Hardy v. Parker

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 25-cv-03584-PAB-MDB
CHRISTOPHER HARDY, individually and on behalf of all similarly situated persons,
Plaintiff,
v.
JEFFREY PARKER,
Defendant.
ORDER
This matter comes before the Court on the Motion for Remand to State Court
Pursuant to 28 U.S.C. § 1447 [Docket No. 15]. Defendant filed a response. Docket No.
29.
I. BACKGROUND
Plaintiff Christopher Hardy filed this action in state court on July 17, 2025 on
behalf of himself and all others similarly situated. Docket No. 5. Plaintiff avers that he
was employed by defendant Jeffrey Parker, the owner of a chain of Five Guys
restaurants located in Colorado. Id. at 3, ¶¶ 2-3. Plaintiff brings claims for violation of
the Colorado Wage Claim Act, Colo. Rev. Stat. § 8-4-101, et seq., violation of the
Colorado Minimum Wage Act, Colo. Rev. Stat. § 8-6-101, et seq., and Civil Theft,
claiming that defendant improperly failed to provide his employees with mandatory
compensated 30-minute meal breaks and ten-minute rest periods Id. at 3-7, ¶¶ 11-13,
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16-37. Defendant was served on October 10, 2025, Docket No. 1-7 at 2, and timely
filed a notice of removal on November 7, 2025. Docket No. 1.
In his notice of removal, defendant claims that the Court has original jurisdiction
over this action pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C.
§ 1332(d). Id. at 2, ¶ 6. The notice of removal asserts that, under CAFA, all the
requirements for removal have been met because the defendant is a citizen of a
different state than a putative class member, there will be at least 100 class members,
and the amount in controversy is greater than the requisite $5,000,000. Id. at 2-6, ¶¶ 7-
21.
Defendant calculated the amount in controversy by determining the total number
of shifts worked at Five Guys locations where defendant had an ownership interest
between July 17, 2019 and November 6, 2025. 1 Id. at 5, ¶ 19. Defendant then
determined the average number of hours each employee worked per shift and the
average rate at which employees were paid. Id. Supported by the declaration of
defendant, who reviewed business records to determine the relevant numbers,
defendant concluded there were approximately 124,454.82 shifts worked during that
period, with employees working an average of 6.36 hours per shift, at an average rate of
$14.43 per hour. Id.; Docket No. 1-3 at 3, ¶¶ 11-12. Defendant reasoned that if his
employees were missing one 30-minute meal period and two ten-minute rest breaks per
shift worked, then employees would be missing 50 minutes worth of work per shift.
Docket No. 1 at 5, ¶ 20. Defendant then calculated that his employees would be owed
1 Plaintiff’s proposed class definition encompasses individuals who worked for
defendant as non-exempt employees during this time. Docket No. 5 at 4, ¶ 14.
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an additional $12.03 per shift which, multiplied by the 124,454.82 shifts, would equal
$1,497,191.48 in alleged unpaid wages. 2 Id., ¶ 21. Defendant further claimed that,
when accounting for statutory penalties under Colo. Rev. Stat. § 8-4-109, the amount in
controversy is approximately $5,988,765.94. Id.
On December 4, 2025, plaintiff filed a motion to remand on the grounds that
defendant did not meet his burden to show that the amount in controversy exceeds
$5,000,000. 3 Docket No. 15. Alternatively, plaintiff seeks jurisdictional discovery on
both the amount in controversy and the potential applicability of the local controversy or
home state exceptions to CAFA, 8 U.S.C. § 1332(d)(3)-(4). Id. at 6-7. On January 20,
2026, defendant filed a response. Docket No. 29.
II. ANALYSIS
Under CAFA, district courts may exercise jurisdiction over any class action so
long as the amount in controversy exceeds $5,000,000, 4 the proposed class contains
more than 100 members, and there is minimal diversity, meaning that any member of
the plaintiff class is a citizen of a different state than any defendant. 28 U.S.C.
§§ 1332(d)(2), (5). Here, plaintiff argues that defendant did not meet his burden to
show that the amount in controversy exceeds $5,000,000. Docket No. 15 at 2.
2 To determine that employees would be owed an additional $12.03 per shift,
defendant calculated how much an employee would make per minute by dividing the
average hourly rate of $14.43 by 60. Docket No. 1 at 5, ¶ 21. Through this formula,
defendant determined that an average employee makes $0.24 per minute. Id.
Defendant then multiplied $0.24 by 50—the purported number of minutes which
employees were improperly uncompensated for—to conclude that the average
employee was entitled to an additional $12.03 per shift. Id.
3 Plaintiff “concedes that Defendant has met his burden to show over 100 class
members and minimal diversity.” Docket No. 15 at 2.
4 There is no requirement that each plaintiff meet a separate threshold; rather,
claims are aggregated to meet the jurisdictional amount. 28 U.S.C. § 1332(d)(6).
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When removing a CAFA case to federal court, “a defendant’s notice of removal
need include only a plausible allegation that the amount in controversy exceeds the
jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S.
81, 89 (2014). However, when a plaintiff contests that allegation, the defendant must
provide evidence establishing the amount in controversy. Id. Specifically, “a defendant
seeking to remove under CAFA must show that the amount in controversy exceeds
$5,000,000 by a preponderance of the evidence.” Frederick v. Hartford Underwriters
Ins. Co., 683 F.3d 1242, 1246 (10th Cir. 2012). The defendant may accomplish the
requisite showing by, for example, “compiling calculations from the complaint’s
allegations, relying on the plaintiff’s settlement demands, or bringing forward other
‘summary-judgment-type evidence,’ such as affidavits, contentions, interrogatories or
admissions.” Dudley–Barton v. Serv. Corp. Int’l, No. 10-cv-03091-CMA-KLM, 2011 WL
1321955, at *2 (D. Colo. Apr. 5, 2011) (quoting McPhail v. Deere & Co., 529 F.3d 947,
953 (10th Cir.2008)). In order to use punitive damages toward the total, the defendant
must show that such damages are permitted under state law and that the total award,
including compensatory and punitive damages, could exceed the jurisdictional amount.
Frederick, 683 F.3d at 1248. If the defendant meets his burden, remand is only
permissible if the plaintiff shows that it is legally impossible to recover more than
$5,000,000. Id. at 1247.
Plaintiff claims that defendant did not meet his burden because (1) defendant
improperly assumed that non-exempt employees missed every possible break; (2)
defendant improperly assumed that all shifts were the same length; and (3) defendant
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failed to account for a change in the law that occurred after filing. Docket No. 15 at 3-6.
The Court will analyze each argument.
First, plaintiff notes that defendant’s calculation relies on the assumption that
defendant failed to provide non-exempt employees with every mandated break. Docket
No. 1 at 3. Plaintiff cites to Ibarra v. Manheim Invs. Ins., 775 F.3d 1193, 1199 (9th Cir.
2015), as support for the proposition that “[s]uch speculative assumptions that every
break was missed based on allegations that some breaks were missed cannot meet
Defendant’s burden.” Docket No. 15 at 3 (citing Ibarra, 775 F.3d at 1199). In Ibarra, the
defendant calculated an amount in controversy under CAFA through a formula which
assumed that the defendant denied all class members one meal break in each of their
5-hour shifts and one rest break in each of their 3.5-hour shifts. Ibarra, 775 F.3d at
1198. The Ninth Circuit noted that this assumption was based on allegations in the
complaint that the defendant “has a pattern and practice of failing to pay their Non-
Exempt employees for working off-the-clock” and accuse the defendant of “maintaining
an institutionalized unwritten policy that mandates these unlawful practices.” Id.
(internal quotations omitted). The Ninth Circuit noted that, “[b]ecause the complaint
does not allege that [the defendant] universally, on each and every shift, violates labor
laws by not giving rest and meal breaks, [the defendant] bears the burden to show that
its estimated amount in controversy relied on reasonable assumptions.” Id. at 1199.
Relying on this logic, plaintiff argues that defendant improperly assumed that every
break was missed without providing supporting evidence. Plaintiff notes the importance
of this error, stating that “[t]aking the miss rate from 100% to 83% brings the calculation
below $5 million to $4,969,609.78.” Docket No. 15 at 3.
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Defendant notes that Ibarra is non-binding and distinguishes it from this case,
stating that the allegations in the complaint in Ibarra are not as far-reaching as the
allegations in the complaint in this case. Docket No. 29 at 6-7. Defendant claims that
plaintiff alleged in his complaint that violations occurred at a “universal rate.” Id. at 6. In
coming to this conclusion, defendant seemingly relies on allegations that “Defendant
failed to provide Plaintiff and other non-exempt employees all of their required ten-
minute breaks” and that “Plaintiff and other non-exempt employees did not receive all
required meal breaks.” Docket No. 5 at 3-4, ¶¶ 11-12. Thus, plaintiff interprets
plaintiff’s allegations as stating that defendant failed to provide his non-exempt
employees with some—but not every—possible break, while defendant interprets
plaintiff’s allegations as stating that the defendant universally failed to provide his non-
exempt employees with every mandated break.
The Court agrees with plaintiff’s interpretation. An allegation that an employer
failed to provide his employees with all of their required ten-minute breaks reads as an
allegation that the employees were not provided the full amount of ten-minute breaks
that they were entitled to. It is not an allegation that the employer provided his
employees with none of the required ten-minute breaks. Moreover, defendant argues
that “Plaintiff offers no competent evidence—no payroll records, declarations, or time
data—showing that violations occurred at anything less than the universal rate.” Docket
No. 29 at 6. But it is defendant who has the burden of showing by a preponderance of
the evidence that the amount in controversy exceeds $5,000,000. 5 Frederick, 683 F.3d
5 Defendant speaks of plaintiff’s burden here because, in this section of his brief,
defendant is arguing that plaintiff failed to show that defendant’s calculations are legally
impossible. Docket No. 29 at 6. However, the burden only shifts to plaintiff to show that
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at 1246. And defendant has provided no evidence supporting his assumption that
breaks were missed at a universal rate. 6 As the Ninth Circuit noted, “a damages
assessment may require a chain of reasoning that includes assumptions. When that is
so, those assumptions cannot be pulled from thin air but need some reasonable ground
underlying them.” Ibarra, 775 F.3d at 1199. Here, there is no reasonable ground
underlying defendant’s assumption because defendant provides no evidence to support
his assumption and because plaintiff’s allegations did not allege that defendant provided
non-exempt employees with no required breaks.
Additionally, plaintiff argues that defendant improperly assumed that the mean
average shift length is a reasonable number to use when calculating uncompensated
time resulting from missed breaks. Docket No. 15 at 3-4. Plaintiff argues that focusing
on the mean average is unreasonable because the mean average does not account for
the standard deviation. Id. at 4. The standard deviation measures how much the
pieces of data in a dataset differ from one another. Id. This is important in this context
because non-exempt employees are only entitled to two ten-minute breaks and one 30-
minute break when they work more than 6 hours. See 7 C.C.R. § 1103-1: 5.1-5.2.
Thus, defendant’s formula assumed that each non-exempt employee was entitled to an
additional 50 minutes worth of pay because it assumed they were working for the mean
it is legally impossible to recover more than $5,000,000 once defendant meets his initial
burden to show by a preponderance of the evidence that the amount in controversy
exceeds $5,000,000. Frederick, 683 F.3d at 1247. Plaintiff does not argue that
defendant’s calculations were legally impossible because they improperly assume that
non-exempt employees missed every shift. Docket No. 15 at 2-3. Rather, plaintiff
argues that defendant’s unsupported assumptions indicate that defendant did not meet
his initial burden. Id.
6 Defendant also failed to provide evidence or argument that his interpretation of
plaintiff’s allegations should control. See generally Docket No. 29.
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average shift length—6.36 hours. However, defendant provided no evidence that there
was a low standard deviation, i.e., that most non-exempt employees worked around
6.36 hours. For example, defendant does not discuss to what extent the restaurants
employed part-time workers. A part-time worker who worked less than five hours in a
shift would only be entitled to one ten-minute break and no 30-minute break. Id. Thus,
defendant’s unsupported assumption that every non-exempt employee worked a 6.36
hour shift could significantly overinflate the actual amount in controversy. Defendant’s
argument that he permissibly relied on payroll data to determine the average shift length
misses the point; the “average shift length” is irrelevant without knowing the standard
deviation. 7
The formula that defendant used to calculate the amount in controversy relied on
two assumptions: (1) that non-exempt employees received no required breaks, and (2)
that non-exempt employees always worked a 6.36 hour shift. Neither of these
assumptions were supported by evidence. Therefore, defendant’s formula—which
relied on these two assumptions—failed to show by a preponderance of the evidence
that the amount in controversy exceeds $5,000,000. Accordingly, defendant did not
meet his burden to prove that the Court has jurisdiction pursuant to CAFA. 8
III. CONCLUSION
Therefore, it is
7 The Court need not analyze plaintiff’s third argument that defendant improperly
failed to account for a change in the law that occurred since filing the case because it
will grant the motion to remand, Docket No. 15, based on plaintiff’s first two arguments.
8 Because the Court will grant plaintiff’s motion to remand, Docket No. 15, it need
not consider plaintiff’s alternative argument that jurisdictional discovery is warranted.
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ORDERED that the Motion for Remand to State Court Pursuant to 28 U.S.C.
§ 1447 [Docket No. 15] is GRANTED. It is further
ORDERED that this case is REMANDED to the District Court of El Paso County
for all further proceedings. It is further
ORDERED that this case is closed.
DATED January 22, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
____	__	__	___	__	__	___	______	____________	__	_______	__	__ _______________________________________________________________________
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