United States District Court, C.D. California
Present: The Honorable Fernando M. Olguin, United States
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
December 26, 2017, Monica Hulse (“Hulse” or
“plaintiff”) filed a Complaint in the San
Bernardino County Superior Court against Bethesda Lutheran
Communities, Inc. (“Bethesda” or
“defendant”), Bethesda Lutheran Communities
Auxiliary,  and does 1 through 10. (See Dkt.
1, Notice of Removal (“NOR”) at ¶ 1; Dkt.
1-2, Exhibit (“Exh.”) A
(“Complaint”)). On February 2, 2018, Bethesda
removed that action on diversity jurisdiction grounds
pursuant to 28 U.S.C. §§ 1332 and 1441.
(See Dkt. 1, NOR at ¶ 8). 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 quotations
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.
Hart, 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 quotations 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
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
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. Bethesda 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). As an initial matter, 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. 1-2, Complaint at
19-20, “Prayer for Relief”).
Bethesda contends that “the allegations alleged in
Plaintiff's Complaint easily exceed the $75, 000
requirement.” (Dkt. 1, NOR at ¶ 19). Bethesda
relies on plaintiff's lost earnings, emotional distress,
punitive damages, and attorney's fees requests in
attempting to demonstrate that the amount-in-controversy
requirement has been met. (See id. at ¶¶
20-44). With respect to plaintiff's future lost wages and
benefits, (see Dkt. 1, NOR at ¶¶ 24-25),
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).
Bethesda's reliance on plaintiff's request for
emotional distress damages, (see Dkt. 1, NOR at
¶¶ 25-27), is unpersuasive. Even if emotional
distress damages are recoverable, plaintiff's Complaint
does not allege any specific amount for her emotional
distress claims (or as general damages), (see,
generally, Dkt. 1-2, 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, Bethesda
fails to provide any 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
¶ 27); 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 suggests, in a conclusory manner, that plaintiff's
request for punitive damages and attorney's fees should
be considered in the amount in controversy determination.
(See Dkt. 1, NOR at ¶¶ 28-31, 40-44).
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 Bethesda. “[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 Bethesda has not provided any evidence of punitive
damages awards in factually similar cases, (see,
generally, Dkt. 1, NOR at ¶¶ 29-30),
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 way ...