1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 Maria L. Mendoza, Case No. 2:25-cv-01081-CDS-NJK
4 Plaintiff Order Granting Motion for Remand, Granting Motion to Strike, Declining to 5 v. Approve Stipulation, and Closing Case 6 Costco Wholesale Corporation,
7 Defendant [ECF Nos. 8, 14, 16]
8 9 This negligence action arises out of an incident which occurred at the Costco located at 10 6555 N. Decatur Blvd., Las Vegas, Nevada 89131; the action was removed from the Eighth Judicial 11 District Court of Clark County, Nevada, by defendant Costco Wholesale Corporation. Compl., 12 ECF No. 1-1 at ¶ 8; Pet. for removal, ECF No. 1. Plaintiff Maria L. Mendoza filed her complaint on 13 April 24, 2025. See ECF No. 1-1. Costco removed this matter to federal court on June 18, 2025, on 14 the basis of diversity jurisdiction. ECF No. 1. Mendoza thereafter filed a motion for remand 15 arguing that Costco fails to demonstrate the $75,000 amount in controversy (AIC) requirement 16 is met in this action. Remand mot., ECF No. 8.1 Also pending is Costco’s motion to strike 17 Mendoza’s reply, arguing that it is a rogue filing because it was filed late. Mot., ECF No. 14. In 18 opposition, Mendoza argues that the court should resolve the matter on the merits, rather than 19 on “technicalities.” Opp’n to mot. to strike, ECF No. 15. Because the reply was in fact untimely, 20 Costco’s motion to strike is granted. However, because I find that Costco fails to meet its 21 burden demonstrating the requisite amount in controversy has been met here, this matter must 22 be remanded to state court. 23 I. Background 24 This action arises from the injuries Mendoza sustained when she was allegedly sprayed 25 in the face by an unknown cleaning supply while shopping at Costco. See Compl., ECF No. 1-1. 26
1 This motion is now fully briefed. See Opp’n, ECF No. 10; Reply, ECF No. 13. 1 As relevant here, the complaint’s prayer for relief seeks: (1) general damages in excess of $15,000; 2 (2) special damages in excess of $15,000; (3) compensatory damages in excess of $15,000; (4) 3 costs of suit incurred including reasonable attorneys’ fees; and (5) other relief deemed just and 4 proper. Id. at 8. 5 On June 18, 2025, Costco removed this action to this court, asserting that the AIC 6 “exceeds the sum or value of $75,000.” ECF No. 1 at 2. In her motion for remand, Mendoza 7 disputes that the requisite AIC is met here, arguing that Mendoza’s medical damages “are 8 approximately $17,710.33, with $223.77 of additional out-of-pocket expenses” and “there are no 9 future medical cost recommendations” for Mendoza, so there is simply no way to find the AIC 10 meets the jurisdictional requirement. ECF No. 8 at 3. In opposition, Costco argues that although 11 the complaint only alleges an amount in excess of $15,000, the prayer for relief seeks an amount 12 in excess of $45,000, that Mendoza is still seeking care so that amount is likely to increase, and 13 further that it attempted to have Mendoza stipulate that the AIC is less than $75,000 but she 14 refused because it was unclear what sort of future treatment would be needed. See ECF No. 10. 15 II. Legal standard 16 In determining the AIC,2 courts first look to the complaint. Generally, “the sum claimed 17 by the plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. 18 Red Cab Co., 303 U.S. 283, 288 (1938) (footnote omitted). Thus, the $75,000 threshold is satisfied 19 if the plaintiff claims a sum greater than the jurisdictional requirement. See id. at 288–89; 20 Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir. 1986). However, when 21 removal jurisdiction is challenged by a plaintiff, evidence establishing the AIC is required. Dart 22 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014). “In such a case, both sides submit 23 proof and the court decides, by a preponderance of the evidence, whether the amount-in- 24 controversy requirement has been satisfied.” Id. (citing 28 U.S.C. § 1446(c)(2)(B)). The Ninth 25 Circuit has adopted the “practice of considering facts presented in the removal petition as well 26 2 There is no dispute that the parties are diverse, so this order only addresses the AIC requirement. 1 as any ‘summary-judgment-type evidence relevant to the amount in controversy at the time of 2 removal’” when resolving remand motions. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 3 1090 (9th Cir. 2003) (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 4 1997)). Conclusory allegations are insufficient. Id. at 1090 (citation omitted). Ultimately, when 5 the plaintiff does not plead a specific AIC, the burden to prove that the AIC exceeds $75,000 6 rests with the defendant. See Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir. 7 2013); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 8 III. Discussion 9 As a threshold matter, Costco’s motion to strike is granted because the reply was 10 untimely. Local Rule 7-2(b) provides that “[t]he deadline to file and serve any reply in support of 11 [a] motion is seven days after service of the response.” LR 7-2(b). Costco’s response was filed on 12 July 25, 2025, making the reply deadline August 1, 2025. Id.; see also ECF No. 10 (indicting reply 13 deadline was 8/1/2025). Costco correctly notes that the reply was filed six days late, on August 7, 14 2025. ECF No. 14 at 2. Mendoza acknowledges the filing’s untimeliness and provides no good 15 cause for her delay. Resp., ECF No. 15. Accordingly, the reply is stricken as untimely. See Madrid v. 16 Lazer Spot, Inc., 2020 U.S. Dist. LEXIS 131619, at *10 (E.D. Cal. July 24, 2020) (striking untimely 17 reply) (citing Warkentin v. Federated Life Ins. Co., 2012 WL 2116389 at *1, n.1 (E.D. Cal. June 11, 2012) 18 (disregarding an untimely reply brief for failure to comply with the deadline set forth in the 19 court’s local rules)). 20 The ultimate issue—whether Costco fails to meet its burden demonstrating the AIC is 21 met—is not impacted by the striking of the reply. Whether based on (1) a review of the 22 complaint’s prayer for relief where Mendoza seeks general damages, special damages, and 23 compensatory damages all in excess of $15,000 plus the costs of suit including reasonable 24 attorney’s fees, or (2) the arguments raised in opposition to the remand motion, the $75,000 25 jurisdictional threshold is not met. Costco essentially asks this court to speculate that the 26 amount would exceed $75,000 based on the type of injury Mendoza alleges. The court 1] acknowledges the defendant’s frustration in that it attempted to have Mendoza stipulate that 2|| the AIC was not greater than $75,000, but that offer was denied. While this may be 3|| samesmanship on Mendoza’s part,’ this does not change Costco’s burden to demonstrate the 4|| AIC is met here. Costco’s speculation that the AIC is greater than $ 75,000 is far too vague for 5]| this court to find diversity jurisdiction exists. See Lewis v. Verizon Communs,, Inc., 627 F.3d 395, 400 6|| (9th Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 Maria L. Mendoza, Case No. 2:25-cv-01081-CDS-NJK
4 Plaintiff Order Granting Motion for Remand, Granting Motion to Strike, Declining to 5 v. Approve Stipulation, and Closing Case 6 Costco Wholesale Corporation,
7 Defendant [ECF Nos. 8, 14, 16]
8 9 This negligence action arises out of an incident which occurred at the Costco located at 10 6555 N. Decatur Blvd., Las Vegas, Nevada 89131; the action was removed from the Eighth Judicial 11 District Court of Clark County, Nevada, by defendant Costco Wholesale Corporation. Compl., 12 ECF No. 1-1 at ¶ 8; Pet. for removal, ECF No. 1. Plaintiff Maria L. Mendoza filed her complaint on 13 April 24, 2025. See ECF No. 1-1. Costco removed this matter to federal court on June 18, 2025, on 14 the basis of diversity jurisdiction. ECF No. 1. Mendoza thereafter filed a motion for remand 15 arguing that Costco fails to demonstrate the $75,000 amount in controversy (AIC) requirement 16 is met in this action. Remand mot., ECF No. 8.1 Also pending is Costco’s motion to strike 17 Mendoza’s reply, arguing that it is a rogue filing because it was filed late. Mot., ECF No. 14. In 18 opposition, Mendoza argues that the court should resolve the matter on the merits, rather than 19 on “technicalities.” Opp’n to mot. to strike, ECF No. 15. Because the reply was in fact untimely, 20 Costco’s motion to strike is granted. However, because I find that Costco fails to meet its 21 burden demonstrating the requisite amount in controversy has been met here, this matter must 22 be remanded to state court. 23 I. Background 24 This action arises from the injuries Mendoza sustained when she was allegedly sprayed 25 in the face by an unknown cleaning supply while shopping at Costco. See Compl., ECF No. 1-1. 26
1 This motion is now fully briefed. See Opp’n, ECF No. 10; Reply, ECF No. 13. 1 As relevant here, the complaint’s prayer for relief seeks: (1) general damages in excess of $15,000; 2 (2) special damages in excess of $15,000; (3) compensatory damages in excess of $15,000; (4) 3 costs of suit incurred including reasonable attorneys’ fees; and (5) other relief deemed just and 4 proper. Id. at 8. 5 On June 18, 2025, Costco removed this action to this court, asserting that the AIC 6 “exceeds the sum or value of $75,000.” ECF No. 1 at 2. In her motion for remand, Mendoza 7 disputes that the requisite AIC is met here, arguing that Mendoza’s medical damages “are 8 approximately $17,710.33, with $223.77 of additional out-of-pocket expenses” and “there are no 9 future medical cost recommendations” for Mendoza, so there is simply no way to find the AIC 10 meets the jurisdictional requirement. ECF No. 8 at 3. In opposition, Costco argues that although 11 the complaint only alleges an amount in excess of $15,000, the prayer for relief seeks an amount 12 in excess of $45,000, that Mendoza is still seeking care so that amount is likely to increase, and 13 further that it attempted to have Mendoza stipulate that the AIC is less than $75,000 but she 14 refused because it was unclear what sort of future treatment would be needed. See ECF No. 10. 15 II. Legal standard 16 In determining the AIC,2 courts first look to the complaint. Generally, “the sum claimed 17 by the plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. 18 Red Cab Co., 303 U.S. 283, 288 (1938) (footnote omitted). Thus, the $75,000 threshold is satisfied 19 if the plaintiff claims a sum greater than the jurisdictional requirement. See id. at 288–89; 20 Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir. 1986). However, when 21 removal jurisdiction is challenged by a plaintiff, evidence establishing the AIC is required. Dart 22 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014). “In such a case, both sides submit 23 proof and the court decides, by a preponderance of the evidence, whether the amount-in- 24 controversy requirement has been satisfied.” Id. (citing 28 U.S.C. § 1446(c)(2)(B)). The Ninth 25 Circuit has adopted the “practice of considering facts presented in the removal petition as well 26 2 There is no dispute that the parties are diverse, so this order only addresses the AIC requirement. 1 as any ‘summary-judgment-type evidence relevant to the amount in controversy at the time of 2 removal’” when resolving remand motions. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 3 1090 (9th Cir. 2003) (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 4 1997)). Conclusory allegations are insufficient. Id. at 1090 (citation omitted). Ultimately, when 5 the plaintiff does not plead a specific AIC, the burden to prove that the AIC exceeds $75,000 6 rests with the defendant. See Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir. 7 2013); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 8 III. Discussion 9 As a threshold matter, Costco’s motion to strike is granted because the reply was 10 untimely. Local Rule 7-2(b) provides that “[t]he deadline to file and serve any reply in support of 11 [a] motion is seven days after service of the response.” LR 7-2(b). Costco’s response was filed on 12 July 25, 2025, making the reply deadline August 1, 2025. Id.; see also ECF No. 10 (indicting reply 13 deadline was 8/1/2025). Costco correctly notes that the reply was filed six days late, on August 7, 14 2025. ECF No. 14 at 2. Mendoza acknowledges the filing’s untimeliness and provides no good 15 cause for her delay. Resp., ECF No. 15. Accordingly, the reply is stricken as untimely. See Madrid v. 16 Lazer Spot, Inc., 2020 U.S. Dist. LEXIS 131619, at *10 (E.D. Cal. July 24, 2020) (striking untimely 17 reply) (citing Warkentin v. Federated Life Ins. Co., 2012 WL 2116389 at *1, n.1 (E.D. Cal. June 11, 2012) 18 (disregarding an untimely reply brief for failure to comply with the deadline set forth in the 19 court’s local rules)). 20 The ultimate issue—whether Costco fails to meet its burden demonstrating the AIC is 21 met—is not impacted by the striking of the reply. Whether based on (1) a review of the 22 complaint’s prayer for relief where Mendoza seeks general damages, special damages, and 23 compensatory damages all in excess of $15,000 plus the costs of suit including reasonable 24 attorney’s fees, or (2) the arguments raised in opposition to the remand motion, the $75,000 25 jurisdictional threshold is not met. Costco essentially asks this court to speculate that the 26 amount would exceed $75,000 based on the type of injury Mendoza alleges. The court 1] acknowledges the defendant’s frustration in that it attempted to have Mendoza stipulate that 2|| the AIC was not greater than $75,000, but that offer was denied. While this may be 3|| samesmanship on Mendoza’s part,’ this does not change Costco’s burden to demonstrate the 4|| AIC is met here. Costco’s speculation that the AIC is greater than $ 75,000 is far too vague for 5]| this court to find diversity jurisdiction exists. See Lewis v. Verizon Communs,, Inc., 627 F.3d 395, 400 6|| (9th Cir. 2010) (“The amount in controversy is . .. not a prospective assessment of defendant’s 7|| liability.”). Without citation to or argument about similar cases exceeding the jurisdictional 8} threshold, this court cannot and will not speculate that the AIC would be met here. See Nolan v. Kaya Oil Co., 2011 WL 2650973, at *4 (N.D. Cal. July 6, 2011) (granting plaintiff's motion to remand after defendant failed to proffer estimates satisfying amount in controversy when 11|| assuming number of penalties and damages without evidence in a Class Action Fairness Act 12|| (CAFA)). Accordingly, Mendoza’s motion to remand is granted.4 Conclusion 14 IT IS THEREFORE ORDERED that Mendoza’s motion for remand [ECF No. 8] is GRANTED. 16 IT IS FURTHER ORDERED that Costco’s motion to strike [ECF No. 14] is GRANTED. 17 Because this court lacks subject matter jurisdiction, the court declines to address the stipulation docketed at ECF No. 16. The parties can address this agreement upon remand. 19 The Clerk of Court is kindly instructed to remand this matter to the Eighth Judicial 20]| District Court, Department 13, Case No. A.25-917668-C, ao close this case. 21 Dated: August 19, 2025 Lf 22 igen Cristina D. Silva 23 United States District Judge 24 l Perhaps a state court evaluating this claim will judicially estop Mendoza from arguing that her claims exceed $75,000. Because the court must dismiss this action once it has determined that it lacks subject-matter jurisdiction, see Fed. R. Civ. P. 12(h)(3), the court declines to sign the stipulation filed at ECF No. 16.