UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-1063

NICHOLAS BARTNIKOWSKI, Individually and on behalf of all 

persons similarly situated; AIMEE MOORE, Individually and on 

behalf of all persons similarly situated; AMBER WILCOX, 

Individually and on behalf of all persons similarly 

situated, 

 Plaintiffs – Appellees, 

 v. 

NVR, INCORPORATED, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Middle 

District of North Carolina, at Durham. James A. Beaty, Jr., 

Chief District Judge. (1:07-cv-00768-JAB-PTS) 

Argued: October 31, 2008 Decided: January 16, 2009 

Before WILKINSON and GREGORY, Circuit Judges, and Martin K. 

REIDINGER, United States District Judge for the Western District 

of North Carolina, sitting by designation. 

Affirmed by unpublished opinion. Judge Gregory wrote the 

opinion, in which Judge Reidinger joined. Judge Wilkinson wrote 

a dissenting opinion. 

ARGUED: Barry J. Miller, SEYFARTH & SHAW, L.L.P., Boston, 

Massachusetts, for Appellant. Annette M. Gifford, DOLIN, THOMAS 

& SOLOMON, L.L.P., Rochester, New York, for Appellees. ON 

BRIEF: Lorie E. Almon, Devjani Mishra, SEYFARTH & SHAW, L.L.P., 
New York, New York; Richard L. Alfred, SEYFARTH & SHAW, L.L.P., 

Boston, Massachusetts; Keith M. Weddington, Joshua W. Dixon, 

PARKER POE ADAMS & BERNSTEIN, L.L.P., Charlotte, North Carolina, 

for Appellant. J. Nelson Thomas, Cristina A. Bahr, DOLIN, 

THOMAS & SOLOMON, L.L.P., Rochester, New York; Caitlyn Fulghum, 

THE FULGHUM LAW FIRM, P.L.L.C., Durham, North Carolina, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit. 

2 
GREGORY, Circuit Judge: 

 In this case, we are asked to determine whether NVR, Inc. 

(“NVR”) -- the defendant below -- has satisfied the amount-incontroversy requirement for federal removal jurisdiction under 

the Class Action Fairness Act (“CAFA”), 28 U.S.C.A. § 1332(d)(2) 

(West 2008). The district court, finding that NVR’s estimates 

of the amount in controversy were too speculative to support 

removal jurisdiction, granted Appellees’ motion for remand. 

Because we agree with the district court that NVR’s estimates 

rely on a wholly unsupported assumption that members of the 

plaintiff class will claim to have worked an average of five 

hours of overtime per week, we affirm the decision to remand to 

state court. 

I. 

This litigation began in federal court in the Western 

District of New York, in the case of Patrick Tracy v. NVR, Inc.

(Case No. 04-CV-06541 DGL). NVR is in the business of 

constructing and selling new homes. Tracy, who worked as a 

Sales Marketing Representative (“SMR”)1 for NVR, filed a federal 

 1

 SMRs handle lot sales in NVR’s newly developed 

communities. SMRs work from a model home in the community, 

where they meet with buyers and help them select a design and 

finish for their new home. NVR then constructs the home for the 

buyer. 

3 
Fair Labor and Standards Act (“FLSA”) claim against the company, 

on behalf of a nationwide class of SMRs, for its failure to 

provide SMRs with overtime compensation. At NVR’s request, the 

Tracy district court dismissed the various state law claims 

brought by class members, declining to exercise its supplemental 

jurisdiction over them. To preserve these claims, various Tracy

class members then initiated state law actions in their 

respective state courts.2

 On September 21, 2007, Plaintiffs-Appellees Nicholas 

Bartnikowski, Aimee Moore, and Amber Wilcox (“Plaintiffs”) filed 

an amended complaint against NVR in the Superior Court of Durham 

County, North Carolina. Plaintiffs, present and former North 

Carolina-based SMRs, claimed that NVR had wrongfully denied them 

overtime compensation for the hours they worked in excess of 

forty hours per week. In their complaint, Plaintiffs, 

individually and on behalf of a class of all current and former 

 2

 In addition to the instant action, state law actions have 

also been initiated in Ohio (Geers, et al. v. NVR, Inc., Court 

of Common Pleas, Hamilton County, Docket No. 07-6350 (filed on 

July 18, 2007)), New Jersey (Gebhardt, et al. v. NVR, Inc., 

United States District Court for the District of New Jersey, 

Docket No. 3:07-04456 (filed in Superior Court, Monmouth County 

on July 18, 2007, then removed on Oct. 11, 2007)), Maryland 

(Hart, et al. v. NVR, Inc., United States District Court for the 

District of Maryland, Docket No. 8:07-02744 (filed in the 

Circuit Court for Montgomery County on July 18, 2007, then 

removed on Oct. 11, 2007)), and Pennsylvania (Graves, et al. v. 

NVR, Inc., Court of Common Pleas, Allegheny County, 

Pennsylvania, Docket No. 07-015569 (filed on July 18, 2007)). 

4 
SMRs at NVR’s North Carolina locations who had not been paid 

overtime, claimed that NVR’s actions constituted a willful 

violation of North Carolina’s wage and hour laws, including N.C. 

Gen. Stat. § 95-25.6 (2007), as well as a breach of contract. 

Plaintiffs did not specify damages in their complaint; they 

simply stated that they “frequently worked over 40 hours in a 

week” (J.A. 12) and asked for the following relief: 

(a) that all matters so triable be tried by a jury; 

(b) an order preliminarily and permanently restraining 

defendant from engaging [in] the aforementioned pay 

violations; 

(c) an award of the value of plaintiffs’ unpaid wages, 

including fringe benefits; 

(d) all relief available under North Carolina law; 

(e) [a]n award of reasonable attorneys fees, expenses, 

expert fees and costs incurred in vindicating 

plaintiffs’ rights; 

(f) [a]n award of pre- and post-judgment interest; and 

(g) [s]uch other and further legal or equitable relief 

as this Court deems to be just and appropriate. 

(J.A. 13.) 

 On October 16, 2007, NVR removed the case to federal 

district court in the Middle District of North Carolina, 

pursuant to 28 U.S.C. § 1441(a) (2000), asserting that CAFA, 

codified in relevant part at 28 U.S.C.A. § 1332(d)(2) (West 

2008), gave the district court original jurisdiction over the 

action. In its notice of removal, NVR alleged that the amount 

5 
in controversy in the case exceeded $5,000,000, thus satisfying 

CAFA’s jurisdictional requirements. Plaintiffs then filed a 

motion to remand to state court, questioning NVR’s ability to 

prove the amount in controversy since the Plaintiffs’ complaint 

had left the amount of damages unspecified. 

 In its response to Plaintiffs’ motion, NVR attached a 

declaration from Dennis Littell, NVR’s payroll director. 

Littell stated in the declaration that the average annual 

compensation paid to SMRs in North Carolina during the two-year 

time period relevant to the statutory claims3 was $145,892, and 

that North Carolina SMRs worked a total of 1174 “person-months” 

in those two years. Littell did not define the term “personmonths,” nor did NVR in its memorandum of law opposing the 

Plaintiffs’ motion to remand. 

 NVR used Littell’s estimates to define an amount-incontroversy in excess of $5,000,000. Based on an average annual 

 3

 NVR has defined this “relevant time period” as being 

August 2005 to July 2007 because the statute of limitations for 

North Carolina’s unpaid wages statute is two years, see N.C. Gen 

Stat. § 95-25.22(f) (2007), and Plaintiffs have not disputed 

this definition. While NVR has also separately suggested that 

Plaintiffs may seek to recover for a longer period of unpaid 

overtime (because their complaint suggests that their claims 

have been tolled since being dismissed by the district court for 

the Western District of New York), we consider this assertion 

speculative and decline to consider a recovery period beyond two 

years in assessing the amount in controversy since NVR has 

offered no evidence of overtime rates or hours worked during the 

suggested extended statutory period. 

6 
compensation of $145,892, NVR calculated that SMRs in North 

Carolina had an average hourly wage of $70.14, which would make 

their average hourly overtime wage $105.21 (or one and a half 

times their average hourly wage). NVR then assumed that 

putative class members will claim to have worked an average of 5 

overtime hours per week, creating damages of $2,279.37 per 

person-month.4 With SMRs working a total of 1174 person-months, 

NVR estimated damages for the statutory period at about 

$2,676,000. Assuming then that Plaintiffs will seek statutory 

double damages under the North Carolina unpaid wages statute, 

NVR estimated total recovery on the statutory claim at 

$5,352,000. Using similar calculations, NVR estimated damages 

under Plaintiffs’ breach of contract claim at an additional 

$963,855. Claiming that attorneys’ fees were recoverable on top 

of these calculations, NVR argued that it easily cleared the 

$5,000,000 jurisdictional hurdle. 

 The district court, unconvinced by NVR’s estimates, granted 

Plaintiffs’ motion to remand on June 19, 2008. The court found 

that NVR’s calculations were too speculative and that the record 

was too bare to allow for a reasonable estimate of the amount in 

 4

 $105.21 per hour x 5 hours per week = $526.05 per personweek. $526.05 x 4.333 weeks per month = $2,279.37 per personmonth. 

7 
controversy. As such, the court noted, “the propriety of 

federal jurisdiction remains doubtful.” (J.A. 158.) 

 NVR filed a petition for leave to appeal pursuant to 28 

U.S.C.A. § 1453(c) (West 2008) and Federal Rule of Appellate 

Procedure 5 on June 30, 2008. We grant that petition as timely 

filed5 and review de novo the district court’s order granting 

Plaintiffs’ motion to remand this action to state court. See

Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir. 2005). 

 5

 Section 1453(c)(1) of Title 28 of the United States Code 

allows an appellate court to accept an appeal from a district 

court’s order granting or denying a motion to remand a class 

action to state court so long as a petition for appeal is filed 

“not less than 7 days after entry of the order.” 28 U.S.C.A. 

§ 1453(c)(1) (West 2008). Most circuit courts that have 

interpreted this statutory provision have concluded that the 

phrase “not less than 7 days” was a typographical error and that 

the provision should be read as “not more than 7 days.” See

Estate of Pew v. Cardarelli, 527 F.3d 25, 27-28 (2d Cir. 2008); 

Morgan v. Gay, 466 F.3d 276, 277 (3d Cir. 2006); Miedema v. 

Maytag Corp., 450 F.3d 1322, 1326 (11th Cir. 2006); Amalgamated 

Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., 

Inc., 435 F.3d 1140, 1145-46 (9th Cir. 2006); Pritchett v. 

Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005). 

At least one circuit, however, has declined to follow this 

approach. See Spivey v. Vertrue, Inc., 528 F.3d 982, 983-85 

(7th Cir. 2008) (choosing not to read § 1453(c)(1) as requiring 

petitions for appeal to be filed “not more than” seven days 

after entry of a remand order but agreeing that petitions filed 

within seven days should also be accepted rather than 

dismissed). 

Because NVR filed its petition for appeal exactly seven 

days after entry of the district court’s order, excluding 

weekends, see Morgan, 466 F.3d at 277 n.1, we do not have to 

decide this question of statutory construction. Under either 

reading of the statute, NVR’s petition was timely filed. 

8 
II. 

 NVR claims that removal under 28 U.S.C. § 1441(a) (2000) is 

proper because, under CAFA’s amendments to 28 U.S.C. § 1332 

(2000), the district court has original jurisdiction over this 

action. CAFA amended Title 28’s requirements for diversity 

jurisdiction and removal in the case of class actions. Section 

1332(d)(2) of Title 28 now provides: 

The district courts shall have original jurisdiction 

of any civil action in which the matter in controversy 

exceeds the sum or value of $5,000,000, exclusive of 

interest and costs, and is a class action in 

which . . . any member of a class of plaintiffs is a 

citizen of a State different from any defendant . . . 

.6

To determine whether the jurisdictional minimum is satisfied, 

the district court looks to the aggregated value of class 

members’ claims. 28 U.S.C.A. § 1332(d)(6) (West 2008). 

 Defendants seeking removal bear the burden of demonstrating 

that jurisdiction is proper. See Strawn v. AT&T Mobility LLC, 

530 F.3d 293, 296-97 (4th Cir. 2008). This is true even in the 

context of removals pursuant to CAFA. In Strawn, this Court 

found that, while CAFA was intended to open the doors of the 

federal courts to class action litigants, its statutory language 

 6

 Section 1332(d)(5)(B) further limits federal courts’ 

original jurisdiction under CAFA to those class actions where 

the class size is greater than or equal to 100 members. 

9 
did nothing to reverse the long-settled principle that a 

defendant seeking to invoke a federal court’s removal 

jurisdiction bears the burden of demonstrating that jurisdiction 

would be proper. Id. at 297. 

 The question then becomes how that burden is to be 

satisfied. Generally, the amount specified in the complaint 

will determine whether the jurisdictional amount is satisfied 

for purposes of removal. See Wiggins v. North Am. Equitable 

Life Assurance Co., 644 F.2d 1014, 1016 (4th Cir. 1981). 

Determining the amount in controversy becomes more difficult, 

however, where, as here, Plaintiffs have left damages 

unspecified in their complaint. In this case, both parties 

agree that the defendant’s burden in these circumstances is to 

establish the jurisdictional amount by a preponderance of the 

evidence.7 We review the evidence as to the amount in 

controversy with that standard in mind. 

 7

 A number of our sister circuits have explicitly adopted a 

preponderance of the evidence standard as the appropriate burden 

to which removing defendants should be held in proving 

the amount in controversy where plaintiffs leave damages 

unspecified. See, e.g., Smith v. Nationwide Prop. & Cas. Ins. 

Co., 505 F.3d 401, 404-05 (6th Cir. 2007); Miedema v. Maytag 

Corp., 450 F.3d 1322, 1330 (11th Cir. 2006); Abrego Abrego v. 

Dow Chem. Co., 443 F.3d 676, 683 (9th Cir. 2006) (per curiam); 

Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638-39 

(5th Cir. 2003); McCord v. Minn. Mut. Life Ins. Co. (In re Minn. 

Mut. Life Ins. Co. Sales Practices Litig.), 346 F.3d 830, 834 

(8th Cir. 2003). This case does not require us to decide 

whether a more stringent standard would be appropriate since we 

(Continued) 

10 
III. 

 In considering Plaintiffs’ motion for remand, the district 

court seemed to find virtually all of NVR’s calculations too 

speculative and unsupported to satisfy its burden. We do not 

agree fully. A number of NVR’s assumptions and calculations are 

reasonable and supported by the record. 

 For example, NVR assumes that the base amount of overtime 

compensation allegedly due under North Carolina’s unpaid wages 

statute –- $2,676,000, according to NVR’s calculations -– can be 

doubled to determine the amount in controversy because the North 

Carolina statute authorizes double damages. Plaintiffs’ 

complaint does not make any specific claim for liquidated 

damages but it does ask for “all relief available under North 

Carolina law.” (J.A. 13.) Section 95-25.22(a1) of the North 

Carolina General Statutes authorizes an award of liquidated 

damages “in an amount equal to the amount found to be due” in 

unpaid wages cases, subject only to a good faith defense. Given 

that the complaint alleges that NVR “willfully violated its 

obligations under North Carolina Law” (J.A. 13 (emphasis 

added)), it appears likely that liquidated damages will be 

 

find that NVR has failed to meet even a preponderance of the 

evidence burden. See Martin v. Franklin Capital Corp., 251 F.3d 

1284, 1290 (10th Cir. 2001). 

11 
sought. Cf. Morgan v. Gay, 471 F.3d 469, 475 (3d Cir. 2006) 

(finding punitive damages not properly includable in amount-incontroversy calculation where defendants conclusorily alleged 

that millions of dollars in punitive damages would be sought and 

where plaintiffs had specifically claimed that damages would not 

exceed $5 million). Statutory liquidated damages are properly 

includable in the calculation of the jurisdictional amount here, 

and we do not consider them too speculative in this case to be 

factored into that calculation. See 28 U.S.C.A. § 1332(d)(2) 

(West 2008) (excluding only “interest and costs” from 

calculation of aggregate amount in controversy); see also Wall 

v. Fruehauf Trailer Servs., Inc., 123 F. App’x 572, 577 (4th 

Cir. 2005). 

 NVR also argues that the “average annual compensation” and 

average number of “person-months” worked, as provided in the 

Littell declaration, are adequate measures from which the amount 

in controversy can fairly be calculated. Plaintiffs themselves 

have proffered no information about their expected damages, nor 

have they explained why accepting the declaration of NVR’s 

Payroll Director as to average annual SMR compensation would be 

speculative or an improper means of estimating SMRs’ average 

hourly wage and expected hourly overtime rate. We have no 

difficulty accepting these figures. 

12 
 The use of the “person-months” statistic is more 

troublesome since NVR left the term undefined in its brief 

before the district court. However, NVR has made clear in its 

brief to this Court that a “person-month” is the monthly 

equivalent of a “man-hour,” meaning a unit of one month’s work 

by one person. According to the Littell declaration, SMRs in 

North Carolina collectively worked a total of 1174 person months 

during the statutory period of two years.8 Multiplying this 

number of months by the expected monthly amount of overtime pay 

due to employees (if this number was discernible) would yield a 

reasonable estimate of the amount of unpaid wages at stake under 

the statutory claims in this case. 

 NVR’s ultimate estimate of the amount in controversy, 

however, is fatally undermined by the wholly unsupported 

assumption on which its calculations ultimately rest -- that 

Plaintiffs and class members will each claim to have worked an 

average of five hours of overtime per week. NVR concedes that 

it has kept no records of the number of overtime hours worked by 

 8

 The district court correctly points out that dividing 1174 

by 24 months gives us approximately 49 as the average number of 

SMRs working per month during the statutory period, which is far 

short of the class-size minimum of 100 persons. See supra note 

6. But, neither party contests that the 100-member class 

requirement has been met. Moreover, a turnover rate of about 

two SMRs per month would suffice to double the class. 

13 
class members,9 and the Plaintiffs themselves have offered no 

evidence on the issue either. The only evidence in the record 

to which NVR can point for support is an affirmation from 

Patrick Tracy, the named plaintiff in the FLSA action being 

litigated in district court in New York.10 Tracy, a New Yorkbased SMR, made vague references in his affirmation to working 

55-hour weeks. According to NVR, this shows that its assumption 

of five hours of overtime is, if anything, a conservative 

estimate, since Tracy, who is supposed to be representative of a 

nationwide class of SMRS including Plaintiffs, suggests that he 

works fifteen hours of overtime per week. There are two 

significant problems with this argument. 

 First, Tracy is located in New York. While it is true that 

Plaintiffs are members of the Tracy class, Tracy is a completely 

separate action. Tracy’s “representativeness” of the nationwide 

class in the federal FLSA action does not make him, a New York-

 9

 According to NVR, it did not see any need to maintain such 

records because it understood that the SMR position was exempt 

from overtime pay. 

10 It is worth noting that the Tracy affirmation was not 

even a part of the record when, on December 10, 2007, NVR filed 

its brief in opposition to Plaintiffs’ motion for remand, in 

which it first articulated the “five hours per week” assumption. 

The affirmation was only filed with the district court for the 

Western District of New York on December 12, and NVR then 

submitted a motion for leave to submit it as “additional” 

evidentiary support on December 14. 

14 
based SMR, representative of a class of North Carolina-based 

SMRs bringing state law claims. Second, even if Tracy could be 

considered representative of the class in this case, his 

affirmation does not actually state that he worked an average of 

55 hours per work week. Instead, it states as follows: 

Thus, visiting two lots, in one month, equates to 40 

minutes a month. If working four 55-hour weeks in a 

month (or 220 hours = 13,200 minutes in a month) my 

lot visits outside the model took less than 1% of the 

time. Even if I had worked only 40 hours a week 

(equating to 160 hours per month = 9600 minutes), such 

visits still took less than 1% of my time in a month. 

(J.A. 96 (emphasis added).) The statement was made in the 

context of explaining what percentage of time Tracy spent on lot 

visits away from the model home in a given month. Tracy was not 

giving an estimate of the number of overtime hours he worked per 

week. 

 Tracy’s affirmation is the only piece of evidence NVR 

offers to anchor its assumption that plaintiff class members 

worked an average of five overtime hours per week, making the 

assumption highly speculative. Cf. Brill v. Countrywide Home 

Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005) (“Thus part of 

the removing party’s burden is to show not only what the stakes 

of the litigation could be, but also what they are given the 

plaintiff’s actual demands.”) (emphasis in original). 

 On top of Plaintiffs’ statutory claims, they have also 

raised a breach of contract claim for their unpaid overtime. 

15 
According to NVR, the statute of limitations on Plaintiffs’ 

contract claim is three years, giving them one additional year 

for which they can recover. Using a similar calculation to that 

used for the statutory claim, NVR estimates that the contract 

claim puts an additional $963,855 at stake.11 But this estimate 

relies on the same unsupported “five hours of overtime per week” 

assumption.12

 11 The average annual compensation for SMRs in North 

Carolina from August 2004 to July 2005 was $127,742, yielding a 

regularly hourly rate of $61.41 and an overtime rate of $92.11. 

Assuming class members averaged five hours of overtime per week, 

NVR estimates that Plaintiffs’ damages would be $1,995.56 per 

month. SMRs worked 483 person-months during the relevant time 

period, thus total damages available under the contract claim 

would be $963,855.48. 

12 NVR also suggests that attorneys’ fees are properly 

includable in the calculation of the amount in controversy since 

North Carolina’s unpaid wages statute authorizes their award. 

See N.C. Gen. Stat. § 95-25.22(d) (2007). CAFA specifies that 

the amount in controversy should be calculated “exclusive of 

interests and costs.” 28 U.S.C.A. § 1332(d)(2) (West 2008). 

However, since the North Carolina statute provides for the 

recovery of attorneys’ fees as a substantive right, they are 

properly includable in the amount in controversy estimate. See

Mo. State Life Ins. Co. v. Jones, 290 U.S. 199, 202 (1933). At 

this stage of litigation, however, an estimate of attorneys’ 

fees is pure speculation, and thus, on this record, cannot be 

used to augment the amount-in-controversy calculation. 

Similarly, NVR suggests in passing that since “Plaintiffs’ 

complaint includes a demand for injunctive relief, the value of 

that injunction is included in the calculation of the relief.” 

(Appellant’s Br. at 9 n.11.) Neither party has attempted to 

give us any estimate of the value of the injunctive relief 

sought, and thus we will not consider it in assessing the amount 

in controversy. 

16 
 The “five hours of overtime” assumption is in fact quite 

crucial to NVR’s calculations of the amount in controversy. If 

the actual amount of overtime claimed was only one to three 

hours per week, NVR, using its own calculation methods, could 

not satisfy the jurisdictional minimum.13 At four hours, NVR 

would clear the jurisdictional hurdle only by a hair.14 Given 

the centrality of the “five hours” number to NVR’s claims, we 

cannot simply take NVR’s word that this is really a 

“conservative” estimate (Appellant’s Br. 12) of the overtime 

hours that will be claimed by Plaintiffs. 

 The dissent contends that NVR has carried its burden of 

proof by presenting credible evidence on the “five hours” issue, 

and that therefore the burden of production should shift to 

Plaintiffs to show that the jurisdictional amount has not been 

 13 Assuming the class averaged only one hour of overtime per 

week, the amount in controversy on the statutory claims would be 

$105.21 per hour x 1 hours per week x 4.333 weeks per month x 

1,174 person-months x 2 = $1,070,394.34. The amount in 

controversy on the contract claim would be $92.11 per hour x 1 

hour per week x 4.333 weeks per month x 483 person-months = 

$192,771.40. The total amount in controversy then is 

$1,263,165.74. At two hours, the total becomes $2,526,331.47 

($2,140,788.67 in statutory damages + $385,542.80 in contract 

damages). At three hours, the total becomes $3,789,497.21 

($3,211,183.01 in statutory damages + $578,314.20 in contract 

damages). 

14 At four hours, the total becomes $5,052,662.94 

($4,281,577.34 in statutory damages + $771,085.60 in contract 

damages). 

17 
satisfied. But NVR has put forth no evidence of its own to 

support the number; rather, it has presented only a conjectural 

argument. Plaintiffs have no burden in these circumstances and 

are under no obligation to put forth any evidence. See

Birkenbuel v. M.C.C. Constr. Corp., 962 F. Supp. 1305, 1306 

(D. Mont. 1997) (“MCC complains that ‘Birkenbuel offers no 

evidence regarding the amount of his interim earnings, or indeed 

any evidence that he has or ever will earn interim income.’ 

However, it is MCC, not Birkenbuel, which has the burden of 

proof.”). Even if, as NVR contends, Plaintiffs are the “sole 

custodians” of information about the amount of overtime they 

worked (Appellant’s Reply Br. at 13), this does not give NVR 

license to pull numbers from thin air in determining the amount 

in controversy. See Morgan, 471 F.3d at 474 (“CAFA does not 

change the proposition that the plaintiff is the master of her 

own claim”); Brill, 427 F.3d at 449 (noting that “a removing 

defendant can’t make the plaintiff’s claim for him”). Because 

NVR has presented no credible evidence to support the “five 

hours” assumption, NVR simply cannot satisfy its burden of 

demonstrating that jurisdiction would be proper. 

We note that this case is readily distinguishable from that 

of Strawn, 530 F.3d 293, where this Court reversed the district 

court’s grant of a motion to remand. Indeed, this case is much 

18 
more reminiscent of the facts of the Eleventh Circuit case 

Miedema v. Maytag Corp., 450 F.3d 1322 (11th Cir. 2006). 

In Strawn, the plaintiffs claimed that AT&T had illegally 

used an opt-out policy for its “Roadside Assistance” program, 

under which it charged its West Virginia cellular customers 

$2.99 per month automatically unless they affirmatively asked to 

be removed from the program after an initial free-trial period. 

530 F.3d at 294. In its notice of removal, AT&T included an 

affidavit stating the following to show the jurisdictional 

amount had been satisfied: (1) that approximately 58,800 

consumers in West Virginia were automatically enrolled in the 

Roadside Assistance program after the trial period, and (2) that 

under the West Virginia Consumer Credit and Protection Act, the 

minimum statutory damages per person were $200. Id. at 295. 

Because plaintiffs offered no evidence to suggest that the 

58,800-customer figure was inaccurate, this Court found that 

AT&T had met its burden. Id. at 299. 

Likewise, we can accept NVR’s evidence on average annual 

compensation and the number of person-months worked by SMRs 

during the statutory period because Plaintiffs have offered no 

contradictory evidence. But its “five hours of overtime per 

week” estimate is not evidence; it is an assumption. It is 

nothing like the affidavit produced by AT&T showing that 58,800 

customers had been automatically enrolled in the roadside 

19 
assistance program. Nor is it even an assumption that finds 

some support in the record; at this point, it seems the “five 

hours of overtime per week” was nothing more than the result of 

some strategic guesswork on NVR’s part, and Plaintiffs are under 

no obligation to rebut this bare assertion. 

NVR’s calculations are more like the ones rejected as being 

too speculative in Miedema. In that case, the named plaintiff 

filed a class action involving negligence, breach of express 

warranty, and state statutory claims against Maytag for a defect 

found in the motorized door latch of its ranges/ovens sold in 

Florida. Miedema, 450 F.3d at 1324-25. Maytag then removed to 

federal court. Id. at 1325. Affirming the district court’s 

grant of a motion to remand, the Eleventh Circuit found that 

Maytag had failed to establish the amount in controversy 

required under CAFA by a preponderance of the evidence. Id. at 

1331. Maytag’s notice of removal had included an affidavit of 

one of its information analysts that stated that a total of 

6,279 ranges/ovens had been sold in Florida, with a total value 

of $5,931,971. Id. at 1325. However the 6,279 figure was not 

based on actual sales data, but was merely a guess extrapolated 

from the fact that Maytag had received a total of 2,493 product 

registrations from Florida consumers. Id. at 1332. The court 

found that “great uncertainty” remained about the amount in 

20 
controversy and that such uncertainty needed to be resolved in 

favor of remand. Id. (internal quotations omitted). 

 NVR’s “five hours of overtime a week” assumption is even 

more speculative than Maytag’s extrapolations in Miedema. In 

Miedema, Maytag at least had data on the number of product 

registrations in Florida and an estimate of nationwide 

registration rates to anchor its estimate of the number of units 

sold. Here, by contrast, NVR’s estimate of overtime hours is 

pure guesswork, and leaves significant uncertainty about the 

actual amount in controversy. 

 While NVR suggests that CAFA mandates that we resolve any 

such uncertainties in favor of federal jurisdiction, the longstanding tradition of strictly construing removal jurisdiction 

suggests otherwise. See, e.g., Strawn, 530 F.3d at 297 

(rejecting the argument that CAFA’s legislative history 

demonstrates that the statute intended to flip the presumption 

that doubts about jurisdiction are resolved in favor of remand 

to state court); Miedema, 450 F.3d at 1328-29 (same). 

 We reach our decision to affirm the district court not 

unmindful of the difficulty that CAFA defendants face in 

demonstrating that the amount in controversy is met when 

plaintiffs have left their damages unspecified. Plaintiffs may 

well use their pleadings in state court tactically, leaving 

damages unspecified to block removal without foreclosing an 

21 
ultimate recovery of more than the federal jurisdictional 

minimum. See Lowdermilk v. U.S. Bank Nat’l Assoc., 479 F.3d 

994, 1002 (9th Cir. 2007). We are reassured, however, by the 

fact that a CAFA defendant who cannot meet his burden for 

removal at the early stages of litigation may still have 

recourse to the federal courts later, as Congress has eliminated 

the one-year time limit on CAFA removal actions.15 See 28 

U.S.C.A. § 1453(b) (West 2008); Lowdermilk, 479 F.3d at 1002-03. 

 NVR argues that it is contrary to the purpose of CAFA to 

subject defendants to this kind of “wait and see” approach in 

state court. But CAFA is quite explicit about how it relaxes 

the jurisdictional requirements for bringing a class action in 

federal court. To the extent that Congress sought to relax a 

CAFA defendant’s burden for removal, it has done so explicitly. 

See, e.g., 28 U.S.C.A. § 453(b) (West 2008). Where Congress has 

not spoken directly to the issue, we must fall back on our longstanding view that, because federal courts are courts of limited 

subject matter jurisdiction, our removal jurisdiction must be 

strictly construed. See Md. Stadium Auth. v. Ellerbe Becket

 15 Although CAFA eliminates the one-year time limit on 

removal actions, a defendant must still file a notice of removal 

“within thirty days after receipt by the defendant . . . of a 

copy of an amended pleading, motion, order or other paper from 

which it may first be ascertained that the case is one which is 

or has become removable.” 28 U.S.C. § 1446(b) (2000); see also

28 U.S.C.A. § 1453(b) (West 2008). 

22 
Inc., 407 F.3d 255, 260 (4th Cir. 2005) (“We are obliged to 

construe removal jurisdiction strictly because of the 

significant federalism concerns implicated.”) (internal citation 

and quotations omitted). Where federal jurisdiction is 

doubtful, a remand to state court has traditionally been 

considered the proper course of action. Mulcahey v. Columbia 

Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). 

This is no less true in the context of CAFA than in other 

removal actions. See Strawn, 530 F.3d at 297; Miedema, 450 F.3d 

at 1328-29. 

IV. 

 On the record as it stands, we find that NVR has not 

satisfied its burden of showing that the amount in controversy 

is sufficient to meet CAFA’s jurisdictional requirements. As 

such, we affirm the order of the district court remanding this 

case to state court.16

AFFIRMED

 16 Plaintiffs have also filed a motion to strike certain 

documents from the joint appendix, and we deny this motion as 

moot. 

23 
WILKINSON, Circuit Judge, dissenting: 

 Petitioner put forth a prima facie case establishing that 

the damages at issue in this action meet the jurisdictional 

threshold under the CAFA. In response, respondent offered 

nothing to rebut petitioner’s claims; it merely charged that the 

claims are too speculative. In accepting this argument, the 

majority conflates burdens of proof with burdens of production. 

Moreover, the majority’s holding – that petitioner has failed to 

meet its burden of proof despite presenting a prima facie case 

that respondent has not contradicted – is in some tension with 

circuit precedent in Strawn v. AT&T Mobility LLC, 530 F.3d 293 

(4th Cir. 2008). I therefore respectfully dissent. 

I. 

 The party seeking removal in a CAFA case has the burden of 

alleging federal jurisdiction and establishing it if challenged. 

Strawn, 530 F.3d at 298. But once petitioner has set forth a 

prima facie case establishing jurisdiction, the onus is on 

respondent to offer something of its own. See id. at 298-99. 

Strawn held that the petitioner in that case had met its burden 

by identifying the number of class members (based on the terms 

of the respondent’s complaint) and by calculating the minimum 

statutory damages due each member of the class, where the 

respondent “offered nothing to suggest that the [figure put 

24 
forth by the petitioner] is not an accurate number.” Id. The 

court thus held for the petitioner based on the petitioner’s 

calculations and the facts presented in the complaint, even 

though respondent’s counsel even went so far as to stipulate 

that they would not accept an award over $5 million. See id. at 

295, 299. 

 The case before us is strikingly similar. NVR, the 

petitioner here, met its initial burden by offering a prima 

facie case based on the terms of respondents’ complaint and 

petitioner’s own calculations of overtime pay. In the 

complaint, the class action plaintiffs (respondents here) raised 

a statutory claim for overtime pay that had a statute of 

limitations period of two years. They also asserted a breach of 

contract claim that reached back three years. Both claims 

sought overtime pay of one-and-a-half times the regular rate of 

pay; further, the statutory claim asserts that petitioner acted 

willfully, which under North Carolina law would allow a court to 

award double damages. See 28 U.S.C. § 1332(d)(2) (excluding 

only “interest and costs” from the amount in controversy under 

the CAFA); N.C. Gen. Stat. §§ 95-25.22(a1) (providing for the 

award of liquidated damages in an amount equal to the damages 

due). Finally, respondents claim attorneys’ fees, which are 

recoverable under North Carolina wage and hour laws. See N.C. 

Gen. Stat. § 95-25.22(d); see also 28 U.S.C. § 1332(d)(2). 

25 
Based on these claims, petitioner estimates that respondents 

will seek damages of $5,352,000 on the statutory claim alone, 

and that the total amount of damages could exceed $6 million 

even without attorneys’ fees. 

 To support its calculations, petitioner submitted a 

declaration from its payroll director, Dennis Littell. Mr. 

Littell reviewed the payroll records of the relevant category of 

employees, Sales and Marketing Representatives, for two time 

periods: August 2004 to July 2005 (for the breach of contract 

claim), and August 2005 to July 2007 (for the statutory claim). 

Based on this review, Mr. Littell computed the average annual 

compensation paid to the employees and the number of personmonths worked during each time period. NVR then looked at 

respondents’ claims in this and other proceedings and estimated 

that respondents would claim they had worked an average of five 

overtime hours per week. This figure yielded petitioner’s 

estimates of respondents’ total damages. 

 The majority does not suggest that someone other than the 

payroll director would be better fit to put forth this 

information. It does not suggest what information petitioner 

could offer that would meet its burden under the CAFA. Although 

petitioner bears the ultimate burden of proving by a 

preponderance of the evidence that the jurisdictional amount is 

in controversy, it need not produce reams of personnel records 

26 
simply to present a prima facie case. To require more would 

lead to voluminous discovery requests and document production at 

the preliminary stages of what is itself a preliminary 

jurisdictional issue. Encouraging this sort of deluge adds more 

litigiousness to already litigious class action undertakings. 

 Moreover, the five-hour estimate is not so speculative as 

to not even require a response from respondents. The 

affirmation of Patrick Tracy, the named plaintiff in a parallel 

proceeding in the Western District of New York, states that “in 

many weeks [Tracy] worked beyond the model home open hours on 

[his] scheduled days” and that he also came to work on his days 

off. (JA 99.) He not only refers to working four 55-hour weeks 

in a month (JA 96), but states that he “frequently worked over 

forty hours in a week” because of his extra hours during the 

week and “the extra hours” on his days off. (JA 100) 

Therefore, Tracy’s statements buttress the petitioner’s argument 

that an estimate of five hours per week is not only a credible 

estimate, but a very conservative one. And there is no reason 

to believe that Tracy’s experience in New York differs from that 

of SMRs in North Carolina: the named plaintiffs in the North 

Carolina action are part of the class that Tracy represents, and 

respondents have stated that NVR kept “very regimented policies” 

and followed the same sales model “at all of its locations.” 

Pl’s Mem. of Law in Support of Mot. for Class Certification, 

27 
Tracy v. NVR, Inc., No. 04-CV-06541 (W.D.N.Y. filed on Jan. 11, 

2008). 

 Finally, the majority acknowledges that respondents would 

reach the jurisdictional amount if they claimed just four hours 

per week of overtime. Maj. Op. at 17. Four hours overtime per 

week is precious little to seek in a class action suit brought 

to recover overtime pay. And petitioners can reach this 

jurisdictional threshold without counting attorneys’ fees and 

the value of injunctive relief, which the majority notes 

constitute part of the amount in controversy. See Maj. Op. at 

16, n.12. 

 These calculations, along with the Littell Declaration, 

make up petitioner’s prima facie case and put a burden on the 

respondents to offer something in response. See Strawn, 530 

F.3d at 299. If the five-hour estimate was indeed too 

speculative or inaccurate, it would make the response even 

easier to tender. The respondents, who are in possession of all 

information regarding their pay claims, could shoot down an 

inaccurate estimate without breaking a sweat. But then 

respondents have never claimed that they are requesting less 

than $5 million in damages. In fact, respondents have been 

litigating class action overtime pay cases against petitioner 

since 2004, but have passed on every opportunity to submit an 

affidavit or even make a declaration as to the likely amount of 

28 
damages they will claim. See, e.g., Tracy v. NVR, Inc., No. 

6:04-06541 (W.D.N.Y. filed on Oct. 29, 2004). To be sure, 

respondents may be under no obligation to do so, but the court 

is likewise under no obligation to relieve them of the 

consequences of inaction. 

 Requiring some sort of minimal response in no way shifts 

the ultimate burden of proof to respondents, but recognizes that 

respondents have some modest role to play in making the 

adversary process function. In ruling otherwise, the majority 

confuses the burden of proof with the burden of production when 

it states that respondents “are under no obligation to put forth 

any evidence.” Maj. Op. at 18. Our cases in the Title VII 

context are instructive. As we noted when discussing the 

McDonnell Douglas framework in Burns v. AAF-McQuay, Inc., 96 

F.3d 728, 731 (4th Cir. 1996), the burden of proof throughout a 

Title VII proceeding remains with the plaintiff. But once the 

plaintiff puts forth a prima facie case of discrimination, the 

burden of production shifts to the defendant to show a 

nondiscriminatory motive for its actions. Burns, 96 F.3d at 

731-32. 

 Similarly, in the CAFA context, the burden of proof remains 

with the party seeking to invoke federal jurisdiction – 

typically, the class action defendant (petitioner here). See

Strawn, 530 F.3d at 297-98. But once petitioner has put forth 

29 
credible evidence on the jurisdictional question, the burden of 

production shifts to the respondent to offer something in 

response. E.g., Strawn, 530 F.3d at 298-99. Thus, the burden 

of production may switch without diminishing or reallocating in 

any way the burden of proof. The majority seems to recognize 

this burden-shifting when it notes that it “accept[s] NVR’s 

evidence on average annual compensation and the number of 

person-months worked . . . because [respondents] have offered no 

contradictory evidence.” Maj. Op. at 19. 

 Finally, not requiring any response from respondents lets 

them have their cake and eat it too – avoiding federal 

jurisdiction without being bound by any declaration of damages 

that might haunt them in state court. See, e.g., Morgan v. Gay, 

471 F.3d 469, 477 (3d Cir. 2006) (“[P]laintiffs in state court 

should not be permitted to ostensibly limit their damages to 

avoid federal court only to receive an award in excess of the 

federal amount in controversy requirement.”). Further, not 

requiring even so much as a response invites a game of judicial 

ping-pong. At this point, the case will proceed with discovery 

in state court, but petitioner will surely renew its notice of 

removal if respondents later claim, as no doubt they will, over 

$5 million in damages. See 28 U.S.C. § 1446(b) (stating that 

the defendant may remove a case from state court by filing a 

notice of removal within 30 days of receiving an amended 

30 
31 

pleading or other document indicating that federal jurisdiction 

is proper); see also 28 U.S.C. § 1453(b) (noting that the oneyear limitation on removals under § 1446 does not apply to class 

actions). The parties will then be litigating this case once 

again in federal court. 

 I recognize that CAFA cases may turn on questions of state 

law and there is a policy argument, with which I have some 

sympathy, for having these cases resolved at the state level. 

But we are not at liberty to assign cases to forums where we, 

not Congress, think they belong. Congress has enacted CAFA and 

no one is claiming that CAFA is beyond the congressional power 

to establish the jurisdiction of the federal courts. Here, 

petitioner offered a prima facie case for federal jurisdiction 

and respondents offered absolutely nothing in response. Strawn

does not permit this very situation, and it gives rise to gaming 

the system. I would reverse the judgment and let the case 

proceed in district court.