United States District Court, C.D. California
CIVIL MINUTES - GENERAL
PERCY ANDERSON, District Judge.
Proceedings: IN CHAMBERS - COURT ORDER
Before the Court is a Motion to Remand filed by plaintiff Francisco Toral ("Plaintiff"). (Docket No. 22.) Defendant Sodexo, Inc. ("Defendant") has filed an Opposition (Docket No. 26), to which Plaintiff has submitted a Reply (Docket No. 28). Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for July 20, 2015 is vacated, and the matter taken off calendar.
Plaintiff worked as a housekeeper for Defendant beginning in or around January 2013. He was assigned to maintain the psychiatric ward at Harbor UCLA Medical Center. Plaintiff required time off work beginning in November 2013, first as a result of issues with his colon, and later as a result of injuries sustained at work in an attack by a psychiatric patient. Plaintiff alleges that he was required to continue to perform tasks inconsistent with restrictions ordered by his doctor and that he was terminated in March 2014 as a result of excessive absences caused by his disabilities and related treatment. Plaintiff filed a Complaint in Los Angeles County Superior Court for (1) failure to grant medical leave in violation of the California Family Rights Act, (2) denial of medical leave in violation of the California Family Rights Act, (3) interference with medical leave in violation of the California Family Rights Act, (4) discrimination in violation of the California Family Rights Act, (5) retaliation in violation of the California Family Rights Act, (6) disability discrimination in violation of the Fair Employment and Housing Act, (7) failure to prevent discrimination in violation of the Fair Employment and Housing Act, (8) failure to provide reasonable accommodations in violation of the Fair Employment and Housing Act, (9) failure to engage in a good faith interactive process in violation of the Fair Employment and Housing Act, (10) retaliation in violation of the Fair Employment and Housing Act, and (11) wrongful termination in violation of public policy. Plaintiff seeks, among other relief, general and special damages, an injunction, punitive damages, interest, costs, and attorneys' fees.
Defendant removed the action to this Court on April 1, 2015. The Notice of Removal contends that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 because Plaintiff is a citizen of California while Defendant is a citizen of Delaware and Maryland and because the amount in controversy exceeds $75, 000. Plaintiff disputes that the amount in controversy requirement is satisfied.
A. Timeliness of Plaintiff's Motion
As a preliminary matter, Defendant argues that the Motion is untimely under 28 U.S.C. § 1447(c). Section 1447(c) provides that "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal, " but that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." The Notice of Removal was filed on April 1, 2015, and Plaintiff waited until June 19, 2015 to file his Motion. Defendant contends that Plaintiff's Motion is based on a defect other than lack of subject matter jurisdiction because "Plaintiff's contention [is] that [Defendant] has alleged insufficient facts in support of its removal petition."
Defendant takes the position that once thirty days have passed, a plaintiff can no longer argue merely that a defendant has failed to show that the amount in controversy exceeds $75, 000-rather, the plaintiff must affirmatively argue that the amount in controversy does not exceed $75, 000. Defendant's only citation, to a case involving a motion to remand based on the applicability of a forum selection clause, is not remotely on point. Northern Cal. Dist. Council of Laborers v. Pittsburgh-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995). However, the issue is not completely novel. "Courts have held that a remand motion is based on a procedural defect under Section 1447(c), and not subject matter jurisdiction, if it argues only that the defendant's notice of removal failed to state the requisite amount in controversy.... But these decisions do not affect a plaintiff's right to argue that subject matter jurisdiction is, in fact, absent. And if such an argument is made, Section 1447(c) does not remove the defendant's burden to show that subject matter jurisdiction exists." Behrazfar v. Unisys Corp., 687 F.Supp.2d 999, 1002 (C.D. Cal. 2009) (internal citations omitted). Here, Plaintiff has largely tiptoed around arguing that subject matter jurisdiction is absent, choosing, instead, to emphasize that Defendant has not proven that the amount in controversy requirement is satisfied. However, Plaintiff also takes the less ambiguous position that "Defendant has not and cannot met [sic] its burden of proof that the amount in controversy exceeds the statutory minimum of $75, 000." (Motion at 5.) This is a legitimate challenge to the existence of subject matter jurisdiction, and the Motion is therefore not untimely under 28 U.S.C. § 1447(c). See Behrazfar, 687 F.Supp.2d at 1003 ("True, Plaintiff's argument vacillates between attacking the Notice of Removal's sufficiency and arguing that jurisdiction is actually lacking. But since Plaintiff contests the existence of subject matter jurisdiction, her Motion is based on more than a mere procedural defect.").
B. Amount in Controversy
When an action has been removed and the amount in controversy is in doubt, there is a "strong presumption" that the plaintiff has not claimed an amount sufficient to confer jurisdiction. Gaus, 980 F.2d 564, 566 (9th Cir. 1992) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-90, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938)). "When 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." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). "Conclusory allegations as to the amount in controversy are insufficient." Id. at 1090-91. "Under this burden, the defendant must provide evidence establishing that it is more likely than not' that the amount in controversy exceeds [$75, 000]." Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996).
When determining the amount in controversy, the Court must assume that the allegations in the complaint are true and that a jury will return a verdict in plaintiff's favor on all of the claims in the complaint. Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D. Cal. 2002). "The ultimate inquiry is what amount is put in controversy' by the plaintiff's complaint, not what a defendant will actually owe." Korn v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199, 1205 (E.D. Cal. 2008); see also Rippee v. Boston Mkt. Corp., 408 F.Supp.2d 982, 986 (S.D. Cal. 2005). "[T]he amount-in-controversy inquiry in the removal context is not confined to the face of the complaint." Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The contents of the notice of removal and supplemental evidence provided after the removal petition has been filed may be considered to determine whether the defendant has adequately shown that the amount in controversy has been met. See Abrego, 443 F.3d at 690; Cohn v. Petsmart, Inc., 281 F.3d 837, 840, 840 n.1 (9th Cir. 2002). A court may also "consider any summary-judgment-type evidence relevant to the amount in controversy at the time of removal.'" Valdez, 372 F.3d at 1117 (quoting Matheson, 319 F.3d at 1090).
In its Opposition, Defendant tallies compensatory damages, punitive damages, emotional distress damages, and attorneys' fees ...