LARRY HURST, individually and on behalf of all similarly situated, Plaintiff,
FIRST STUDENT, INC., a foreign corporation, Defendant.
David A. Schuck SCHUCK LAW, LLC, Attorney for Plaintiff
Douglas E. Smith LITTLER MENDELSON, P.C., Jennifer N. Warberg LeiLani J. Hart LITTLER MENDELSON, P.C. Attorneys for Defendant
MARCO A. HERNÁNDEZ United States District Judge
Plaintiff Larry Hurst filed a lawsuit in Multnomah County Circuit Court seeking to certify a class action to recover unpaid minimum wages, civil penalty wages, and interest against Defendant First Student. First Student removed the case to federal court on January 5, 2015. Currently before the Court is Hurst’s motion to remand the case back to state court.
Because First Student did not receive an amended pleading, motion, order, or other paper from which it could have ascertained removability until December 9, 2014, the Court finds its notice of removal on January 5, 2015 was timely. Hurst’s motion to remand is denied.
Hurst, a former First Student employee, filed a Class Action Complaint in Multnomah County Circuit Court on April 29, 2013, alleging First Student violated Oregon’s minimum wage laws by requiring current and former employees attend mandatory training and orientation and not paying them for their time. Defendant’s Notice of Removal of Action (“Def. Notice”) Attachment A, at 2–3. Hurst pled one claim for relief seeking unpaid minimum wages, penalties, attorney's fees, and costs. Id. at 9–12. In the Complaint, Hurst stated “[t]he aggregate total of the claims pled herein do not exceed five million dollars.” Id. at 4.
Hurst filed a motion for class action certification, and Judge Leslie Roberts of the Multnomah County Circuit Court granted it. Id. at 110–11, 343–47. The certification did not include any specific findings or conclusions regarding the size of the class or the potential value of the class members’ claims. On July 21, 2014, Hurst sent First Student a proposed class action notice. Schuck Declaration (“Decl.”) Ex. 2. The proposed notice included the following language:
The damages [Hurst] seeks for each class member is as follows: 1. Unpaid minimum wages class: all unpaid minimum wages, plus a minimum wage civil penalty. The minimum wage civil penalty is calculated as follows: (hourly rate * 8 hours * 30 days). For example if the class member attended when minimum wage was $8.50 per hour the penalty would be $2, 040. ($8.50 * 8 * 30 = $2, 040) (the minimum wage civil penalty is only available for those class members who attended orientation on or after March 30, 2010[)]; Schuck Decl. Ex. 2.
First Student objected to the proposed notice, arguing its language was “designed to create the misleading impression that class members can expect to receive a specific dollar amount if they remain in the class.” Schuck Decl. Ex. 3. In response, Judge Roberts ordered the notice must include a disclaimer that said “[t]he example given is merely an illustration of the claimed damages, ” and “[n]o class member can be assured a recovery or any specific amount of recovery.” Schuck Decl. Ex. 4. Judge Roberts also ordered the disclaimer explain that “[a]n award, if any, to a specific class member will depend on the resolution of the issues in the case, and on the particular facts regarding that class member.” Id.
The parties then agreed to attend a settlement mediation conference on November 4, 2014. Defendant’s Opposition to Plaintiff’s Motion (“Def. Opp.”), at 5. In preparation for mediation, First Student sent Hurst’s counsel an email in October, 2014, with an estimate of the total number of potential class members. Schuck Decl. Ex. 5. The settlement conference was not successful. Def. Opp. at 6.
A few weeks later, First Student made a request for admission asking if Hurst was “seeking to recover more than $5, 000, 000.00 in this action (exclusive of interests and costs) on behalf of yourself and the members of the class certified by the Court.” Def. Notice, Attachment B at 6–8. Hurst answered affirmatively on December 9, 2014. Id.
First Student removed the action to federal court on January 5, 2015, asserting the case satisfied the amount-in-controversy and diversity jurisdiction requirements under the Class Action Fairness Act (“CAFA”). Def. ...