Adam Jones, individually as an aggrieved employee v. Bath & Body Works, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM JONES, individually as an
aggrieved employee and on behalf of other
aggrieved employees,
Plaintiff - Appellee,
v.
BATH & BODY WORKS, LLC,
Defendant - Appellant.
No. 14-56778
D.C. No. 2:13-cv-05206-FMO-
AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted December 8, 2014*
Pasadena, California
Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.
This is an appeal, filed pursuant to 28 U.S.C. § 1453(c), of the district
court’s order remanding the underlying putative class action to state court.
Reviewing the district court’s remand order de novo, Abrego Abrego v. Dow Chem.
FILED
DEC 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Co., 443 F.3d 676, 679 (9th Cir. 2006) (per curiam), we reverse the district court’s
remand order and conclude that the district court has jurisdiction pursuant to the
Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d).
The sole dispute on appeal was whether defendant has met its burden of
proof under CAFA to establish that the amount in controversy exceeds $5 million,
but this dispute no longer existed when we heard oral arguments of the parties. At
oral argument, plaintiff conceded that the evidence submitted by defendant, if
credited, is sufficient to show by a preponderance of the evidence that the amount
in controversy exceeds $5 million. Plaintiff also conceded in its answering brief
that “the district court may not have fully considered the sample data submitted by
[defendant]. If the estimated amounts from the sample data were extrapolated to
cover all eligible putative class members, then the figures provided for the waiting
time penalties alone would likely eclipse the $5 million threshold.”
Parties cannot consent to subject matter jurisdiction, and a lack of subject
matter jurisdiction is a non-consentable defect. See Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 377 n.21 (1978). Here, however, we agree with the parties
that defendant has submitted sufficient evidence to show by a preponderance of the
evidence that the amount in controversy exceeds $5 million. We conclude that the
district court has jurisdiction over the underlying putative class action under
2

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CAFA.
REVERSED and REMANDED.
3

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