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Title Charles E. Myers v. Grabber Construction Products

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 24, 2012

TITLE CHARLES E. MYERS
v.
GRABBER CONSTRUCTION PRODUCTS, ET AL.

The opinion of the court was delivered by: Present: The Honorable Christina A. Snyder

CIVIL MINUTES - GENERAL

CATHERINE JEANG N/A N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A

Proceedings: (In Chambers:) ORDER TO SHOW CAUSE REGARDING

WHY ACTION SHOULD NOT BE REMANDED FOR LACK OF SUBJECT MATTER JURISDICTION INTRODUCTION & BACKGROUND

On February 14, 2012, plaintiff Charles Myers filed the instant action in Los Angeles County Superior Court against his former employer, Grabber Construction Products, Inc., and Does 1--20, alleging: (1) disability discrimination in violation of the California Fair Employment and Housing Act ("FEHA"), Cal. Govt. Code §§ 12940 et

; (2) violation of Cal. Govt. Code § 12940(n); (3) violation of Cal. Govt. Code § 12940(m); age discrimination in violation of FEHA; (5) wrongful termination in violation of public policy; and (6) failure to prevent discrimination in violation of FEHA. The gravamen of plaintiff's complaint is that he was unlawfully terminated after taking periods of leave due to health problems. Compl. ¶¶ 17--40.

Defendant removed the action to this Court on March 28, 2012, on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Defendant asserts that jurisdiction is proper because complete diversity of citizenship exists and because "the amount in controversy exceeds $75,000." Notice of Removal at 7. The complaint is silent as to the amount-in-controversy.

LEGAL STANDARD

Courts in the Ninth Circuit strictly construe the removal statute against removal jurisdiction. Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). Removal founded on diversity requires that the parties be in complete diversity and that the amount-in-controversy exceed $75,000. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); 28 U.S.C. § 1332(a)(1). "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" required for subject matter jurisdiction.*fn1 Id. Conclusory allegations are insufficient. Id. at 1091.

DISCUSSION

Plaintiff does not specify an amount of damages; instead, the complaint requests back pay, front pay, general and special damages, punitive damages, and attorneys' fees and costs. Prayer for Relief ¶¶ 1--6.

Defendant asserts that the amount in controversy is met because plaintiff's recovery includes both present and future wage loss, emotional and psychological damages, and attorneys' fees, which, according to defendant, amount to more than $75,000. Notice of Removal at 7.

The Court is unpersuaded that defendant has carried its burden of proving by a preponderance of the evidence that the amount-in-controversy exceeds $75,000. See Matheson, 319 F.3d at 1090. Beyond the conclusory assertion that the amount-in-controversy is met, defendant has failed to demonstrate, using non-speculative evidence, that it is more likely than not that damages will exceed $75,000. Gaus, 980 F.2d at 567. Accordingly, the Court cannot conclude by a preponderance of the evidence that the amount-in-controversy exceeds $75,000. See id.; Matheson, 319 F.3d at 1090.

CONCLUSION

Based on the foregoing, defendant is hereby ORDERED to SHOW CAUSE on or before May 14, 2012, why the instant action should not be remanded for lack of subject matter jurisdiction.

IT IS SO ORDERED.

Initials of

Preparer

IM


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