On July 21, 2011, defendant removed this case from Sacramento County Superior Court, invoking this court's diversity jurisdiction. 28 U.S.C. § 1332. She alleges that the case meets the requirements for removal because plaintiff is a resident of California, defendant is a resident of Texas, and "the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, in that Plaintiff's complaint seeks recovery in excess of $40,000 in out-of-pocket damages to date, plus general damages in amounts to be proven at trial, plus exemplary damages pursuant to Cal. Civ. Code § 3924 . . . . The total of these sums exceeds $75,000." ECF No. 1 at 2. The complaint, attached to the notice of removal, alleges a single claim of malicious prosecution and says that "[p]laintiff has been damaged in an amount to [be] established at trial, but in excess of $40,000, as and for [sic] attorneys fees and costs incurred as a result of having to defend the Action." It also asks for an award of exemplary damages under Cal. Civ. Code § 3294.*fn1 ECF No. 1 at 13.
An action may be removed to this court so long as this court would have original jurisdiction over the suit. 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." Gaus, 980 F.2d at 566. "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). District courts have the duty of determining whether they have jurisdiction, even if the parties do not raise the question. See United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966-67 (9th Cir. 2004).
When it is not evident from the face of the complaint that the amount in controversy exceeds $75,000, the removing party must prove by a preponderance of evidence, that the jurisdictional threshold has been met. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). This court may consider any facts included in the removal petition as well as any summary judgment type evidence the removing party presents. Id.
As noted, the complaint alleges only that plaintiff has been damaged "in excess of $40,000," with the exact amount to be established at trial. The removal petition adds only that the combination of plaintiff's claimed damages plus the request for exemplary damages "exceeds $75,000." This conclusory claim is insufficient for purposes of removal jurisdiction. Valdez v. Allstate Ins. Co, 372 F.3d 1115, 1117 (9th Cir. 2004) (when complaint sought damages "in excess of $50,000" and notice of removal said only that "upon information and belief" the amount in controversy was over $75,000, defendant had not shown that it was more likely than not the jurisdictional amount had been established); Matheson, 319 F.3d at 1090-91 ("conclusory allegations as to the amount in controversy are insufficient").
IT IS THEREFORE ORDERED that:
1. This case is remanded to Sacramento County Superior Court; and