United States District Court, C.D. California
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
IN CHAMBERS - COURT ORDER
the Court is a Motion to Remand filed by plaintiff Dominic
Abad (“Plaintiff”) (Docket No. 7). Plaintiff
seeks remand of the action he commenced in Los Angeles
Superior Court. Plaintiff served defendant Signature Flight
Support Corporation (“Defendant”) with the
Summons and Complaint on October 29, 2019. Defendant,
alleging that the Court possesses jurisdiction over the
action on the basis of diversity jurisdiction, 28 U.S.C.
§ 1332(d), filed its Notice of Removal on December 2,
2019. In his Motion to Remand, Plaintiff contends that
Defendant's Notice of Removal is procedurally defective
because it was filed beyond the 30 day limit established by
28 U.S.C. § 1446(b)(1). Plaintiff additionally asserts
that Defendant's Notice of Removal fails to satisfy
§ 1332's amount in controversy requirement.
Defendant has filed an Opposition to the Motion to Remand.
The Court concludes that no further briefing is necessary.
Pursuant to Rule 78 of the Federal Rules of Civil Procedure
and Local Rule 7-15, the Court finds that this matter is
appropriate for decision without oral argument. The hearing
calendared for January 28, 2020, is vacated, and the matter
taken off calendar.
courts are courts of limited jurisdiction, having subject
matter jurisdiction over only those matters authorized by the
Constitution and Congress. See, e.g., Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct.
1673, 128 L.Ed.2d 391 (1994). A suit filed in state court may
be removed to federal court if the federal court would have
had original jurisdiction over the suit. 28 U.S.C. §
1441(a). A removed action must be remanded to state court if
the federal court lacks subject matter jurisdiction. 28
U.S.C. § 1447(c). “The removal statute is strictly
construed against removal jurisdiction, and the burden of
establishing federal jurisdiction falls to the party invoking
the statute.” California ex rel. Lockyer v. Dynegy,
Inc., 375 F.3d 831, 838 (9th Cir. 2004) (citing
Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393
(9th Cir. 1988)). “The defendant also has the burden of
showing that it has complied with the procedural requirements
for removal.” Riggs v. Plaid Pantries, Inc.,
233 F.Supp.2d 1260, 1264 (D. Or. 2001). “Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.” Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
matter jurisdiction based on diversity of citizenship
requires all plaintiffs to have different citizenship from
all defendants and that the amount in controversy exceed $75,
000. See 28 U.S.C. § 1332; Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct.
2396, 2402, 57 L.Ed.2d 274 (1978). In attempting to invoke
this Court's diversity jurisdiction, Defendant must prove
that there is complete diversity of citizenship between the
parties and that the amount in controversy exceeds $75, 000.
28 U.S.C. § 1332. To establish citizenship for diversity
purposes, a natural person must be a citizen of the United
States and be domiciled in a particular state. Kantor v.
Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.
1983). Persons are domiciled in the places they reside with
the intent to remain or to which they intend to return.
See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857
(9th Cir. 2001). “A person residing in a given state is
not necessarily domiciled there, and thus is not necessarily
a citizen of that state.” Id. For the purposes
of diversity jurisdiction, a corporation is a citizen of any
state where it is incorporated and of the state where it has
its principal place of business. 28 U.S.C. § 1332(c);
see also Indus. Tectonics, Inc. v. Aero Alloy, 912
F.2d 1090, 1092 (9th Cir. 1990).
determining the amount in controversy, the Court must assume
that the allegations in the complaint are true and that a
jury will return a verdict in the plaintiff's favor on
all of the claims in the complaint. See Kenneth
Rothschild Tr. v. Morgan Stanley Dean Witter, 199
F.Supp.2d 993, 1001 (C.D. Cal. 2002). “The ultimate
inquiry is what amount is put ‘in controversy' by
the plaintiff's complaint, not what a defendant will
actually owe.” Korn v. Polo Ralph Lauren
Corp., 536 F.Supp.2d 1199, 1205 (E.D. Cal. 2008)
(emphasis in original); see also Rippee v. Boston Market
Corp., 408 F.Supp.2d 982, 986 (S.D. Cal. 2005). When an
action has been removed and the amount in controversy is in
doubt, there is a “strong presumption” that the
plaintiff has not claimed an amount sufficient to confer
jurisdiction. Gaus, 980 F.2d at 566 (citing St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
288-90, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). “[T]he
amount-in-controversy inquiry in the removal context is not
confined to the face of the complaint.” Valdez v.
Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).
“When 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). “Under this burden, the
defendant must provide evidence establishing that it is
‘more likely than not' that the amount in
controversy exceeds [$75, 000].” Sanchez v.
Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.
1996). “Whether damages are unstated in a complaint,
or, in the defendant's view are understated, the
defendant seeking removal bears the burden to show by a
preponderance of the evidence that the aggregate amount in
controversy exceeds [the statutory minimum] when federal
jurisdiction is challenged. . . . [A] defendant cannot
establish removal jurisdiction by mere speculation and
conjecture, with unreasonable assumptions.” Ibarra
v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir.
2015). “Conclusory allegations as to the amount in
controversy are insufficient.” Matheson, 319
F.3d at 1090-91.
the Court concludes that Defendant's Notice of Removal
satisfies the amount in controversy requirement by alleging
facts establishing that it is more likely than not that the
amount in controversy exceeds $75, 000. The Court therefore
denies the Motion to Remand to the extent it contends that
the Court lacks subject matter jurisdiction over the action.
also contends that the Notice of Removal is untimely because
it was filed more than 30 days after Defendant was served
with the Summons and Complaint. To remove an action from
state to federal court, a defendant must file a notice of
removal “within thirty days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based.” 28 U.S.C.
§ 1446(b)(1); see also Parrino v. FHP, Inc.,
146 F.3d 699, 703 (9th Cir. 1998) (“[A] proper removal
notice must be filed within 30 days of service of the
plaintiff's complaint.”). Here, Defendant's
Opposition to the Motion to Remand asserts:
Removal. Defendant was served with Plaintiff's Complaint
on October 29, 2019. Under 28 U.S.C. §1446(b)(1),
Defendant's Notice of Removal was due on November 28,
2019. However, November 28, 2019, Thanksgiving, and November
29, 2019, the Friday after Thanksgiving, were holidays and
the Court was closed. The Court was also closed on Saturday,
November 30, 2019, and Sunday, December 1, 2019. The
Court's holidays and weekend closures extended the time
for filing Defendant's Notice of Removal under Rule 6 to
December 2, 2019, the first accessible day that was not a
Saturday, Sunday or legal holiday. Thus, Defendant timely
filed its Notice of Removal on December 2, 2019.
(Opp'n 9:1-9 (citations omitted).) Defendant also asserts
that although Plaintiff's counsel did initiate the
pre-filing meeting of counsel required by Local Rule 7-3 to
discuss the alleged subject matter defect, Plaintiff's
counsel did not raise the timeliness of the filing of the
Notice of Removal during the meet and confer process. Because
Plaintiff's counsel did conduct a Local Rule 7-3 meeting,
Defendant has had an opportunity to brief the issue, and it
is unlikely that the parties would have resolved their
dispute concerning the procedural defect without the
Court's intervention, the Court will consider the issue.
the Court was closed on November 29, 2019, that closure is
not a “legal holiday” for purposes of computing
time under Federal Rule of Civil Procedure 6(a)(1).
Specifically, Rule 6(a)(1) computes time by including
“the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to
run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.” Fed.R.Civ.P.
6(a)(1)(C) (emphasis added). Rule 6(a)(6) defines
“legal holiday” to mean “the day set aside
by statute for observing New Year's Day, Martin Luther
King Jr.'s Birthday, Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans'
Day, Thanksgiving Day, or Christmas Day.” The Friday
after Thanksgiving is not included in Federal Rule of Civil
Procedure 6's definition of “legal holidays.”
Additionally, because the Court's electronic filing
system was available on that day, the Clerk's Office was
not “inaccessible” for purposes of Federal Rule
of Civil Procedure 6(a)(3). See Fed.R.Civ.P. 6(a)(3)
advisory committee's notes to 2009 amendment (“The
reference to ‘weather' was deleted from the text to
underscore that inaccessibility can occur for reasons
unrelated to weather, such as an outage of the electronic
filing system.”); see also McElveen v. Westport
Recovery Corp., 310 F.Supp.3d 1374, 1378-79 (S.D. Fla.
2018) (concluding that the availability of electronic filing
system did not render the Clerk's Office
“inaccessible” and collecting cases).
Court therefore concludes that because Defendant was served
with the Summons and Complaint on October 29, 2019, and the
thirtieth day after that, November 29, 2019, was not a
“legal holiday” or day on which the Clerk's
Office was “inaccessible, ” Defendant's
filing of the Notice of Removal on December 2, 2019, is
untimely and renders it procedurally defective. See
28 U.S.C. § 1446(b). Accordingly, the Court concludes
that although it would otherwise possess subject matter
jurisdiction over the action, the Court grants
Plaintiff's Motion to Remand based on the procedural