United States District Court, C.D. California
ORDER RE: MOTION TO REMAND CASE TO LOS ANGELES SUPERIOR COURT 
RONALD S.W. LEW, Senior District Judge.
Currently before the Court is Plaintiff Whitney Rindel's Motion to Remand Case to Los Angeles Superior Court . For reasons explained below, Plaintiff's Motion is GRANTED and this case shall be remanded to Superior Court. Plaintiff's request for attorney's fees, and Defendant's request for Rule 11 sanctions, are DENIED.
Plaintiff formerly worked for Defendant Tyco Integrated Security LLC ("TIS") at its Chatsworth and Torrance offices, selling security services to businesses in Beverly Hills. Compl. ¶ 10. Plaintiff alleges that she was fired from TIS after rebuking the sexual advances of her supervisor, Defendant Litton ("Litton"). On July 24, 2014, Plaintiff filed her Complaint against Defendants in Superior Court, alleging the following claims: (1) Quid Pro Quo Sexual Harassment; (2) Gender-based Discrimination (Disparate Treatment); (3) Retaliation; (4) Failure to Prevent Discrimination, Harassment, & Retaliation; (5) Intentional Infliction of Emotional Distress; and (6) Wrongful Termination in Violation of Public Policy. Mot. 1:10-15; Opp'n 2:8-13. Plaintiff seeks compensatory damages, "including, but not limited to, lost earnings, future earning capacity and other employment benefits" as well as emotional distress damages for "severe emotional distress and physical manifestations of that emotional distress" including depression, anxiety, loss of sleep, shame, loss of appetite, humiliation, and pain and suffering. Compl. ¶¶ 26, 33, 43, 50, 57, 62; Opp'n 2:14-21.
On August 19, 2014, Defendants filed a Notice of Removal, stating that this Court has federal diversity jurisdiction over this case because there is complete diversity and the alleged amount in controversy exceeds $75, 000. Not. of Removal ¶¶ 10-28. Defendants assert that the amount in controversy exceeds $75, 000 because it is "more likely than not" that if Plaintiff succeeds on her claims, her damages will amount to "more than $75, 000 for back wages and related employment benefits, punitive damages, attorneys' fees and damages for mental and emotional distress." Id. ¶ 28. Defendants assert that complete diversity exists between the parties under the Hertz test because TIS is a citizen of the State of Florida, incorporated in the State of Delaware, and TIS' "nerve center" is located in Boca Raton, Florida. Id. ¶¶ 13-16.
Currently before the Court is Plaintiff's Motion to Remand this case back to State Court. Plaintiff claims removal was improper because Defendants failed to show that the requisite amount in controversy exceeds $75, 000 and that full diversity exists. Plaintiff further seeks attorneys' fees as a result of Defendants' removal. Defendants seek sanctions against Plaintiff because she cites to an incorrect test for diversity of citizenship (the no-longer used "total activities" test instead of the correct "nerve center" test).
Pursuant to 28 U.S.C. § 1441, "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." Original jurisdiction is based on diversity or federal question according to 28 U.S.C. §§ 1331 and 1332. All district courts have diversity jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332.
A case may be remanded to state court for lack of subject matter jurisdiction or due to defects in removal procedure. 28 U.S.C. § 1447(c). The removing party bears the burden of establishing federal jurisdiction. Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988). Generally, on a motion to remand, the opposing party has the burden of proving by a preponderance of evidence that diversity jurisdiction exists. Gaus v. Miles Inc., 980 F.2d 564, 566 (9th Cir.1992) (per curiam) (holding that opposing party must prove by a preponderance of evidence that the amount in controversy exceeded $50, 000); Guryev v. Life Investors Ins. Co. of Am., No. 00-2679, 2000 U.S. Dist. LEXIS 18079, at *2 (N.D. Cal. Dec. 4, 2000).
Before final judgment, if it appears that the district court lacks subject matter jurisdiction over a case that has been removed to federal court, the case must be remanded. 28 U.S.C. § 1447(c). The removal statute is construed against removal jurisdiction and if there is any doubt as to the right of removal in the first instance, federal jurisdiction must be rejected. See Shamrock Oil § Gas Corp. V. Sheets, 313 U.S. 100, 108-09 (1941) (finding that statutes of removal are to be construed in favor of remand to protect state court jurisdiction).
1. Amount in Controversy
Where a complaint is unclear or ambiguous about the amount in controversy, the court applies a preponderance of the evidence standard that requires the removing defendant to establish that it is more likely than not that the amount in controversy requirement is settled. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007) (quoting Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). In determining whether the jurisdictional minimum is met, the Court considers all recoverable damages, including compensatory damages, emotional distress damages, punitive damages, statutory penalties, and attorneys' fees. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 347-48 (1977); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 1998); Anthony v. Sec. P. Fin. Servs., Inc., 75 F.3d 311, 315 (7th Cir. 1996).
A district court may accept certain post-removal admissions in its discretion as determinative of the amount in controversy. Davis v. Chase Bank U.S.A., N.A., 453 F.Supp.2d 1205, 1208 (C.D. Cal. 2006)(quoting Sanchez, 102 F.3d at 404). Even assuming, arguendo, that the Court may consider all the evidence Defendants have presented in support of their Removal and Opposition, the evidence of economic damages includes only the Declaration of Jennifer Underwood, which states that Plaintiff earned, from February 25, 2011 to April 12, 2013, a total of $64, 488.03, at an average weekly rate of $580.97 and average annual gross earnings of $30, 210.61. Decl. of Jennifer Underwood ¶ 3. Thus, Defendants allege that Plaintiff's economic damages are at least $45, 318.92 as of the removal date, based on their estimations of her previous salary applied to a period of at least eighteen months of unemployment. Opp'n 11:5-7. Plaintiff alleges that she is presently employed and had been employed for over a year at the time of filing her Reply. Reply 2:19-20. Plaintiff was fired on or about April 5, 2013. Compl. ¶ 16; Mot. 2:26-27;3:1; Opp'n 2:8. She filed her Reply on October 8, 2014. Accordingly, Plaintiff seems to have been unemployed for approximately six months, not the eighteen months Defendants ...