April Griffith v. Christenson Translease Company Incorporated, et al.

Opinion

1 2

6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 April Griffith, 8 Plaintiff CV-24-8121-PCT-JFM -vs- 9 Christenson Translease Company Incorporated, et al., Report & Recommendation 10 Defendants. to Sr. District Judge McNamee

11 A. REPORT AND RECOMMENDATION 12 This matter has been assigned awaiting consents to the undersigned magistrate 13 judge pursuant to 28 U.S.C. § 636(c)(1). Because the appropriate resolution of this matter 14 is dispositive of claims or defenses, see Flam v. Flam, 788 F.3d 1043, 1047 (9th Cir. 2015), 15 the undersigned proceeds by way of a Report & Recommendation to Sr. District Judge 16 McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B), LRCiv 3.7(b), and General Order 21- 17 25.1 18

19 B. DISCUSSION 20 Background - Defendants Paul Dawson and Unknown Dawson have filed a Notice 21 of Removal (Doc. 1), removing this action from the Yavapai County, Arizona Superior 22 Court on grounds of diversity. Defendants assert Plaintiff is a citizen of Arizona, 23 Defendants Dawson are citizens of Mississippi and Defendant Christenson Translease is a 24 Missouri corporation with its principal place of business in Missouri. 25

26 1 General Order 21-25 references a report and recommendation for “dismissal” being 27 directed to A remand is not precisely a “dismissal,” but is a termination of the federal proceeding. If Sr. District Judge McNamee believes this matter outside the scope of the 1 Defendants Dawson previously filed a Notice of Removal in the same state court 2 case. See Griffith v. Christenson Translease Company Incorporated, et al., CV-24-8117- 3 PHX-SMB. An order remanding the case was filed and certified to the state court on June 4 14, 2024, based on the lack of alleged facts to show the amount in controversy met the 5 requirements of 28 U.S.C. § 1332 for diversity jurisdiction, i.e. greater than $75,000. (Id. 6 at Doc. 6.) Consequently, the instant Notice of Removal is a successive one. 7 Here, it appeared Defendants now seek removal on the same grounds, but purport 8 to provide additional facts to establish the amount in controversy, i.e. “a settlement 9 demand of $291,884.95.”2 (Notice, Doc. 1 at 2.) In support, Defendants cite to their 10 Exhibit 7, which is a settlement demand letter dated March 4, 2024 and appears directed 11 to Defendant Paul Dawson’s insurer. Assuming timely communication of this demand to 12 Defendants, the undesigned concluded this demand letter would appear to not provide 13 “newly discovered facts” to support a successive notice of removal. Cf. Carvalho v. 14 Equifax Info. Servs., LLC, 629 F.3d 876, 886 (9th Cir. 2010) (previously received demand 15 could not trigger successive removal period under 28 U.S.C. § 1446(b)(3)). 16 Consequently a deadline was set for Defendants to show cause why this matter 17 should not be remanded to the state court as an improperly successive notice of removal. 18 (Order 6/21/24, Doc. 6.) 19 Defendants responded on July 2, 2024. The deadline for a reply by Plaintiff expired 20 on July 9, 2024 and no reply has been filed. 21 Standard for Original Notice of Removal - The defendant has the burden of 22 proving that removal to federal court is proper and must show by a preponderance of the 23 evidence that the “amount in controversy” requirement has been satisfied. ” Singer v. 24 State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997). This requirement is 25 met if: “(1) it is apparent from the face of the petition that the claims are likely to exceed 26

27 2 The other cited sources for the amount in controversy (the state court assertion of an 1 $75,000.00, or, alternatively, (2) the defendant sets forth summary judgment type evidence 2 of facts in controversy that support a finding of the requisite amount.” Bourne v. Wal- 3 Mart Stores, Inc., 582 F. Supp. 2d 828, 839 (E.D. Tex. 2008) (cleaned up). 4 Standard for Successive Notice – Successive notices of removal are generally not 5 permitted, except when based on a new and different ground for removal, see Kirkbride v. 6 Cont'l Cas. Co., 933 F.2d 729, 732 (9th Cir. 1991), or on newly discovered facts not 7 available at the time of the prior removal, Leon v. Gordon Trucking, Inc., 76 F. Supp. 3d 8 1055, 1062 (C.D. Cal. 2014). Cf. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th 9 Cir. 1996) (second removal permitted under 28 U.S.C. § 1446(b)(3) when based on “newly 10 acquired facts from…deposition transcript”). 11 No New Grounds Shown – Defendants previously sought removal based on 12 diversity jurisdiction and do so again in the instant Notice of Removal. 13 No Changed Circumstances Shown – Defendants also show no changed 14 circumstances. Defendants reference two facts to attempt to show changed circumstances: 15 (1) the earlier demand letter and that it had not been forwarded to Defendants’ counsel at 16 the time of the original Notice of Removal; and (2) the purported mis-classification of this 17 case as a “Tier 2 case” rather than a “Tier 3 case.” 18 Ordinarily, “notice of removability under § 1446(b) is determined through 19 examination of the four corners of the applicable pleadings, not through subjective 20 knowledge or a duty to make further inquiry.” Harris v. Bankers Life & Cas. Co., 425 F.3d 21 689, 694 (9th Cir.2005). Accordingly:

22 [T]he first thirty-day requirement is triggered by defendant's receipt of an ‘initial pleading’ that reveals a basis for removal. If no ground 23 for removal is evident in that pleading, the case is ‘not removable’ at that stage. In such case, the notice of removal may be filed within 24 thirty days after the defendant receives ‘an amended pleading, motion, order or other paper’ from which it can be ascertained from 25 the face of the document that removal is proper. 26 Id. (citing 28 U.S.C. § 1446(b)). Here, there appears to have been no ground for 27 removability for diversity in the Complaint because the Complaint specified no amount at 1 provided a range of damages as small as $50,000, inadequate for diversity jurisdiction. 2 Nonetheless, Defendants filed their original Notice of Removal, which failed to 3 establish the requisite amount at issue. Their successive Notice of Removal must, 4 therefore, be based on changed circumstances, which triggers a requirement that additional 5 information supporting removal be new, or at least newly available to the removing party.

6 Harris does not stand for the proposition that a defendant can remove prematurely and on the basis of insufficient information and then 7 remove yet a second time, on that same basis, within thirty days of receiving some other paper that provides the information that should 8 have been collected before removal was ever attempted. This is plainly contrary to the policy that “removal statutes should be 9 construed narrowly in favor of remand to protect the jurisdiction of state courts,” which “guards against premature and protective 10 removals and minimizes the potential for a cottage industry of removal litigation.” Harris, 425 F.3d at 698. Harris noted that its 11 ruling “ensure[d] respect for the jurisdiction of state courts” because it “assur[ed] that removal occurs once the jurisdictional facts 12 supporting removal are evident.” Id. 13 Gordon v. Republic Servs. Inc., No. 2013 WL 571814, at *2 (C.D. Cal. Feb. 8, 2013). 14 Here, the demand letter may have been newly discovered by counsel, but 15 Defendants have not shown that it was new information or at least not previously available 16 to Defendants or their counsel. Defendants do not, for example, suggest that counsel could 17 not have obtained the demand letter upon appropriate inquiry with Defendants or their 18 insurer. 19 Defendants’ argument regarding the Tier classification goes no further at showing 20 changed circumstances. Presumably, Defendants contend that the Plaintiff’s Tier 2 21 classification was erroneous, if not intentionally so, because the demand letter sought the 22 policy limits and asserted special damages (past and future medical expenses) of 23 $291,884.95), indicating the total damages (general and special) would exceed the 24 $300,000 upper limit of a Tier 2 case. See Ariz. R. Civ. Proc. 8(b) (precluding dollar 25 demand in complaint unless sum certain, but requiring pleading of tier); Ariz. R. Civ. Proc. 26 26.2(c)(3) (setting tiers); Ariz. R. Civ. Proc. 26.2(e) (damages for tier are for “all monetary 27 1 damages sought“ excluding “claims for punitive damages, interest, attorney's fees”). 2 But a plaintiff has no obligation to lay out a basis for removal, and arguably can 3 actively (but presumably not fraudulently) seek to avoid removal. See Nolff v. 4 Performance Food Grp., Inc., 2019 WL 5485665, at *2 (C.D. Cal. Oct. 24, 2019) 5 (proposal of submitting demand on basis of agreement to not use for removal did not 6 justify finding of changed circumstances on basis of jurisdictional amount). 7 Moreover, reliance on the bare allegation of the Tier 2 designation to show the 8 amount at issue was unjustified because (as discussed in the earlier order of remand) that 9 tier includes cases with an amount at issue as little as $50,000. With diligence Defendants 10 and their counsel could have known of the earlier demand and been able to raise this 11 argument in their original Notice of Removal. 12 Defendants having failed to show a change in circumstances (as opposed to a 13 change in their evidence of the pre-existing circumstances), this case must again be 14 remanded. 15

16 C. EFFECT OF RECOMMENDATION 17 This recommendation is not an order that is immediately appealable to the Ninth 18 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 19 Appellate Procedure, should not be filed until entry of the district court's judgment. 20 However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall 21 have fourteen (14) days from the date of service of a copy of this recommendation within 22 which to file specific written objections with the Court. Thereafter, the parties have 23 fourteen (14) days within which to file a response to the objections. Failure to timely file 24 objections to any findings or recommendations of the Magistrate Judge will be considered 25 a waiver of a party's right to de novo consideration of the issues, see United States v. 26

27 3 Defendants offer no evidence or basis to conclude that Plaintiff’s designation of a Tier 2 1. || Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver 2 || ofa party's right to appellate review of the findings of fact in an order or judgment entered 3 |} pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 4 || 1146-47 (9th Cir. 2007). 5 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that 6 || “[uJnless otherwise permitted by the Court, an objection to a Report and Recommendation 7 || issued by a Magistrate Judge shall not exceed ten (10) pages.” 8 || DL RECOMMENDATIONS 10 IT IS THEREFORE RECOMMENDED this case be remanded to the Maricopa ll County Superior Court. 12 13 || Dated: July 17, 2024 Ae 14 M812 RR 2407 16 re Remand on Stee Not Rem docx United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28