United States District Court, C.D. California
Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT
CIVIL MINUTES - GENERAL
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND 
Introduction and Factual Background
Bruce Hulse filed this action in California state court on
April 24, 2019, asserting that Defendant Ascion LLC
(“Defendant”) misappropriated his likeness and
violated Cal. Civ. Code § 3344 (California's
statutory misappropriation offense) based on Defendant's
continued use of his image in marketing materials following
the expiration of the 2-year period Plaintiff contractually
authorized. Dkt. 1-2. On Oct. 29, 2019 Defendant removed the
case to this Court, alleging that the parties were completely
diverse, and that the amount in controversy exceeded $75,
000, as required by 28 U.S.C. § 1332(a) to create
jurisdiction in this Court.
then filed a motion to remand, asserting (1) that because
Defendant waited more than four and a half months to file its
Notice of Removal, it is time-barred procedurally, and (2)
that Defendant's removal is not supported by sufficient
evidence that demonstrates that the amount in controversy
exceeds $75, 000. Dkt. 9 at 1.
States federal courts are courts of limited jurisdiction.
Gunn v. Minton, 568 U.S. 251, 256 (2013).
Consequently, a “federal court is presumed to lack
jurisdiction in a particular case unless the contrary
affirmatively appears.” Stock West, Inc. v.
Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.
1989). Due to this presumption, federal courts must exercise
“prudence and restraint” when considering the
propriety of removal. Merrell Dow Pharm. Inc. v.
Thompson, 478 U.S. 804, 810 (1986). Thus, “[i]f a
district court determines at any time that less than a
preponderance of the evidence supports the right of removal,
it must remand the action to the state court.”
Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057
(9th Cir. 2018). “The removing defendant bears the
burden of overcoming the ‘strong presumption against
removal jurisdiction.'” Id. (quoting
Geographic Expeditions, Inc. v. Estate of Lhotka ex rel.
Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010)).
amount in controversy is simply an estimate of the total
amount in dispute, not a prospective assessment of
defendant's liability.” Lewis v. Verizon
Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010).
The notice of removal “need include only a plausible
allegation that the amount in controversy exceeds the
jurisdictional threshold, ” and need not contain
evidentiary submissions. Owens, 135 S.Ct. at 554.
“Evidence establishing the amount is required . . .
only when the plaintiff contests, or the court questions, the
defendant's allegation.” Id. Thus, where
“it is unclear or ambiguous from the face of a
state-court complaint whether the requisite amount in
controversy is pled, the removing defendant bears the burden
of establishing, by a preponderance of the evidence, that the
amount in controversy exceeds the jurisdictional
threshold.” Urbino v. Orkin Servs. of Cal.,
Inc., 726 F.3d 1118, 1121-22 (9th Cir. 2013) (internal
citations and quotation marks omitted). The court can
consider the complaint, allegations in the removal petition,
and “summary-judgment-type evidence relevant to the
amount in controversy at the time of removal.”
Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th
Cir. 2005) (quoting Singer v. State Farm Mut. Auto. Ins.
Co., 116 F.3d 373, 377 (9th Cir. 1997)).
Plaintiff's argument that Defendant's Notice of
Removal is time-barred is incorrect, because the removal
statute permits removal within thirty days after receipt by
the defendant of “other paper from which it may
first be ascertained that the case is one which is
or has become removable.” 28 U.S.C. § 1446(b)(3)
(emphasis added). The Ninth Circuit has construed this to
mean that the “thirty day time period for removal
starts to run from defendant's receipt of the initial
pleading only when that pleading affirmatively reveals on its
face the facts necessary for federal court
jurisdiction.” Harris v. Bankers Life & Cas.
Co., 425 F.3d 689, 690-91 (9th Cir. 2005). In other
circumstances, the time limit begins to run when it is
“apparent” the case has become removable.
Id. at 696; see also Ackerberg v. Citicorp USA,
Inc., 887 F.Supp.2d 934, 938 (N.D. Cal. 2012).
asserts in its Notice of Removal and Opposition to remand
that it was only upon serving a Request for Admission on the
Plaintiff during discovery, which asked Plaintiff to admit
that the amount in controversy was less than or equivalent to
$75, 000, that Defendant was on notice that the
jurisdictional amount could be satisfied in this case.
See Dkt. 1 at 1-2; Dkt. 12 at 8-9. Plaintiff's
state court complaint includes no fixed damages request, and
Plaintiff's argument that Defendant previously had notice
of the disputed amount based on damages in prior jury trials
by Plaintiff's counsel (referenced in pre-litigation
letters sent to Defendant) are not relevant to the amount in
controversy in this case. Dkt. 9 at 2-3. Plaintiff failed to
indicate a specific damages amount, and after Defendant
requested a stipulation that the amount was less than $75,
000 and Plaintiff declined to do so, Defendant removed the
case to federal court. Because “jurisdictional and
procedural interests [are] served by a bright-line
approach” that focuses on the face of the complaint to
determine whether jurisdiction exists, the Court is satisfied
that Plaintiff's response to Defendant's discovery
request for admission is appropriately considered
“other paper” providing notice under 28 U.S.C.
§ 1447(b)(3), and that Defendant's notice of removal
was timely filed. Harris v. Bankers Life & Cas.
Co., 425 F.3d at 696.
Defendant has not provided sufficient “summary
judgment” type evidence to satisfy their burden that
the amount in controversy here exceeds $75, 000, now that
Plaintiff has disputed that issue. Kroske, 432 F.3d
at 980. The mere fact that Plaintiff has not stipulated to an
amount in controversy below $75, 000 is not sufficient to
Defendant's burden, because any number of strategic legal
concerns could preclude making such a binding stipulation.
While courts in this district have considered evidence
provided from settlement negotiations, more substantial
evidence- such as a failure to accept a settlement
offer poised precisely above the jurisdictional minimum
is generally required to satisfy the relevant preponderance
of the evidence standard. See In re Ford Motor Co. DPS6
Powershift Transmission Prod. Liab. Litig., 2018 WL
5905942, at *4 (C.D. Cal. Sept. 10, 2018) (pointing to
declined settlement offers of $75, 001 as probative of
whether the amount in controversy is satisfied).
Defendant's conclusory assertions that other
misappropriation of likeness cases have resulted in
substantial jury verdicts for emotional distress and that
attorney's fees and punitive damages could also be
substantial are unsupported by the type of evidence required
for this Court to conclude that the jurisdictional minimum is
met here. Dkt. 12 at 6-8. Moreover, Defendant's reference
to damages flowing from disgorged profits (as allowed by
statute in California) fails to consider that
Defendant has access to any relevant profit figures,
which have not been shared with the Court. See Cal.
Civ. Code § 3344.
Court has discretion to decline to award fees and costs on
remand. 28 U.S.C. § 1447(c). Because the Court
acknowledges that settlement demands can be considered in
assessing the relevant amount in controversy, but concludes
that the request for admission denied by Plaintiff is not
sufficient to satisfy the preponderance of the evidence
standard required for jurisdiction when Plaintiff contests
it, the Court does not find that there was no
“objectively reasonable basis” for seeking
removal, and declines to award fees and costs to Plaintiff.
Martin v. Franklin Capital Corp., 546 U.S. 132, 141