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Carr v. National Association of Forensic Counselors, Inc.

United States District Court, Central District of California

December 29, 2014

Clark Carr, et al.
v.
National Association of Forensic Counselors, Inc., et al.

PROCEEDINGS (IN CHAMBERS): ORDER DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS OR ALTERNATIVELY TRANSFER PURSUANT TO FED. R. CIV. P. RULES 12(b) AND 13(a) [filed 11/20/14; Docket No. 6]; ORDER DENYING AS MOOT DEFENDANTS FRANCIS DEISLER AND KARLA DEISLER TAYLOR'S MOTION TO DISMISS [filed 12/4/14; Docket No. 16]; and ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR REMAND PURSUANT TO 28 U.S.C. §§ 1332 AND 1447 AND FOR ATTORNEYS' FEES PURSUANT TO 28 U.S.C. § 1447 [filed 12/8/14; Docket No. 17]

PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

On November 20, 2014, Defendants National Association of Forensic Counselors, Inc. ("NAFC") and American Academy of Certified Forensic Counselors, d/b/a American College of Certified Forensic Counselors ("ACCFC") (collectively, the "Entity Defendants") filed a Motion to Dismiss or Alternatively Transfer Pursuant to Fed.R.Civ.P. Rules 12(b) and 13(a) ("Motion to Dismiss or Transfer"). On December 15, 2014, Plaintiff Clark Carr ("Plaintiff") filed his Opposition. On December 22, 2014, the Entity Defendants filed a Reply. On December 4, 2014, Defendants Francis Deisler ("Deisler") and Karla Deisler Taylor ("Taylor") (collectively, the "Individual Defendants") filed a Motion to Dismiss. On December 15, 2014, Plaintiff filed his Opposition. On December 22, 2104, the Individual Defendants filed a Reply. On December 8, 2014, Plaintiff filed Motion for Remand Pursuant to 28 U.S.C. §§ 1332 & 1447 and for Attorneys' Fees Pursuant to 28 U.S.C. § 1447 ("Motion for Remand and Attorneys' Fees"). On December 15, 2014, the Entity Defendants and the Individual Defendants (collectively, "Defendants") filed their Opposition. On December 22, 2014, Plaintiff filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that these matters are appropriate for decision without oral argument. The hearing calendared for January 5, 2014 is hereby vacated and the matters taken off calendar. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:

I. Legal Standard

A motion to remand is the proper procedure for challenging removal. See N. Cal. Dist. Council of Laborers v. Pittsburgh-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir.1995). The removal statute is strictly construed, and any doubt about the right of removal is resolved in favor of remand. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992); see also Prize Prize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir.1999). Consequently, if a plaintiff challenges the defendant's removal of a case, the defendant bears the burden of establishing the propriety of the removal. See Gaus, 980 F.2d at 566; see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (citations and quotations omitted) ("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.").

II. Discussion

On October 6, 2014, Plaintiff, on his own behalf and on behalf of a class of similarly situated persons, filed a Complaint against Defendants in Los Angeles Superior Court, alleging causes of action for: (1) consumer fraud and unfair competition, California Business & Professions Code §§ 17200, et seq.; (2) fraudulent and false advertising, California Business & Professions Code § 17500; and (3) fraud. In the Complaint, Plaintiff alleges that Defendants provided alcohol and drug counselor certifications to individuals in California and fraudulently represented that their certifications were "nationally recognized" when in fact the California Department of Alcohol and Drug Programs never authorized any of the Defendants to certify alcohol and drug counselors. In addition, Plaintiff alleges that Defendants concealed their violations of applicable California regulations in order to mislead putative class members into paying annual fees for unlawful and worthless counselor certificates.

On October 13, 2014, the Entity Defendants and Taylor were served with the Complaint. On November 5, 2014, Deisler was served with the Complaint.

A. Defendants' Notice of Removal Does Not Properly Allege This Court's Jurisdiction.

On November 12, 2014, Defendants filed a Notice of Removal Pursuant to 28 U.S.C. § 1441(b) (Diversity) ("Notice of Removal"), alleging this Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). 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. See 28 U.S.C. § 1332(a). For class actions, claims by class members cannot be aggregated to satisfy the jurisdictional amount.[1] Zahn v. International Paper Co., 414 U.S. 291, 301 (1973); Travelers Property Cas. v. Good, 689 F.3d 714, 722-23 (7th Cir. 2012) (multiple violations of same statute constituted "separate and distinct" claims for each class member and thus could not be aggregated). Instead, Plaintiffs individual claims must satisfy the $75, 000 amount in controversy requirement. See Dittmar v. Costco Wholesale Corporation, 2014 WL 6892189, *6 (S.D. Cal. Nov. 5, 2014); see also Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 566-67 (2005) (holding that in a diversity action, if the named plaintiff's claims satisfy the jurisdictional amount, a court may exercise supplemental jurisdiction over the unnamed class members' claims).

In the Notice of Removal, Defendants allege that "[c]omplete diversity jurisdiction pursuant to 28 U.S.C. § 1332 exists because the Plaintiff is a citizen of California and the Removing Defendants are citizens of Nevada and Indiana and the amount in controversy exceeds $75, 000." Notice of Removal, ¶ 13. With respect to the amount in controversy, Defendants allege that "Named Plaintiff alleges he paid $90/year from 2002-2011 and that hundreds of other class members have done the same. Thus, the amount in controversy, exclusive of interest and costs, as pled by Plaintiff appears to minimally be $90, 000." Id., ¶ 7. Accordingly, Defendants' allegations merely establish that Plaintiff's damages are $900, which is well below the amount in controversy requirement of Section 1332(a).[2] Accordingly, the Court concludes that Defendants have failed to demonstrate that the amount in controversy requirement has been satisfied in this action, and, thus, Defendants have failed to demonstrate that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a).

B. The Entity Defendants' Second Notice of Removal is Improper.

On November 20, 2014, the Entity Defendants filed a Supplement to Notice of Removal Concerning Amount in Controversy ("Second Notice of Removal"). In the Second Notice of Removal, the Entity Defendants allege that this Court has subject matter jurisdiction pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d) ("CAFA"). Second Notice of Removal, 2:13-14. Under CAFA, a federal district court has subject matter jurisdiction over a class action in which: (1) there are 100 or more proposed class members; (2) at least some of the members of the proposed class have a different citizenship from the defendant; and (3) the aggregated claims of the proposed class members exceed the sum or value of $5, 000, 000. See 28 U.S.C. § 1332(d); see also Dart Cherokee Basin Operating Co., LLC v. Owens, __S.Ct.__ 2014 WL 7010692, *3 (S.Ct. Dec. 15, 2014).

In the Second Notice of Removal, the Entity Defendants allege that the partes are minimally diverse and that the class includes a minimum of 176 members. Id., 2:21-3:3. With respect to the amount in controversy, the Entity Defendants include an entirely new allegation that "Plaintiff Carr's allegations [sic] minimally total $69, 525.00 as an individual. Applying this number as typical for the class [of 176 members], as alleged by Plaintiff, then the ...


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