FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF'S MOTION FOR AN ORDER REMANDING CASE TO STATE COURT AND FOR SANCTIONS IN THE AMOUNT OF $4,500.00 (ECF Nos. 6, 7, 13, 14) OBJECTIONS DUE WITHIN FOURTEEN / DAYS
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Leticia Ceja-Corona filed this employment action in the Superior Court of the State of California for the County of Stanislaus on September 13, 2012, alleging violation of the California Family Rights Act; disability discrimination in violation of California Government Code, section 12940 et seq.; failure to accommodate disability in violation of California Government Code, section 12940(m); failure to engage in interactive process in violation of California Government Code, section 12940(n); failure to prevent discrimination in violation of California Government Code, section12940(h); wrongful discharge in violation of public policy; and violation of California Business and Professions Code, section 17200. (ECF No. 1-1.) Generally, Plaintiff alleges that following a work related injury, Defendant failed to comply with a doctor's order that she be assigned light duty from 2008 through 2010, causing her continuous pain and possible aggravation of her work related injury. After assigning her to a "light duty" assignment around October 2010, which required Plaintiff to lift and move heavy items, Defendant determined that no light duty assignments were available; and Plaintiff was placed on a medical leave of absence. Plaintiff's doctor cleared her to return to light duty in November 2011. However, Defendant refused to accommodate Plaintiff and terminated her in February 2011.
Defendant removed this action to the Eastern District of California on October 16, 2012, under 28 U.S.C. §§ 1332, 1441, and 1446 contending that diversity jurisdiction exists in this action. (ECF No. 1.) On December 4, 2012, Plaintiff filed a motion to remand and objections to the notice of removal. (ECF Nos. 6, 7.) Defendant filed an opposition on January 11, 2013, on the grounds that the motion to remand is untimely and substantively infirm. (ECF No. 13.) Plaintiff filed a reply on January 18, 2013. (ECF No. 14.)
A hearing on the motion was held on January 25, 2013, in which Jody Landry appeared for Defendant and Hugo Gamez appeared telephonically for Plaintiff. As a result of the parties responses to the Court inquiring into the calculation of the amount in controversy, Defendant was granted an opportunity to file supplemental briefing and evidence in support of the amount and Plaintiff was granted the opportunity to file a reply.*fn1 On February 1, 2013, Defendant filed a supplemental brief. (ECF No. 18.) Plaintiff failed to file a timely reply. Having considered the moving, opposition, and reply papers, as well as the Court's file and the parties arguments during the hearing, the Court issues the following order.
District courts have original jurisdiction of all civil actions between citizens of different States in which "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). This requires complete diversity of citizenship and the presence "of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action." Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). For the purposes of establishing diversity of citizenship, a corporation is deemed to be a citizen of every state in which it has been incorporated and where it has its principal place of business. 28 U.S.C. § 1332(c)(1).
"[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 . . . to the district court of the United States for the district . . . where such action is pending." 28 U.S.C. § 1441(a). A notice of removal must be filed within thirty days of receiving the initial pleading setting forth the claim for relief, 28 U.S.C. § 1446(b), and in a case based upon diversity jurisdiction, the notice of removal must be filed within thirty days from which it was ascertained the case was removable, but not more than one year after the commencement of the action, 28 U.S.C. §§ 1446(b)(2)(c) and (c)(1). In determining whether diversity of citizenship exists and the removal was proper, the court considers the pleadings filed at the time of removal, Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1085 n.5 (9th Cir. 2009), and the citizenship of Doe defendants is disregarded, 28 U.S.C. § 1441(b).
Where a case is removed from state court, the removing defendant bears the burden of establishing federal jurisdiction, including the amount in controversy requirement. Abrego Abrego, 443 F.3d at 683. "The removal statute is strictly construed against removal jurisdiction." Provincial Gov't of Marinduque, 582 F.3d at 1087. If the district court determines that it lacks jurisdiction, the action should be remanded back to the state court. Martin v. Franklin Capital Corp., 546 U.S. 132, 134 (2005).
In this circuit, where the amount of damages are not specified in the complaint, it is the removing party's burden to show by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount. Lewis v. Verizon Communications, Inc., 627 F.3d 395, 397 (9th Cir. 2010); Abrego Abrego, 443 F.3d at 679; Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007). The amount in controversy is merely an estimate of the total amount in dispute; and the Ninth Circuit expressly contemplates that the district court will consider some evidentiary record in determining the amount in controversy. Lewis, 627 F.3d at 400.
Plaintiff seeks remand to state court arguing that diversity jurisdiction does not exist. Plaintiff contends that Defendant has not met its burden of proving that complete diversity among the parties exists and has failed to prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement. (Mem. of P. & A. in Supp. of Mot. for Order Remanding Case to State Ct. and for Sanctions in Amount of $4,500.00 5, ECF No. 6-1.)
Defendant opposes the motion on the grounds that Plaintiff waived her procedural objections by failing to timely file a motion to remand and the requirements of diversity jurisdiction ...