Case Notes

In Romulus v. CVS Pharm., Inc., 770 F.3d 67 (1st Cir. 2014), the defendant pharmacy chain maintained a policy requiring its shift supervisors to remain on premises during rest or meal breaks when there were no other managerial employees on duty. A group of shift supervisors at the defendant's Massachusetts stores filed a putative class action in Massachusetts Superior Court, alleging that the defendant's refusal to pay them for their break time was a violation of Mass. Gen. Laws ch. 149, ' 148, the Massachusetts Wage Act, and Mass. Gen. Laws ch. 151, ” 1A and 1B, the Massachusetts Overtime Statute. In their complaint, the plaintiffs sought unpaid wages and costs for the breaks, beginning in July 2008, but did not provide any information regarding the number of breaks at issue or the total amount of damages claimed.

During preliminary discovery, the defendant produced electronic time and attendance data for all its Massachusetts shift supervisors. Using these data, plaintiffs' counsel calculated the total number of meal breaks when no other shift supervisors were on duty during a subset of the period from July 2008 to commencement of the action, and reported the number to the defendant's counsel by e-mail on Jan. 18, 2013. On Feb. 15, 2013, the defendant filed a notice of removal, arguing that the number of meal breaks reported in the e-mail, if extrapolated over the entire period from July 2008 to commencement of the action, created a reasonable probability that the amount in controversy exceeded $5 million as required for federal jurisdiction under 28 U.S.C. ' 1332(d), part of the Class Action Fairness Act of 2005 (CAFA). The defendant further argued that its removal was timely under 28 U.S.C. ' 1446(b)(3), which provides that “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, 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.”