UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 23, 2010
SARAH ZUBAIR, PLAINTIFF,
L'OREAL USA, INC., WALGREEN CO., AND DOES 1 THROUGH 10, DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
This action, originally commenced in the Superior Court of California in and for the County of San Joaquin, was removed by Defendants to this Court on May 5, 2010. Jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332. Plaintiff now moves to remand the matter to state court on grounds that Defendants' removal petition was untimely, or, alternatively, that Defendants have not demonstrated the prerequisites for diversity jurisdiction. As set forth below, the Court reject Plaintiff's contentions.
Turning first to Plaintiff's untimeliness argument, she asserts that because service was effected on December 24, 2009, and because removal was not effected until more than thirty days later in contravention of 28 U.S.C. § 1446(b), the Court should reject Defendants' removal as late. Examination of Plaintiff's complaint, however, indicates that it was a form pleading asserting only that damages exceeded $25,000.00 and that Plaintiff was injured by use of a hair dye product manufactured and/or sold by Defendants. Nothing in the complaint suggested damages in excess of the $75,000.00 threshold needed to support diversity jurisdiction under 28 U.S.C. § 1446(b). In order to trigger the applicable thirty-day removal period, the facts supporting removal must be evident on the face of the event. See, e.g., Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005).
To the contrary, the evidence presented shows that it was not until April 14, 2010, when Plaintiff served her Statement of Damages indicating that a total of $401,000.00 was being sought in general and special damages, that Defendants were on notice that damages exceeded the jurisdictional minimum. (See Ex. "E" to Removal Pet.). That notice was reiterated some ten days later on April 23, 2010, when Plaintiff served interrogatory responses enumerating a total of $550,989.00 in claimed damages. Id. at Ex. "F", No. 48. As stated above, Defendants thereafter removed the case on May 5, 2010, less than thirty days after both events. That removal was timely.
In addition to asserting untimeliness, Plaintiff also takes the position that despite Plaintiff's interrogatory responses and Statement of Damages, both of which reflected damages substantially in excess of the jurisdictional minimum, Defendants still failed to meet their burden of proof in that regard. In essence, Plaintiff urges this Court to disregard her own discovery responses and find that Plaintiff's damages could not possibly exceed $75,000.00 despite the implications of her own evidence. The Court finds that argument to be patently untenable. In order to preserve their right to remove this matter to federal court, Defendants had no choice but to remove this case within thirty (30) days after their receipt of the aforementioned discovery. Defendants properly relied on that discovery to establish jurisdiction and satisfied its burden of proof in doing so.*fn1
Given the foregoing, Plaintiff's Motion to Remand (Docket No. 6) is DENIED.*fn2
IT IS SO ORDERED.