United States District Court, S.D. California
ORDER REMANDING ACTION TO THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA, COUNTY OF SAN DIEGO (ECF No. 1)
Janis L. Sammartino United States District Judge.
November 29, 2018, Plaintiff Caroline Villalpando filed a
complaint in the Superior Court of the State of California,
County of San Diego, related to injuries sustained when she
fell down the escalator after she “was shown to the
escalator rather than provided with pre-arranged wheelchair
assistance” following a flight on Defendant's
airline. See ECF No. 1-2 at A-6. On May 9, 2019,
Defendant removed to this Court on the grounds that
“[t]his is a civil action where the amount in
controversy appears to exceed $75, 000 and the parties are
citizens of different states.” See Notice of
Removal at ¶ 2, Villalpando v. Sw. Airlines
Co., No. 19-CV-875 JLS (BGS) (S.D. Cal. filed May 9,
2019) (“Villalpando I”), ECF No. 1. To
establish that the amount in controversy exceeded $75, 000,
Defendant relied on a “Statement of Damages”
provided by Plaintiff “wherein it is alleged that
Plaintiff is seeking damages in the amount of $5, 000,
000.” Id. ¶ 9.
14, 2019, the Court sua sponte remanded the action
on the grounds that Defendant had “failed to produce
evidence to meet its burden of showing by a preponderance of
the evidence that the amount in controversy attributable to
Plaintiff's claims exceeds the $75, 000 threshold.”
See Order Remanding Action to the Superior Court of
the State of California, County of San Diego, at 3,
Villalpando I, ECF No. 6 (citing Schroeder v.
PetSmart, Inc., No. CV191561FMOAGRX, 2019 WL 1895573, at
*3 (C.D. Cal. Apr. 29, 2019)). “Following the remand to
Superior Court, Southwest prepared and served written
discovery requests designed to verify whether or not
Plaintiff's claimed damages exceeded the required amount
in controversy.” ECF No. 1 ¶ 9. “On
September 27, 2019, . . . Plaintiff admit[ted], under penalty
of perjury, that her claim exceeds $75, 000 in value; that
she will or has experienced more than $75, 000 in economic
damages; and also that she will or has separated experienced
more than $75, 000 in non-economic damages and future damages
(for a total claim in excess of $150, 000 by virtue of
Plaintiff's admissions).” Id. ¶ 10.
“[B]ased upon these recent responses to Southwest's
discovery requests, including Plaintiff's responses to
requests for admissions, . . . Southwest now believes
sufficient evidence is presented to confirm that the amount
in controversy will exceed $75, 000.” Id.
¶ 12. Consequently, on October 25, 2019, Defendant again
removed this action, again contending that “the amount
in controversy appears to exceed $75, 000 based on available
information.” See Id. ¶ 2.
to 28 U.S.C. § 1447(d), “[a]n order remanding a
case to the State court from which it was removed is not
reviewable on appeal or otherwise.” “In light of
the prohibition against review of a remand order in §
146(d), once a district court has remanded a case, a
defendant generally may not remove the case to federal court
a second time.” Leon v. Gordon Trucking, Inc.,
76 F.Supp.3d 1055, 1061-62 (C.D. Cal. 2014) (alteration in
original) (quoting Lodi Mem'l Hosp. Ass'n, Inc.
v. Blue Cross of Cal., No. CIV. 12 1071 WBS GGH, 2012 WL
3638506, at *3 (E.D. Cal. Aug. 22, 2012)). “Stated
differently, ‘a party is not entitled to file a second
notice of removal upon the same grounds where the district
court previously remanded the action.'”
Id. at 1062 (quoting Allen v. UtiliQuest,
LLC., No. CV 13-4466 SBA, 2014 WL 94337, at *2 (N.D.
Cal. Jan. 9 2014)) (citing Seedman v. U.S. Dist. Ct. for
C.D. Cal., 837 F.2d 413, 414 (9th Cir. 1988);
Andersen v. Schwan Food Co., No. CV 13-02208 JGB,
2014 WL 1266785, at *4 (C.D. Cal. Mar. 26, 2014)).
“This general prohibition on successive removals,
however, does not apply ‘when subsequent pleadings or
events reveal a new and different ground for
removal.'” Id. at 1062-63 (emphasis in
original) (quoting Kirkbride v. Cont'l Cas. Co.,
933 F.2d 729, 732 (9th Cir. 1991)) (collecting cases).
“Indeed, ‘absent new and different grounds for
removal based on newly discovered facts or law, a defendant
who improperly removes a case after a federal court
previously remanded it risks being sanctioned under Federal
Rule of Civil Procedure 11.'” Id. at 1063
(quoting Fed. Home Loan Mortg. Corp. v. Pulido, No.
CV 12-04525 LB, 2012 WL 5199441, at *2 (N.D. Cal. Oct. 20,
is the grounds discussed in the remand order, rather than the
grounds alleged in the notice of removal, that govern whether
a successive removal is based on ‘new and
different' grounds.” Id. at 1066-67
(citing Domenico v. Veolia Transp., Inc., No.
10-CV-02104 WYD, 2010 WL 3516901, *1 (D. Colo. Aug. 31,
2010); Andersen, 2014 WL 1266785 at *4). The
operative question, therefore, is whether the grounds for
removal in Defendant's instant Notice of Removal are
“‘new and different' from those addressed in
the [C]ourt's prior remand [O]rder.” Id.
at 1065 (quoting Seedman, 837 F.2d at 414;
Allen, 2014 WL 94337, at *2).
Court concludes that they are not. In its prior removal,
Defendant claimed that the amount in controversy exceeded the
$75, 000 jurisdictional threshold on the basis on
Plaintiff's $5, 000, 000 statement of damages. The Court
concluded that Defendant had failed to meet its burden of
establishing by a preponderance of the evidence that the
amount in controversy exceeded $75, 000. Consequently,
Defendant “was at least aware that Plaintiff's
medical expenses and potential medical expenses could have
well exceeded $75, 000 . . ., [but] failed to provide such
information to the Court.” See B.C. ex rel. Coleman
v. Ngo, No. CV 18-05913 RSWL-JPR, 2019 WL 2897848, at *2
(C.D. Cal. July 2, 2019). “Because [Defendant] brings
its successive removal on the same grounds as its first
removal, and given that there has been no ‘relevant
change of circumstances, '” remand is appropriate.
See Id. at *3 (quoting Reyes v. Dollar Tree
Stores, Inc., 781 F.3d 1185, 1188 (9th Cir. 2015)).
event, Plaintiffs responses to Defendant's requests for
admission fails to establish by a preponderance of the
evidence that the amount in controversy exceeds $75, 000. As
with the Statement of Damages, Plaintiff's bare admission
“is entirely conclusory[, ] . . . provid[ing] no
information that indicates it is a realistic assessment of
damages, or that it is based on facts that could be proved at
trial. Hence it appears to be nothing more than a bold
optimistic conclusion that is not sufficient to carry
[Defendant]'s burden of proving the amount in
controversy.” Leon, 76 F.Supp.3d at 1070
(quoting Romsa v. Ikea U.S. W., Inc., No. CV
14-05552 MMM (JEMx), 2014 WL 4273265, at *2 (CD. Cal. Aug.
28, 2014)) (internal quotation marks omitted) (citing
Aparicio v. Abercrombie & Fitch Stores Inc., No.
CV 13-09209 MMM (Ex), 2014 WL 545795, at *6 (CD. Cal. Feb.
10, 2014); Owens v. Westwood Coll. Inc., No. CV
13-4334 CAS (FFMx), 2013 WL 4083624, at *3 (CD. Cal. Aug. 12,
2013)). The Court therefore REMANDS this
action to the Superior Court of the State of California,
County of San Diego. See Id. at 1072
(“[B]ecause [Defendant]'s second notice of removal
is premised on the facts addressed in the court's remand
order, the court lacks jurisdiction to entertain the second
removal petition. For this reason, the court must remand the
action to state court. Even if court could exercise
jurisdiction over the removal, moreover, [Defendant] has
failed to carry its burden of proving that the amount in
controversy requirement is satisfied. For this reason as
well, remand is appropriate.”).