FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK BABASA; ROBERT 

BREDENSTEINER, individually, as

private attorneys general, and on

behalf of all employees similarly No. 07-55880

situated, D.C. No.

Plaintiffs-Appellees,  CV-06-01144-DOC

v. OPINION

LENSCRAFTERS, INC., an Ohio

Corporation,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

August 9, 2007—Pasadena, California

Filed August 16, 2007

Before: Marsha S. Berzon and Sandra S. Ikuta,

Circuit Judges, and James K. Singleton,* District Judge.

Opinion by Judge Berzon

*The Honorable James K. Singleton, Senior United States District

Judge for the District of Alaska, sitting by designation. 

10291
COUNSEL

Elizabeth Staggs Wilson and Lauren T. Howard, Littler Mendelson, Los Angeles, California, for the appellant. 

Jeffrey Spencer and Dirk Bruinsma, San Clemente, California, for the appellees.

OPINION

BERZON, Circuit Judge: 

Appellant LensCrafters appeals the district court’s order

remanding the case to state court for failure to timely file for

removal. We affirm. 

BABASA v. LENSCRAFTERS 10293
On April 4, 2005, appellees filed a putative class action in

state court, alleging various labor code violations. They filed

an amended complaint in September. Shortly thereafter, the

parties agreed to enter mediation. 

On December 5, 2005, prior to the mediation, counsel for

appellees sent a letter to counsel for LensCrafters, the

“Bruinsma letter,” which “confirm[ed] some issues discussed

in [a] recent telephone conversation regarding the size of the

class and the number of incidents of violation.” The letter

noted that it was sent “[i]n preparation for the mediation,” and

that it concerned “what it would take to make mediation

meaningful.” In it, appellees’ counsel estimated that their allegation of 300,000 missed meal periods, compensable at an

average $15 hourly rate of pay, would amount to $4.5 million.

Additionally, he noted that civil penalties under Sections 2699

and 210 of the California Labor Code would exceed an additional $5 million. 

After attempts to settle the case through mediation proved

fruitless, the parties conducted discovery in state court. In a

telephone call during the course of discovery, on November

1, 2006, appellees’ counsel reiterated to LensCrafters that the

damages at issue exceeded $5 million. Later that month, on

November 27, 2006, LensCrafters filed a notice of removal to

federal court, alleging that the November 1 conversation first

put it on notice that the amount in controversy exceeded the

jurisdictional amount. 

The Class Action Fairness Act of 2005, Pub. L. No. 109-2,

119 Stat. 4 (2005) (codified in scattered sections of 28

U.S.C.), eliminated the one-year statute of limitations for

removal in 28 U.S.C. § 1446(b), see 28 U.S.C. § 1453(b). It

did not, however, alter the requirement that defendants must

file a “notice of removal . . . within thirty days after receipt

. . . 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.” § 1446(b). If a notice

10294 BABASA v. LENSCRAFTERS
of removal is filed after this thirty-day window, it is untimely

and remand to state court is therefore appropriate. Id.; see

Eyak Native Village v. Exxon Corp., 25 F.3d 773, 783 (9th

Cir. 1994) (holding untimely a company’s notice of removal

when it came more than a year after the company became

aware of the nature of plaintiffs’ claims). 

[1] Here, the district court held that LensCrafters received

§ 1446(b) notice in the form of the Bruinsma letter, making

its subsequent removal effort untimely. LensCrafters argues

that the Bruinsma letter could not serve as proper notice of the

amount in controversy for removal purposes, because the letter is privileged under state law. In California, certain documents and communications pertaining to mediation are

generally inadmissible in civil litigation. See CAL. EVID. CODE

§ 1119 (2006). LensCrafters asserts that the Bruinsma letter

falls within the scope of this privilege and, as a result, statements in the letter relating to the amount in controversy could

not be used to support removal to federal court. 

[2] It is far from clear that the Bruinsma letter falls within

the scope of the California mediation privilege. But we need

not decide whether it does or not, because California privilege

law does not directly apply in the present context. 

[3] Under Federal Rule of Evidence 501, privileges provided by state law apply in civil actions only “with respect to

an element of a claim or defense as to which State law supplies the rule of decision.” FED. R. EVID. 501; see Breed v.

U.S. Dist. Court for the N. Dist. of Cal., 542 F.2d 1114, 1115

(9th Cir. 1976) (holding that, when a question of federal law

is at issue, “[s]tate law [as to privileges] may provide a useful

referent, but it is not controlling”). State law does not supply

the rule of decision here. Federal law governs the determination whether a case exceeds the amount in controversy necessary for a diversity action to proceed in federal court. See 28

U.S.C. § 1332; see also Horton v. Liberty Mutual Ins. Co.,

367 U.S. 348, 352 (1961) (“[D]etermination of the value of

BABASA v. LENSCRAFTERS 10295
the matter in controversy for purposes of federal jurisdiction

is a federal question to be decided under federal standards

. . . .”). Thus, even if the California mediation privilege

applied to the Bruinsma letter, which we do not decide, it

would not preclude a determination that the Bruinsma letter

constituted § 1446(b) notice for purposes of removal to federal court.1

[4] We have no doubt that LensCrafters could have ascertained, upon receiving the Bruinsma letter, that the case was

removable. We previously have held that “[a] settlement letter

is relevant evidence of the amount in controversy if it appears

to reflect a reasonable estimate of the plaintiff’s claim.” Cohn

v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) (citing

Wilson v. Belin, 20 F.3d 644, 651 n.8 (5th Cir. 1994)

(“Because the record contains a letter, which plaintiff’s counsel sent to defendants stating that the amount in controversy

exceeded $50,000, it is ‘apparent’ that removal was proper.”)). Like the letter in Cohn, the Bruinsma letter put LensCrafters on notice as to the amount in controversy. Its estimate of $4.5 million in unpaid wages, based on missed meal

periods, plus an additional $5 million in civil penalties,

exceeded the amount in controversy required for federal juris1LensCrafters waived any argument that the letter falls within the scope

of a federal evidentiary privilege by failing to raise this argument before

the district court or in its briefs in this court. See United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006). Likewise, LensCrafters did not

assert that we should incorporate the California mediation privilege into

the federal common law of privileges. We thus need not consider whether

a federal mediation privilege exists to bar use of the letter for purposes of

demonstrating the removability of the case. Nor need we decide whether

it may be appropriate in some cases concerning the amount in controversy

for federal jurisdiction purposes, pursuant to Rule 501, to defer to state

law evidentiary privileges out of comity and respect for state policies. See

Conference Report on Rule 501 of the Federal Rules of Evidence, H.R.

Rep. No. 93-1597, at 7-8 (1974) (Conf. Rep.), quoting D’Oench, Duhme

& Co. v. FDIC, 315 U.S. 447, 471 (1942) (Jackson, J., concurring) (“In

some cases [federal courts] may see fit for special reasons to give the law

of a particular state highly persuasive or even controlling effect . . . .”).

10296 BABASA v. LENSCRAFTERS
diction. See 28 U.S.C. § 1332(d)(2) (setting the jurisdictional

bar above “$5,000,000, exclusive of interest and costs”). 

[5] Appellant does not appeal the district court’s determination that this estimate was reasonable. Were we to consider

the question, however, we would agree with the district court

that the letter’s estimate of $9.5 million in damages, even if

imprecise, was sufficiently supported by details of the injuries

claimed and clearly indicated that the amount in controversy

exceeded the jurisdictional amount.2

[6] Because LensCrafters filed its notice of removal on

November 27, 2006, well over thirty days after it first could

have ascertained that the case was removable, the district

court properly remanded the case to state court. 

AFFIRMED. 

2

Indeed, quite aside from the Bruinsma letter, a fair reading of the complaint alone is probably enough to establish that more than $5 million is

at stake. Plaintiffs alleged seven causes of action, including failure to pay

overtime compensation. LensCrafters’ lowest estimate of the number of

class members was 4,500. If each employee worked just one hour of overtime per week without receiving overtime compensation at $10 per hour,

another low estimate, damages would run to almost $10 million over the

four years covered by the complaint for that single claim, without considering civil penalties. 

BABASA v. LENSCRAFTERS 10297