United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO REMAND (DOC.
Anthony J. Battaglia United States District Judge
before the Court is Plaintiff Michael Gerber's
(“Gerber”) motion to remand. (Doc. Nos. 9, 10.)
Defendant FCA U.S. LLC (“FCA”) opposes the
motion. (Doc. No. 15.) Having reviewed the parties'
moving papers and controlling legal authority, and pursuant
to Local Civil Rule 7.1.d.1, the Court finds the matter
suitable for decision on the papers and without oral
argument. Accordingly, the hearing currently set for July
6, 2017, at 2:00 p.m. in Courtroom 4A is hereby VACATED.
For the reasons set forth below, the Court DENIES
dispute arises from FCA's alleged breach of warranty
obligations owed to Gerber for a new 2012 Jeep Grand Cherokee
(“Jeep”) he purchased from FCA. Gerber asserts
FCA concealed a known defect from him, specifically, a defect
with the totally integrated power module
(“TIPM”), which is responsible for controlling
and distributing electrical power to the entire vehicle.
(Doc. No. 1 at 9 ¶ 4.) Based on this concealment, Gerber
instituted this action in San Diego Superior Court on June
30, 2016, bringing causes of action for breaches of express
and implied warranties in violation of California's
Song-Beverly Consumer Warranty Act (“Song-Beverly
Act” or “Act”), as well as a cause of
action for fraudulent inducement/concealment under California
state common law. (Doc. No. 1 at 2 ¶ 1.)
removed the action to this Court on March 16, 2017, asserting
the Court has diversity jurisdiction. (Doc. No. 1 at 1.) On
April 17, 2017, Gerber filed the instant motion to remand,
arguing FCA has failed to carry its burden of establishing
that the amount in controversy exceeds $75, 000 and that the
parties are completely diverse. (Doc. Nos. 9, 10.) FCA filed
an opposition, (Doc. No. 15), and Gerber replied, (Doc. No.
20). This order follows.
right to remove a case to federal court is entirely a
creature of statute. See Libhart v. Santa Monica Dairy
Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal
statute, 28 U.S.C. § 1441, allows defendants to remove
an action when a case originally filed in state court
presents a federal question, or is between citizens of
different states and involves an amount in controversy that
exceeds $75, 000. See 28 U.S.C. §§
1441(a), (b); 28 U.S.C. §§ 1331, 1332(a). Only
state court actions that could originally have been filed in
federal court can be removed. 28 U.S.C. § 1441(a);
see also Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987); Ethridge v. Harbor House Rest., 861 F.2d
1389, 1393 (9th Cir. 1988).
founded on [diversity] requires that parties be in complete
diversity and the amount in controversy exceed $75,
000.” Matheson v. Progressive Specialty Ins.
Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam);
see 28 U.S.C. § 1332(a)(1). Complete diversity
requires that the plaintiff's citizenship is diverse from
that of each named defendant. 28 U.S.C. §§
1332(a)(1), 1332(c)(1); Caterpillar Inc. v. Lewis,
519 U.S. 61, 68 n.3 (1996). Whether or not complete diversity
is present is determined at the time of removal. See Am.
Dental Indus., Inc. v. EAX Worldwide, Inc., 228
F.Supp.2d 1155, 1157 (D. Or. 2002) (citing St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
Ninth Circuit “strictly construe[s] the removal statute
against removal jurisdiction, ” and “[f]ederal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.” Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per
curiam) (citations omitted). “The ‘strong
presumption' against removal jurisdiction means that the
defendant always has the burden of establishing that removal
is proper.” Id.; see also McNutt v. Gen.
Motors Acceptance Corp., Inc., 298 U.S. 178, 189 (1936)
(finding that the removing party must prove its allegations
by a preponderance of the evidence). The Court takes this
proof from the notice of removal and may, if it chooses,
construe the opposition to the motion to remand as an
amendment to the notice of removal. See Cohn v. Petsmart
Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002).
argues four points that he contends require remand of this
action to California state court: (1) FCA's
amount-in-controversy calculation ignores California state
law; (2) FCA, as a limited liability company
(“LLC”), has not established the citizenship of
its foreign member, nor has it established Gerber's
citizenship; (3) comity dictates that this case be remanded
to state court; and (4) FCA's failure to attach all
pleadings that were filed in state court render FCA's
removal procedurally improper. (Doc. Nos. 9, 10, 20.) The
Court will consider each argument in turn.
Amount in Controversy
complaint, Gerber seeks, inter alia,
“reimbursement of the price paid for the [Jeep] less
that amount directly attributable to use by the Plaintiff
prior to discovery of the nonconformities” and “a
civil penalty of up to two times the amount of actual damages
in that FCA  has willfully failed to comply with its
responsibilities under the [Song-Beverly] Act.” (Doc.
No. 1 at 31 ¶¶ 145, 148.) Gerber asserts that FCA
has not proven the amount in controversy exceeds $75, 000.
(Doc. No. 9-1 at 7-10; Doc. No. 20 at 7-8.)
contends FCA's notice of removal improperly relies on an
approximation of the cash price, but offers no explanation as
to why this number is the proper figure to base the
amount-in-controversy calculation on. (Doc. No. 9-1 at 8-9.)
In response, FCA points to the retail installment sale
contract (“RISC”), attached to the complaint, as
well as FCA warranty claim reports, documents ...