FOR PUBLICA TION UNITED STATES COURT OF APPEALS FOR THE NI

NTH CIRCUIT
WILLENE LOWDERMILK, Plaintiff - Appellee,

v. UNITED STATES BANK NATIONAL ASSOC., Def

endant - A

ppellant. No. 06-36 085

D.C. No. CV-06-005 92-ALH

OPINION

Appeal from the United States D istrict Court for the D istrict of

Oregon Ancer L . Hagge rty, Distric t Judge, P residing Argued a nd Submitted Febr

uary 8 , 2007 Portland, Oregon Filed Before: THOMP SON, KLEI NFEL D, and B YBEE , Circui t Judges. Opinion by Judge Bybee BYBEE, Circuit Judge: In this cas e we are called upon to resolve a questi on of first impr ession: Under the Cla ss Action F airness Act o f 2005 (“CAFA”), Pub. L. 10 9-2, 119 St at. 4 (2005), w hen the pla intiff has pled damages less than the j urisdiction al am ount, 

# FILED

MA R 02 2007 CATHY A. CA

TTERSON, CLERK U.S. COURT OF A PPEALS2

what mus t the d efend ant p rove i n ord er to r emove th e case t o fede ral co urt? We

reserve d this questio n in Abrego A brego v. T he Dow Ch emical C

o. , 443 F.3 d 676, 683 n.8 (9th Cir. 2006) (per curiam). We answer that the party seeking removal must pr ove with “ legal cer

tainty ” that the amount

in controve rsy is satisfie d, notwithsta

nding the pra

yer f or relie f in the com

plaint. W e conclude

that the defendant in this case

failed to meet

this burden, and we a ffirm the judgm

ent of the dist rict court

. I Willene Lowder milk ( “Pla

intiff”) filed a c omplaint in Ore gon state c ourt on March 28, 2006, on beh alf of he rself and a class of

emplo yees “

who worke d for U.S. Bank as hour

ly em ployee s in the past

six ye ars.” P laintiff sought relie f for two alleged violations of Oregon law. First, she claim ed U.S. Bank (“ Defendant”) denied her

full com pensation f

or the hour s she worked because Defenda nt had a policy of rounding actual hours worked dow n to the nea

rest tenth of an hour a

nd that this re sulted in em

ployee s not being c ompens ated for one to five minute s of the time they w orked per day. She sought unpaid wages plus penalty wages under O R . R EV . S TAT . § 653.055 . Second , Plainti ff alleg ed that De fendant f ailed to promptly pay

Plaintiff her wages upon termination, for w hich she sought damages and penalty wages under O R . R EV . S TAT . § 652.150 . In addi tion to dam ages and3

penalty wages, Plaintiff sought costs, attorney s’ fees, and interest, a sum Plaintiff alleged in her pray er for relief w as “in total, le ss than five milli on dollars. ” In the jurisdic tion sectio n of her c omplaint, Plai ntiff fur ther alle ged that “ [t]he a

ggregate total of the claims pled herein do not exceed five million dollars.” On April 26, 2006, Defendant filed a Notice of Rem oval to federal court under CAFA, see 28 U.S.C. §§ 1332, 1441, 1453, and argued that the actual amount in controversy far e xceeded CAFA’s jurisdictional am ount. Plaintiff op po sed remo val and con ti nu ed t o ar gu e th at “t he a gg reg ate to tal of t he c lai ms [for unpaid and late

wages] pled [in he r com

plaint] does not exc eed five m illion dollars” a nd, therefo re, did not meet CAFA’s requirements for f ederal jurisd iction. See 28 U.S.C. § 1332 (d). On August 16, 2006, t

he distric t court hel d that it w as bound by the complaint as to the amount in controversy “unless plaintiff’s pray er is determined to have been made in bad faith.” It held that Def endant had not proved that Plaintiff ’s alle gation wa s made

in bad fait

h nor had it m

et its burden of establishing jurisdiction under CAFA. Consequently, the district court remanded1 Defendant fi led its pe tition fo r permission t o appeal Aug ust 23, 20 06.

After t he court gr

anted an e xtension of t

ime, Plaintif

f filed he r response

on Septem ber 11, 200 6.
2 If a fina l judgm ent is not iss ued befor e the statu tory de adline, including any ex tension unde r 28 U.S .C. § 145 3(c)(3) (B), “ the appea l shall be denied.” 28 U.S.C. § 1453(c) (4). 4 the case to state cou

rt. Pla intiff fi led a petit

ion for per

missio n to appeal , 1 which we granted o n December 22, 200 6. Under CA

FA, w e have 60 da

ys fr om the timewe acc ept the app eal to “complete all action on such ap peal, inclu ding rend ering judg ment,” 28 U.S.C. § 1453(c)(2 ); Bush v. Cheaptickets, Inc. , 425 F.3d 683, 685-86 (9th Cir. 2005), unless (1) all parti es agree to an exten sion or (2) the extens ion “is for good ca use shown and in the interests of justice.” 28 U.S.C. § 1453(c)(3). In the latter case, we may obta in an exten sion of ten days on ly. At ora l argu ment, Defe ndan t’s counsel agreed to an extension. Plaintiff’s counsel, however, refused consent even though she had

previously

requeste d and rece ived her ow n extension o f tim e and a stay was in place in the state court action. On Fe bruary 20, 2007, we issued an order granting the court, for good cause shown and in the interests of justice, a ten day ex tension to, and includin g, Marc h 2, 2007. 23 We review issues pertainin g to removal de n ovo. Harris v. Bankers Life &

Cas. Co. , 425 F.3 d 689, 692 (9 th Cir. 20 05); Harris v. Providen t Life & Acciden t Ins. Co. , 26 F.3d 930 , 932 (9th Cir. 1994). 5 II A civil a ction in sta

te court m

ay be remo ved to federal distr ict court i f the district court had “original jurisdiction” over the matter . 28 U.S.C. § 1441(a). 3 As amended by CA

FA, 28 U.S.C. § 1332(d) vests district courts with “original jurisdic tion of any

civil action in whic h, inter alia, the amoun t in controv ersy exceeds t he sum or value of

$5,000,000 , exclusi ve of inter est and cos ts,” and in which theaggregat e numb er of prop osed plainti ffs is 100 or greater , and any member of the plainti ff class is a c itizen of a s tate differe nt from any defendan t. 28 U.S. C. § 1332(d

). We recently affirm ed that “ under CA FA the bur

den of establishing removal jurisdiction remains, a s before, on the proponent of federal jurisdicti on.” Abrego A brego v. T he Dow Ch emical C

o. , 443 F.3 d 676, 685 (9 th Cir. 2006) (per cur

iam) ; see also Serrano v. 180 Connect, Inc. , — F.3d —, 2007 WL 601984 (9th Cir. Feb. 22, 2007) (holding that the proponent of federal jurisdicti on bears th e burden o f proving jurisdicti on). Accord M organ v. G

ay , 471 F.3d 469, 472-73 (3d C ir. 2006) (holding tha t under CA

FA, the party seeking removal bears the burden of establishing the requisite amount in controversy) ; Miedem a v. May tag Corp ., 450 F.3d 1322, 1328-29 (11th Cir. 2006) (holding that6

CAFA do es not alte r the tra ditional ru le that the proponent of

federal jurisdic tion bears the burden of proving the amount in controversy); Brill v. Countrywid e Home Loans, Inc. , 427 F.3 d 446, 448 (7 th Cir. 20 05) (finding that “ none [of CAFA’s language] is even ar guably relevant” to the question of burden shifting).

A The questions of minimal diversity and class numerosity are not contested on ap peal, and we are sat isfie d tha t the e vide nce su ppor ts th e dis trict court ’s decision. With r espect to m inimal diversity , Defe

ndant is a c itizen of O hio because it s main office is l ocated in that stat e, Wachov ia Bank, N.A. v. Schm idt , 126 S. Ct. 941, 944-45 (2006), a nd at least

one member

of the cla ss is a citi zen of Oregon. As to numerosity , Plainti ff asser ts in her c omplaint that the class “exc eeds 30 per sons” but adm its that “ [t]his n

umber may increase , dependin g upon the turnover rate for employees” of U.S. Bank. As w e discuss below, there are poten tially thousands of

form er em

ployee s of U.S . Bank tha t are eli gible clas s members. We co nclu de, as did t he di stric t cou rt, th at the suit satis fies C AFA’s req uir ement s of

mini mal di ver sit y and numer osi ty.

B7

Whether the amount in contro versy is met here is a more di fficult qu estion. In her com

plaint, P laintiff claim ed only damages “i

n total, le ss than five

milli on dollars,” a lthoug h she also asked for at torneys’ fees, which Oregon law aut horizes. See O R . R EV . S TAT . §§ 65 2.2 00 (2) , 65 3.0 55 (4) . De fen dan t h as p rov id ed s ome evidence t hat the Plai ntiff’s actua l claims necessa rily exceed $5,0 00,000. Additionally, Defendants argue that we should count potential attorneys’ fees tow ard s th e amou nt i n co ntr ove rsy. Although D efendant bears the burden of p roving that the Plaint iff’s suit meet s the requirements of 28 U. S.C. § 1332(d), w e must consider w

hat level o f proof the D efendant must m eet. In Abrego A brego , we dis cussed thre e different scenario s. First , when th e plaintif f fails to plead a spe cific am ount of dam

ages, the defendant seeking removal “m ust prove by a preponderance of the evidence that the am ount in contr

oversy requirem ent has been met. ” 443 F.3d at 683 (cit

ing Gaus v. Miles, Inc. , 980 F.2 d 564, 566 (9 th Cir. 19 92)). S econd, if the com plaint alleges da mage s in excess of the federal amount-in-controversy requirement, then the am ount-in-co ntroversy requirem ent is pres umptive ly satisfied unle ss “it appears t o a ‘leg al certainty’ that the c laim is actuall y for less than th e jurisdictional minimum .” Id. at 683 n.8 ( citing Sanchez v. Monument al Life In s. Co. , 102 F.3d 398, 402 (9th Cir. 1996)). Third, if the com plaint alleges damages4 In Abrego A brego , for ex ample , the com plaint aske d only f

or “pr e- and post-judgm

ent intere st, attor

ney’ s fees and

costs, an d relief

in the for m of s pecial, general, punitive, and exem plary damages due and a

wardabl e pursuant to the actions o f Defendants .” 443 F.3d at 688 (int ernal quo tation marks o mitted). Becausedamages were

not quantif

ied, we looked beyond the com

plaint to “consider facts in the rem oval petition.” Id . at 690 (q uoting Singer , 116 F.3d at

(continu ed...) 8 less than the j urisdiction al am ount, “ ‘m ore diffi cult proble ms are present ed,’” for which we foun d “no bindin g preceden t in this circuit” an d as to whic h “we reach[ed] no resolution.” Id. (quoting 14C C HARLES A LAN W RIGHT , A RTHUR R. M ILL ER & E DWARD H. C OOPER , F EDERA L P RACTICE & P ROCEDURE § 3725, at 8 4 (1998 & Su pp. 2006 )). Defendant argues that this case falls within the first scenario described above, a nd that bec ause Plaintiff failed to spec ify he r dam ages, D efendant must prove only by a preponderance of the evidence that the dam ages claimed exceed $5,000,000 . Our st arting point is “w hether it i s ‘fac ially apparent’ from the complaint that the jurisdictional amount is in controversy .” Abrego A brego , 443 F.3d at 69 0 (quoting Singer v. State Farm Mut. A uto. Ins. Co. , 116 F.3 d 373, 377 (9th Cir. 1997)). We have reserve d the prepon deranceof evidenc e standar d for situations where a plaintiff “seeks no specific am ount in damages,” Abrego Abrego , 443 F.3 d at 688 (fo otnote om itted), and a cour

t is force d to look beyond the com plaint to de termine wheth er the suit mee ts the jur

isdictional

requirem ents. 44 (... continued)

377). 9 Here, we need not look beyond the four corners o f the com

plaint to de termine whether the CAF A juris dictional a mount i s met , as Plaintiff avers dam ages (“ less than five mill ion doll ars”) that d o not reach the thresh old for fed eral jurisdi ction. We hold t hat Plaint iff did ple ad a “ specific amoun t in dam ages,” a

nd theref ore, the prepond erance of the evidence s tandard d oes not ap ply. We now turn to the question

we reserved in Abrego A brego : What proof must the defendant adduce to contradict the plaintiff’s claim that her damages are less t han th e jur

isdic tiona l am ount? There a re two pr inciples th at inform

our judgm ent here. First, a s federal courts, we are courts of l imite d jurisdic tion and we will strict ly construe ou r jurisdict ion. Kokkonen v . Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (19 94); 13 W RIGHT , M ILL ER & C OOPER , at § 3522. Second, it is well established that the plaintiff is “m aster of her complaint” and can plead to av oid federal jurisdicti on. See, e. g. , Holmes G roup, Inc. v. Vorna do Air Circulation Sys., Inc. , 535 U. S. 826, 8 31 (2002); Caterpil lar Inc. v. Willi ams , 482 U.S. 386, 398-99 (1987); Valles v. Ivy Hil l Corp. , 410 F.3d 1071, 1075 (9th Cir. 2005). Accordingly, subject to a “ good faith” requirement in pleading, a plaintiff may sue for le ss than the a

mount s he ma

y be e ntitled to if

she wishe s to avoid5 The irony of the par

ties’ c laims vis-a-vis the am ount in contr oversy is not lost on us: The Plainti ff herehas diminished or di sparaged the am ount she is seeking, wh ile the Defen dant seek s to augment o r aggrandi ze that amount. A plaintiff may , of cour se, stipul ate to dam ages in ord er to avoid

federal jurisdic tion, or the juris diction of particu lar federal co urts. See United States v. Hohri , 482 U.S. 64, 66 & n.1 (1987) (dam ages in a class action suit limited to $10,000 per claim to get into federal district court and avoid claim s court). In the context of a putative class action, each side has a profound disincentive to avoid such stipulations . The P laintiff may underm ine her ca se for se rving as cl ass represe ntative by

pleading a

lesser a mount in controver sy. B y the s ame token, the Defenda nt, who is seeking re moval , surely would not be

willing to stipulate t

hat, if any damages are receive d at all, the damages must exceed $ 5,000,00 0. 10 federal jurisdic tion and re main i n state cou

rt. 5 St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U. S. 283, 2 88-89 (1938) . Whe re the plaintiff has alleged her facts and pled her

damages, and t

here is no e vidence of

bad faith, the defen dant m ust

no t o nl y con tra di ct t he p lai nt iff ’s o wn a ss ess ment of d amag es, bu t mus t o ver come the presu mption again st federal jur isdictio n. See id. at 290. W e think that the fami liar “ legal cer

tainty ” standar

d best capt

ures the pr

oof the def

endant m ust produce. We are joined in this judg ment b y the T

hird Circ uit, whic h recentl y held in a CAFA case, Morgan v. Fay , that “ [g]ood f aith in this c ontext is en

twined w ith the legal c ertainty

test, so t hat a defendant will

be able to remo ve the cas e to federal court by showing to a

legal ce rtainty

that the a mount in controver sy6 The Seventh Circui t’s dec ision in Brill v. Countrywid e Home Loans is not to the contr

ary. The cour

t observed that “ the rem

oving party ’s burde n is to show not only what the s takes of th e litigatio n could be , bu t al so w hat the y are given the plaintiff’s actual demands.” 427 F.3d at 449. When the complaint “ would justify a judgment excee ding the ju risdictiona

l mini mum ,” the de fendant m ust prove to a “lega l certainty” th at the dam

ages do not m

eet the a mount in controver sy requirement. Id. (citing St Paul Mercury , 303 U. S. 283). The cour t then found that when the plainti ff “

prefers to be in sta

te court” and the com

plaint is “ silent or ambig uous on one or

more of the ingredients nee ded to calculate the a mount in controversy,” then the “removing litigant must show a reasonable probability that the stakes exceed the minimum .” Id. As we read the opinion, the S eventh Cir cuit did not addre ss the question we re served in Abrego A brego : what happens when the plainti ff filed

suit in stat e court an d has clea rly pl ed an am

ount less than the jurisdicti onal amount.

11 exceeds t he statutor

y m inimum .” 471 F. 3d at 474 (in ternal quot ation m arks omitted). 6 By ado pting “ legal cer

tainty ” as the st andard of proof, w e guard the presumption against federal jurisdiction and preserve the plaintiff’s prerogative, subject to the good f

aith requirement, to for

go a potentia

lly la rger re covery

to remain in state c ourt. See St. P aul Mercur

y , 303 U.S. at 288-90. Such a standard also m aintains sy

mm etry in our rule s requirin g legal ce rtainty as the sta ndard of proof; for instance, we alre ady re quire that a defenda

nt seeking reman d for a ca se initially filed in f ederal c ourt m

ust show w ith “l egal cer

tainty ” that the claim

is actually for les s than th e jurisdict ional minimum. Sanchez v. Monument al Life In s. Co. , 102 F.3 d 398, 401-0 2 (9th Cir. 1996). A ccordingly , we hold that wher

e the12

plaintiff has pled an

amoun t in controv ersy less than $5, 000,000, t he party seeking

remo val mu st prove w ith legal c ertainty that CAF A’s j urisdiction al am ount is m et.

C Finally , we m

ust decide whether

or not attor

neys’ fees and costs should b e included with damages to reach CAFA ’s $5,000,000 minim um. In ordinary diversit y cases, “when there is n o direct leg al authori ty for an attorn ey’s fee, a request for a fee cannot be included in . . . the jurisdictional am ount,” but “where an underlying statute authorizes an award of attorneys’ fees, either with m andatory or discre tionary

language, such fees may be include d in the am

ount in controversy.” Galt G/S v. JSS Scand inavia , 142 F.3d 1150, 1155-56 (9th Cir. 1998). W e have hel d that attor neys’ fees were proper

ly incl uded in the a

mount in controve rsy in a class act ion. See Gibso n v. Chry sler Corp. , 261 F.3 d 927, 942-4 3 (9th Cir. 20 01). We must look to Oregon law to determ ine whether attorneys’ fe es are statutoril y autho rized in th is instance . Plaint iff bases her rounding claim on O R . R EV . S TAT . § 6 53 .01 0(1 1) w hi ch d efi nes “wor k t ime” as i ncl ud in g “bo th time worked and time of authorized attendance.” Id . Dam ages for v iolation of

this pro vis ion are s et b y O R . R EV . S TAT . § 653.055 , which a lso authoriz es the cour

t to13

“award rea sonable attorney fees to the prevailing party.” Id . at § 653.05 5(4). Plaintiff ’s late paym ent claim is based on O R . R EV . S TAT . § 652.140, which governs payment of wa

ges owed upon termination of employ ment. Em

ployers who violate this provision are liable for up to 30 days of penalty wages under O R . R EV . S TAT . § 652.150 , and under certain circum stances, must pa y plain tiffs a “reasonable su m for attorney fees” for p revailing in the lit igation . O R . R EV . S TAT . § 652.200(2) . Beca

use the re levant Or

egon statute s provide f

or the pay ment o f attorneys’ fees, we in clude the fees in the a mount in cont roversy. III The “ legal cer

tainty ” standar

d sets a high

bar for t he party seeking re moval , but it i s no t in sur moun tab le. I n th e cas e at h and , Defe nda nt a dva nce s a t heo ry, supported by evidence from its own files, that Plaintiff’s claims ar e worth far more than the $5, 000,000 CA

FA requires for f

ederal j urisdiction . We address e ach of Plaintiff’s cl aims separately. A Defenda nt asserts that Plaintiff’ s claim for late paym ent of wages upon termination is worth m ore than $13,000,000. Under Oregon law, em ployers may be liable f

or penalty

wages if they f ail to tender em

ployee s’ final payc heck by the “end of the first business day after the discharge or termination.” O R . R EV . S TAT .14

§ 652.140(1) . Penalty wages run fr om the date whe n the wage

is owed ( but not paid) until

the date t he em ployer actually pays t he wage; recover

y is ca pped at a maximum of 30 days. O R . R EV . S TAT . § 652.150 . Defendant exam ined com pany records a nd determ

ined that 7, 571 em

ployee s left U. S. Bank’ s empl oym ent during the period specifie d in the com plaint. I t then assum

ed that the

bank wait ed at lea st 30 days after termina

tion to tende r em

ployee s their final pay check, w hich would entitle ea ch plaint iff to the maximum recovery. O R . R EV . S T . § 652.150 (1)(a). Its ult imate calc ula tio n mul tip lie s th e est imate d cl ass siz e (7, 571 ) and numb er of days of late pa ym ent (30) by

Oregon’ s current

minim um wa ge of $7.25 /hour and the typical 8-ho ur work day to yield damages of $13 ,173,540

. Defenda nt provides t

hin support f

or how it a

rrived at these num

bers. Joh n M. Burnsi de, a H

uman R esource e mployee of U. S. Bank, filed a de claratio n asserting that 7,571 employees were term inated in O regon betw een Januar y 1, 2000 and Apr

il 1, 2006. Howeve r, he doe s not specif y how m any of these employees w ere hourly em ployees using the time sheets at issue; only em ployees thus sit uated woul d qualify as cl ass members. The omission i s signif icant. Assuming all other factors are held constant, if the CA FA minim

um of 100 former emplo yees q

ualified a s class membe rs, Plaintiff’ s claim would be w orth only $174,000. Under Defendant’s assum ptions, the class would require 2,874 former15

emplo yees to break the

$5,000,000 statutory

minim um. It is likel

y that some o f these 7,571 former em

ployees would qualify for the class, but is far from clear that 2,874 former employees ou t of 7,751 qualify. Defenda nt’s num bers are weak for other re asons as w ell. De fendant assumes that all class members would be entitled to the maxim um dama ges under Oregon law, but provides no evidence to support this assertion. Plaintiff, however, alleges th at under O regon law , she is ow ed “ up to 30 days ” of penalty wages. Many emplo yees m ay hav e been pai d only a

few day s late and, consequently, would be entitled to fewer day s of penalty wages. Holding all other factors constant, if all 7,571 potential mem bers of the class were paid only one day late, the aggregat e claim

would be w orth only

$439,118. In order to break th e $5,000,000 minim

um, a ll me mber s of the cl ass would ha ve to be pai d on avera ge twelve da ys lat e. We

have no evi dence to support such a supposition. The problem is only compou

nded if De fendant is wrong abou t both the cl ass size a

nd the num ber of la te day s. Again, absent more concrete evidence , it is nea

rly impossible t o estimate with a ny certainty the act ual amount in controve rsy.

B7 In explain ing this assum ption, De fendant m

erely drops a per

plexing footnote sta

ting that the

dollar am

ount of eac h class membe r’s rou nding claim

is $1,740, but

then does not

use this num

ber when makin g its calculation of th e amount in controversy for this claim . We cannot divine why D efendant inserted this footnote . The c alculatio n arriving at $1,740 a

ppears to b e based on t

he assessment of penalty w ages under O R . R EV . S TAT . § 652.150 . If Pl aintiff pr evails on the rounding claim , the cla ss mem bers woul d, indeed, be entitle d to penalty wages. See O R . R EV . S TAT . § 653.055 (1)(b). Yet, if this is true , it is baf

fling why Defenda nt would not i

nclude the penalty

wages al ong with the

$200 it uses in its calculat ion. Absent any evidentiary support or e xplanation, we decl ine to speculate and, for the purposes of this appeal, adopt Defendant’s assumption that each cla ss mem

ber’s r ounding clai m is w orth a total of $200 eve n though this number is wholly unsupported in its brief

ing or the record. 16 Defendant did not raise the issue of Plaintiff’s rounding claim in its Notice of Removal, but in its appell ate brief estim ates that t

he am ount in contr

oversy on this claim is well ov er the $5, 000,000 ju risdictiona

l limi t. It ar

rives at t his conclusi on by assuming th at each class member is owed $200 i n unpaid wages, a number for whic h Defend ant provide s no support. 7 It then as sumes that the c lass consists of 9,300 individuals, which was the number of the class mem bers proposed in a

nother suit pending aga inst U.S . Bank tha t involves a

rounding claim . Finall

y, out of an abunda

nce of ca ution, De fendant m

ultiplies th e $200 by only ha lf of the 9 ,300 alle ged class m embe rs to arr

ive at its c onclusion tha

t the roundin g claim is worth $ 9,300,00 0. This assumption is even more poorly supported than Defendant’s late wages analy sis. De fendant a

rrives at the potenti al class si ze based o n a prelim inary class8 We note that Defen dant makes a seri ous computat ional erro r in its bri ef.

Multiplying 4,650 (h alf of the 9,300 em ployee s) by $2 00 yiel ds $930,000 not $9,300,000

.

9 Often sui ts are m

uch sm aller tha

n a plaintif

f’s cou nsel initia lly thinks and pleads. See, e. g. , Farrar v. Hobby , 506 U. S. 103 (19 92) (plain tiff sought $17,000,000 and was awarded $1); McGrath v. Toys “R” Us, Inc. , 409 F.3 d 513 (2d Cir. 2005) (plaintiffs sought a compensatory aw ard of several hundred thousand dolla

rs and a m

ulti-million dolla

r punitive a

ward, b ut the jur

y only gave each plaintiff $1); Morales v. City of San Rafael , 96 F.3d 359 (9th Cir . 1996)

(continu ed...) 17 list from another case, a class list that had not been vetted or certified. The record contains a letter f

rom D efendant’ s own firm noting that a

cursory examination of the class l ist–upon whi ch Defe ndant bases its claim of 9,300 c lass m embe rs– reveals t hat som e people li sted as cla ss mem bers wer e salari ed em

ployee s or people who did not use th e tim e sheets a t issue in the

rounding cla

im. Excerpt s of depositions included in the record are also of no help as none of the witnesses could recall how many

hourly employ ees their department em ployed. Moreover, even if w e adopted D efendant’ s assertio n about the c lass size, the num bers do not add up. A dopting Def

endant’ s assum

ption that e ach em

ployee is owed $20 0 in unpaid wages, Plaintiff would actually need a class of 25,000 em ployees to break th e ju ris di cti on al mi ni mum. 8 If Def endant, w ho is the only

party with acc ess to its employm ent records cannot more accurately approximate the class size, Plaintiff cannot be e xpected to plead her case wi th any m

ore speci ficity

than she did

. 99 (... continued)

(plaintiff sought between $150,000 and $250,000, but was awarded only $17,500); Valhal Corp. v. Sullivan Assocs, Inc. , 44 F.3d 195 (3d Cir . 1995) (p laintiff sought $2M in damages, but the jury only awarded $1M).

18 In short, Defenda

nt has left us to specul ate as to t

he size of the class, the amount of unpaid w ages owe d due to the r ounding policy , and whe ther or not

mem bers of the

class qual ify f

or penalty

wages; su ch specula

tion does meet the “lega l certainty” st andard. Until the parties a re able t o more

definitive ly asc ertain the potentia

l size of t he class or

the extent

of the dam

ages, w e cannot ba se our jurisdic tion on Def

endant’ s speculat

ion and conj ecture. Even if w e include attorneys’ fees in the calculation, D efendant is no closer to carrying its burden because w e sim

ply hav e no basis f

or estimating the c laims of the indiv idual clas s

mem bers. A ccordingly , we hold that at thi s juncture of the li tigation, Defenda nt has faile d to prove w ith legal c ertainty that the a mount in controver sy m eets CAFA’s jurisdict ional requ irements.

IV We ac knowledgethat stric t construc tion of our j urisdiction create s the potential for manipulation of the jurisdictional rules by plaintiffs “ who may plead for damages below the jurisdictional am ount in state court with the knowledge that19

the claim is actuall y wor th more, but als o with the k nowledge t

hat they may be able to evade federal jurisdiction by virtue of the pleading.” De Aguil ar , 47 F.3d at 1410. CAFA mitigates some of the potential for abuse by eliminating the oneyear removal limitation

. See 28 U.S .C. § 1 45 3(b ) (s tat in g t hat th e on e yea r ti me limit for rem oval set fo rth in § 1446(

b) does not a

pply). Defenda

nt points out, accordingly, that even though a CAFA-qualified case m ay be removed at a later date, critical decisions related to class certification, discovery, and trial procedures may be ma de in state

court bef ore the ca se can be r

emove d. Such ga

mesm anship is possible under our rules, though “[s]uch manipulation is surely characterized as bad faith.” De Aguil

ar , 47 F.3d

at 1410. A lthough judi cial estoppel ma y be available should a plainti ff proceed in bad faith, see Morgan , 471 F.3 d at 477 n.9, there are cases—

as the insta

nt case pr oves—in wh ich the plaintiffs c annot anticipat e from

the outset t

he value of

their ca se. They are

not obligate d to overstate their dam

ages to sat

isfy t he defenda

nt’s interest in a f

ederal f orum, but may plead conservat ively to secur e a state foru m. Plaintiff ’s counse l repeate dly sta

ted at oral argum ent that the sum tot al of dama ges plainti ffs are

currentl y seek ing– including

attorneys’ fees and costs–does not excee d $5,000,00 0. Plain tiff m ight reaso nably h ave claim ed mor e, but abs ent evid ence o f bad f

aith , we are o blig ed to hono r that repres entat ion. C AFA’s20

removal provision and the “legal certa inty” rule strike a balance, leaving plaintiff

as ma ster of he r case, but giving def endants an option of a f

ederal f orum a t the point whe n they can prov e its jurisd iction. V We affirm

the judgment of the district court and remand for further proceedin gs not in consist ent with th is opini on. AFFIRMED

.21 COUNSEL Timothy R. Volpert, Davis Wright Tremane LLP, Portlan d, OR, for the pet itioners

. Jacqueline

L. Koc h, Koch &

Deering , Portla

nd, OR, for the respondents.