United States District Court, C.D. California
ORDER REMANDING ACTION
FERNANDO M. OLGUIN, District Judge.
Having reviewed and considered all the briefing filed with respect to plaintiff's Motion to Remand to State Court ("Motion"), the court concludes that oral argument is not necessary to resolve the Motion. See Fed.R.Civ.P. 78; Local Rule 7-15; Willis v. P. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001).
On November 6, 2014, Frances Archibold ("plaintiff") filed a Complaint in Los Angeles County Superior Court ("state court") against Time Warner Cable, Time Warner, Timewarner.com, Time Warner Cable, Inc. (formerly Warner Cable Communications), Lynne Hall ("Hall"), Florentina Wilhelm ("Wilhelm"), and Does 1 through 100. (See Notice of Removal ("NOR"), Exhibit ("Exh.") A ("Complaint") at ¶¶ 2-10). The Complaint asserts claims for: (1) disability discrimination; (2) failure to a provide reasonable accommodation; (3) failure to engage in the interactive process; (4) age discrimination; (5) wrongful termination in violation of public policy; (6) breach of the covenant of good faith and fair dealing; and (7) intentional infliction of emotional distress. (See id. at ¶¶ 18-49).
On February 24, 2015, while the case was pending in state court, the parties stipulated that Time Warner Cable, Inc. ("TWC" or "defendant") was plaintiff's employer and plaintiff would dismiss the remaining defendants. (See NOR at ¶ 2). On December 19, 2014, Hall and Wilhelm filed a demurrer to the Complaint, (see id. at ¶ 3), and on February 24, 2015, the parties stipulated that plaintiff would voluntarily dismiss Hall and Wilhelm. (See id.). On February 26, 2015, plaintiff voluntarily dismissed Hall and Wilhelm as defendants. (See id.).
On March 11, 2015, TWC, the only remaining defendant, removed the action on diversity jurisdiction grounds pursuant to 28 U.S.C. §§ 1332 and 1441. (See NOR at ¶ 11). Plaintiff filed the instant Motion on April 14, 2015. On April 23, 2015, the court ordered TWC to address in its Opposition "the amount of any worker's compensation and unemployment insurance benefits plaintiff received during the relevant time period of which defendant is aware." (Court's Order of April 23, 2015). On May 1, 2015, TWC filed its Opposition to the Motion ("Opp'n"). Plaintiff filed a Reply in Support of the Motion on May 8, 2015.
"[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 or the defendants, to the district court[.]" 28 U.S.C. § 1441(a). A removing defendant bears the burden of establishing that removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) ("The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.") (internal quotation marks omitted); Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting the "longstanding, near-canonical rule that the burden on removal rests with the removing defendant"). Moreover, if there is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court. See Gaus, 980 F.2d at 566 ("Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance."). Indeed, "[i]f 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); see Kelton Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) ("Subject matter jurisdiction may not be waived, and, indeed, we have held that the district court must remand if it lacks jurisdiction."); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) ("Federal Rule of Civil Procedure 12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on appeal.") (footnote omitted); Washington v. United Parcel Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court may remand an action where the court finds that it lacks subject matter jurisdiction either by motion or sua sponte).
Defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold of $75, 000. See 28 U.S.C. § 1332; Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004); see also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam) ("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. Where doubt regarding the right to removal exists, a case should be remanded to state court.") (footnotes and citations omitted). Here, defendant has not met its burden in establishing that the amount in controversy meets or exceeds the diversity jurisdiction threshold.
As an initial matter, the amount of damages plaintiff seeks cannot be determined from the Complaint, as the Complaint simply alleges "damages to an extent and amount according to proof at the time of trial." (Complaint at ¶ 20; see also id. at ¶¶ 24, 28, 32, 37, 44 & 48). Defendant contends that the amount in controversy threshold is met because at the time of plaintiff's termination, plaintiff's hourly rate was $21.64, (see NOR at ¶ 7), and calculating from the last day of plaintiff's employment to the filing of the NOR, defendant concludes plaintiff's total lost wages alone to be over $82, 000. (See id.). Defendant also asserts that plaintiff has received benefits worth well over $10, 000 per year. (See id.).
Defendant's conclusory assertions with respect to plaintiff's wages and benefits are insufficient for defendant to meet it burden of establishing, by a preponderance of the evidence, that the amount in controversy meets or exceeds the diversity jurisdiction threshold. Defendant does not state or provide any evidence as to the basis for its calculations. (See NOR at ¶ 7; see, generally, Opp'n). For example, there is no indication as to the number of hours defendant used to reach its total, the number of hours a week plaintiff worked when she worked for defendant, and whether she worked the same hours every week, or which benefits and how were the benefits quantified in the calculation. (See, generally, Opp'n). Nor does defendant provide any evidence by which the court could confirm the accuracy of defendant's calculations. (See, generally, id.). Defendant's unsubstantiated assertions, untethered to any evidence, cannot satisfy the amount in controversy requirement of § 1332(a). See Gaus, 980 F.2d at 567 (remanding for lack of diversity jurisdiction where defendant "offered no facts whatsoever... [to] overcome[ ] the strong presumption against removal jurisdiction, nor satisf[y] [defendant's] burden of setting forth... the underlying facts supporting its assertion that the amount in controversy exceeds [the statutory threshold].") (internal quotations omitted) (emphasis in the original).
Moreover, despite the court's order that defendant address in its Opposition "the amount of any worker's compensation and unemployment insurance benefits plaintiff received during the relevant time period[, ]" (Court's Order of April 23, 2015), defendant did not even mention, let alone address, whether and the amount of worker's compensation or unemployment insurance benefits plaintiff received during the relevant time period. (See, generally, Opp'n). Such compensation and benefits constitute mitigation of damages, and are taken into account in determining the amount in controversy. See Lamke v. Sunstate Equipment Co., LLC, 319 F.Supp.2d 1029, 1033 (N.D. Cal. 2004) (finding that the court "should engage in an inquiry into the facts with respect to mitigation of damages" in evaluating the amount in controversy in the context of removal); Melendez v. HMS Host Family Restaurants, Inc., 2011 WL 3760058, *2 (C.D. Cal. 2011) (remanding case where amount in controversy was not met after reducing potential lost wages by the amount of disability benefits plaintiff received). Defendant's failure to address this issue further supports the court's determination that defendant has not met its burden.
Defendant's reliance on plaintiff's demand for emotional distress damages, (see NOR at ¶ 7; see also id. at ¶ 9), is similarly unpersuasive. Even if emotional distress damages are potentially recoverable, plaintiff's Complaint does not allege any specific amount for her emotional distress claims, (see Complaint at ¶ 20; see also id. at ¶¶ 24, 28, 32, 37, 44 & 48), and it would therefore be speculative to include these damages in the total amount in controversy. See Cable v. Merit Life Ins. Co., 2006 WL 1991664, *3 (E.D. Cal. 2006) (Defendant's argument that emotional distress damages exceeded the jurisdictional threshold was insufficient when "[d]efendant provide[d] no reliable basis for determining the amount of emotional distress damages likely to be recovered in this case."). Further, defendant fails to provide any analogous cases, with substantially similar factual scenarios, that might guide the court as to what emotional distress damages might be recovered. (See, generally, NOR); see also Mireles v. Wells Fargo Bank, N.A., 845 F.Supp.2d 1034, 1055 (C.D. Cal. 2012) (remanding where defendants "proffer[ed] no evidence that the lawsuits and settlements alleged ...