This matter comes before the court on plaintiff's motion to remand (ECF 28) and defendant's motion for summary judgment on plaintiff's complaint. (ECF 21.) Hearing on this matter took place on April 6, 2011; Robert Kitay was present for plaintiff and David Springfield was present for defendant. Having considered the evidence and heard argument, the court DENIES plaintiff's motion to remand, GRANTS defendant's motion for summary judgment and ORDERS this case CLOSED.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff filed his complaint in Yolo County Superior Court on June 29, 2009, alleging causes of action for conversion, intentional interference with prospective economic advantage, unjust enrichment, intentional infliction of emotional distress and exemplary damages. (Compl., Notice of Removal Ex. A, ECF 1-1.) Plaintiff claims the following damages: wage loss, general damages, future wage loss, lost interest, future lost interest, money unlawfully taken from accounts of which plaintiff is a beneficiary in amounts to be proven at trial, compensatory damages, and punitive damages. (Id.) Defendant removed the case to this court on September 29, 2009. (ECF 1.) Defendant filed a status report on December 27, 2009 (ECF 11) and an answer on January 6, 2010. (ECF 12.) The court issued an order for plaintiff's counsel to show cause why the case should not be dismissed for failure to prosecute on February 1, 2010. (ECF 13.) Plaintiff filed a response to the order and his status report on February 2, 2010. (ECF 14 & 15.) The court issued the status (pretrial scheduling) order on February 4, 2010, ordering discovery to be completed by December 3, 2010, designation of expert witnesses by December 17, 2010, supplemental expert disclosure by January 7, 2011, expert discovery completed by February 7, 2011, and all dispositive motions heard by April 8, 2011. (ECF 17.) Nothing substantive was filed in this case again until defendant's motion for summary judgment, filed on March 4, 2011. (ECF 21.)
Plaintiff filed a motion to remand on March 16, 2011. (ECF 28.) Plaintiff further filed an ex parte application for an order shortening time on the motion to remand hearing or continuing the hearing on the motion for summary judgment on March 21, 2011. (ECF 29.) Defendant filed her opposition to both the motion and the ex parte application on March 28, 2011. (ECF 32.) The court issued a minute order on March 30, 2011 granting plaintiff's ex parte application for an order shortening time and advancing the hearing on the motion to remand from April 27, 2011 to April 6, 2011. (ECF 34.) Plaintiff filed a reply to defendant's opposition on April 1, 2011. (ECF 35.) Plaintiff filed an opposition to defendant's motion for summary judgment on April 5, 2011. (ECF 40.)
I. Standard "[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction  may be removed by the defendant or the defendants  to the district court . . . ." 28 U.S.C. § 1441(a). District courts have original jurisdiction in two situations: 1) federal question jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States;" and 2) diversity jurisdiction where "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs" and there is complete diversity between the parties. 28 U.S.C. §§ 1331, 1332(a).
The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). There is a "strong presumption" against removal jurisdiction, which "means that the defendant always has the burden of establishing that removal is proper." Id. "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
Plaintiff contends he has "stipulated" that the amount in controversy is less than $75,000 and that as a result the court no longer has subject matter jurisdiction. (Pl.'s Mem. P. & A. in Supp. Mot. (Mot.) at 1, ECF 28-3.) Defendant counters that plaintiff's motion is untimely and that the amount in controversy is determined at the outset of the action. (Def.'s Opp'n at 8, ECF 32.)
Plaintiff's motion is timely. 28 U.S.C. § 1447(c) states: "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . ." The thirty-day deadline is inapplicable here, where plaintiff is alleging lack of subject matter jurisdiction.
However, defendant is correct that plaintiff's newly "stipulated-to" amount in controversy is not the operative amount in controversy. The operative amount in controversy is that claimed by plaintiff in the complaint. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 402 (9th Cir. 1996) ("[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith.  The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction." (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938))). "[E]vents occurring subsequent to removal which reduce the amount recoverable, whether beyond the plaintiff's control or the result of his volition, do not oust the district court's jurisdiction once it has attached." Red Cab, 303 U.S. at 293.*fn1
In his complaint, plaintiff claimed over $100,000 in damages. (ECF 1-1.) Plaintiff's complaint will not now be remanded to state court based on his unilateral designation of a lesser amount -- one dollar less than the amount required to be in controversy (Hill ...