United States v. 2020-09-08 | 20-55709 | CLAYTON SALTER V. QUALITY CARRIERS, INC. | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLAYTON SALTER, individually, and
on behalf of all others similarly
situated,
Plaintiff-Appellee,

v.

QUALITY CARRIERS, INC., an Illinois
Corporation; Q
UALITY
DISTRIBUTION, INC., a Florida
Corporation,
Defendants-Appellants.
No. 20-55709

D.C. No.
2:20-cv-00479-
JFW-JPR

OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Argued and Submitted August 11, 2020
Pasadena, California

Filed September 8, 2020

Before: Diarmuid F. O’Scannlain and Consuelo M.
Callahan, Circuit Judges, and Michael H. Watson,
*

District Judge.

Opinion by Judge Callahan

*
The Honorable Michael H. Watson, United States District Judge
for the Southern District of Ohio, sitting by designation.

2 SALTER V. QUALITY CARRIERS

SUMMARY
**

Class Action Fairness Act

The panel vacated the district court’s order remanding to
state court a putative class action that was removed under the
Class Action Fairness Act of 2005, and which alleged that
defendant, Quality Carriers, Inc. and Quality Distribution
Inc., failed to provide truck drivers with meal breaks, rest
periods, overtime wages, minimum wages, and
reimbursement for necessary expenditures as required by
California law.

The crux of plaintiff’s claim was that Quality Carriers,
Inc., and Quality Distribution Inc., (collectively “Quality”)
misclassified truck drivers as independent contractors rather
than employees. Quality removed the action, asserting that
the amount in controversy exceeded $5 million, and
submitted a declaration by its Chief Information Officer in
support of its assertion. The district court granted plaintiff’s
motion to remand to state court, finding that the declaration
submitted by Quality failed to adequately show that the
amount in controversy exceeded $5 million. The district
court noted that the Chief Information Officer failed to
attach a single business record, spreadsheet, or other
supporting document to his declaration to corroborate his
testimony.

The panel held that the district court erred by applying
the standard for reviewing a factual attack on jurisdiction to

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

SALTER V. QUALITY CARRIERS 3

plaintiff’s facial attack on Quality’s presentation. Plaintiff
did not challenge the rationality, or the factual basis, of
Quality’s assertions. Instead, he argued only that Quality
must support its assertion with competent proof. But such a
challenge is foreclosed by the Supreme Court’s decision in
Dart Cherokee Basin Operating Sys. Co., LLC v. Owens, 574
U.S. 81, 88-89 (2014), and this court’s opinion in Arias v.
Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir.
2019). The district court faulted Quality’s presentation as
relying on the unsupported and conclusory statements in the
Officer’s declaration. But that is the inherent nature of
plausible allegations: they rely on reasonable assumptions.
Plaintiff, however, had not challenged any of Quality’s
essential assumptions or shown that any one was
unreasonable. Accordingly, because Quality only needed to
include a plausible allegation that the amount in controversy
exceeded the jurisdictional threshold, the panel vacated the
district court’s remand order and remanded the matter to the
district court.

COUNSEL

Christopher J. Eckhart (argued), E. Ashley Paynter, and
James A. Eckhart, Scopelitis Garvin Light Hanson & Feary
P.C., Indianapolis, Indiana; Christopher C. McNatt Jr.,
Scopelitis Garvin Light Hanson & Feary P.C., Pasadena,
California; for Defendants-Appellants.

Jennifer D. Bennett (argued), Gupta Wessler PLLC, San
Francisco, California; Matthew W.H. Wessler, Gupta
Wessler PLLC, Cambridge, Massachusetts; Taras Kick and
Daniel Joseph Bass, The Kick Law Firm, Los Angeles,
California; for Plaintiff-Appellee.

4 SALTER V. QUALITY CARRIERS

OPINION
CALLAHAN, Circuit Judge:
Clayton Salter, a truck driver, filed this putative class
action against Quality Carriers, Inc. and Quality
Distribution, Inc. (collectively “Quality”), alleging that
Quality failed to provide truck drivers with meal breaks, rest
periods, overtime wages, minimum wages, and
reimbursement for necessary expenditures as required by
California law. The crux of Salter’s claim is that Quality
misclassified the truck drivers as independent contractors
rather than employees. In January 2020, Quality removed
the action to the United States District Court for the Central
District of California asserting that the amount in
controversy exceeded $5 million. Salter filed a motion to
remand to state court. The district court granted the motion
finding that the declaration submitted by Quality failed to
adequately show that the amount in controversy exceeded
$5 million. We hold that Salter challenged the form, not the
substance, of Quality’s showing, and the form of that
showing was sufficient under our case law. Accordingly, we
vacate the remand order and remand this case to the district
court.
I
In October 2019, Clayton Salter filed a class action
lawsuit against Quality in the Los Angeles Superior Court,
alleging that Quality misclassified its truck drivers as
independent contractors, rather than employees. The
complaint asserted claims under California law for:
(1) failure to provide required meal periods; (2) failure to
provide required rest periods; (3) failure to pay overtime
wages; (4) failure to pay minimum wages; (5) failure to pay
all wages due to discharged or quitting employees;

SALTER V. QUALITY CARRIERS 5

(6) failure to maintain required records; (7) failure to provide
accurate itemized statements; (8) failure to indemnify
employees for necessary expenditures incurred in discharge
of duties; (9) unlawful deductions from wages; and
(10) unfair and unlawful business practices. Quality was
served on October 18, 2019.
In January 2020, Quality filed a notice of removal with
the district court invoking federal court jurisdiction pursuant
to 28 U.S.C § 1332(d), the Class Action Fairness Act of 2005
(CAFA).
1
Section 1332(d)(2) provides that a district court
“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.” Salter moved
to remand the case to state court asserting that Quality’s
notice of removal failed to demonstrate that at least
$5 million was in controversy. Quality responded by
submitting a declaration by Cliff Dixon, its Chief
Information Officer, in support of its assertion that the
amount in controversy exceeded $5 million.
Dixon’s declaration states that he has been the Chief
Information Officer since February 2018, has personal
knowledge and understanding of company practices and
records, and is familiar with Quality’s record keeping
programs. According to Dixon, those records reflect that:
(1) between October 2015, and January 2020,
“approximately 118 Contractors performed work in
connection with one of [Quality’s] California terminals”;
(2) “[o]ne hundred and six or 89.8% of the Contractors are
California residents as determined by their mailing

1
Salter challenged the timeliness of the notice of removal in the
district court, but the district court did not reach this issue, and we decline
to consider it in the first instance on appeal.

6 SALTER V. QUALITY CARRIERS

addresses”; and (3) “approximately 186 Contractors who
were connected with [Quality’s] “independently owned
California terminals received settlement statements between
October 3, 2015 and November 9, 2019.” The critical
paragraphs of Dixon’s declaration state that Quality’s
records indicated that between October 2015 and November
2019 it deducted over $14 million from the truck drivers’
weekly settlements, including a total of $11,512,642.46 for
fuel purchases alone. Dixon’s declaration further states that
based on the records maintained by Quality as part of the
International Fuel Tax Agreement, of a total of
approximately 105,177,266 miles reported driven during the
relevant time period, approximately 67,376,290 miles, or
64% were driven in California.
2

The district court found that the notice of removal
assumed that Quality had deducted in excess of $5 million
for fuel, insurance, maintenance, repairs, and tax expenses.
The court concluded that the “unsupported and conclusory
statements in Dixon’s declaration are insufficient to
establish that the amount in controversy exceeds $5 million.”
The court noted that “Dixon fails to attach a single business
record, spreadsheet, or other supporting document to his
declaration to corroborate his testimony.” It further noted
that although Dixon states he is familiar with Quality’s
record keeping program, “absent from his declaration is any
attestation as to precisely what these records include or
whether he actually reviewed any records before his
declaration was drafted.” Addressing Quality’s damage

2
Because the deductions for fuel far exceed the $5 million
jurisdictional threshold, we need not consider the other deductions
mentioned in Dixon’s declaration. Even if the fuel deductions are
reduced to reflect only those miles driven in California, they still exceed
$5 million.

SALTER V. QUALITY CARRIERS 7

calculations, the district court noted that Quality “simply
assumes” that Salter “seeks the return of 100 percent of the
deductions made . . . without setting forth any basis in
Plaintiff’s Complaint or otherwise supporting that
assumption.”
II
We review a district court remand order de novo. Greene
v. Harley-Davidson, Inc., 965 F.3d 767, 771 (9th Cir. 2020);
Ibarra v. Manheim Inv., Inc., 775 F.3d 1193, 1196 (9th Cir.
2015); Abrego v. Dow Chem. Co., 443 F.3d 676, 679 (9th
Cir. 2006).
III
A.
CAFA gives federal courts jurisdiction over specified
class actions if the amount in controversy exceeds
$5 million.
3
28 U.S.C § 1332(d). In order to remove a class
action filed in state court to federal court, the defendant must
file “a notice of removal signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and containing a short and
plain statement of the grounds for removal.” 28 U.S.C.
§ 1446(a). Where “it is unclear or ambiguous from the face
of a state-court complaint whether the requisite amount in
controversy is pled, the removing defendant bears the burden
of establishing, by a preponderance of the evidence, that the
amount in controversy exceeds the jurisdictional threshold.”
Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 793

3
The statute imposes other criteria such as the putative class having
more than 100 members and the parties being minimally diverse, see
28 U.S.C. § 1332(d)(2), (d)(5)(3), but they are not at issue in this case.

8 SALTER V. QUALITY CARRIERS

(9th Cir. 2018) (quoting Urbino v. Orkin Servs. of Cal., Inc.,
726 F.3d 1118, 1121–22 (9th Cir. 2013)).
The Supreme Court in Dart Cherokee Basin Operating
Sys. Co., LLC v. Owens, 574 U.S. 81, 83 (2014), considered
the question: “To assert the amount in controversy
adequately in the removal notice, does it suffice to allege the
requisite amount plausibly, or must the defendant
incorporate into the notice of removal evidence supporting
the allegation?” The Court answered that “[a] statement
‘short and plain’ need not contain evidentiary submissions.”
Id at 84. The Court noted that “no antiremoval presumption
attends cases invoking CAFA, which Congress enacted to
facilitate adjudication of certain class actions in federal
court.” Id. at 89. The Court further explained that where a
plaintiff contests a defendant’s allegation concerning the
amount in controversy, both sides may “submit proof and the
court decides, by a preponderance of the evidence, whether
the amount-in-controversy requirement has been satisfied.”
Id. at 88.
Following Dart, we held that when the claimed amount
in controversy is challenged “CAFA’s requirements are to
be tested by consideration of real evidence and the reality of
what is at stake in the litigation, using reasonable
assumptions underlying the defendant’s theory of damages
exposure.” Ibarra, 775 F.3d at 1197–98. Developing this
reasoning further in Arias v. Residence Inn by Marriott,
936 F.3d 920 (9th Cir. 2019), we stated:
First, a removing defendant’s notice of
removal “need not contain evidentiary
submissions” but only plausible allegations
of the jurisdictional elements. Second, when
a defendant’s allegations of removal
jurisdiction are challenged, the defendant’s

SALTER V. QUALITY CARRIERS 9

showing on the amount in controversy may
rely on reasonable assumptions.
Id. at 922 (quoting and citing Ibarra, 775 F.3d at 1197–99).
B.
This appeal focuses on what a defendant must show for
removal of a class action under CAFA when the amount in
controversy is not clear from the complaint. Here, because
the amount in controversy was not clear from Salter’s
complaint, Quality submitted Dixon’s declaration to show
that more than $5 million was in controversy. The district
court, however, held that “[t]he unsupported and conclusory
statements in Dixon’s declaration are insufficient to
establish that the amount in controversy exceeds $5 million.”
In support of the district court, Salter notes, quoting Abrego,
443 F.3d at 682, that “the removing defendant has ‘always’
borne the burden of establishing federal jurisdiction,
including any applicable amount in controversy
requirement.” He further argues that pursuant to Leite v.
Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014), Quality
“must support [its] jurisdictional allegations with competent
proof, under the same evidentiary standard that governs in
the summary judgment context.”
According to Salter, Quality failed to meet this standard
by offering only a short declaration by one of its employees
and not providing a single business record to support that
declaration. He contends that the district court properly
rejected the declaration because evidence submitted at
summary judgment must satisfy the “best evidence rule,”
which requires that a party provide “the original of a writing,
recording, or photograph” to “prove the contents thereof.”
Salter argues that because the best evidence rule applies
whenever the contents of a document are sought to be

10 SALTER V. QUALITY CARRIERS

proved, a declarant may not simply testify to the contents of
a document, he must actually produce the document for it to
be considered.
Salter fails to grasp the import of Leite. It was not a
CAFA case, but instead concerned the federal officer
removal statute, 28 U.S.C. § 1442(a)(1). More importantly,
Leite recognized the difference between “facial” and
“factual” attacks on jurisdictional allegations. “A ‘facial’
attack accepts the truth of the plaintiff’s allegations but
asserts that they ‘are insufficient on their face to invoke
federal jurisdiction.’” 749 F.3d at 1121 (quoting Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)).
For a facial attack, the court, accepting the allegations as true
and drawing all reasonable inferences in the defendant’s
favor, “determines whether the allegations are sufficient as a
legal matter to invoke the court’s jurisdiction.” Id. A factual
attack, by contrast, “contests the truth of the plaintiff’s
factual allegations, usually by introducing evidence outside
the pleadings.” Id. When a factual attack is mounted, the
responding party “must support her jurisdictional allegations
with ‘competent proof’ . . . under the same evidentiary
standard that governs in the summary judgment context.” Id.
(citation omitted).
Here, Salter mounted only a facial attack, rather than a
factual attack. In other words, he has not really challenged
the truth of Quality’s “plausible allegations.” He did not
question that there are over a hundred contractors who
performed work for Quality between October 2015 and
January 2020. Nor did he dispute that Quality deducted over
$11 million from the weekly settlements for fuel purchases.
4

4
Salter did argue that deductions related to work performed outside
of California were not covered. But this is not a meaningful challenge

SALTER V. QUALITY CARRIERS 11

Salter did not assert that Quality misinterpreted the thrust of
his complaint and did not offer any declaration or evidence
that challenged the factual bases of Quality’s plausible
allegations.
5

We hold that the district court erred by applying the
standard for reviewing a factual attack on jurisdiction to
Salter’s facial attack on Quality’s presentation. Salter did not
challenge the rationality, or the factual basis, of Quality’s
assertions. Instead, he argued only that Quality “must
support its assertion with competent proof.” But such a
challenge is foreclosed by the Supreme Court’s decision in
Dart and our opinion in Arias. In Dart, the Supreme Court
indicated that a defendant “may simply allege or assert that
the jurisdictional threshold has been met,” 574 U.S. at 88–
89, and in Arias we held that a removing defendant’s notice
of removal “‘need not contain evidentiary submissions’ but
only plausible allegations of jurisdictional elements.” Arias,
936 F.3d at 922 (quoting Ibarra, 775 F.3d at 1197); see also
Ehrman v. Cox Commc’ns, Inc., 932 F.3d 1223, 1227–28
(9th Cir. 2019) (holding that a defendant seeking to remove
under CAFA should not have been required to present
evidence in support of its jurisdictional allegations when the

because the amount deducted for fuel alone is considerably more than
$5 million, even when adjusted to discount for miles driven outside of
California. Furthermore, because the deductions for fuel exceed
$5 million, we need not consider the sufficiency of the allegations
concerning the other deductions.
5
In contrast, in Ibarra, we found that the defendant’s interpretation
of the plaintiff’s complaint was unreasonable. Ibarra, 775 F.3d at 1199
(“Because the complaint does not allege that Manheim universally, on
each and every shift, violates labor laws by not giving rest and meal
breaks, Manheim bears the burden to show that its estimated amount in
controversy relied on reasonable assumptions.”).

12 SALTER V. QUALITY CARRIERS

plaintiff asserted a facial, rather than a factual, challenge to
the notice of removal).
We therefore hold that the district court erred in treating
Salter’s attack on Quality’s presentation as a factual, rather
than facial, challenge. The district court faulted Quality’s
presentation as relying on the “unsupported and conclusory
statements in Dixon’s declaration.” But that is the inherent
nature of “plausible allegations”: they rely on “reasonable
assumptions.” Arias, 936 F.3d at 922. Salter, however, has
not challenged any of Quality’s essential assumptions or
shown that any one was unreasonable. Accordingly, because
Quality only needed to “include a plausible allegation that
the amount in controversy exceeds the jurisdictional
threshold,” Dart, 574 U.S. at 89, the district court’s remand
order is vacated and this matter is remanded to the district
court.
VACATED and REMANDED.