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Brandon Fox, An Individual v. Foot Locker Retail

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 23, 2012

BRANDON FOX, AN INDIVIDUAL,
PLAINTIFF,
v.
FOOT LOCKER RETAIL, INC; DOES 1 TO 100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion to Remand to State Court filed by Plaintiff Brandon Fox. (ECF No. 5)

I. Background

On October 21, 2011, Plaintiff initiated this action by filing a Complaint in the Superior Court of California for the County of San Diego, where it was assigned case number 37-2011-00099820-CU-WT-CTL. (ECF No. 1-1 at 3). Plaintiff alleges he was employed by Foot Locker Retail, Inc. ("Foot Locker") as an assistant manager. Plaintiff asserts claims for failure to provide mandated meal breaks, failure to provide mandated rest breaks, and wrongful termination in violation of public policy. Plaintiff alleges that he is a citizen of California and Foot Locker is a citizen of New York. Plaintiff seeks $37,163 in damages and requests an award of reasonable attorney's fees, expenses, and costs.

On December 2, 2011, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1332, diversity jurisdiction. (ECF No. 1). On December 13, 2011, Plaintiff filed a Motion to Remand. (ECF No. 5). On January 3, 2012, Defendant filed an Opposition. (ECF No. 7).

II. Discussion

Defendant contends that diversity exists on the grounds that the Complaint seeks damages in the amount of $37,163 and Plaintiff's counsel "indicated in correspondence to Foot Locker that '[t]ypical attorney fees for taking a case like this to trial are $30,000-$50,000 plus several thousand more in costs." (ECF No. 1 at 4). Defendant contends that in the three months prior to filing suit, Plaintiff's counsel incurred $3,500 in attorney's fees. Id. Defendant contends that "[t]he Court should take [the] estimate by Plaintiff's attorney of his own fees and costs to be made in good faith." (ECF No. 7 at 2). Defendant contends that at Plaintiff's counsel's normal billing rate of $350 per hour, "he will easily incur more than $35,000 to take this case through trial." Id. at 5.

Plaintiff contends that the amount in controversy has not been met on the grounds that his statement regarding the amount of attorney's fees was merely a "statement in an informal negotiation letter." (ECF No. 5-1 at 2-3). Plaintiff contends that "such communications are not acceptable evidence of the actual amount in controversy because ... they may include puffing ...." Id. at 3 (citation omitted). Plaintiff contends that to meet the jurisdictional requirement, Defendant would have to show that Plaintiff will recover at least $37,837 in attorney's fees which is more than his economic damages of $37,163. Plaintiff also seeks an award of attorney's fees for improper removal in the amount of $1,050 which is comprised of 3 hours of work at the billing rate of $350 per hour. Id. at 6.

Under 28 U.S.C. § 1441(a), "any 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 of the United States ...." 28 U.S.C. § 1441(a). The district court has original jurisdiction in cases in which the amount in controversy exceeds the sum or value of $75,000.00 and the parties are citizens of different states. 28 U.S.C. § 1332. "Where it is not facially evident from the complaint that more than $75,000 is in controversy, the removing party must prove, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional threshold." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). There is a "strong presumption against removal" such that the removing party "always has the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id.

For the purpose of determining the amount in controversy, the Court may consider the value of any attorney's fees. See Lowdermilk v. U.S. Bank National Ass'n, 479 F.3d 994 1000 (9th Cir. 2007). "A settlement letter is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the plaintiff's claim." Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); see also McPhail v. Deere & Co., 529 F.3d 947, 956 (10th Cir. 2008) ("[D]ocuments that demonstrate plaintiff's own estimation of its claim are a proper means of supporting the allegations in the notice of removal, even though they cannot be used to support the ultimate amount of liability."). In Cohn, the Plaintiff sent a demand letter to Defendant asserting that his trademark was worth $100,000. The Court of Appeals stated that Plaintiff "could have argued that the demand was inflated and not an honest assessment of damages, but he made no attempt to disavow his letter or offer contrary evidence." Cohn, 281 F.3d at 840. The Plaintiff in Cohn "consistently maintained that his mark is worth more than $100,000." Id.

In this case, Plaintiff is a California citizen and Foot Locker is New York citizen. In the Complaint, Plaintiff seeks $37,163 in damages and requests an award of reasonable attorney's fees, expenses, and costs. Plaintiff sent a demand letter to Foot Locker stating that "[t]ypical attorney fees for taking a case like this to trial are $30,000-$50,000 plus several thousand more in costs." (ECF No. 1 at 4). Plaintiff seeks remand stating generally that a demand letter "may include puffing." (ECF No. 5 at 3). However, Plaintiff has not asserted that the amount of attorney's fees stated in the demand letter was not "a reasonable estimate of the ... claim." Cohn, 281 F.3d at 840. The jurisdictional minimum would be met if Plaintiff sought $37,837 in attorney's fees. The Court finds that Defendant has proven by a preponderance of the evidence that the amount in controversy is $87,163, which exceeds the jurisdictional threshold. Even if the Court only considered the lowest range of Plaintiff's estimate which equals $30,000 plus "several thousand more in costs;" the Court finds that Defendant has proven by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold.

III. Conclusion

IT IS HEREBY ORDERED that the Motion to Remand (ECF No. 5) is DENIED.

WILLIAM Q. HAYES United States District Judge

20120123

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