1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 SOUTHERN DIVISION
10 ) Case No.: SACV 23-01584-CJC (DFMx) GIGI A. MCDONALD, ) 11 ) ) 12 ) ORDER DENYING PLAINTIFF’S Plaintiff, ) MOTION TO REMAND [Dkt. 18] AND 13 ) GRANTING DEFENDANT’S MOTION v. ) TO DISMISS [Dkt. 12] WITH LEAVE 14 ) TO AMEND GENERAL MOTORS, LLC and DOES ) 15 ) 1 through 10, inclusive, ) 16 ) ) 17 Defendant. ) ) 18 ) 19 20 I. INTRODUCTION & BACKGROUND 21 22 Plaintiff Gigi A. McDonald filed this case in state court alleging that Defendant 23 General Motors, LLC (“GM”) failed to disclose a risk of battery fire with a Chevrolet 24 Bolt she purchased in January 2020. (Dkt. 1-1 [Complaint, hereinafter “Compl.”] ¶¶ 7, 25 9.) Specifically, Plaintiff alleges that GM “falsely represented that the subject vehicle is 26 safe and functional for normal use . . . because the batteries may ignite when they are 27 either fully charged or fall below seventy (70) miles remaining mileage” and “[t]he 1 recall notice for the vehicle in 2021. (Id. ¶¶ 18, 27.) Based on these facts, Plaintiff 2 asserts claims under the Song-Beverly Act alongside claims for fraud and fraudulent 3 business practices under California’s Unfair Competition Law. (Id. ¶¶ 35–120.) GM 4 removed the case, invoking diversity jurisdiction. (Dkt. 1 [hereinafter “NOR”].) Now 5 before the Court are Plaintiff’s motion to remand, (Dkt. 18), and GM’s motion to dismiss 6 Plaintiff’s fraud claims, (Dkt. 12). For the following reasons, Plaintiff’s motion to 7 remand is DENIED and GM’s motion to dismiss is GRANTED WITH LEAVE TO 8 AMEND.1 9 10 II. MOTION TO REMAND 11 12 “Federal courts are courts of limited jurisdiction,” possessing “only that power 13 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 14 (internal quotations omitted). A defendant may remove to federal district court a civil 15 action brought in state court, but over which a federal court may exercise original 16 jurisdiction. 28 U.S.C. § 1441(a). By statute, federal courts have diversity jurisdiction 17 over suits with more than $75,000 in controversy if the citizenship of each plaintiff is 18 different from that of each defendant. 28 U.S.C. § 1332(a). The removal statute is 19 strictly construed against removal jurisdiction, and “[f]ederal jurisdiction must be 20 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. 21 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If the court determines it lacks subject 22 matter jurisdiction, the action shall be remanded to state court. 28 U.S.C. § 1447(c). 23 24 The burden of establishing subject matter jurisdiction falls on the defendant. See 25 Gaus, 980 F.2d at 566. A defendant’s notice of removal need include only “a plausible 26
27 1 Having read and considered the papers the parties presented, the Court finds these matters appropriate 1 allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart 2 Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553–54, (2014). But 3 when “the plaintiff contests, or the court questions, the defendant’s allegation” and 4 “both sides submit proof,” the defendant must prove the amount in controversy by a 5 preponderance of the evidence. Id. at 554. 6 7 In her motion to remand, Plaintiff argues that GM cannot meet its burden to show 8 that the Court has jurisdiction. (Dkt. 18.) She does not argue that GM failed to timely 9 remove, that the parties are not completely diverse, or that there is not $75,000 in 10 controversy. Rather, she contends only that GM has failed to submit sufficient evidence 11 supporting these jurisdictional prerequisites. (See Mot.; Dkt. 24 [Reply] at 2.) The Court 12 disagrees. 13 14 First, removal was timely. A defendant must remove a civil case within thirty days 15 of receiving the complaint. 28 U.S.C. § 1446(b)(1). The proof of service attached to 16 GM’s Notice of Removal shows it was served on July 26, 2023. (NOR, Ex. B at 7). GM 17 removed the case on August 23, 2023. Plaintiff does not argue that GM was served on a 18 different date, and indeed, Plaintiff himself filed the proof of service reflecting the July 19 26, 2023 service date in state court. “There is no real dispute here that GM filed the 20 Notice of Removal within thirty days of service, and GM has submitted admissible 21 evidence showing that is so.” Jimenez v. Gen. Motors, LLC, 2023 WL 6795274, at *2–3 22 (C.D. Cal. Oct. 13, 2023) (denying motion to remand filed by same attorney on same 23 basis). 24 25 Second, the parties are diverse. Plaintiff alleges that she resides in Riverside, 26 California, and GM submits Plaintiff’s sales agreement, which lists her Riverside, 27 California address. (Compl. ¶ 1; Dkt. 22-2 [Declaration of Peter Strotz, hereinafter 1 Jimenez, 2023 WL 6795274, at *3 (explaining that “[c]ourts in this district have held a 2 party may rely on an address listed in a purchase agreement to meet its burden of 3 establishing an individual’s citizenship” and collecting cases). GM also submits a 4 declaration from Timothy M. Kuhn, counsel for GM, stating that “GM is a Delaware 5 limited liability company that has its principal place of business in the State of 6 Michigan.” (Dkt. 22-3 [Declaration of Timothy M. Kuhn, hereinafter “Kuhn Decl.”] 7 ¶ 4.) Mr. Kuhn further states that “GM is 100% owned by General Motors Holdings 8 LLC,” which is “a Delaware limited liability company with its principal place of business 9 in Michigan,” and that “General Motors Holdings LLC is 100% owned by General 10 Motors Company,” which “is a Delaware corporation that has its principal place of 11 business in the state of Michigan.” (Id. ¶¶ 5–6). This is sufficient to show GM’s 12 Delaware and Michigan citizenship.2 See Gruber v. Gen. Motors LLC, 2023 WL 13 6457136, at *2 (C.D. Cal. Oct. 3, 2023) (denying motion to remand filed by same 14 attorney on same grounds). 15 16 Third, there is more than $75,000 in controversy. “[T]he amount in controversy 17 includes damages (compensatory, punitive, or otherwise), the costs of complying with an 18 injunction, and attorneys’ fees awarded under fee-shifting statutes or contract.” Fritsch v. 19 Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 793 (9th Cir. 2018). Plaintiff alleges that 20 she “is entitled to replacement of the subject vehicle, or restitution of the amount actually 21 paid or payable under the contract,” and that GM’s conduct was “willful, justifying an 22 award of a Civil Penalty . . . in an amount not to exceed two . . . times Plaintiff’s actual 23 damages.” (Compl. ¶¶ 37, 43). The sales agreement reflects that the total cash price of 24 the vehicle was $41,9988. (Strotz Decl., Ex. A at 2.) “Thus, the Song-Beverly Act 25 2 Plaintiff objects to Mr. Kuhn’s statements regarding the citizenship of GM, General Motors Holdings 26 LLC, and General Motors Company as lacking foundation and being conclusory. (Dkt. 24.) These 27 objections are OVERRULED. Mr. Kuhn states that as counsel at GM, he “ha[s] been responsible for managing GM’s breach of warranty litigation in California since 2018.” (Kuhn Decl. ¶ 1.) And he 1 claims alone place the amount in controversy above $75,000.” Gruber, 2023 WL 2 6457136, at *2. 3 4 III.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 SOUTHERN DIVISION
10 ) Case No.: SACV 23-01584-CJC (DFMx) GIGI A. MCDONALD, ) 11 ) ) 12 ) ORDER DENYING PLAINTIFF’S Plaintiff, ) MOTION TO REMAND [Dkt. 18] AND 13 ) GRANTING DEFENDANT’S MOTION v. ) TO DISMISS [Dkt. 12] WITH LEAVE 14 ) TO AMEND GENERAL MOTORS, LLC and DOES ) 15 ) 1 through 10, inclusive, ) 16 ) ) 17 Defendant. ) ) 18 ) 19 20 I. INTRODUCTION & BACKGROUND 21 22 Plaintiff Gigi A. McDonald filed this case in state court alleging that Defendant 23 General Motors, LLC (“GM”) failed to disclose a risk of battery fire with a Chevrolet 24 Bolt she purchased in January 2020. (Dkt. 1-1 [Complaint, hereinafter “Compl.”] ¶¶ 7, 25 9.) Specifically, Plaintiff alleges that GM “falsely represented that the subject vehicle is 26 safe and functional for normal use . . . because the batteries may ignite when they are 27 either fully charged or fall below seventy (70) miles remaining mileage” and “[t]he 1 recall notice for the vehicle in 2021. (Id. ¶¶ 18, 27.) Based on these facts, Plaintiff 2 asserts claims under the Song-Beverly Act alongside claims for fraud and fraudulent 3 business practices under California’s Unfair Competition Law. (Id. ¶¶ 35–120.) GM 4 removed the case, invoking diversity jurisdiction. (Dkt. 1 [hereinafter “NOR”].) Now 5 before the Court are Plaintiff’s motion to remand, (Dkt. 18), and GM’s motion to dismiss 6 Plaintiff’s fraud claims, (Dkt. 12). For the following reasons, Plaintiff’s motion to 7 remand is DENIED and GM’s motion to dismiss is GRANTED WITH LEAVE TO 8 AMEND.1 9 10 II. MOTION TO REMAND 11 12 “Federal courts are courts of limited jurisdiction,” possessing “only that power 13 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 14 (internal quotations omitted). A defendant may remove to federal district court a civil 15 action brought in state court, but over which a federal court may exercise original 16 jurisdiction. 28 U.S.C. § 1441(a). By statute, federal courts have diversity jurisdiction 17 over suits with more than $75,000 in controversy if the citizenship of each plaintiff is 18 different from that of each defendant. 28 U.S.C. § 1332(a). The removal statute is 19 strictly construed against removal jurisdiction, and “[f]ederal jurisdiction must be 20 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. 21 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If the court determines it lacks subject 22 matter jurisdiction, the action shall be remanded to state court. 28 U.S.C. § 1447(c). 23 24 The burden of establishing subject matter jurisdiction falls on the defendant. See 25 Gaus, 980 F.2d at 566. A defendant’s notice of removal need include only “a plausible 26
27 1 Having read and considered the papers the parties presented, the Court finds these matters appropriate 1 allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart 2 Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553–54, (2014). But 3 when “the plaintiff contests, or the court questions, the defendant’s allegation” and 4 “both sides submit proof,” the defendant must prove the amount in controversy by a 5 preponderance of the evidence. Id. at 554. 6 7 In her motion to remand, Plaintiff argues that GM cannot meet its burden to show 8 that the Court has jurisdiction. (Dkt. 18.) She does not argue that GM failed to timely 9 remove, that the parties are not completely diverse, or that there is not $75,000 in 10 controversy. Rather, she contends only that GM has failed to submit sufficient evidence 11 supporting these jurisdictional prerequisites. (See Mot.; Dkt. 24 [Reply] at 2.) The Court 12 disagrees. 13 14 First, removal was timely. A defendant must remove a civil case within thirty days 15 of receiving the complaint. 28 U.S.C. § 1446(b)(1). The proof of service attached to 16 GM’s Notice of Removal shows it was served on July 26, 2023. (NOR, Ex. B at 7). GM 17 removed the case on August 23, 2023. Plaintiff does not argue that GM was served on a 18 different date, and indeed, Plaintiff himself filed the proof of service reflecting the July 19 26, 2023 service date in state court. “There is no real dispute here that GM filed the 20 Notice of Removal within thirty days of service, and GM has submitted admissible 21 evidence showing that is so.” Jimenez v. Gen. Motors, LLC, 2023 WL 6795274, at *2–3 22 (C.D. Cal. Oct. 13, 2023) (denying motion to remand filed by same attorney on same 23 basis). 24 25 Second, the parties are diverse. Plaintiff alleges that she resides in Riverside, 26 California, and GM submits Plaintiff’s sales agreement, which lists her Riverside, 27 California address. (Compl. ¶ 1; Dkt. 22-2 [Declaration of Peter Strotz, hereinafter 1 Jimenez, 2023 WL 6795274, at *3 (explaining that “[c]ourts in this district have held a 2 party may rely on an address listed in a purchase agreement to meet its burden of 3 establishing an individual’s citizenship” and collecting cases). GM also submits a 4 declaration from Timothy M. Kuhn, counsel for GM, stating that “GM is a Delaware 5 limited liability company that has its principal place of business in the State of 6 Michigan.” (Dkt. 22-3 [Declaration of Timothy M. Kuhn, hereinafter “Kuhn Decl.”] 7 ¶ 4.) Mr. Kuhn further states that “GM is 100% owned by General Motors Holdings 8 LLC,” which is “a Delaware limited liability company with its principal place of business 9 in Michigan,” and that “General Motors Holdings LLC is 100% owned by General 10 Motors Company,” which “is a Delaware corporation that has its principal place of 11 business in the state of Michigan.” (Id. ¶¶ 5–6). This is sufficient to show GM’s 12 Delaware and Michigan citizenship.2 See Gruber v. Gen. Motors LLC, 2023 WL 13 6457136, at *2 (C.D. Cal. Oct. 3, 2023) (denying motion to remand filed by same 14 attorney on same grounds). 15 16 Third, there is more than $75,000 in controversy. “[T]he amount in controversy 17 includes damages (compensatory, punitive, or otherwise), the costs of complying with an 18 injunction, and attorneys’ fees awarded under fee-shifting statutes or contract.” Fritsch v. 19 Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 793 (9th Cir. 2018). Plaintiff alleges that 20 she “is entitled to replacement of the subject vehicle, or restitution of the amount actually 21 paid or payable under the contract,” and that GM’s conduct was “willful, justifying an 22 award of a Civil Penalty . . . in an amount not to exceed two . . . times Plaintiff’s actual 23 damages.” (Compl. ¶¶ 37, 43). The sales agreement reflects that the total cash price of 24 the vehicle was $41,9988. (Strotz Decl., Ex. A at 2.) “Thus, the Song-Beverly Act 25 2 Plaintiff objects to Mr. Kuhn’s statements regarding the citizenship of GM, General Motors Holdings 26 LLC, and General Motors Company as lacking foundation and being conclusory. (Dkt. 24.) These 27 objections are OVERRULED. Mr. Kuhn states that as counsel at GM, he “ha[s] been responsible for managing GM’s breach of warranty litigation in California since 2018.” (Kuhn Decl. ¶ 1.) And he 1 claims alone place the amount in controversy above $75,000.” Gruber, 2023 WL 2 6457136, at *2. 3 4 III. MOTION TO DISMISS 5 6 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 7 sufficiency of a plaintiff’s claims. The issue on a motion to dismiss for failure to state a 8 claim is not whether the plaintiff will ultimately prevail but whether the plaintiff is 9 entitled to offer evidence to support the claims asserted. Gilligan v. Jamco Dev. Corp., 10 108 F.3d 246, 249 (9th Cir. 1997). Rule 12(b)(6) is read in conjunction with Rule 8(a), 11 which requires only “a short and plain statement of the claim showing that the pleader is 12 entitled to relief.” Fed. R. Civ. P. 8(a)(2). When evaluating a Rule 12(b)(6) motion, the 13 district court must accept all material allegations in the complaint as true and construe 14 them in the light most favorable to the non-moving party. Skilstaf, Inc. v. CVS Caremark 15 Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). To survive a motion to dismiss, a complaint 16 must contain sufficient factual material to “state a claim to relief that is plausible on its 17 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Determining whether a 18 complaint states a plausible claim for relief is “a context-specific task that requires the 19 reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 20 556 U.S. 662, 679 (2009). 21 22 GM moves to dismiss Plaintiff’s fraud claims on the ground that (a) Plaintiff failed 23 to plead fraud with particularity, (b) Plaintiff has not plausibly alleged GM’s knowledge 24 of the alleged defect at or before the time of purchase, (c) GM’s advertisement of EPA 25 estimates cannot form the basis for a misrepresentation claim, and (d) Plaintiff’s 26 fraudulent concealment claims fail because they are barred by the economic loss rule and 27 Plaintiff cannot allege a transactional relationship with GM giving rise to a duty to 1 |}a First Amended Complaint,” stating that she can cure the asserted defects. (Dkt. 21 2 ||[Opposition] at 5-6.) The Court will permit Plaintiff to do so. 3 CONCLUSION 5 6 For the foregoing reasons, Plaintiff's motion to remand is DENIED. GM’s motion 7 dismiss Plaintiff's fraud claims is GRANTED WITH LEAVE TO AMEND. If 8 || Plaintiff chooses to file an amended complaint, she must do so by November 8, 2023. 9 || Failure to timely file an amended complaint will result in dismissal of Plaintiff's fraud 10 ||claims with prejudice. If Plaintiff chooses not to file an amended complaint, GM shall 11 || file an answer to Plaintiff's Complaint by November 22, 2023. 12 13 DATED: = October 25, 2023 gre ft 14 □□ Sf 15 CORMAC J. CARNEY 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28