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O'Neil v. The Kroger Co.

United States District Court, C.D. California

August 30, 2019

Jennifer O'Neil
v.
The Kroger Company

          Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES-GENERAL

         Proceedings: IN CHAMBERS - ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [18]

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Court incorporates the factual background set forth in its June 11, 2019 Order. [Doc. # 16.] On May 16, 2019, the Court issued an Order to Show Cause (“OSC”) why this case should not be remanded to Los Angeles County Superior Court for improper removal due to lack of subject matter jurisdiction. [Doc. #13]. On June 11, 2019, the Court, after reviewing the parties' submissions in response to the OSC, see Def.'s Resp. to OSC [Doc. # 14]; Pl.'s Reply to OSC [Doc. # 15], discharged the OSC. [Doc. # 16 (“Discharge Order”).] That Order did not preclude Plaintiff from filing a regularly-noticed motion to remand. Discharge Order at 4 n.1.

         On June 16, 2019, Plaintiff moved to remand the action to state court on the basis that Defendant failed to show that the amount in controversy surpassed the jurisdictional threshold under the Class Action Fairness Act (“CAFA”). Motion to Remand [Doc. # 18 (“MTR”)]. The MTR is now fully briefed [Doc. ## 23 (“Opp.”), 24 (“Reply”)]. Because Defendant has not met its burden to establish the amount in controversy required to litigate in federal court, this Court REMANDS the case to Los Angeles County Superior Court.

         II.

         LEGAL STANDARD

         CAFA affords district courts jurisdiction “over class actions in which the class members number at least 100, at least one plaintiff is diverse in citizenship from any defendant, and the aggregate amount in controversy exceeds $5 million, exclusive of interest and costs.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir. 2015) (citing 28 U.S.C. § 1332(d)). Pursuant to 28 U.S.C. § 1441(a), an action may be removed from a state court to a federal district court if the latter would have had “original jurisdiction” over the action had it been filed in that court.

         If a complaint does not specify a particular amount of damages and the plaintiff challenges jurisdiction after removal, the removing defendant bears the burden of establishing by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional threshold. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996); Ibarra, 775 F.3d at 1197, 1199 (“Under the preponderance of the evidence standard, if the evidence submitted by both sides is balanced, in equipoise, the scales tip against federal-court jurisdiction.”); Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (“If it is unclear what amount of damages the plaintiff has sought . . . then the defendant bears the burden of actually proving the facts to support jurisdiction, including the jurisdictional amount.”). In such cases, a district court “may ‘require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.'” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th Cir. 1995)). “[R]emoval ‘cannot be based simply upon conclusory allegations where the [complaint] is silent'” as to the amount of damages. Id. (quoting Allen, 63 F.3d at 1335). Further, “a defendant cannot establish removal jurisdiction by mere speculation and conjecture, with unreasonable assumptions.” See Ibarra, 775 F.3d at 1197.

         III.

         DISCUSSION

         Plaintiff does not dispute that she is diverse from Defendant or that her putative class is large enough to satisfy CAFA's 100-member minimum. See Compl. at ¶¶ 13-14, 34. She only challenges Defendant's assertion that the amount in controversy exceeds the $5 million jurisdictional threshold for CAFA jurisdiction. MTR. at 1-2.

         Defendant submitted no evidence in connection with its Opposition. Nor does its Notice of Removal contain sufficient evidence to carry its burden of proof by a preponderance of the evidence that Plaintiff's class claims are worth more than $5 million. All in all, Defendant provides no evidence that Plaintiff's restitutionary claims, Plaintiff's request for injunctive relief, or Defendants' expected attorneys' fees-individually, or in combination-meet CAFA's amount in controversy requirement. That dearth of evidence means that Defendant's claim to federal jurisdiction rests entirely on whether, as a matter of law, the ...


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