may peace accord arthur rooney on behalf of appellant q a corporation the only issue in this case is whether the defendant met its burden of proof with respect to the amount of controversy to remove a punitive wage and hour class action to federal court under the class action fairness act at no point has plaintiff in this case denied that the complaint places more than five million in controversy nor has plaintiff ever offered any evidence to rebut any of it provided no evidence with its notice of remove all that it based it solely on assumptions that argument squarely rejected by the supreme court in dar cherokee and in this case in this court in a bar a cross and other cases  second the plaintiff argues that q it is not permitted to use assumptions or any sort of chain of reasoning in order to come up with the damages calculations to provide the amount of controversy again that argument's been rejected by the supreme court and by this court repeatedly be once the notice once the motion to notice of removal wa challenged on a motion to remain q it provided a declaration from its human resources officer that provided the number of putative class members the average hourly rates it indicated these were all full time employees who work average of nine hours plus a day there were five dollars to six dollars days a week they made an average of thirty eight dollars an hour that decoration also provided a specific number of work weeks that issued work by these potential class members during the limitations claim the respray claim the waiting time penalty claim and the overtime claim and with those we we got to thirty seven million on four of the seven claims and that doesn't that does not account attorneys fees which the plaintiffs are seeking in this case and again all we needed to get to was five million at stake before the district court start with the i can't remember which claim this is but it is that what's the difference between the of the waiting time claim and the overtime claim so essentially if you're if employee in california is denied anything whether it's a rest break a meal break one minute of off the cock work whether it's straight time or overtime then their last paid when they leave the companies employment they have been paid for everything whether it's one dollar or a one million dollars so if they haven't paid for everything again even if it's one cent they're entitled to waiting time penalties for thirty days and those waiting time penalties are thirty days of your average daily pay for thirty consecutive days and so that playing gets you to eight the individuals here may rd over thirty eight dollars an hour they work over nine dollars they work over nine hours a day if you do that by thirty you get to seventeen or eighteen million on  math on that one that's the one in which they say that defendants maintain a policy in which employees are required to work off the clock whereby plaintiffs in the class are required to wait in line between five to ten minutes in order to clock in to work each day in a minutes each day they're waiting to clock in and clock out and they're working five to six days plaintiff admits in the complaint he works five to six days a week we have a declaration everybody is full time and they work nine hours plus a day so anything their working is overtime any off the clock work will be overtime so under plaintiff's allegation which we deny it but under plaintiff's allegation they are are working off the clock a minimum rather waiting to clock in and out each day their words thirty minutes twenty five to thirty minutes a day if you do simple math that's two and a half hours roughly a week if you take that that's two and a half hours of overtime a week that also triggers waiting time penalties because you weren't paid for that over time each week that also triggers in accurate wage statements because your pay stub doesn't have those hours the pay or the hours recorded on those so you're going to get to rid of claims you're going to get waiting time penalties for not being paid for waiting in line you're not to you're going to get penalties for your wage statement being inaccurate each paystub this an accurate they're paid weekly not by weekly so each and every week when they get that pay stub they get a penalty for that we didn't even include that that number alone would be eight million dollars we didn't include it because we up to thirty eight million and so at the end of this is a if you look at the cases where remain and where motions to remain have been denied if you take a look at them you often dealing with eight hundred dollars people nine hundred dollars people who make ten dollars an hour forty thousand work weeks motions to remain and deny the kid the case easily satisfies the five million dollars a controversy here we're talking about much greater numbers we're talking about over two thousand five hundred dollars people as of february that number is obviously grown we're talking about over thirty eight dollars an hour people who all work triggering overtime each day because they're working nine hours plus each day and so these if you compare this case to other cases where motions to remain have been denied our numbers are actually much greater on every front there was actually a recent case in the center distance of california that came out at the end of october we cited cited in our brief andrzej v beacon sales there what's interesting there is the same claims and it's it's almost exactly half the numbers there's nine hundred and thirty nine people there we have to over two thousand five hundred dollars people there's fifty thousand dollars work weeks there we have about one hundred thousand they make seventeen dollars an hour there they make thirty eight dollars here we're about dubray it seems to me the district with a forty percent violation rate if i mean there's no evidence to suggest that that's right it seems to me that's what their argument is that's what if there is anything the district i answer that i agree with i do that well there has to be so you have to make some reasonable assumption and i guess the reasonable the reasonability of the assumption is based on what it would be based on the complaint the complaint alleges think that the complaint doesn't say forty percent the complaint would say if i didn't say and you came up with what well the complaint you don't know what it says because it's it could be a one hundred and yet it could be not because they're trying to get out it come into federal court how did you come up with forty percent that's what they're saying give us a little evidence to come up with this forty percent violation rate well so we had the our no to remove was actually very conservative the plaintiff it was the removal is not what we have in front of us anyway i agree and so with respect to the the the various claims the overtime claim we base it off of these twenty five to thirty minutes each day which is their own planets time the minutes are fine five to ten minutes every day wait to get in twenty minutes every day wait to come out but then you come up with a forty percent violation rate well the reason i ask you to focus on perk of sixteen is that i don't think you're relying on any percentage violation rate for that one exactly and if you get that gets you to five million by itself that gets you to five myself it also gets you the waiting time penalty which is eighteen million because that's a derivative claim if we lose the overtime claim based on the twenty five to thirty minutes they also get waiting time penalties which is eighteen million dollars so we're twenty three million dollars there based on paragraph sixteen but as i understand it then the waiting time penalty that you have is a compilation of the unpaid over hours plus the meal and wrist breaks hours but none of them ever having been paid so that's how we come up with the waiting time penalty no your honor the waiting time penalty is basically if you're owed anything whether it's a minute or whether it's one rest period or a one million rest periods you get thirty days pay after you leave your employment so we're basing that off of if we did if they waited in line twenty five to thirty minutes to clock out as they allege and paragraph sixteen even if they got every bill break even if they got every rest break they still get a waiting time penalties which is eighteen million dollars i understand but what so you got seven thousand nine hundred and five employees that left the employment right that's why you  violation and then the other violations just those no other failure to pay no other claim that would be failure by just for a month paid overtime and meal and rest breaks if those individuals had any unpaid straight time any unpaid minimum wages and you know what he alleges that they do in the complaint they allege minimum wage and straight time as well we didn't include it because we argue we easily succeeded the five million dollars threshold but they do include a claim for minimum wages they include a claim for straight time wages they include a claim for overtime they also include a claim for double time we based off just on over time which everybody would get if they're working an average of nine hours a day they would at least get time and a half thank you for enduring the heat with everyone else here your honour's i appreciate that it was warm in here to here too and the privilege of speaking before this panel appreciate that h got levy and on behalf of plaintiff when you start with paragraph sixteen sure but just walk me through the math as to why that the allegations they're all on their own totally apart from any estimated percentage of violations and all that why doesn't that add up to five million dollars her f sixteen dovetails and one of the major points that i wanted to make during my comments today and that goes to the distinction between what the defendant did show versus what the defendant says it could show and i believe that this panel should be careful about i'm actually asking you to assume that you are going to be able to prove what you've alleged in paragraph sixteen and in light of the information we have from the declaration i i do the math i'm not very good at math but i do the math and that gets you over five million dollars before you can get and into any penalties or anything just based on the overtime itself so i'm asking you all because later as i'm prepared to rule against you on the basis that this alone tell me why i shouldn't do that just walk me through the math why is why doesn't that let me tell you why their is wrong and why looking at one of the more recent decisions of the th circuit versus mariette case which got some attention after the decision was issued by the district court and this case  actually restricts what they've done the defendants allowed to make some reasonable assumptions our position isn't that they can make no assumptions but they have to be reasonable  allegation in light of the allegations now when you when you look at what's being described people have to wait in line in order to clock out and then they are to clock in and then they have to wait a longer period of time to clock out now there's an inelegant turn of phrase in this writing but if we use common sense the person waiting in line to clock out at the end of the day is on the clock meaning they are being paid to stand there to get to the time clock to clock out so the rational interpretation of waiting in line for twenty minutes to clock out doesn't trigger any sort of unpaid way job legation only time that you contend is under the employer's control waiting to clock in the nd reasonable interpretation you would have to make regarding an allegation of a line that could last up to five to ten minutes to clear to clock in is that someone is going to be at the front of that line and someone else is going to be at the back of that line and the person is at the front of that line walks up and whether it's a time sheet or a thumb stamp or a punch card they effectively wait no time based on the random arrival of different individuals in the line and the person at the back of the line if the allegation were proven true can just read to you what it says because the what you're saying here doesn't line up in my mind at all you say defendants maintain a policy in which employees are required to work off the clock right not on the clock because you said off the just right whereby plaintiff in the class are required to wait in line between five to ten minutes in order to clock in to work each day and approximately twenty minutes in order to clock out of work each day all uncompensated i don't know how else you read that other than to say that you are charging them with feeling to pay them for that amount of time for each employee for each day now you might want to try to spin it differently maybe you wish you were drafted differently but they're entitled to take you at your word here and so again i'm asking you in light of what you've actually said here not the spin you try to offer today walk me through the math that doesn't get you to five million dollars on the basis of that alone i would have to concede that if the position of the court  is it's going to construe the allegation that is twenty five to thirty minutes for every person for every single day unpaid the no i can't show you what i sense some different reading that you're prepared to offer us i just i've explained what i think is actually rational interpretation of that i certainly wasn't the author and wish that i could get my hands on the author but seeing as how i replaced the author you know the that opportunity eluded me but what i'm pointing out is that the courts recognize that you look at the allegations and make rational construction of them and to meet even poorly or or eroni asli worded allegations when you apply logic to them have to be read in a common sense way and if a person is allege to be standing in line to clock out then the inference from that part of the allegation is that they're still on the clock and so they don't want to that's not what it  me the two those two provisions in there are actually irreconcilable so then you have an allegation that has an internally inconsistent error in it a person is waiting in line on the clock to clock out because that's the inference of being on the clock and then it says all uncompensated and to me those two provisions are internally inconsistent and so what the defendant as is then doing is it has the opportunity to pick the one that it prefers to do the calculation in a pair of clauses that to me don't add up or making a logical sense makes it very difficult when the standard review here is that we have to look at what's in the complaint and whether this is a reasonable basis for what's alleged we can say well the plaintiff in the complaint didn't do a good job and we wish we could find the guy cause he's a stoop we can't do that we have to look at what's in the complaint that's why the question is important and then if we use the forty percent there really violation rate the really not saying it happens with everybody you're saying it only happens forty percent of the time no and no why and i guess i'm trying to figure out if it's all off the clock how they would have ever been able to do anything to make it any less than forty or more than forty and as i understand their argument it is well others in other cases have assumed this kind of rate and they've been told that it was ok so that's what we're using we're not trying to get too out of it we're not trying to get it too high in order to get our complaint we're just trying to use the average that used in all these cases in california so then if you use that forty percent you're still of eleven million and i certainly wouldn't if being candid of content that i thought i had an excellent opportunity to hold the district court's order without being reversed when coming before this alleged here so that's what was a little bit worrisome but i'm trying to even to help you and that's why i'm asking you these questions no i mean the the issue i think that secondarily gets invoked in the there's two standards that occur and there are different standards of proof at the notice of removal stage start cherokee from the supreme court has made it clear that you can use a reasonably constructive assertion of the amount controversy and if no one challenges that and the courts of said if night of the court or the plaintiff challenge that then that reasonable assertion of the amount of controversy if it's more than five million dollars stands right one is challenge by a plaintiff or the court then you have a different standard in that that standard is preponderance of the evidence well but preponderance of the evidence if they're off the clock and no way to gauge it which is what is alleged so you make a reasonable assumption of the violation rate it seems still that on the motion to remain and the amount you put before the court should be sustained as they have in these other cases that's the worry that i have i mean there are you're going to say well they need more evidence i'm going to say were  they got it if they're all off the clock there's no way to get it well i got to make an assumption then and they made an assumption of forty percent but i'm not sure of the forty percent is exactly where they went because when i do my math i would have said the claimed assumption rate is well maybe sixty six percent on one and eighty percent on another in trying to go up with the figures because i dread to get it down to the number one but i'm still saying your argument is about us as soon great nothing to back it up but they used only thing they could given what the evidence is that there is to put in i think that is actually inaccurate statement there the i'm a lawyer evidence would they have if it's off the record well they have access to all the current employees well you do and they gave you the list of all the current employees there why it isn't as if there weren't any evidence here why decoration gave all the employment numbers well the white declaration gave some what i would call demographics of the class an average pay rate a number of people but what they have access to are actual employees to say do you have to wait to clock in and clock out and if so how long i mean they could put in actual affirmative evidence say well we don't agree it's five to ten minutes here's ten people on work crews that say they estimate they waited two minutes to clock in and do math with those numbers with employees that they act or they're going to get that evidence from their employee base they said that they or can we make that decision now i think honestly this court could probably make the decision because i believe in arias the flaw that occurred in arias was that the district court su and i believe that the dart cherokee standard would have required the district court if it was the challenging entity as opposed to the plaintiff did issue something in the briefing and said something akin to in order to show cause and say i have concerns as the court about your numbers and i would like the parties to give me evidence and then i will decide on preponderance of the evidence standard at the phase two analysis if i'm remanded and i think that's the flaw that occurred and i you and i agree the district court decision is the even based on what's in the complaint and so therefore it seems to me that this decision can be affirmed and so i'm trying to put together what do i do decision than perhaps it would be appropriate to remain and say make sure you're doing the two stage analysis and applying the allegations of the complaint but in the event that the panel were to conclude that ar to determining the outcome of this question then i think it could make the decision itself so it would turn on whether the panel viewed something in arias is either being clarifying of calf removal standards in the  burden to show that the amount of controversy exceeds five million dollars that's all we need to do is show what's at stake what could be at stake with respect to what we had in our opposition to the motion to remain and we base the over time on the actual allegations in paragraph sixteen is far as the respray claim we use the ten percent violation rate there as far as the middle period claim leaves a twenty percent violation rate there and the important thing again is any of those even a one percent violation rate even a one minute wait time triggers the derivative claims and the waiting time penalty which they have not challenged is eighteen million you also have the wage to inaccurate statement claims as well the derivative statement with respect to what this court should do or what it could do so this gorgeous reaffirm three principles that are already in place by a bar by lacrosse by dark cherokee by other cases with respect to what the court can do with now we think this case is similar to look across the night allegations in the complaint based on the number of employees there is sufficient evidence to to find that five million was a stake and it remained in the case to the district court with instructions that mount controversy