United States District Court, S.D. California
ORDER DENYING PLAINTIFFS' MOTION TO REMAND [DOC.
Thomas J. Whelan United States District Judge
removed this action from the Superior Court of California on
February 27, 2017. (Notice of Removal [Doc. 1].)
Plaintiffs now move to remand. (Pls.' Mot. [Doc.
6].) Defendant opposes. (Def.'s Opp'n [Doc.
8].) The Court decides the matters on the papers submitted
and without oral argument pursuant to Civil Local Rule
7.1(d)(1). For the reasons that follow, Plaintiffs'
motion will be denied.
March of 2011, Plaintiffs purchased a new 2011 Dodge Durango
from Defendant FCA U.S. LLC. (See Compl. [Doc. 1-2,
Exh. A] ¶¶ 4, 8.) The vehicle experienced recurrent
problems. (See Id. [Doc. 1-2, Exh. A] ¶ 9.) The
Complaint alleges that between August of 2012 and July of
2015, Plaintiffs delivered it to an FCA U.S. repair facility
on nine separate occasions due to issues with a part known as
the “totally integrated power module, ” or TIPM.
(See Id. [Doc. 1-2, Exh. A] ¶¶ 10-13,
94-102.) According to the Complaint, Defendant concealed the
defect with the part, together with safety risks resulting
from the problem. (See Id. [Doc. 1-2, Exh. A] ¶
103.) Plaintiffs joined as putative class members in
Velasco, v. Chrysler Group LLC, No. 13-CV-8080 DDP
(VBK) (C.D. Cal.), a class action dealing with substantially
similar facts to those alleged here. (Id. [Doc. 1-2,
Exh. A] ¶¶ 117-133.) Plaintiffs opted out of the
class in order to pursue their individual claims.
(Id. [Doc. 1-2, Exh. A] ¶ 131.)
brought this action in the Superior Court of California
against FCA U.S. LLC and Peck Jeep Eagle, Inc., on March 30,
2016, alleging: (1) breach of an express warranty in
violation of the Song-Beverly Act; (2) breach of an implied
warranty in violation of the Song-Beverly Act; (3) fraudulent
inducement through concealment; and (4) negligent repair.
(Compl. [Doc. 1-2, Exh. A].) Parties engaged in
discovery over the next eleven months, and the matter was set
for trial on March 17, 2017. (Hamblin Decl. [Doc.
6-1] ¶¶ 7-8.)
Peck Jeep Eagle, a California corporation with its principal
place of business in California, filed for Bankruptcy in the
United States District Court for the Southern District of
California on January 17, 2017. (Def.'s
Opp'n [Doc. 8] 2:3-8; Compl. [Doc. 1-2,
Exh. A] ¶ 3.) It filed a Notice of Automatic Stay in the
state-court action. (Def.'s Opp'n [Doc. 8]
2:3-8; Register of Actions [Doc. 1-7, Exh. F] 2.)
Thereafter, on February 15, 2017, Plaintiffs dismissed Peck
Jeep Eagle from the state-court action with prejudice.
(See Notice of Removal [Doc. 1] ¶¶ 5-7;
Register of Actions [Doc. 1-7, Exh. F] 2.) On
February 27, 2017, within two weeks of the dismissal of Peck
Jeep Eagle, Defendant FCA U.S. LLC removed the action.
(Notice of Removal [Doc. 1].)
now move to remand, arguing: (1) that this case does not meet
the complete diversity and amount in controversy requirements
of 28 U.S.C. § 1332; and (2) that comity principles
counsel against the exercise of original federal subject
matter jurisdiction in this case. (See Pls.'
Mot. [Doc. 6].)
Legal Standard A.Removal
Jurisdiction-Diversity of Citizenship
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of a State and citizens or subjects of
a foreign state . . . .” 28 U.S.C. § 1332(a)(2).
“Federal courts are courts of limited jurisdiction.
They possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial
decree.” In re Hunter, 66 F.3d 1002, 1005 (9th
Cir. 1995) (quoting Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994)).
party seeking to invoke removal jurisdiction bears the burden
of supporting its jurisdictional allegations with competent
proof. See Gaus v. Miles. Inc., 980 F.2d 564, 566
(9th Cir. 1992) (per curiam); Emrich v. Touche Ross &
Co., 846 F.2d 1190, 1195 (9th Cir. 1988). “The
propriety of removal . . . depends on whether the case
originally could have been filed in federal court.”
Chicago v. International College of Surgeons, 522
U.S. 156, 163 (1997); 28 U.S.C. § 1441(a). Where the
amount in controversy is unclear from the face of the
complaint, courts apply a preponderance of the evidence
standard. Guglielmino v. McKee Foods Corp., 506 F.3d
696, 701 (9th Cir. 2007).
is a “strong presumption” against removal
jurisdiction, and the defendant always bears the burden of
establishing the propriety of removal. See Gaus, 980
F.2d at 566 (internal quotation omitted); Nishimoto v.
Federman-Bachrach & Associates, 903 F.2d 709, 712
n.3 (9th Cir. 1990) (internal citation omitted).
Court Has Original Subject Matter Jurisdiction.
Diversity of Citizenship
existence of diversity jurisdiction requires that the
citizenship of each plaintiff be diverse from that of each
defendant. See 28 U.S.C. § 1332;
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Put another way, no plaintiff may be a citizen of the same
state as any defendant. See Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374 (1978) (internal
person's citizenship “is . . . determined by her
state of domicile, . . . her permanent home, where she
resides with the intention to remain or to which she intends
to return.” See Kanter v. Warner-Lambert, 265
F.3d 853, 857 (9th Cir. 2001) (internal citation omitted).
Plaintiffs' citizenship, the Complaint alleges that
Petropolous and Nelson are “individuals residing in the
City of San Diego, County of San Diego, and State of
California.” (Compl. [Doc. 1-2, Exh. A] ¶
1.) The Notice of Removal alleges that Plaintiffs are both
“citizens and residents of the State of
California.” (Notice of Removal [Doc. 1]
¶ 9.) Plaintiffs do not argue otherwise in their motion.
(See Pls.' Mot. [Doc. 6] 10:15-12:23.) However,
in their reply brief, they contend for the first time that
“Defendant has failed to [e]stablish Plaintiffs'
[c]itizenship.” (Pls.' Reply [Doc. 12]
3:2- 19.) The Court “need not consider arguments raised
for the first time in a reply brief.” Zamani v.
Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing
Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir.
2003)). Plaintiffs produce no evidence to indicate that they
are not California citizens. In the absence of such evidence,
it would be unfair to Defendant to consider an empty factual
challenge made for the first time in a reply brief. The
Notice of Removal adequately alleges that Plaintiffs are
California citizens. There is no reason to suspect that this
allegation is incorrect.
Defendant's citizenship, the Notice of Removal alleges
that FCA U.S. LLC is a limited liability company, the sole
member of which is Fiat Chrysler Automobiles, N.V., “a
[publicly] traded company incorporated under the laws of ...