United States District Court, S.D. California
ORDER REMANDING ACTION TO THE SUPERIOR COURT FOR THE
STATE OF CALIFORNIA, COUNTY OF SAN DIEGO (ECF NO. 1)
Janis L. Sammartino, United States District Judge.
before the Court is Defendant FCA US, LLC's Notice of
Removal to the United States District Court for the Southern
District of California Under 28 U.S.C. § 1332 (Diversity
Jurisdiction) (“Not. of Removal, ” ECF No. 1). On
October 25, 2019, Defendant removed this action from the
Superior Court for the State of California, County of San
Diego on the grounds that “it involves citizens of
different states, and the amount in controversy exceeds $75,
000, exclusive of interest and costs.” See Id.
Plaintiff Heather Herko did not file a motion to remand,
“[t]he court may-indeed must-remand an action sua
sponte if it determines that it lacks subject matter
jurisdiction.” GFD, LLC v. Carter, No. CV
12-08985 MMM FFMX, 2012 WL 5830079, at *2 (C.D. Cal. Nov. 15,
2012) (citing Kelton Arms Condominium Owners Ass'n v.
Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir.
2003)); see also 28 U.S.C. § 1447(c) (“If
at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.”).
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 (1994). Consequently, it is “presume[d] that
federal courts lack jurisdiction unless the contrary appears
affirmatively from the record.” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting
Renne v. Geary, 501 U.S. 312, 316 (1991)).
“The 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 (2002). The party invoking the
removal statute bears the burden of establishing that federal
subject-matter jurisdiction exists. Emrich v. Touche Ross
& Co., 846 F.2d 1190, 1195 (9th Cir. 1988).
Moreover, courts “strictly construe the removal statute
against removal jurisdiction.” Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing
Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988));
Takeda v. Nw. Nat'l Life Ins. Co., 765 F.2d 815,
818 (9th Cir. 1985)). Therefore, “[f]ederal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.” Gaus,
980 F.2d at 566 (citing Libhart v. Santa Monica Dairy
Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).
courts have diversity jurisdiction “where the amount in
controversy” exceeds $75, 000, and the parties are of
“diverse” state citizenship. 28 U.S.C. §
1332. “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.” Matheson v. Progressive
Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)
(per curiam); accord Valdez v. Allstate Ins. Co.,
372 F.3d 1115, 1117 (9th Cir. 2004) (quoting
Matheson, 319 F.3d at 1090). “Where doubt
regarding the right to removal exists, a case should be
remanded to state court.” Matheson, 319 F.3d
the underlying Complaint indicates that, “[o]n or about
March 17, 2014, Plaintiff purchased a 2014 Jeep Grand
Cherokee . . . . [for] $54, 393.84.” See ECF
No. 1-2 (“Compl.”) ¶ 4. Plaintiff also
alleges that “Defendant's failure to comply with
its obligation[s] under the express warranty [and §
1793.2(d)] was willful” and, “[a]ccordingly,
Plaintiff is entitled to a civil penalty of two times
Plaintiff's actual damages pursuant to Civil Code §
1794(c).” Id. ¶¶ 21, 27; see
also Id. at Prayer ¶¶ 3, 5. Plaintiff also
seeks her “costs of the suit and . . . reasonable
attorney fees, pursuant to Civil Code § 1794.”
Id. at Prayer ¶ 7. Because it is not facially
evident from the Complaint that the amount in controversy
exceeds $75, 000, it is Defendant's burden to prove, by a
preponderance of the evidence, that the amount in controversy
exceeds the $75, 000 jurisdictional threshold. See
Matheson, 319 F.3d at 1090.
Notice of Removal contends that removal is proper because
“[t]he total sales price of the Subject Vehicle was
$54, 393.84, ” Not. of Removal ¶ 13(ii), meaning
“Plaintiff . . . seeks $163, 181.52 in damages”
given her “alleg[ation] that she is entitled to a civil
penalty of up to two times the amount of actual damages,
” “along with reasonable attorney fees.”
Not. of Removal ¶ 13(iv). Defendant cites Brady v.
Mercedes-Benz USA, Inc., 243 F.Supp.2d 1004 (N.D. Cal.
2002), to support its contention that “civil penalties
under [the] California Song-Beverly Consumer Warranty Act are
included in determining whether [the] amount in controversy
for diversity jurisdiction was satisfied as civil penalties
under the Act, allowing up to two times the amount of actual
damages as well as compensatory damages, are akin to punitive
damages.” Not. of Removal ¶ 14 (citing
Brady, 243 F.Supp.2d at 1009).
is this similarity to punitive damages that courts within
this District have found problematic. Courts have found that,
where a plaintiff seeks punitive damages in her complaint,
the “[d]efendant's burden cannot be met simply by
pointing out that the complaint seeks punitive damages and
that any damages awarded under such a claim could
total a large sum of money, particularly in light of the high
burden that must be met in order for a plaintiff even to be
eligible for receipt of discretionary punishment.”
Zawaideh v. BMW of N. Am., LLC, No. 17-CV-2151 W
(KSC), 2018 WL 1805103, at *2 (S.D. Cal. Apr. 17, 2018)
(quoting Conrad Assocs. v. Hartford Accident & Indem.
Co., 994 F.Supp. 1196, 1201 (N.D. Cal. 1998)) (emphasis
in original). Consequently, “[i]n evaluating whether to
include a civil penalty in calculating the amount in
controversy . . ., the defendant must make some effort to
justify the assumption by, for example, pointing to
allegations in the Complaint suggesting award of a civil
penalty would be appropriate, and providing evidence-such as
verdicts or judgments from similar cases-regarding the likely
amount of the penalty.” Id.; accord
McCormack v. Chrysler Grp., LLC, No. 18-CV-1387 W (KSC),
2018 WL 5262982, at *2 (S.D. Cal. Oct. 23, 2018); Eberle
v. Jaguar Land Rover N. Am., LLC, No. 218CV06650VAPPLA,
2018 WL 4674598, at *2 (C.D. Cal. Sept. 26, 2018); Makol
v. Jaguar Land Rover N. Am., LLC, No. 18-CV-03414-NC,
2018 WL 3194424, at *2 (N.D. Cal. June 28, 2018). Here,
Defendant makes no such showing; accordingly, the Court
concludes that Defendant has failed to establish by a
preponderance of the evidence that the amount in controversy
should include a civil penalty in the amount of two times
Plaintiff's alleged actual damages of $54, 393.84.
See Zawaideh, 2018 WL 1805103, at *3; see also
McCormack, 2018 WL 5262982, at *2; Eberle, 2018
WL 4674598, at *2; Makol, 2018 WL 3194424, at *3.
also contends that Plaintiff's attorneys' fees are
appropriately included in the amount in controversy.
See Not. of Removal ¶ 15 (citing Morrison
v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir.
2000); Galt G/S v. JSS Scandinavia, 142 F.3d 1150,
1155 (9th Cir. 1998)). It is true that “attorneys'
fees can be taken into account in determining the amount in
controversy if a statute [or contract] authorizes fees to a
successful litigant.” Galt G/S, 142 F.3d at
1155 (quoting Goldberg v. CPC Int'l Inc., 678
F.2d 1365, 1367 (9th Cir. 1992), cert. denied, 459
U.S. 945 (1982)). But “Defendant does not make any
effort to set forth the value of attorney's fees that it
expects [P]laintiff will incur in this matter.”
Johnson v. Am. Online, Inc., 280 F.Supp.2d 1018,
1026 (N.D. Cal. 2003). Consequently, “[w]hile it may
well be true that [Plaintiff's] claim . . . will
ultimately exceed $75, 000, [D]efendant has not met its
burden to demonstrate this fact by a preponderance of the
evidence.” See Johnson, 280 F.Supp.2d at 1026;
see also Eberle, 2018 WL 4674598, at *2;
Makol, 2018 WL 3194424, at *3; Zawaideh, 2018
WL 1805103, at *3. The Court therefore
REMANDS this action to the Superior Court
for the State of California, County of San Diego.