United States District Court, S.D. California
ORDER REMANDING ACTION TO THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA, COUNTY OF SAN DIEGO [Doc. No.
Cathy Ann Bencivengo United States District Judge.
matter comes before the Court following a review of Defendant
FCA US, LLC's Notice of Removal to the United States
District Court for the Southern District of California. [Doc.
No. 1.] On January 23, 2019, Defendant removed this action
from the Superior Court of the State of California, County of
San Diego claiming complete diversity and, “the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, as required for
removal.” [Id. at ¶ 15.]
Plaintiff Cruz Castillo 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 March
10, 2015, Plaintiff purchased a used 2011 Chrysler
300.” [Doc. No. 1-2 at ¶ 8.] Plaintiff alleges
that he “is entitled to reimbursement of the price paid
for the vehicle less that amount directly attributable to use
by the Plaintiff prior to discovery of the
nonconformities” as well as “all incidental,
consequential, and general damages resulting from
Defendant's failure to comply with its obligations under
the Song-Beverly Act.” [Id. at ¶¶
26-27.] Plaintiff also alleges he is entitled to “a
civil penalty of up to two times the amount of actual damages
for FCA U.S. LLC's willful failure to comply with its
responsibilities under the Act.” [Id. at
¶ 29.] 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
Notice of Removal contends that Plaintiff's actual
damages, based on the price paid for the vehicle less that
amount directly attributable to use by the Plaintiff, is $26,
131.31. [Doc. No. 1 at 15.] Defendant then states that by
virtue of the civil penalty that Plaintiff also seeks (two
times the “actual damages”), the total amount of
damages sought by Plaintiff is approximately $78, 393.81,
plus attorneys' fees. Therefore, Defendant contends the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, as required for removal.
civil penalty under California Civil Code § 1794(c)
cannot simply be assumed. See Herko v. FCA US, LLC,
No. 19-CV-2057 JLS (WVG), 2019 WL 5587140, at *2 (S.D. Cal.
Oct. 30, 2019). While courts frequently treat this penalty as
a form of punitive damages that may be appropriately included
in an amount-in-controversy calculation, Defendant has made
no showing that such a civil penalty is more likely than not
to be awarded here. In Zawaideh v. BMW of North
America, the court considered jurisdiction over a claim
analogous to the one here and found that the amount in
controversy had not been adequately proved. No. 17-cv-2151 W
(KSC), 2018 WL 1805103, at *2 (S.D. Cal. Apr. 17, 2018).
Evaluating the civil penalty provision at issue here, the
court reasoned that instead of simply assuming a penalty will
be awarded, “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. (collecting
cases). Where the defendant failed to identify allegations
justifying such an award and failed to submit evidence of
civil penalties awarded in analogous cases, the court found
the defendant failed to establish that the amount in
controversy should include the civil penalty. Id. at
Court reaches the same conclusion here. Simply assuming a
civil penalty award is inconsistent with the principle that
the defendant “must provide evidence that it is
‘more likely than not' that the amount in
controversy” requirement is satisfied. Sanchez v.
Monumental Life Ins. Co., 102 F.3d 398, 404 (9th
Cir.1996). Absent any specific argument or evidence for its
inclusion, the Court will exclude the civil penalty under
California Civil Code § 1794(c) from its
also appears to contend that attorneys' fees should be
included in the amount in controversy calculation. [Doc. No.
1 at ¶ 15.] 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 v. JSS
Scandinavia,142 F.3d 1150, 1155 (9th Cir. 1998)
(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). Furthermore, without the inclusion of any civil
penalty award into the calculation, the inclusion of a
potential attorneys' fees award would likely still fail
to satisfy the jurisdictional limit. Consequently,
“[w]hile it may well be true that [Plaintiff's]
claim . . . will ultimately ...