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Philip Vavala v. Dean Foods of Southern California


November 10, 2011


The opinion of the court was delivered by: Honorable John F. Walter, United States District Judge



Shannon Reilly Courtroom Deputy


None Present Court Reporter



On May 26, 2011, Plaintiff Philip Vavala ("Plaintiff") filed a Complaint in Los Angeles Superior Court against Defendants Dean Foods of Southern California, LLC ("Dean Foods") and Richard Sullivan ("Sullivan"). On September 16, 2011, Plaintiff dismissed Sullivan from this action. On October 12, 2011, Dean Foods filed its Notice of Removal, alleging this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a).

Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over matters authorized by the Constitution and Congress. See Bender v. Williamsport Area School , 475 U.S. 534, 541 (1986). "Because of the Congressional purpose to restrict the jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Duncan v.

, 76 F.3d 1480, 1485 (9th Cir. 1996) (citations and quotations omitted). There is a strong presumption that the Court is without jurisdiction unless the contrary affirmatively appears. See Fifty Associates v. Prudential Insurance Company of America, 446 F.2d 1187, 1190 (9th Cir. 1990). As the party invoking federal jurisdiction, Dean Foods bears the burden of demonstrating that removal is proper. See, e.g., Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988).

Diversity jurisdiction founded under 28 U.S.C. § 1332(a) requires that (1) all plaintiffs be of different citizenship than all defendants, and (2) the amount in controversy exceed $75,000.

In its Notice of Removal, Dean Foods fails to allege the citizenship of Plaintiff. Instead, Dean Foods alleges that Plaintiff is a resident of California. However, "the diversitsy jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency." Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). To be a citizen of a state, a natural person must be a citizen of the United States and be domiciled in a particular state. Id. Persons are domiciled in the places they reside with the intent to remain or to which they intend to return. Id. "A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state." Id. Because neither the "four corners" of the Complaint nor the Notice of Removal contain sufficient allegations concerning Plaintiff's citizenship, Dean Foods has failed to meet its burden to establish this Court's jurisdiction. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir.

In addition, when, as in this case, "the complaint does not demand a dollar amount, the removing defendant bears the burden of proving by a preponderance of evidence that the amount in controversy exceeds [$75,000]." Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997). "The district court may consider whether it is 'facially apparent' from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition, and may 'require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.'" Id. at 377 (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th Cir. 1995)); see also Valdez v. Allstate Ins. Co. 372 F.3d 1115, 1117 (9th Cir. 2004) ("Since it [was] not facially evident from the complaint that more than $75,000 [was] in controversy, Allstate should have prove[n], by a preponderance of the evidence, that the amount in controversy [met] the jurisdictional threshold.") (internal quotation omitted). "Conclusory allegations as to the amount in controversy are insufficient." Matheson v. Progressive Specialty , 319 F.3d 1089, 1090 (9th Cir. 2003).

In its Notice of Removal, Dean Foods claims that the amount in controversy in this action clearly exceeds the jurisdictional minimum of $75,000. Notice of Removal, 4:24. However, Dean Foods' arguments regarding the amount in controversy in the Notice of Removal are not supported by citation to specific facts or summary judgment type evidence, but, instead, rely on assumptions, speculations, and conjecture. For example, even accepting Dean Foods' calculations, Plaintiff's lost wage and medical expenses related to emotional distress claims are only worth $40,919.14, which is well below the $75,000 amount in controversy requirement. Dean Foods then simply assumes that the amount in controversy will be in excess of the amount in controversy requirement because it estimates Plaintiff's punitive damages to be an additional $40,919.14 and Plaintiff's attorney's fees to be an additional $5,114.89. See Conrad Assocs. v. Hartford Acc. & Indem. Co., 994 F.Supp. 1196, 1199 (N.D. Cal. 1998) (holding that defendants could not meet the burden of demonstrating the amount in controversy "simply by pointing out that the complaint seeks punitive damages and that any damages awarded under such a claim could total a large sum of money."); see also Gordon v. Allstate Insurance Co., 2010 WL 1949164 (D. Ariz. May 13, 2010) (holding that "while verdicts in similar cases can be probative, they are not determinative; Defendants must point to facts that would support a $75,000 or higher punitive damage award in this case.").

Therefore, Dean Foods' conclusory allegations in this case do not prove by a preponderance of the evidence that the jurisdictional amount is satisfied. See, e.g., Alvarez v. Limited Express, 2007 WL 2317125, at *4 (S.D. Cal. Aug. 8, 2007) (remanding where defendant "chose not to provide the underlying facts and instead relied on a speculative, conjectural estimate from plaintiff's motion papers"); see, also, Lowdermilk v. United States Bank National Association, 479 F.3d 994, 1002 (9th Cir. 2007) (holding that a court cannot base its jurisdiction on speculation and conjecture). Accordingly, Dean Foods has failed to meet their burden of demonstrating that the amount in controversy exceeds $75,000.

Dean Foods has failed to satisfy its burden of establishing that diversity jurisdiction exists. Accordingly, this action is REMANDED to Los Angeles Superior Court for lack of subject matter See 28 U.S.C. § 1447(c).



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