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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 TAIRINA BRIGGS, CASE NO. C22-1646JLR 11 Plaintiff, ORDER v. 12 SERVICE CORP 13 INTERNATIONAL, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court are: (1) Plaintiff Tairina Briggs’s motion to remand (MTR (Dkt. 17 # 12); MTR Reply (Dkt. # 27)); and (2) Ms. Briggs’s motion to amend her complaint 18 (MTA (Dkt. # 15); MTA Reply (Dkt. # 28)). Defendants Service Corporation 19 International (“SCI”) and John Kevin Varner (collectively, “Defendants”) oppose the 20 motion to remand but have not filed an opposition to the motion to amend. (MTR Resp. 21 (Dkt. # 24); see generally Dkt.) The court has considered the parties’ submissions, the 22 1 balance of the record, and the applicable law. Being fully advised,1 the court DENIES 2 Ms. Briggs’s motion to remand and GRANTS Ms. Briggs’s motion to amend.
3 II. BACKGROUND 4 From October 26, 2020, until May 22, 2022, Ms. Briggs worked as a dispatcher 5 for SCI. (FAC (Dkt. # 1-1) ¶ 5.1.) Mr. Varner was her manager; she also had several 6 supervisors who are not named in this lawsuit. (Id.) Ms. Briggs alleges that throughout 7 her employment, Mr. Varner and other supervisors denied her lunch breaks and rest 8 breaks; “verbally assaulted” her and other employees; made racially offensive comments;
9 and irresponsibly handled COVID-19 cases in the office. (Id. ¶¶ 5.2-5.21.) Ms. Briggs 10 further alleges she resigned from her position with SCI due to this treatment. (Id. ¶ 5.22.) 11 On October 3, 2022, Ms. Briggs initiated this action against Defendants in King 12 County Superior Court. (See Verification of State Court Records (Dkt. # 9), Ex. A.) She 13 amended her complaint on October 25, 2022. (See FAC.) In her amended complaint,
14 Ms. Briggs alleges claims under Washington state law for a hostile work environment, 15 disparate treatment, retaliation, negligent and intentional infliction of emotional distress, 16 and constructive discharge. (FAC ¶¶ 5.23-5.27.) Ms. Briggs seeks special damages, 17 general damages, punitive damages, attorneys’ fees, lost wages, back pay, front pay, and 18 benefits. (See id. at 16-17 (prayer for relief).)
19 On November 17, 2022, Defendants removed the case to this court on grounds of 20 diversity jurisdiction. (See generally NOR (Dkt. # 1).) Ms. Briggs then filed these 21
1 Neither party requests oral argument (see Mot., Resp.), and the court finds oral 22 argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). 1 motions to remand this case back to King County Superior Court for lack of subject 2 matter jurisdiction (see generally MTR) and to amend her complaint (see generally
3 MTA). 4 III. ANALYSIS 5 The court begins by discussing Ms. Briggs’s motion to remand before turning to 6 Ms. Briggs’s motion to amend. 7 A. Motion to Remand 8 Ms. Briggs moves to remand this case back to King County Superior Court,
9 arguing that removal was improper because the requirements for diversity jurisdiction 10 have not been met. (See generally MTR.) First, Ms. Briggs argues Defendants have 11 failed to carry their burden to show the amount in controversy exceeds $75,000. (Id. at 12 4.) Second, Ms. Briggs argues that the parties lack diversity of citizenship. (Id. at 5.) 13 The court sets forth the relevant legal standard for evaluating motions to remand before
14 turning to its analysis of Ms. Briggs’s motion. 15 1. Legal Standard for Motions to Remand 16 A civil action brought in a state court may be removed to a federal district court if 17 the federal district court could have exercised original jurisdiction over the action. See 18 28 U.S.C. § 1441. Federal diversity jurisdiction exists when a claim arises between
19 citizens of different states and the amount in controversy exceeds $75,000.00. See 20 28 U.S.C. § 1332. Federal courts strictly construe the removal statute and must reject 21 jurisdiction if there is any doubt as to the right of removal in the first instance. Hawaii ex 22 rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014); Gaus v. Miles, 1 Inc., 980 F.2d 564, 566 (9th Cir. 1992). The removing defendant faces a “strong 2 presumption” against removal and bears the burden of establishing, by a preponderance
3 of the evidence, that removal was proper. Gaus, 980 F.2d at 567; Sanchez v. Monumental 4 Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996). 5 a. Amount in Controversy
6 When the plaintiff’s requested damages are unclear from the face of the complaint, 7 the defendant bears the burden of proving, by a preponderance of evidence, that the 8 amount in controversy exceeds $75,000. 28 U.S.C. § 1446(c)(2)(B); Guglielmino v. 9 McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007) (affirming the application of a 10 preponderance of the evidence standard). Under this burden, the defendant must provide 11 evidence establishing that it is “more likely than not” that the amount in controversy 12 exceeds the required amount. Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 683 13 (9th Cir. 2006). If the amount in controversy is not “facially apparent” from the
14 complaint, “the court may consider facts in the removal petition, and may require parties 15 to submit summary-judgment-type evidence relevant to the amount in controversy at the 16 time of removal.” Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005) (quoting 17 Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). 18 “The amount in controversy includes all relief claimed at the time of removal to
19 which the plaintiff would be entitled if she prevails.” Chavez v. JPMorgan Chase & Co., 20 888 F.3d 413, 418 (9th Cir. 2018). Such relief may include “damages (compensatory, 21 punitive, or otherwise) and the cost of complying with an injunction, as well as attorneys’ 22 fees awarded under fee shifting statutes.” Id. at 416 (quoting Gonzales v. CarMax Auto 1 Superstores, LLC, 840 F.3d 644, 648-49 (9th Cir. 2016)); see also J. Bells LLC v. 2 Sentinel Ins. Co. Ltd., No. C20-5820BJR, 2020 WL 5905199, at *2 (W.D. Wash. Oct. 6,
3 2020) (stating that the court “looks not only to the amount of damages in dispute, but also 4 to attorney’s fees, costs, and statutory treble damages”). Conclusory allegations as to the 5 amount in controversy, however, are insufficient. Valdez v. Allstate Ins. Co., 372 F.3d 6 1115, 1117 (9th Cir. 2004); see also, e.g., Gaus, 980 F.2d at 567 (holding that a bald 7 recitation that damages exceeded the jurisdictional amount was insufficient to establish 8 the amount in controversy where the defendant did not set forth facts supporting that
9 assertion). 10 A defendant can use a plaintiff’s settlement demand to establish the amount in 11 controversy “if it appears to reflect a reasonable estimate of the plaintiff's claim.” Cohn 12 v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) (rejecting the argument that Federal 13 Rule of Evidence 408 prohibits the use of settlement offers in determining the amount in
14 controversy); Egal v. Geico Gen. Ins. Co., No. C14 1964RSM, 2015 WL 1632950, at 15 *3-4 (W.D. Wash. Apr. 13, 2015) (considering plaintiff’s demand letter when 16 determining that the amount in controversy was satisfied); Flores v. Safeway, Inc., No. 17 C19-0825JCC, 2019 WL 4849488, at *3 (W.D. Wash. Oct. 1, 2019) (“To establish the 18 amount in controversy, a defendant may point to many different types of evidence,” and
19 “[a] particularly powerful form of evidence is the plaintiff’s own statements about the 20 damages they seek.”). When a plaintiff disavows a settlement offer, however, that offer 21 no longer serves as evidence of the amount in controversy. Cohn, 281 F.3d at 840 22 (explaining that the plaintiff “could have argued that the demand was inflated and not an 1 honest assessment of damages,” but he did not “disavow” the demand); Aguilar v. Wells 2 Fargo Bank, N.A., No. ED-CV-15-01833-AB (SPx), 2015 WL 6755199, at *4 (C.D. Cal.
3 Nov. 4, 2015) (“Because Plaintiff has expressly denied that her settlement offer 4 accurately assesses the value of her claims, the offer does not constitute valid evidence of 5 the amount in controversy.”). 6 Here, Ms. Briggs asserts that Defendants have failed to establish that the amount 7 in controversy exceeds $75,000. (MTR at 4.) Specifically, she argues that “Defendant 8 has improperly imputed theoretical damages exceeding the amount in controversy”; that
9 “most employment cases that go to trial are rejected by the jury”; that “[P]laintiff has a 10 minimal wage loss claim at the time of this motion”; and that “[a]ttorney’s fees are 11 minimal at the time of this motion.” (See MTR at 3; MTR Reply at 1-2.) These 12 arguments, however, fail to acknowledge that the amount in controversy is not based on 13 the probability of success or the current costs at this stage of the case; instead, it is
14 calculated based on all relief claimed at the time of removal to which the plaintiff would 15 be entitled if she prevails. See Chavez, 888 F.3d at 418. Applying this standard, the 16 court concludes that Defendants have met their burden to show that the amount in 17 controversy exceeds $75,000. 18 The court agrees with Defendants that the settlement discussions between Ms.
19 Briggs and Defendants reflect a reasonable estimate of the value of her claims sufficient 20 to establish an amount in controversy that exceeds $75,000. (MTR Resp. at 6); see Cohn, 21 281 F.3d at 840. During a phone call between Defendants’ counsel, Priya Vivian, and 22 Ms. Briggs’s counsel, Thaddeus P. Martin, Mr. Martin conveyed a settlement demand of 1 $250,000, along with a detailed explanation as to how he reached that number. (Vivian 2 Decl. (Dkt. # 25) ¶¶ 3-4 (stating Mr. Martin explained that this valuation was based on
3 the number of years that Ms. Briggs worked for the company, the type of discrimination 4 she experienced, the medical attention she sought, the nature of the discriminatory 5 comments, and his experience with settlements in similar cases); see also id. ¶ 4 (stating 6 that Mr. Martin “confirmed that he ‘definitely’ thought the case should settle in the six 7 figures”).) Ms. Briggs counters that the $250,000 demand was mere “puffing” of the 8 case value and cannot be taken as evidence of the amount in controversy in this case.
9 (MTR at 5.) She points out that when Ms. Vivian emailed Mr. Martin to confirm his 10 demand of $250,000, Mr. Martin replied that he had “never made an official offer to 11 settle” and “thought [they] were talking generally about whether this case could settle at a 12 reasonable number.” (Id. (citing Martin MTR Decl. (Dkt. # 13) ¶ 6, Ex. 6).) At no point 13 during or after that discussion, however, did Mr. Martin disavow that $250,000 was a
14 reasonable valuation of Ms. Briggs’s claims, nor has he contradicted Ms. Vivian’s 15 description of their discussion. (See Vivian Decl. ¶¶ 3-4; see generally Martin MTR 16 Decl.); see also Cohn, 281 F.3d at 840 (holding that a settlement demand was sufficient 17 to satisfy the amount in controversy where plaintiff made no attempt to disavow the letter 18 or offer contrary evidence). To the contrary, Mr. Martin described his $250,000
19 valuation as a “reasonable number.” (Martin MTR Decl. ¶ 6, Ex. 6.) This statement puts 20 his case valuation in line with Cohn’s requirement that a settlement demand be 21 reasonable. See Cohn, 281 F.3d at 840. Even if Mr. Martin did not intend the 22 discussions to serve as an “official” demand, he identifies no legal authority to support a 1 distinction between “official” and “unofficial” settlement demands in this context. (See 2 generally MTR; Reply.) The court concludes that the settlement demand of $250,000, its
3 accompanying justification, and Mr. Martin’s description that the demand was 4 “reasonable” are sufficient evidence to establish that the amount in controversy has been 5 met. See Babcock v. ING Life Ins. & Annuity Co., No. 12-CV-5093-TOR, 2012 WL 6 3862031, at *3 (E.D. Wash. Sept. 5, 2012) (holding that the settlement letter provided by 7 the defendant was sufficient to prove that it was more likely than not that the amount in 8 controversy exceeded $75,000).
9 Ms. Briggs also argues that the amount in controversy is not satisfied because her 10 wage loss damages, if any, are minimal. (See MTR at 3; MTR Reply at 1.) First, Ms. 11 Briggs argues that Defendants’ estimate of $68,160 in lost wages (see MTR Resp. at 8) 12 fails to account for the fact that she mitigated her wage losses by obtaining comparable 13 employment. (MTR Reply at 2; Briggs MTR Decl. (Dkt. # 14) ¶ 2 (stating that Ms.
14 Briggs started a job with comparable wages about a month after she resigned).) 15 Mitigation of wages, however, is an affirmative defense that is not considered when 16 determining the amount in controversy. See Eskridge v. Nucor Steel Seattle, Inc., No. 17 C20-1393MJP, 2020 WL 7694049, at *2 (W.D. Wash. Dec. 28, 2020) (explaining that 18 the possibility that plaintiff’s new employment would reduce his damages is immaterial
19 because defenses are not considered in determining the amount in controversy (citing 20 Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1108 (9th 21 Cir. 2010))); see also Mendoza v. QVC Inc., No. 5:20-CV-01595-ODW (KKx), 2021 WL 22 633023, at *3 (C.D. Cal. Feb. 18, 2021) (holding that because mitigation of damages is 1 an affirmative defense, the amount in controversy was not reduced when the plaintiff 2 obtained subsequent comparable employment).
3 Second, Ms. Briggs asserts in her reply that she “is not making a wage loss claim.” 4 (MTR Reply at 1.) The court, however, evaluates the propriety of removal based on the 5 operative complaint at the time of removal. Post-removal declarations or other pleadings 6 that reduce the amount recoverable “do not oust a court’s jurisdiction once it has 7 attached.” Burke Fam. Living Tr. v. Metro. Life Ins. Co., No. C09-5388FDB, 2009 WL 8 2947196, at *3 (W.D. Wash. Sept. 11, 2009).
9 To conclude, the court finds that Defendants have satisfied their burden of 10 establishing that it is “more likely than not” that the amount in controversy exceeds 11 $75,000. 12 b. Diversity of Citizenship 13 “Subject matter jurisdiction based upon diversity of citizenship requires that no
14 defendant have the same citizenship as any plaintiff.” Tosco Co. v. Communities for a 15 Better Env’t., 236 F.3d 495, 499 (9th Cir. 2000). Corporations have dual citizenship: 16 they are citizens of both the state of incorporation and the state where their principal 17 place of business is located. Id. at 500. For purposes of diversity jurisdiction, individuals 18 are deemed citizens of the state of their domicile. Kanter v. Warner Lambert Co., 265
19 F.3d 853, 857 (9th Cir. 2001). One’s domicile is one’s “permanent home,” which is 20 “where [one] resides with the intention to remain or to which [one] intends to return.” Id. 21 “At minimum, a person’s residence constitutes some evidence of domicile.” Adams v. W. 22 Marine Prod., Inc., 958 F.3d 1216, 1221 (9th Cir. 2020) (emphasis in original). “[A] 1 party with the burden of proving citizenship may rely on the presumption of continuing 2 domicile, which provides that, once established, a person’s state of domicile continues
3 unless rebutted with sufficient evidence of change.” Id. A defendant may satisfy its 4 burden to show diversity of citizenship using a declaration, but the claim for domicile 5 should be “evaluated in terms of objective facts” and “statements of intent are entitled to 6 little weight when in conflict with facts.” See Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 7 1986). 8 It is undisputed that Ms. Briggs is a citizen of Washington (FAC ¶ 3.1, 4.1) and
9 that SCI is a citizen of Texas because it is incorporated in Texas with its principal place 10 of business in Texas. (NOR ¶ 3; FAC ¶ 4.2). The parties, however, contest the 11 citizenship of Mr. Varner: Defendants claim Mr. Varner is a citizen of Florida, whereas 12 Ms. Briggs claims Mr. Varner is a citizen of Washington. (See MTR at 2; NOR ¶ 3; 13 Varner Decl. (Dkt. # 26) ¶¶ 2, 4, 5.)
14 The court concludes that Mr. Varner is domiciled in Florida for purposes of 15 diversity jurisdiction. According to his declaration, Mr. Varner previously lived in Lake 16 Forest Park, Washington with his husband. (Id. ¶ 2.) On August 27, 2022, Mr. Varner 17 and his husband moved to Valrico, Florida, where Mr. Varner had recently accepted a 18 new job. (Id.) Mr. Varner’s lease for his Washington property ended on August 31,
19 2022. (Id. ¶ 6.) Mr. Varner and his husband are currently renting a home in Valrico, 20 Florida and have set up mail forwarding from their former Lake Forest Park address to 21 their Valrico address. (Id. ¶ 4.) The couple has also gone under contract to purchase a 22 home in Bartow, Florida. (Id. ¶ 4, Ex. 1.) Additionally, Mr. Varner has obtained a 1 Florida driver’s license and registered to vote in Florida. (Id. ¶ 5, Ex. 2.) Mr. Varner no 2 longer maintains a home in Washington, has not visited Washington since he moved to
3 Florida, and has no plans to move back to Washington. (Id. ¶ 6.) These facts are 4 sufficient to establish that Mr. Varner is domiciled in Florida. See, e.g., Pierson v. 5 Miniat, No. C21-1317SKV, 2022 WL 43520, at *2 (W.D. Wash. Jan. 5, 2022) (holding 6 that evidence of the defendant’s Washington employment, places of residence, real estate 7 purchase, payment of utilities, driver’s license, vehicle and voter registration, and 8 payment of taxes were sufficient to show that the defendant was a citizen of
9 Washington). 10 Ms. Briggs’s arguments in opposition do not alter this conclusion. Ms. Briggs 11 claims Mr. Varner is domiciled in Washington because he “lived in Washington State as 12 recently as this summer and still maintains a home here” and that “there is no evidence he 13 has established residency in Florida.” (MTR at 2, MTR Reply at 4.) To support this
14 assertion, Ms. Briggs argues that the court should consider Mr. Varner’s last-known 15 Washington address in Lake Forest Park as evidence of his citizenship in Washington. 16 (MTR at 2; MTR Reply at 2.) When Ms. Briggs attempted to serve Mr. Varner at this 17 address, however, the mail was automatically forwarded to his new Florida address, 18 which undermines Ms. Briggs’s claim that Mr. Varner has maintained a permanent
19 residence in Washington in which he intends to remain. (Vivian Decl. ¶ 2, Ex. 1; Martin 20 MTR Decl. ¶ 3, Ex. 3.) 21 Ms. Briggs also relies on a checklist derived from Florida’s Uniform Child 22 Custody and Jurisdictional Act (“UCCJA”), Fla. Stat. § 61.1308(1)(a) to support her 1 contention that Mr. Varner is not a Florida resident. (MTR at 2.) This argument is 2 misplaced. The UCCJA, which has since been repealed and replaced with a different
3 statute, is relevant only to child custody matters, not citizenship for purposes of federal 4 diversity jurisdiction. See Arjona v. Torres, 941 So. 2d 451, 454 (Fla. Dist. Ct. App. 5 2006) (explaining the history of the UCCJA). 6 In sum, under the applicable legal standards, Defendants have met their burden to 7 establish that the parties are diverse because no Defendant is of the same citizenship as 8 Ms. Briggs. Defendants have also met their burden to show that the amount in
9 controversy exceeds $75,000. Accordingly, the court denies Ms. Briggs’s motion to 10 remand for lack of subject matter jurisdiction.2 11 B. Motion to Amend Complaint 12 Ms. Briggs also moves this court for leave to amend her complaint pursuant to 13 Federal Rule of Civil Procedure 15(a). (See generally MTA; Prop. SAC.) Under Rule
14 15(a)(2), “[t]he court should freely give leave [to amend the complaint] when justice so 15 requires.” Fed. R. Civ. P. 15(a)(2). Courts consider five factors when assessing a motion 16 for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, 17 (4) futility of amendment, and (5) whether the party has previously amended its pleading. 18 Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (citing Ascon Props., Inc.
19 v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)). “Absent prejudice, or a strong 20 showing of any of the remaining . . . factors, there exists a presumption under Rule 15(a) 21
2 Because the court denies Ms. Briggs’s motion to remand, it also denies her request for 22 attorney’s fees and costs pursuant to 28 U.S.C. § 1447(c). (See MTR at 6-7.) 1 in favor of granting leave to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 2 1048, 1052 (9th Cir. 2003) (emphasis in original). In general, “if a party fails to file
3 papers in opposition to a motion, such failure may be considered by the court as an 4 admission that the motion has merit.” Local Rules W.D. Wash. LCR 7(b)(2). 5 Ms. Briggs seeks leave to make two changes to her complaint. First, Ms. Briggs 6 seeks to replace Defendant SCI with Uniservice Corporation, which she alleges is her 7 actual employer. (MTA at 1.)3 Second, she seeks to change the name of Defendant Jane 8 Doe to “John Doe” to correctly reflect the gender of Mr. Varner’s husband. (Id.)
9 In light of the presumption in favor of granting leave to amend, and taking 10 Defendants’ failure to oppose Ms. Briggs’s motion as an admission that the motion has 11 merit, the court grants Ms. Briggs’s motion to amend. (See generally Dkt.) 12 IV. CONCLUSION 13 For the foregoing reasons, the court DENIES Ms. Briggs’s motion to remand (Dkt.
14 # 12) and GRANTS Ms. Briggs’s motion to amend (Dkt. # 15). Ms. Briggs shall file her 15 second amended complaint on the docket by no later than February 9, 2023. 16 Dated this 27th day of January, 2023. 17 A 18 19 JAMES L. ROBART United States District Judge 20
21 3 The court’s granting of the motion to amend will not destroy diversity. Uniservice Corporation, the proposed replacement Defendant, is incorporated in Oregon with its principal 22 place of business in Texas. (NOR at 1 n.1.)