United States District Court, C.D. California
Present: The Honorable Fernando M. Olguin, United States
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
January 17, 2018, Wendy Rago (“Rago” or
“plaintiff”) filed a Complaint in the San
Bernardino County Superior Court against Select Comfort
Retail Corporation (“Select” or
“defendant”) and Does 1 through 100.
(See Dkt. 1, Notice of Removal (“NOR”)
at ¶ 1; Dkt. 1-1, Exhibit (“Exh.”) A
(“Complaint”)). On February 21, 2018, Select
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 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
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. 1-1,
Complaint at 9, “Prayer for Relief”).
Select contends that “[a]ssuming that Plaintiff's
suit is successful, the amount in controversy requirement is
clearly met.” (Dkt. 1, NOR at ¶ 6.c.). Select
relies on plaintiff's lost wages, 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 ¶ 6.d.).
With respect to plaintiff's future lost wages and
benefits, (see id.), 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).
Select's reliance on plaintiff's request for
emotional distress damages, (see Dkt. 1, NOR at
¶ 6.d.), 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. 1-1, 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, Select 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 ¶¶ 6.d.-e.); 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 plaintiffs' suit]”).
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 ¶ 6.d.). 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 Select. “[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 Select has not provided any evidence of punitive
damages awards in factually similar cases, (see,
generally, Dkt. 1, NOR at ¶ 6.d.), 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