United States District Court, C.D. California
PRESENT: HONORABLE FERNANDO M. OLGUIN, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
January 3, 2018, Manole Kostoglou (“plaintiff”)
filed a Complaint in the Los Angeles County Superior Court
against Costco Wholesale Corporation
(“defendant”). (See Dkt. 1, Notice of
Removal (“NOR”) at ¶ 1; Dkt. 1-3,
Complaint). On January 31, 2018, defendant removed that
action on diversity jurisdiction grounds pursuant to 28
U.S.C. §§ 1332 and 1441. (See Dkt. 1, NOR
at ¶ 5). 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.
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 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 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. 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. 1-3,
Complaint at 12-13, “Prayer”).
contends that the amount in controversy threshold is met by
adding three years of back wages based on a future trial.
(See Dkt. 1, NOR at ¶ 5.e. (1)). 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).
reliance on plaintiff's request for emotional distress
damages, (see Dkt. 1, NOR at ¶ 5.e. (1)), is
similarly 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.
1-3, 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 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 ¶ 34; Dkt. 1-1, Declaration of Matthew S.
McConnell (“McConnel Decl.”) at ¶ 7);
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 contends that plaintiff seeks punitive damages that
should be considered in the amount in controversy
determination. (See Dkt. 1, NOR at ¶ 5.e. (3)).
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 ¶ 5.e. (3); Dkt. 1-1,
McConnell Decl. at ¶ 7), 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