The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Motion to Remand the Case to State Court filed by Plaintiff. (ECF No. 11).
On September 17, 2010, Plaintiff initiated this action by filing a Complaint in California Superior Court for the County of San Diego. (ECF No. 1 at 1). On December 1, 2010, Defendant Capitol Management Services, L.P., filed a Notice of Removal of Action Under Class Action Fairness Act. Id.
A. Allegations of the Complaint
The Complaint asserts three claims: (1) Negligent Violations of the Telephone Consumer Protection Act 47 U.S.C. § 227 et seq.; (2) Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. § 227 et seq.; and (3) Unlawful, Fraudulent and Unfair Business Acts and Practices in Violation of California Business & Professions Code § 17200 et seq.
Plaintiff Wade Grant is a California citizen. Defendant Capitol Management Services, L.P. is a citizen of New York.
Plaintiff brings the Complaint on behalf of himself and "all other similarly situated [individuals] defined as all persons within California who received any telephone call from Defendant to said person's cellular telephone through the use of any automated telephone dialing system or an artificial or prerecorded voice, within the four years prior to filing of this Complaint." Id. at 8.
The Complaint seeks damages in the amount of $500 for each negligent violation of the Telephone Consumer Protection Act and $1,500 for each knowing or willful violation of the Telephone Consumer Protection Act. Id. at 13-14. The Complaint alleges that "[n]o federal diversity jurisdiction exists between Plaintiff and Defendant because Plaintiff's claim is less than $75,000 exclusive of attorney's' [fees] and interest." Id. at 7.
Plaintiff states that he "does not, as yet, know the exact size of the Class." Id. at 8. Plaintiff alleges that based on the nature of Defendant business, "Plaintiff believes that there are numerous Class members ...." Id. at 8-9.
Defendant states in his Notice of Removal that the removal is pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d)(2), 1332(d)(5) and 1453(a). Id. at 1. Defendant alleges that "(1) Plaintiff's counsel has advised Defendant's counsel that the combined claims exceed $5,000,000.00; (2) there are at least 100 class members; and (3) class members are a citizen of a different state than Defendant." Id. at 2.
Plaintiff contends that this case should be remanded because there is a presumption against removal jurisdiction and Defendant has not satisfied its burden. Plaintiff contends that Defendant has not submitted sufficient evidence to establish the requisite ...