United States District Court, D. Colorado
DREW HESSION, individually and on behalf of all others similarly situated, Plaintiff,
QUALITY CUSTOM DISTRIBUTION SERVICES, INC., a Delaware corporation, Defendant.
ORDER TO REMAND
Brooke Jackson United States District Judge
moves to remand this case to state court, arguing that
defendant has not established that the matter in controversy
exceeds $75, 000, and therefore, this Court does not have
diversity jurisdiction. Given the posture of the case as
plaintiff has set it up, I must agree.
Hession was employed by Quality Custom Distribution Services,
Inc. (“QCD”) as a warehouse worker from November
2017 to April 2018. He alleges that he and
“dozens” of employees on his team regularly
worked more than 12 hours per shift, but that QCD did not pay
them for all the time he and the others worked and did not
pay them overtime compensation required by Colorado law. He
filed this suit in the Arapahoe County District Court on June
20, 2018 on behalf of himself and all others similarly
situated. QCD removed the case to this Court, invoking
federal jurisdiction on grounds of diversity of citizenship
pursuant to 28 U.S.C. § 1332. ECF No. 1.
does not dispute that there is diversity of citizenship
between him and QCD. However, plaintiff insists that the
amount in controversy now, i.e., claimed by him individually,
does not exceed the sum or value of $75, 000 as required by
28 U.S.C. § 1332(a). QCD disagrees. In its Notice of
Removal it reasoned as follows:
• Mr. Hession is seeking unpaid wages for hours he
worked during “rest breaks.” QCD assumes 20
minutes per day, so it calculates the part of his alleged
damages by taking one-third of his hourly rate of $17.00 per
hour ($5.67), times five days a week, times the 22 weeks that
he worked at QCD. Total: $623.70.
• Unpaid overtime at one-half of the regularly rate for
the 75.25 hours of his hours that plaintiff claims to be
overtime hours. Total: $639.63.
• Statutory penalties under Colo. Rev. Stat. §
8-4-109 of 125% of the wages awarded (125% times $1, 263.33 =
$1, 579.16) increased by 50%. Total: $2, 368.74.
• So far that only adds up to $3, 632.07 for Mr.
Hession. But the kicker is attorney's fees. OCD asserts
that plaintiff's reasonable attorney's fees
“will easily exceed $75, 000.” QCD's counsel
explains that they plan to depose at least 11 people, which
they assume will require plaintiff's counsel to spend
four hours of deposition time plus two hours of preparation
time for each deposition. They further assume that
plaintiff's counsel will want to depose at least three
people at six hours each. Also, each deponent will produce
voluminous documents requiring at least eight hours of
analysis per person. And plaintiff's counsel will spend
an estimated five hours responding to written discovery. All
this adds up to 117 hours of plaintiff's counsel's
time just for discovery. In addition, QCD will file a motion
for summary judgment, and its counsel believe that it should
take plaintiff's counsel 25 hours to respond. They assume
that plaintiff's counsel will spend 40 hours preparing
for and trying a three-day jury trial. All of this adds up to
at least 266 hours of time spent by plaintiff's counsel,
to which OCD assigns an hourly rate of $400. Therefore, when
all the dust settles, plaintiff's attorney's fees
will be an estimated $106, 400.
• Therefore, adding its estimate of plaintiff's
attorney's fees to the $3, 600 estimated damages for Mr.
Hession, QCD arrives at a grand total amount in controversy
of $110, 032.07.
See Defendant's Notice of Removal, ECF No. 1, at
fast, responds the plaintiff. Plaintiff notes that such an
attorney's fee would be approximately 30 times the
estimated damages and would not be remotely proportional to
the estimated damages. Motion to Remand, ECF No. 18, at 5-6.
Plaintiff notes that his case at this point is simply an
individual action with a prayer for class action
certification that has not been ruled on, and that as such,
there is no possibility that Mr. Hession's individual
damages plus reasonable attorney's fees could reach $75,
that this Court does not, at this time, have subject matter
jurisdiction. I agree that this Court would not consider
awarding attorney's fees in the range of defendant's
estimates on the type and size of Mr. Hession's
individual claim. Even if I were to include taxable costs and
pre-judgment interest, an award exceeding $75, 000 on his
individual claim would not be reasonable. Nor would this
Court permit the discovery envisioned by the defendant for an
individual claim of $3, 600 in unpaid wages and overtime, as
that level of discovery would be grossly disproportionate to
the size of the claim. Moreover, I interpret plaintiffs
statements in the motion ...