United States District Court, C.D. California
Present: Honorable Fernando M. Olguin, United States District
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
April 7, 2017, Steven Currier (“plaintiff”) filed
a Complaint in the Los Angeles County Superior Court against
Benihana National Corporation (“defendant”).
(See Dkt. 1, Notice of Removal (“NOR”)
at ¶ 1; Dkt. 1-1, Exhibit A (“Complaint”)).
On June 2, 2017, defendant removed that action on diversity
jurisdiction grounds pursuant to 28 U.S.C. §§ 1332
and 1441. (See Dkt. 1, NOR at ¶ 6). 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. 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
bears 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 17-18,
“Prayer for Relief”).
contends that the amount in controversy threshold is met
because adding $55, 014.96 in lost earnings as of the time of
removal (see Dkt. 1, NOR at ¶ 17), to future
lost wages based on a hypothetical trial date yields $229,
229.00 in controversy. (See id. at ¶¶
18-20). The court, however, 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). Nor does defendant's reliance on
plaintiff's claims for penalties based on labor code
violations, $10, 876.87, (see Dkt. 1, NOR at
¶¶ 21-22), bring the amount in controversy to the
reliance on plaintiff's request for emotional distress
damages, (see Dkt. 1, NOR at ¶ 25), is
similarly unpersuasive. Even if emotional distress damages
are recoverable, plaintiff's Complaint does not allege
any specific amount for his emotional distress claims (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, defendant fails to provide analogous cases with
substantially similar factual scenarios to guide the court as
to the amount of emotional distress damages that might be
recovered in this case. (See, generally,
Dkt. 1, NOR at ¶ 26); 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 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 contends that plaintiff's request for punitive
damages should be considered in the amount in controversy
determination. (See Dkt. 1, NOR at ¶ 29). 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 defendant. “[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 to increase the amount in
controversy to $75, 000.” Burk, 348 F.Supp.2d
at 1069. A removing defendant may establish “probable
punitive damages, for example, by introducing evidence of
jury verdicts in analogous cases.” Id.
because defendant has not provided evidence of punitive
damages awards in factually similar cases, (see,
generally, Dkt. 1, NOR at ¶ 29), inclusion of
punitive damages in the amount in controversy would be
improper. See Burk, 348 F.Supp.2d at 1070 (defendant
“failed to compare the facts of Plaintiff's case
with the facts of other cases where punitive damages have
been awarded in excess of the jurisdictional amount”);
Killion v. AutoZone Stores Inc., 2011 WL 590292, *2
(C.D. Cal. 2011) (“Defendants cite two cases . . . in
which punitive damages were awarded, but make no attempt to
analogize or explain how these cases are similar to the
instant action. . . . Simply citing these cases merely
illustrate[s] that punitive damages are possible, but in no