Boyd v. Wolchok

• Court: District Court, D. Nevada
• Decided: September 27, 2022
• Docket: 2:22-cv-00716
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 AMARA MECHELL BOYD, Case No.: 2:22-cv-00716-APG-VCF

4 Plaintiff Order Granting Plaintiff’s Motion to Remand 5 v. [ECF No. 7] 6 MATTHEW JAMES WOLCHOK, FOX FREIGHT, INC., and CTU LIMITED 7 GROUP,

8 Defendants 9 10 On April 2, 2021, plaintiff Amara Boyd sued defendants Matthew Wolchok, Fox Freight, 11 Inc., and CTU Limited Group in state court for injuries she allegedly sustained in a motor vehicle 12 accident. ECF No. 1 at 6-10. On May 4, 2022, the defendants removed the case to this court 13 based on diversity jurisdiction. Id. at 1. Boyd moves to remand this case to state court, arguing 14 that the petition for removal was untimely. The defendants oppose, asserting that Boyd acted in 15 bad faith to prevent removal. Because the defendants have not shown that Boyd acted in bad 16 faith, I grant Boyd’s motion to remand. 17 Federal courts are courts of limited jurisdiction. United States v. Sumner, 226 F.3d 1005, 18 1009 (9th Cir. 2000). Federal district courts have original jurisdiction over civil actions “where 19 the matter in controversy exceeds the sum or value of $75,000” and the controversy is between 20 “citizens of different States.” 28 U.S.C. § 1332(a)(1). As the party seeking to invoke this court’s 21 jurisdiction, the defendants bear the burden of establishing jurisdiction exists. Corral v. Select 22 Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017). 23 1 Generally, a defendant must file a notice of removal within 30 days of original 2 service. 28 U.S.C. § 1446(b)(1). If the case is not removable based on the initial pleading, a 3 defendant may file a notice of removal within 30 days of his receipt of an “amended pleading, 4 motion, order or other paper from which it may first be ascertained that the case is one which is

5 or has become removable.” Id. at § 1446(b)(3). But a case cannot be removed based on diversity 6 more than one year after commencement of the action unless the plaintiff “has acted in bad faith 7 in order to prevent a defendant from removing the action.” Id. at § 1446(c)(1). A plaintiff acted 8 in bad faith if they “deliberately failed to disclose the actual amount in controversy to prevent 9 removal.” Id. at § 1446(c)(3)(B). 10 Here the defendants removed the case more than one year after Boyd filed her complaint. 11 Thus, the removal is untimely unless the defendants show that Boyd acted in bad faith to prevent 12 removal. The Ninth Circuit has not addressed the burden required to prove bad faith under 13 § 1446(c)(1). Other district courts vary in their approaches, requiring a defendant to show bad 14 faith by either a preponderance of the evidence or clear and convincing evidence. See Keller

15 Logistics Grp., Inc. v. Navistar, Inc., 391 F. Supp. 3d 774, 778 (N.D. Ohio 2019) (discussing the 16 split in cases). I need not resolve what standard applies here because the defendants do not meet 17 their burden of proof under even the lower preponderance of the evidence standard. 18 The defendants argue that Boyd acted in bad faith by “concealing the actual amount of 19 alleged damages to prevent removal.” ECF No. 8 at 6. But they provide no evidence that Boyd 20 did so. They offer only a demand letter dated November 1, 2019 stating that Boyd’s damages 21 totaled $15,000.00. ECF No. 8-1 at 2-3. Although the defendants argue they conducted 22 settlement negotiations based on this amount for over a year, they present no evidence to that 23 effect. See Brit. Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) (stating that “legal 1}} memoranda and oral arguments are not evidence”); Barcamerica Int’l USA Tr. v. Tyfield Imps., 2|| Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002) (stating that “the arguments and statements of counsel 3] are not evidence’) (quotation omitted). The defendants have therefore not shown by a preponderance of the evidence that Boyd acted in bad faith to prevent removal. 5 I THEREFORE ORDER that plaintiff Amara Boyd’s motion to remand (ECF No. 7) is 6] GRANTED. This case is remanded to the state court from which it was removed for all further 7\| proceedings. The clerk of the court is instructed to close this case. 8 DATED this 27th day of September, 2022. 9 Z - '0 ANDREWP.GORDON. SOS UNITED STATES DISTRICT JUDGE

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