1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA
3 4 5 Evette Estrada, 2:20-cv-09918-VAP-SKx 6 Plaintiff, Order DENYING Motion to 7 v. Remand and ORDERING 8 Defendant to Show Cause FCA US LLC, et al., (Dkt. 10). 9 Defendants. 10 11 12 Plaintiff Evette Estrada filed a Motion to Remand the present matter to the 13 Los Angeles County Superior Court. (Dkt. 10). Defendant FCA US LLC filed an 14 Opposition to the Motion, (Dkt. 13), and Plaintiff subsequently replied, (Dkt. 14). 15 The Court deems this matter appropriate for resolution without oral hearing 16 pursuant to Local Rule 7-15. After considering all papers filed in connection to the 17 Motion, the Court DENIES the Motion. The Court also ORDERS Defendant to 18 show cause regarding the amount in controversy. 19 20 I. BACKGROUND 21 Plaintiff Evette Estrada filed her initial complaint on August 18, 2020, 22 asserting claims under California’s Song-Beverly Consumer Warranty Act (“the 23 Act”) relating to her purchase of a 2019 Jeep Renegade. (See Dkt. 1-1 Ex. A). 24 Defendant FCA US LLC removed the action to federal court on October 28, 2020. 25 (Dkt. 1). Plaintiff now seeks to remand to state court, arguing that Defendant’s 26 Notice of Removal was untimely and failed to establish diversity of citizenship and 1 1 that, in any event, the Court should decline to exercise jurisdiction pursuant to 2 principles of comity. (See generally Dkt. 10). 3 4 II. LEGAL STANDARD 5 Under 28 U.S.C. § 1441(a), a civil action may be removed to the district 6 court where the action is pending if the district court has original jurisdiction over 7 the action. A district court has diversity jurisdiction over any civil action between 8 citizens of different states if the amount in controversy exceeds $75,000, excluding 9 interest and costs. 28 U.S.C. § 1332. Section 1332(a)(1) requires complete 10 diversity, meaning that “the citizenship of each plaintiff is diverse from the 11 citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 12 “[T]he amount in controversy includes damages (compensatory, punitive, or 13 otherwise), the costs of complying with an injunction, and attorneys’ fees awarded 14 under fee-shifting statutes or contract.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 15 899 F.3d 785, 793 (9th Cir. 2018). 16 17 Generally, a defendant must file a notice of removal within 30 days after 18 receipt of the first pleading in the state action that sets forth a removable claim. 28 19 U.S.C. § 1446(b)(1). Where the case set forth in the initial pleading does not 20 support removal, the 30-day period is triggered by the defendant’s receipt “of a 21 copy of an amended pleading, motion, order or other paper from which it may first 22 be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 23 1441(b)(3). However, these “two 30–day periods are not the exclusive periods for 24 removal.” Rea v. Michaels Stores Inc., 742 F.3d 1234, 1237-38 (9th Cir. 2014) 25 (citing 28 U.S.C. § 1446, 1453(b)). “[A]s long as the complaint or ‘an amended 26 pleading, motion, order or other paper’ does not reveal that the case is removable, 2 1 the 30–day time period never starts to run and the defendant may remove at any 2 time.” Id. at 1238. 3 4 “The burden of establishing federal jurisdiction is on the party seeking 5 removal, and the removal statute is strictly construed against removal jurisdiction.” 6 Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th Cir. 1999), 7 superseded by statute on other grounds as stated in Abrego v. The Dow Chem. Co., 8 443 F.3d 676, 681 (9th Cir. 2006). There is a strong presumption against removal 9 jurisdiction, and federal jurisdiction “must be rejected if there is any doubt as to the 10 right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 11 Cir. 1992) (citation omitted). A “defendant always has the burden of establishing 12 that removal is proper.” Id. “If at any time before final judgment it appears that the 13 district court lacks subject matter jurisdiction, the case shall be remanded.” 28 14 U.S.C. § 1447(c). 15 16 III. DISCUSSION 17 Plaintiff advances three arguments in support of her Motion: (1) removal was 18 untimely; (2) diversity of citizenship has not been established; and (3) principles of 19 comity favor adjudication in state court. The Court addresses each argument in 20 turn. 21 22 A. Timeliness of Removal 23 “[N]otice of removability under § 1446(b) is determined through 24 examination of the four corners of the applicable pleadings, not through subjective 25 knowledge or a duty to make further inquiry.” See Harris v. Bankers Life & Cas. 26 Co., 425 F.3d 689, 694 (9th Cir. 2005) (emphasis added). Here, the Complaint does 3 1 not state how much Plaintiff paid for the vehicle or provide another benchmark for 2 damages sought; instead, Plaintiff prays for “actual[,] compensatory[,] and general 3 damages according to proof at time of trial” plus a civil penalty, interest, and 4 attorneys’ fees and costs. (Dkt. 1-1 Ex. A ¶ 20). Thus, the thirty-day period for 5 removal did not commence at the time of service of the summons and Complaint. 6 Besides the Complaint, Plaintiff cites no “amended pleading, motion, order or other 7 paper” provided to Defendant which would trigger a 30-day removal period. 28 8 U.S.C. § 1441(b)(3); see also De Paredes v. Walmart Inc., No. 220CV08297-RGK- 9 AFMx, 2020 WL 6799074, at *2 (C.D. Cal. Nov. 17, 2020) (“The term ‘other paper’ 10 generally includes any document in the record of the state court proceeding or 11 discovery responses.”). Instead, Defendant alleges that it “was able to ascertain the 12 amount in controversy” on September 28, 2020 when, by way of its own 13 investigation, it obtained a copy of Plaintiff’s purchase contract from the selling 14 dealership stating the amount payable on the vehicle.1 (Dkt. 1-1 ¶¶ 4–8). 15 Accordingly, the time of removal does not support remand. 16 17 B. Diversity of Citizenship 18 Plaintiff argues Defendant “failed to establish that diversity of citizenship is 19 present” because it failed to show Plaintiff is a citizen of California.2 (Dkt. 10 at 8). 20 She contends that Defendant’s statement that “Plaintiff is and was a citizen and 21 resident of California,” (Dkt. 1 ¶ 27), assumes facts and lacks adequate support. 22 1 Even if this contract constituted “other paper” under 28 U.S.C. § 1446
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1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA
3 4 5 Evette Estrada, 2:20-cv-09918-VAP-SKx 6 Plaintiff, Order DENYING Motion to 7 v. Remand and ORDERING 8 Defendant to Show Cause FCA US LLC, et al., (Dkt. 10). 9 Defendants. 10 11 12 Plaintiff Evette Estrada filed a Motion to Remand the present matter to the 13 Los Angeles County Superior Court. (Dkt. 10). Defendant FCA US LLC filed an 14 Opposition to the Motion, (Dkt. 13), and Plaintiff subsequently replied, (Dkt. 14). 15 The Court deems this matter appropriate for resolution without oral hearing 16 pursuant to Local Rule 7-15. After considering all papers filed in connection to the 17 Motion, the Court DENIES the Motion. The Court also ORDERS Defendant to 18 show cause regarding the amount in controversy. 19 20 I. BACKGROUND 21 Plaintiff Evette Estrada filed her initial complaint on August 18, 2020, 22 asserting claims under California’s Song-Beverly Consumer Warranty Act (“the 23 Act”) relating to her purchase of a 2019 Jeep Renegade. (See Dkt. 1-1 Ex. A). 24 Defendant FCA US LLC removed the action to federal court on October 28, 2020. 25 (Dkt. 1). Plaintiff now seeks to remand to state court, arguing that Defendant’s 26 Notice of Removal was untimely and failed to establish diversity of citizenship and 1 1 that, in any event, the Court should decline to exercise jurisdiction pursuant to 2 principles of comity. (See generally Dkt. 10). 3 4 II. LEGAL STANDARD 5 Under 28 U.S.C. § 1441(a), a civil action may be removed to the district 6 court where the action is pending if the district court has original jurisdiction over 7 the action. A district court has diversity jurisdiction over any civil action between 8 citizens of different states if the amount in controversy exceeds $75,000, excluding 9 interest and costs. 28 U.S.C. § 1332. Section 1332(a)(1) requires complete 10 diversity, meaning that “the citizenship of each plaintiff is diverse from the 11 citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 12 “[T]he amount in controversy includes damages (compensatory, punitive, or 13 otherwise), the costs of complying with an injunction, and attorneys’ fees awarded 14 under fee-shifting statutes or contract.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 15 899 F.3d 785, 793 (9th Cir. 2018). 16 17 Generally, a defendant must file a notice of removal within 30 days after 18 receipt of the first pleading in the state action that sets forth a removable claim. 28 19 U.S.C. § 1446(b)(1). Where the case set forth in the initial pleading does not 20 support removal, the 30-day period is triggered by the defendant’s receipt “of a 21 copy of an amended pleading, motion, order or other paper from which it may first 22 be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 23 1441(b)(3). However, these “two 30–day periods are not the exclusive periods for 24 removal.” Rea v. Michaels Stores Inc., 742 F.3d 1234, 1237-38 (9th Cir. 2014) 25 (citing 28 U.S.C. § 1446, 1453(b)). “[A]s long as the complaint or ‘an amended 26 pleading, motion, order or other paper’ does not reveal that the case is removable, 2 1 the 30–day time period never starts to run and the defendant may remove at any 2 time.” Id. at 1238. 3 4 “The burden of establishing federal jurisdiction is on the party seeking 5 removal, and the removal statute is strictly construed against removal jurisdiction.” 6 Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th Cir. 1999), 7 superseded by statute on other grounds as stated in Abrego v. The Dow Chem. Co., 8 443 F.3d 676, 681 (9th Cir. 2006). There is a strong presumption against removal 9 jurisdiction, and federal jurisdiction “must be rejected if there is any doubt as to the 10 right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 11 Cir. 1992) (citation omitted). A “defendant always has the burden of establishing 12 that removal is proper.” Id. “If at any time before final judgment it appears that the 13 district court lacks subject matter jurisdiction, the case shall be remanded.” 28 14 U.S.C. § 1447(c). 15 16 III. DISCUSSION 17 Plaintiff advances three arguments in support of her Motion: (1) removal was 18 untimely; (2) diversity of citizenship has not been established; and (3) principles of 19 comity favor adjudication in state court. The Court addresses each argument in 20 turn. 21 22 A. Timeliness of Removal 23 “[N]otice of removability under § 1446(b) is determined through 24 examination of the four corners of the applicable pleadings, not through subjective 25 knowledge or a duty to make further inquiry.” See Harris v. Bankers Life & Cas. 26 Co., 425 F.3d 689, 694 (9th Cir. 2005) (emphasis added). Here, the Complaint does 3 1 not state how much Plaintiff paid for the vehicle or provide another benchmark for 2 damages sought; instead, Plaintiff prays for “actual[,] compensatory[,] and general 3 damages according to proof at time of trial” plus a civil penalty, interest, and 4 attorneys’ fees and costs. (Dkt. 1-1 Ex. A ¶ 20). Thus, the thirty-day period for 5 removal did not commence at the time of service of the summons and Complaint. 6 Besides the Complaint, Plaintiff cites no “amended pleading, motion, order or other 7 paper” provided to Defendant which would trigger a 30-day removal period. 28 8 U.S.C. § 1441(b)(3); see also De Paredes v. Walmart Inc., No. 220CV08297-RGK- 9 AFMx, 2020 WL 6799074, at *2 (C.D. Cal. Nov. 17, 2020) (“The term ‘other paper’ 10 generally includes any document in the record of the state court proceeding or 11 discovery responses.”). Instead, Defendant alleges that it “was able to ascertain the 12 amount in controversy” on September 28, 2020 when, by way of its own 13 investigation, it obtained a copy of Plaintiff’s purchase contract from the selling 14 dealership stating the amount payable on the vehicle.1 (Dkt. 1-1 ¶¶ 4–8). 15 Accordingly, the time of removal does not support remand. 16 17 B. Diversity of Citizenship 18 Plaintiff argues Defendant “failed to establish that diversity of citizenship is 19 present” because it failed to show Plaintiff is a citizen of California.2 (Dkt. 10 at 8). 20 She contends that Defendant’s statement that “Plaintiff is and was a citizen and 21 resident of California,” (Dkt. 1 ¶ 27), assumes facts and lacks adequate support. 22 1 Even if this contract constituted “other paper” under 28 U.S.C. § 1446, or other- 23 wise triggered the 30-day removal period, Defendant removed the matter within 30 days of its receipt. 24 2 Defendant asserts—and Plaintiff does not challenge—that Defendant, its mem- 25 bers, and its members’ members are incorporated under the laws of Delaware and the Netherlands and have principal places of business in Michigan and London, 26 United Kingdom. 4 1 (Id.). In Ehrman v. Cox Communications, Inc., 932 F.3d 1223 (9th Cir. 2019), 2 however, the Ninth Circuit held that “[i]f the defendant’s citizenship allegations are 3 unchallenged factually,” the defendant is not required to provide evidence of 4 citizenship. Id. at 1225; see also Coronel v. Ford Motor Co., CV 19-09841-DSF- 5 JEMx, 2020 WL 550690 (C.D. Cal. Feb. 4, 2020) (finding that a notice of removal’s 6 allegation that plaintiff was a citizen of California was sufficient, despite it citing 7 only the complaint, which acknowledged that plaintiff was a resident of California 8 but said nothing of citizenship); Holbrook v. Ford Motor Co., No. CV 20-840-GW- 9 PJWx, 2020 WL 1809667, at *2 (C.D. Cal. Apr. 9, 2020) (same). Here, Plaintiff has 10 not factually challenged Defendant’s allegation of citizenship. Hence, the 11 allegation in the Notice of Removal that Plaintiff is a California citizen is sufficient. 12 13 C. Principles of Comity 14 Plaintiff argues next that as California state court is the appropriate venue for 15 this case, the Court should decline to exercise jurisdiction in accordance with 16 principles of comity. (Dkt. 10 at 8–9). Federal courts, however, have a “virtually 17 unflagging obligation ... to exercise the jurisdiction given them.” Colorado River 18 Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); see also BNSF 19 Ry. Co. v. O'Dea, 572 F.3d 785, 793 n.2 (9th Cir. 2009) (“[T]he diversity statute, 20 unlike the supplemental jurisdiction statute, does not afford district courts the 21 discretion to decline jurisdiction over state law claims.”). The Court follows the 22 rationale of other courts in this district that have considered this same argument and 23 rejected it. See Gonzalez v. FCA US LLC, No. EDCV19967-PSG-RAOx, 2020 WL 24 1444941, at *3 (C.D. Cal. Mar. 24, 2020); Petropolous v. FCA US, LLC, No. 17- 25 CV-0398-W-KSCx, 2017 WL 2889303, at *6 (S.D. Cal. July 7, 2017). 26 5 1 D. Order to Show Cause 2 While Plaintiff does not challenge the amount in controversy in its Motion, 3 the Court cannot exercise jurisdiction unless Defendant sufficiently establishes that 4 the amount in controversy exceeds $75,000. In this case, however, the amount in 5 controversy is unclear. The Notice of Removal states that the amount in 6 controversy is satisfied by the sum of Plaintiff’s actual damages and the civil 7 penalty available under the Act. (See Dkt. 1-1). Actual damages under the Act are 8 the “amount equal to the actual price paid or payable by the buyer,” less the 9 reduction in value “directly attributable to use by the buyer.” Cal. Civ. Code § 10 1793.2(d)(2)(B)-(C). The reduction is based on the number of miles the buyer has 11 driven prior to the first attempted repair (often called the “use offset”). Id. Here, 12 Defendant fails to reduce actual damages to account for Plaintiff’s use of the car 13 before she took it in for repair. (Dkt. 1-1). Additionally, where the amount of actual 14 damages is speculative, an attempt to determine the civil penalty is equally 15 uncertain. Eberle v. Jaguar Land Rover N. Am., LLC, No. 218CV06650-VAP- 16 PLAx, 2018 WL 4674598, at *2 (C.D. Cal. Sept. 26, 2018). 17 18 The Court therefore ORDERS Defendant to show cause, in writing, no later 19 than January 4, 2021 why this case should not be remanded for failure to adequately 20 allege the amount in controversy. Plaintiff may file a response to Defendant’s filing 21 no later than January 8, 2021. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 6 1 IV. CONCLUSION 2 The Court therefore DENIES the Motion. The Court ORDERS Defendant to 3 || show cause as stated above by January 4, 2021. 4 5 | ITISSO ORDERED. 6 * 7 Dated: 12/18/20 + fh, “he 8 Virginia A. Phillips 9 United States District Judge
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