United States District Court, C.D. California
Present: The Honorable Fernando M. Olguin, United States
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
February 28, 2017, Danielle McGowan (“plaintiff”)
filed a Complaint in the San Bernardino County Superior Court
against Dollar Tree, Inc. and Dollar Tree Stores, Inc.
(“defendants”). (See Dkt. 1, Notice of
Removal (“NOR”) at ¶ 2; Dkt. 1-1, Exhibit A
(“Complaint”)). On April 12, 2017, defendants
removed that action on diversity jurisdiction grounds
pursuant to 28 U.S.C. §§ 1332 and 1441.
(See Dkt. 1, NOR at ¶¶ 1, 7). Having
reviewed the pleadings, the court hereby remands this action
to state court for lack of subject matter jurisdiction.
See 28 U.S.C. § 1447(c).
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute[.]”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 1675 (1994). The courts are
presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 1861
(2006). Federal courts have a duty to examine jurisdiction
sua sponte before proceeding to the merits of a
case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583, 119 S.Ct. 1563, 1569 (1999), “even in the
absence of a challenge from any party.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244
right of removal is entirely a creature of statute and a suit
commenced in a state court must remain there until cause is
shown for its transfer under some act of Congress.”
Syngenta Crop Protection, Inc. v. Henson, 537 U.S.
28, 32, 123 S.Ct. 366, 369 (2002) (internal quotation marks
omitted). Where Congress has acted to create a right of
removal, those statutes, unless otherwise stated, are
strictly construed against removal
jurisdiction. See id. Unless otherwise
expressly provided by Congress, “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, to the district
court[.]” 28 U.S.C. § 1441(a); see Dennis v. H
a r t, 724 F.3d 1249, 1252 (9th Cir. 2013) (same). A
removing defendant bears the burden of establishing that
removal is proper. See 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”); 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). 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.”).
the plain terms of § 1441(a), in order properly to
remove [an] action pursuant to that provision, [the removing
defendant] must demonstrate that original subject-matter
jurisdiction lies in the federal courts.” Syngenta
Crop Protection, 537 U.S. at 33, 123 S.Ct. at 370.
Failure to do so requires that the case be remanded, as
“[s]ubject matter jurisdiction may not be waived, and.
. . the district court must remand if it lacks
jurisdiction.” Kelton Arms Condo. Owners Ass'n,
Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th
Cir. 2003). 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 Emrich v. Touche Ross &
Co., 846 F.2d 1190, 1194 n. 2 (9th Cir. 1988) (“It
is elementary that the subject matter jurisdiction of the
district court is not a waivable matter and may be raised at
anytime by one of the parties, by motion or in the responsive
pleadings, or sua sponte by the trial or reviewing
court.”); 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
court's review of the NOR and the attached state court
Complaint makes clear that this court does not have subject
matter jurisdiction over the instant matter. In other words,
plaintiff could not have originally brought this action in
federal court, as plaintiff does not competently allege facts
supplying diversity jurisdiction. See 28 U.S.C.
§§ 1332(a)(1)-(2) (A district court has diversity
jurisdiction “where the matter in controversy exceeds
the sum or value of $75, 000, . . . and is between . . .
citizens of different States” or “citizens of a
State and citizens or subjects of a foreign state[.]”).
Therefore, removal was improper. See 28 U.S.C.
§ 1441(a); Caterpillar Inc. v. Williams, 482
U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only
state-court actions that originally could have been filed in
federal court may be removed to federal court by the
defendant.”) (footnote omitted).
bear the burden of proving by a preponderance of the evidence
that the amount in controversy meets the jurisdictional
threshold. See Valdez v. Allstate Ins. Co., 372 F.3d
1115, 1117 (9th Cir. 2004); 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 omitted). Here, there is no basis
for diversity jurisdiction because the amount in controversy
does not appear to exceed the diversity jurisdiction
threshold of $75, 000. See 28 U.S.C. § 1332.
The amount of damages plaintiff seeks cannot be determined
from the Complaint, as the Complaint does not set forth a
specific amount. (See, generally, Dkt. 1-1,
Complaint at 9-10, “Prayer for Relief”).
time the NOR was filed, defendants estimated that
plaintiff's lost wages were only $7, 360. (See
Dkt. 1, NOR at ¶ 24). Defendants contend, however, that
the amount in controversy threshold is met by aggregating
plaintiff's estimated damages “for lost wages, lost
benefits, emotional distress, and mental pain and
anguish.” (See id. at ¶ 23).
a trial date of mid-April 2018, defendants estimate that
plaintiff's total back pay could reach $15, 680, (see
id. at ¶ 24), and that a front pay award could
reach $33, 280. (See Id. at ¶ 25). However, the
court declines to project lost wages forward to some
hypothetical trial date. “[J]urisdiction depends on the
state of affairs when the case begins; what happens later is
irrelevant.” Gardynski-Leschuck v. Ford Motor
Co., 142 F.3d 955, 958 (7th Cir. 1998) (citing St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
289-90, 58 S.Ct. 586, 590-91 (1938)); see Soto v. Kroger
Co., 2013 WL 3071267, *3 (C.D. Cal. 2013) (noting that
“the guiding principle is to measure amount in
controversy at the time of removal”). In other words,
in measuring lost wages for purposes of the amount in
controversy, the court will not include any amounts beyond
the date of removal. See Soto, 2013 WL 3071267, at
*3 (“Jurisdiction based on removal depends on the state
of affairs when the case is removed. Thus, Kroger is not
persuasive when it argues that wages up until the present
should be included in the amount in controversy.”)
(internal quotation marks and citations omitted); Haase
v. Aerodynamics Inc., 2009 WL 3368519, *4 (E.D. Cal.
2009) (“The amount in controversy must be determined at
the time of removal. At the time of removal, Plaintiff's
lost wage claim, a special damage, totaled $21, 830.”)
(internal citation omitted).
reliance on plaintiff's request for emotional distress
damages, (see Dkt. 1, NOR at ¶ 26), is
similarly unpersuasive. Even if emotional distress damages
are recoverable, plaintiff's Complaint does not allege
any specific amount for emotional distress damages (or as
general damages), (see, generally, Dkt.
1-1, Complaint), and therefore it would 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, defendants fail to explain how their cited cases are
factually or legally similar to the instant case, so as to
guide the court in determining the amount of emotional
distress damages that might be at issue in this case.
(See, generally, Dkt. 1, NOR at ¶ 26);
see, e.g., 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 in the complaint
are factually or legally similar to plaintiffs'
claims”); Dawson v. Richmond Am. Homes of Nevada,
Inc., 2013 WL 1405338, *3 (D. Nev. 2013) (remanding
where defendant “offered no facts to demonstrate that
the [proffered analogous] suit is factually identical [to
also contend that plaintiff seeks punitive damages that
should be considered in the amount in controversy
determination. (See Dkt. 1, NOR at ¶ 28). While
punitive damages may be included in the amount in controversy
calculation, see Gibson v. Chrysler Corp., 261 F.3d
927, 945 (9th Cir. 2001), cert. denied, 534 U.S.
1104 (2002), plaintiff's request for such damages does
not aid defendants. “[T]he mere possibility of a
punitive damages award is insufficient to prove that the
amount in controversy requirement has been met.”
Burk v. Med. Savs. Ins. Co., 348 F.Supp.2d 1063,
1069 (D. Ariz. 2004); accord Geller v. Hai Ngoc
Duong, 2010 WL 5089018, *2 (S.D. Cal. 2010); J.
Marymount, Inc. v. Bayer Healthcare, LLC, 2009 WL
4510126, *4 (N.D. Cal. 2009). Rather, a defendant “must
present evidence that punitive damages will more likely than
not exceed the amount needed ...