it, given the allegations that have been made, it
`is reasonable to assume that each putative class member is entitled to at least one hour of unpaid
`minimum wages or overtime wages per week. As in Mariscal v. Arizona Tile, LLC, 2021 WL
`1400892 (C.D. Cal. April 14, 2021), “[Plaintiff’s] Complaint alleges that [defendant] has ‘engaged
`in a pattern and practice’ of wage abuse by, among other things, ‘failing to pay them for all regular
`and/or overtime wages earned,’ [citation]; therefore, an assumption that each putative class
`member worked one hour of unpaid overtime per workweek is reasonable.” Id. at * 5. See also
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`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
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`Mortley v. Express Pipe & Supply Co., 2018 WL 708115 (C.D. Cal. Feb. 5, 2018) at *4 (“an
`assumption of one hour of overtime per week is reasonable when a plaintiff alleges a pattern or
`practice of violation”); Arreola v. Finish Line, 2014 WL 6982571, at *4 (N.D. Cal. Dec. 9, 2014).
`28. Mr. Reiswig analyzed Defendant’s business records and determined that Defendant
`employed 1,700 individuals as non-exempt employees in California between April 2, 2017 and the
`present, who, collectively, worked 174,778 workweeks. (Reiswig Decl. at ¶¶ 9-10.) The minimum
`wage during this time period was never less than $10/hour, and the minimum overtime wage would
`therefore be at least $15/hour throughout this time period. If each employee were entitled to an
`additional hour of overtime compensation per week, the 1,700 putative class members would be
`entitled, collectively, to at least $2,621,670 in unpaid minimum wages (174,778 workweeks *
`1 hour * $15/hour = $2,621,670).
`29.
`If Plaintiff’s allegations in the Complaint are true, Plaintiff’s First Cause of Action
`for failure to pay overtime wages places at least $2,621,670 in controversy.
`2.
`Plaintiff’s Second Cause of Action for Failure to Provide Meal Periods
`Places at least $2,930,366.70 in Controversy.
`Plaintiff’s Second Cause of Action seeks premium wages for Defendants’ alleged
`30.
`failure to provide meal periods as required by law. (Compl. ¶¶ 58–68.)
`31.
`Plaintiff alleges that, “Plaintiff and the other class members who were scheduled to
`work for a period of time no longer than six (6) hours, and who did not waive their legally-
`mandated meal periods by mutual consent, were required to work for periods longer than five (5)
`hours without an uninterrupted meal period of not less than thirty (30) minutes and/or rest period.”
`(Compl. ¶ 63.) Similarly, Plaintiff also alleges that, “Plaintiff and the other class members who
`were scheduled to work for a period of time in excess of six (6) hours were required to work for
`periods longer than five (5) hours without an uninterrupted meal period of not less than thirty (30)
`minutes and/or rest period.” (Compl. ¶ 64.) Further, Plaintiff alleges that Defendants violated
`California Labor Code section 512(a) because “an employer may not require, cause or permit an
`employee to work for a work period of more than ten (10) hours per day without providing the
`employee with a second uninterrupted meal period of not less than thirty (30) minutes, except that
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`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`if the total hours worked is no more than twelve (12) hours, the second meal period may be waived
`by mutual consent of the employer and the employee only if the first meal period was not waived.”
`(Compl. ¶¶ 62 and 67.)
`32.
`Plaintiff also alleges that Defendants failed to pay Plaintiff and the class members
`the full meal period premium for missed and untimely meal periods pursuant to California Labor
`Code section 226.7. (Compl. ¶¶ 65 and 66.) As a result, Plaintiff alleges that he and the other class
`members are entitled to one additional hour of compensation, at each employee’s regular rate of
`pay, for each work-date that a meal was not provided. (Compl. ¶ 68.)
`33.
`The statute of limitations for a claim seeking premium wages for failure to provide
`legally required meal periods and rest breaks is three years. Cal. Lab. Code § 203; Cal. Civ. Proc.
`§ 338. This statute of limitations is extended to four years where, as here, the Complaint includes a
`claim for Unfair Business Practices under Bus. & Prof. Code § 17200. Accordingly, if the
`allegations of the Complaint are true, Defendants owe each individual employed in a non-exempt
`position in California an additional hour of pay for each work day between April 2, 2017 and the
`present that such individual either did not receive a meal break prior to their fifth hour of work or
`did not receive a second meal break on days when employee worked ten hours of work or more.
`The Complaint does not allege the number of meal periods not provided to Plaintiff or putative
`class members for which premium pay is due.3
`
`3 Plaintiff’s allegations concerning meal and rest period violations that the putative class members
`allegedly suffered are not qualified in any manner, e.g., by alleging that they “sometimes” or
`“occasionally” or “often” were denied meal or rest periods. Rather, Plaintiffs allege – without
`qualification – that it was the policy and practice of Defendants to regularly deny meal and rest
`periods. These broad, unqualified allegations concerning meal and rest period violations – by
`themselves – justify the application of a 100% violation rate for purposes of estimating the amount
`in controversy. See Amaya v. Consolidated Container Co., LP, 2015 WL 4574909, *2 (C.D. Cal.
`July 28, 2015) (allegation of “uniform” illegal practices, combined with no evidence from plaintiff
`rebutting an assumed 100% violation rate, sufficient proof of violation rates); Dawson v. Hitco
`Carbon Composites, Inc., 2016 WL 7235629, *4 (S.D. Cal. December 14, 2016) (plaintiff’s
`“unqualified allegations”, containing no “qualifying words such as ‘often’ or ‘sometimes’” justified
`assumption of “universal violations”); Bryant v. NCR Corp., 284 F. Supp. 3d 1147, 1151 (S.D. Cal.
`2018) (where Complaint alleged Defendant had “a policy and practice” of “failing to provide
`employees a meal period,” 60% violation rate was “conservative”); Buehler v. Saddle Creek Corp.,
`2015 WL 5618871, *2 (C.D. Cal. September 23, 2015), (holding “[v]iolation rates of 100% may
`not be patently unreasonable in the event that a plaintiff fails to include fact-specific allegations
`that would result in a violation rate discernibly smaller than 100%.”). However, the amount-in-
`controversy requirement is satisfied even with a very conservative assumption of a 20% violation
`9
`Case No. ______________________
`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 11 of 23
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`34. Where a class action complaint alleging failure to provide meal periods (and/or rest
`breaks) does not provide this detail, courts in the 9th Circuit and in other districts have held that
`assuming a 20% violation rate, or one missed meal period per week of full-time employment, is
`reasonable. See e.g., Mendoza, supra, 2019 WL 1260629, at *2 (C.D. Cal. Mar. 19, 2019) (finding
`that a 20% violation rate for meal and rest breaks was reasonable where the complaint alleged a
`“pattern and practice” of violations, and noting that courts in the Central District of California
`“routinely apply a 20% violation rate . . . for meal and rest period premiums” and citing cases);
`Chavez v. Pratt (Robert Mann Packaging), LLC, No. 19-CV-00719-NC, 2019 WL 1501576, at *3
`(N.D. Cal. Apr. 5, 2019) (finding that a 20% violation rate for meal and rest period was reasonable
`where the plaintiff alleged a “pattern or practice” of violations).
`35.
`Based on Plaintiff’s allegations in the Complaint and other evidence collected by
`Defendant, Plaintiff and the putative class place at least $2,930,366.70 in controversy relating to
`purported meal period violations. Mr. Reiswig analyzed the business records of the Company and
`determined that the Company’s hourly employees in California, collectively, worked 879,990 shifts
`of more than five hours between April 2, 2017 and the present. (Reiswig Decl. ¶ 12.) The average
`annual wage during this time period was $16.65/hour. (Id. at ¶ 13.) If each employee experienced,
`on average, one meal period violation for each five meal-period eligible shifts, there would be a
`total of 175,998 meal period violations (20% of 879,990) for the putative class as a whole for the
`entire relevant time period. Collectively, the putative class would be entitled to $2,930,366.70
`(175,998 meal period violations * $16.65 meal period premium = $2,930,366.70) in meal period
`premium wages.
`36.
`Thus, Plaintiff’s Second Cause of Action places at least $2,930,366.70 in
`controversy.
`
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`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
`STATES DISTRICT COURT
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 12 of 23
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`3.
`
`Plaintiff’s Third Cause of Action for Failure to Provide Rest Periods
`Places at least $2,990,373.30 in Controversy.
`Plaintiff’s Third Cause of Action seeks premium wages for Defendants’ alleged
`37.
`failure to provide rest breaks as required by law. (Compl. ¶¶ 69 – 77.)
`38.
`Plaintiff alleges that, “Defendants required Plaintiff and other class members to
`work four (4) or more hours without authorizing or permitting a ten (10) minute rest period for
`each four (4) hour period worked.” (Compl. ¶ 73.) Plaintiff further alleges that, “Defendants
`willfully required Plaintiff and the other class members to work during rest periods and failed to
`pay Plaintiff and the other class members the full rest period premium for work performed during
`rest periods.” (Compl. ¶ 74.)
`39.
`Plaintiff further alleges that he and the class members are entitled to one hour of
`premium pay for each day in which a rest period was not provided. (Compl. ¶ 75.)
`40.
`The statute of limitations for a claim seeking premium wages for failure to provide
`legally required meal periods and rest breaks is three years. Cal. Lab. Code § 203; Cal. Civ. Proc.
`§ 338. This statute of limitations is extended to four years where, as here, the Complaint includes a
`claim for Unfair Business Practices under California Business and Professions Code section 17200.
`Accordingly, if the allegations of the Complaint are true, Defendants owe each individual
`employed in a non-exempt position in California an additional hour of pay for each workday
`between April 2, 2017 and the present that such individual worked in excess of 3.5 hours without
`receiving a rest break. The Complaint does not allege the number of rest breaks not provided to
`Plaintiff or putative class members for which premium pay is due.4
`
`4 Plaintiff’s allegations concerning meal and rest period violations that the putative class members
`allegedly suffered are not qualified in any manner, e.g., by alleging that they “sometimes” or
`“occasionally” or “often” were denied meal or rest periods. Rather, Plaintiffs allege – without
`qualification – that it was the policy and practice of Defendants to regularly deny meal and rest
`periods. These broad, unqualified allegations concerning meal and rest period violations – by
`themselves – justify the application of a 100% violation rate for purposes of estimating the amount
`in controversy. See Amaya v. Consolidated Container Co., LP, 2015 WL 4574909, *2 (C.D. Cal.
`July 28, 2015) (allegation of “uniform” illegal practices, combined with no evidence from plaintiff
`rebutting an assumed 100% violation rate, sufficient proof of violation rates); Dawson v. Hitco
`Carbon Composites, Inc., 2016 WL 7235629, *4 (S.D. Cal. December 14, 2016) (plaintiff’s
`“unqualified allegations”, containing no “qualifying words such as ‘often’ or ‘sometimes’” justified
`assumption of “universal violations”); Bryant v. NCR Corp., 284 F. Supp. 3d 1147, 1151 (S.D. Cal.
`11
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`DEFENDANT NUTRIEN AG SOLUTIONS, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO UNITED
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`Case 1:21-cv-00986-NONE-BAM Document 1 Filed 06/21/21 Page 13 of 23
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`41. Where a class action complaint alleging failure to provide meal periods (and/or rest
`breaks) does not provide this detail, courts in the 9th Circuit and in other districts have held that
`assuming a 20% violation rate, or one missed rest period per week of full-time employment, is
`reasonable. See e.g., Mendoza, supra, 2019 WL 1260629, at *2 (C.D. Cal. Mar. 19, 2019) (finding
`that a 20% violation rate for meal and rest breaks was reasonable where the complaint alleged a
`“pattern and practice” of violations, and noting that courts in the Central District of California
`“routinely apply