The opinion of the court was delivered by: Fern M. Smith, District Judge.
ORDER REMANDING CASE TO STATE COURT AND GRANTING PLAINTIFFS'
REQUEST FOR FEES AND COSTS
This class action suit, originally filed in the San Francisco
Superior Court, was removed by defendant Pfizer on the basis of
diversity of citizenship.*fn1 Plaintiffs have filed a motion to
remand the case to state court and to recover from defendants
their attorneys' fees and costs stemming from the removal to
federal court. Defendant Pfizer filed an opposition, in which all
defendants have joined. Plaintiffs' motion requires the Court to
determine whether defendants have met their burden of
demonstrating that the amount in controversy, exclusive of
interest and costs, exceeds $75,000, and if not, whether the
removal justifies charging defendants with plaintiffs' reasonable
fees and costs incurred in obtaining remand.
Defendants manufacture and sell over-the-counter head lice
remedies. Plaintiffs allege that defendants have continued to
sell those products despite knowledge that head lice have
developed resistance to their active ingredients, rendering the
products useless. Plaintiffs seek to represent a class of all
California residents who have purchased the allegedly offending
products, and for whom the products failed to work. Plaintiffs'
claims are all based on California law; they seek actual damages,
punitive damages, injunctive relief and attorneys' fees.
When a case is removed from state court, a district court must
remand the case if it determines that it lacks subject matter
jurisdiction. See 28 U.S.C. § 1447(c). There is a "strong
presumption" against removal jurisdiction, Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992), Sullivan v. First Affiliated
Securities, Inc., 813 F.2d 1368, 1371 (9th Cir. 1987), cert.
denied, 484 U.S. 850, 108 S.Ct. 150, 98 L.Ed.2d 106 (1987), and
any uncertainties are to be resolved in favor of remand, see
Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th
Cir. 1988). Defendants bear the burden of proving, by a
preponderance of the evidence, actual facts sufficient to support
jurisdiction. Sanchez v. Monumental Life Ins. Co.,
102 F.3d 398, 403-404 (9th Cir. 1996); Gaus, 980 F.2d at 566. If the
complaint does not already disclose a sufficient factual basis
for jurisdiction, such facts must appear in the notice of
removal. Schroeder v. Trans World Airlines, Inc., 702 F.2d 189,
191 (9th Cir. 1983).
When the assertion of subject matter jurisdiction is based on
diversity of citizenship, defendants must prove: (1) that all
plaintiffs are of different citizenship than all defendants,
Carden v. Arkoma Associates, 494 U.S. 185, 187, 110 S.Ct. 1015,
108 L.Ed.2d 157 (1990); and (2) that the amount in controversy,
exclusive of interest and costs, exceeds the jurisdictional
minimum — currently $75,000, see 28 U.S.C. § 1332(a), Singer
v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir.
1997), Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,
403-404 (9th Cir. 1996). Ordinarily, to satisfy the amount in
controversy requirement in a class action suit, defendants must
prove that each member of the proposed class has a monetary claim
that exceeds $75,000. See Czechowski v. Tandy Corp.,
731 F. Supp. 406, 409 (N.D.Cal. 1990) (amount in controversy
requirement was then $10,000). Claims of class members may only
be aggregated to satisfy the requirement if they are "joint and
common" rather than "separate and distinct." United States v.
Southern Pac. Transp. Co., 543 F.2d 676, 682 (9th Cir. 1976).
A. Diversity of Citizenship
Defendants have failed to meet their burden of proving that the
parties are of diverse citizenship. In the Notice of Removal,
defendants allege sufficient facts to prove that plaintiffs are
California citizens and that defendant Pfizer is a corporate
citizen of Delaware and New York. Citing plaintiffs' complaint,
the Notice asserts, without supporting facts, that "[n]one of the
other defendants is a citizen of the State of California." Notice
at ¶ 4. Plaintiffs' complaint, however, does not contain
sufficient factual allegations to determine the citizenship of
any of the three remaining defendants. See Complaint at ¶ 7
(alleging state of incorporation and principal executive offices,
but not principal place of business, of defendant
Warner-Lambert), ¶ 9 (alleging headquarters of defendant Care
Technologies, but neither its state of incorporation nor
principal place of business), ¶ 10 (alleging headquarters of
defendant Hogil Pharmaceutical, but neither its state of
incorporation nor principal place of business). Because a
"sufficient factual basis for jurisdiction" appears neither in
the complaint nor in the Notice of Removal, removal is improper.
Schroeder, 702 F.2d at 191.