Mozingo v. Japan Airlines Co., Ltd

• Court: District Court, S.D. California
• Decided: January 9, 2020
• Docket: 3:19-cv-02489
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAMELA MOZINGO, Case No.: 19-CV-2489 JLS (AGS)

12 Plaintiff, ORDER REMANDING ACTION TO 13 v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY 14 JAPAN AIRLINES CO., LTD., a foreign OF SAN DIEGO company (Japan) that is duly qualified to 15 and in fact conducting business with the (ECF No. 1) 16 State of California as company number C0282499; and DOES 1 through 100, 17 Defendants. 18

19 Presently before the Court is the Notice of Removal of Japan Airlines Co., Ltd. to 20 United States District Court (“Not. of Removal,” ECF No. 1). On December 27, 2019, 21 Defendant removed this action from the Superior Court of the State of California, County 22 of San Diego on the grounds that “it is a civil action between a citizen of the State of 23 California and a citizen of a foreign state, and the amount in controversy exceeds the sum 24 or value of $75,000, exclusive of interest and costs,” id. ¶ 7, and “[t]his is an action over 25 which the Court has original jurisdiction based on the existence of a federal question under 26 28 U.S.C. Section 1331” because “plaintiff’s claims indisputably arise under the Montreal 27 Convention.” Id. ¶¶ 22, 25. Although Plaintiff Pamela Mozingo did not file a motion to 28 remand, “[t]he court may—indeed must—remand an action sua sponte if it determines that 1 it lacks subject matter jurisdiction.” GFD, LLC v. Carter, No. CV 12-08985 MMM FFMX, 2 2012 WL 5830079, at *2 (C.D. Cal. Nov. 15, 2012) (citing Kelton Arms Condominium 3 Owners Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003)); see also 28 4 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court 5 lacks subject matter jurisdiction, the case shall be remanded.”). 6 “Federal courts are courts of limited jurisdiction. They possess only that power 7 authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 8 U.S. 375, 377 (1994). Consequently, it is “presume[d] that federal courts lack jurisdiction 9 unless the contrary appears affirmatively from the record.” DaimlerChrysler Corp. v. 10 Cuno, 547 U.S. 332, 342 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)). “The 11 right of removal is entirely a creature of statute and a suit commenced in a state court must 12 remain there until cause is shown for its transfer under some act of Congress.” Syngenta 13 Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002). The party invoking the removal 14 statute bears the burden of establishing that federal subject-matter jurisdiction exists. 15 Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Moreover, courts 16 “strictly construe the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 17 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 18 1988)); Takeda v. Nw. Nat’l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). Therefore, 19 “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in 20 the first instance.” Gaus, 980 F.2d at 566 (citing Libhart v. Santa Monica Dairy Co., 592 21 F.2d 1062, 1064 (9th Cir. 1979)). 22 I. Diversity Jurisdiction 23 Federal courts have diversity jurisdiction “where the amount in controversy” 24 exceeds $75,000, and the parties are of “diverse” state citizenship. 28 U.S.C. § 1332. 25 “Where it is not facially evident from the complaint that more than $75,000 is in 26 controversy, the removing party must prove, by a preponderance of the evidence, that the 27 amount in controversy meets the jurisdictional threshold.” Matheson v. Progressive 28 Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam); accord Valdez v. 1 Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (quoting Matheson, 319 F.3d at 2 1090). “Where doubt regarding the right to removal exists, a case should be remanded to 3 state court.” Matheson, 319 F.3d at 1090. 4 Here, the underlying complaint states only that it is an unlimited civil case seeking 5 in excess of $25,000. See Compl. (ECF No. 1-2) at 10.1 Nonetheless, Defendant claims— 6 based on the severity of the injuries Plaintiff alleges she sustained, see Not. of Removal 7 ¶¶ 17–19 (citing Compl. ¶¶ 9–10, 17–18)—that “[i]t is facially apparent” that she is seeking 8 damages in excess of $75,000 because she “seeks compensatory damages, general damages 9 for past and future pain and suffering[,] costs of suit and interest, and attorneys’ fees.” Not. 10 of Removal ¶¶ 17 (citing Compl. ¶ 19), 20. 11 Defendant misconstrues the “facially apparent” standard. Under Ninth Circuit 12 jurisprudence, “it is facially apparent from the complaint that the jurisdictional amount is 13 in controversy” where the plaintiff alleges a specific amount of damages in her complaint.2 14

15 1 Pin citations to ECF No. 1-2 refer to the pagination provided by Defendant at the bottom of each page. 16 2 Defendant’s cases are not inconsistent. See Not. of Removal ¶ 20. In Singer v. State Farm Mutual 17 Automobile Insurance Company, 116 F.3d 373 (9th Cir. 1997), the plaintiff “expressly conceded” before the court that the amount in controversy “absolutely” exceeded the requisite amount in controversy. See 18 id. at 374. The court in that case denied the plaintiff’s motion to remand on the basis of that judicial admission, which “established by a preponderance that the amount in controversy exceeded” the statutory 19 minimum. See id. at 374, 377. Consequently, although the “facially apparent” standard may be 20 appropriate for determining the amount in controversy, see Not. of Removal ¶ 20, neither the district court nor the Ninth Circuit in Singer relied on that standard, instead proceeding under the “[i]f not, the court 21 may consider facts in the removal petition, and may ‘require the parties to submit summary-judgment- type evidence relevant to the amount in controversy at the time of removal’” standard. See 116 F.3d at 22 377 (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336–36 (5th Cir. 1995)).

23 Similarly, in Lamke v. Sunstate Equipment Co., 319 F. Supp. 2d 1029 (N.D. Cal. 2004), the district court 24 concluded that it was not facially apparent that the jurisdictional amount in controversy was satisfied, allowing the court to “consider evidence relevant to the amount in controversy at the time of removal.” 25 Id. at 1032. In Lamke, the plaintiff withdrew his motion to remand, which was “tantamount to a concession that [the defendant]’s basis for removal was correct—i.e., that more likely than not there is more than 26 $75,000 at issue.” Id. at 1034. Further, the parties’ joint case management conference statement claimed that the plaintiff’s damages came to approximately $71,000, which excluded future economic damages, 27 punitive damages, out-of-pocket medical expenses, and $10,000 of the $25,000 emotional distress 28 damages pleaded in his complaint. See id. Lamke therefore does not support Defendant’s “facially 1 See Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 998 (9th Cir. 2007) (quoting 2 Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 690 (9th Cir. 2006)), overruled on other 3 grounds as recognized by Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 981 (9th 4 Cir. 2013); see also id. at 998 n.4. Here, Plaintiff does not allege “a specific dollar amount 5 with respect to the money damages sought”; consequently, “it is not facially apparent that 6 the jurisdictional amount is in controversy.” See Lamke, 319 F. Supp. 2d at 1033; see also, 7 e.g., Singer, 116 F.3d at 376. 8 Consequently, Defendant bears the burden to prove, by a preponderance of the 9 evidence, that the amount in controversy exceeds the $75,000 jurisdictional threshold. See 10 Singer, 116 F.3d at 376 (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 11 (9th Cir. 1996)). This it is has failed to do. See, e.g., Corbelle v. Sanyo Elec. Trading Co., 12 No. C-03-1509 EMC, 2003 WL 22682464, at *3 (N.D. Cal. Nov. 4, 2003) (“Because [the 13 plaintiff]’s complaint contains allegations that she sustained serious and permanent 14 injuries, that she has incurred and will continue to incur medical expenses, and that she has 15 lost and will continue to lose wages, it is clear that the amount in controversy is not a small 16 sum. However, the Court is not persuaded that these allegations alone establish that it is 17 more likely than not that the amount in controversy exceeds $75,000.”); Conrad Assocs. v. 18 Hartford Acc. & Indem. Co., 994 F. Supp. 1196, 1198–99 (N.D. Cal. 1998) (noting that 19 20 21 To the extent Defendant is relying on De Aguilar v. Boeing Co., 11 F.3d 55 (5th Cir. 1993), see Not. of Removal ¶ 20, which was cited by Lamke, see 319 F. Supp. 2d at 1032, De Aguilar is not binding on this 22 Court and is also distinguishable because it involved claims for wrongful death. See 11 F.3d at 56–57. Further, in De Aguilar, “the defendants . . . offered testimonial evidence and published precedent showing 23 that damages in the instant case and in similar cases would probably exceed $50,000 per plaintiff” and 24 “evidence that the plaintiffs . . . claimed damages of up to $5,000,000 in other courts for the same injuries.” Id. at 58. 25 Finally, in Kammerdiener v. Ford Motor Co., No. ED CV 09-2180 PSG (VBKx), 2010 WL 682297 (C.D. 26 Cal. Feb. 24, 2010), the plaintiffs sought damages for wrongful death and personal injuries. See id. at *2. The court in Kammerdiener relied on specific cases standing for the proposition that “seeking wrongful 27 death is sufficient to establish that the amount in controversy exceeds $75,000 on the face of the 28 Complaint.” See id. at *2. Plaintiff’s case, however, is not one for wrongful death; Kammerdiener and 1 “[a] speculative argument regarding the potential value of the award is insufficient” and 2 remanding action where the “[d]efendant contends that the amount in controversy, which 3 includes contract damages in the amount of $56,500, plus attorneys fees, plus punitive 4 damages, exceeds $75,000” because estimates of attorneys’ fees and punitive damages 5 were speculative); see also, e.g., Gaus, 980 F.2d at 567 (sua sponte remanding action where 6 “[the defendant] has offered no facts whatsoever to support the court’s exercise of 7 jurisdiction”). Consequently, Defendant has failed to produce evidence to meet its burden 8 of showing by a preponderance of the evidence that the amount in controversy attributable 9 to Plaintiff’s claims exceeds the $75,000 threshold and that this Court has diversity 10 jurisdiction. 11 II. Federal-Question Jurisdiction 12 Federal courts have federal-question jurisdiction for “all civil actions arising under 13 the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “Federal- 14 question jurisdiction pursuant to 28 U.S.C. § 1331 arises in two situations.” Cummings v. 15 Cenergy Int’l Servs., LLC, 258 F. Supp. 3d 1097, 1106 (E.D. Cal. 2017). “First, a court 16 may exercise federal-question jurisdiction where a federal right or immunity is ‘an element, 17 and an essential one, of the plaintiff’s cause of action.’” Id. (quoting Franchise Tax Bd. v. 18 Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 11 (1983)). “Second, federal- 19 question jurisdiction arises where a state-law claim ‘necessarily raise[s] a stated federal 20 issue, actually disputed and substantial, which a federal forum may entertain without 21 disturbing any congressionally approved balance of federal and state judicial 22 responsibilities.’” Id. (quoting Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 23 545 U.S. 308, 314 (2005)). 24 “To assess federal-question jurisdiction, courts apply the ‘well-pleaded complaint’ 25 rule under which ‘federal jurisdiction exists only when a federal question is presented on 26 the face of the plaintiff’s properly pleaded complaint.’” Id. (quoting Caterpillar Inc. v. 27 Williams, 482 U.S. 386, 391–92 (1987)). “A defense is not a part of a plaintiff’s properly 28 pleaded statement of his or her claim.” Id. (quoting Rivet v. Regions Bank, 522 U.S. 470, 1 475 (1998)). A corollary to the well-pleaded complaint rule, however, is the “complete 2 pre-emption doctrine.” See Caterpillar Inc., 482 U.S. at 393. Under the complete pre- 3 emption doctrine, where “the pre-emptive force of a statute is so ‘extraordinary’ that it 4 ‘converts an ordinary state common-law complaint into one stating a federal claim for 5 purposes of the well-pleaded complaint rule.’” Id. (quoting Metropolitan Life Ins. Co., 481 6 U.S. 58, 65 (1987)). “Once an area of state law has been completely pre-empted, any claim 7 purportedly based on that pre-empted state law is considered, from its inception, a federal 8 claim, and therefore arises under federal law.” Id. (citing Franchise Tax Bd., 463 U.S. at 9 24). 10 Defendant claims that removal is proper because “plaintiff’s claims indisputably 11 arise under the Montreal Convention,3 which provides the exclusive remedy for her 12 claims.” Not. of Removal ¶ 25. Although it is true that the district court in Fadhliah v. 13 Societe Air France, 987 F. Supp. 2d 1057 (C.D. Cal. 2013),4 concluded that the Montreal 14 Convention completely preempted the plaintiff’s state law claims, thereby “transmut[ing] 15 Plaintiffs’ facially state-law claims into federal ones,” id. at 1061–64, “the majority 16 approach . . . holds that the Montreal Convention does not provide a basis for removal 17 under the doctrine of complete preemption.” Rocha v. Am. Jets, Inc., No. 14-60842-CIV, 18 2014 WL 12626317, at *3 (S.D. Fla. Nov. 17, 2014) (collecting cases). Indeed, several 19 district courts within the Ninth Circuit have remanded cases such as Plaintiff’s, concluding 20 that the state law causes of action are not completely preempted by the Montreal 21 Convention, but rather that the Montreal Convention operates as an affirmative defense. 22 See, e.g., Jensen v. Virgin Atl., No. 12-CV-06227 YGR, 2013 WL 1207962, at *4 (N.D. 23 24 25 3 The Montreal Convention is “a treaty known as the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, ICAO Doc. No. 9740 (entered into force 26 November 4, 2003), reprinted in S. Treaty Doc. 106-45, 1999 WL 333292734.” Not. of Removal ¶ 22.

27 4 Defendant’s other cited authority, Seshadri v. British Airways PLC, No. 3:14-CV-00833-BAS, 2014 WL 28 5606542, at *1 (S.D. Cal. Nov. 4, 2014), is distinguishable because the plaintiff in Seshadri alleged claims 1 Cal. Mar. 25, 2013) (“follow[ing] the decisions of the district courts in California that hold 2 the exclusivity provisions of the Montreal Convention operate as an affirmative defense 3 but do not completely preempt state law causes of action” and remanding action where the 4 “[d]efendant has cited no controlling authority that requires this Court hold that the 5 Montreal Convention completely preempts Plaintiff’s state law causes of action”); Greig 6 v. U.S. Airways Inc., 28 F. Supp. 3d 973, 977 (D. Ariz. 2014) (“find[ing] persuasive the 7 numerous district court opinions from within the Ninth Circuit that have concluded that the 8 Montreal Convention does not completely preempt state law claims but . . . may be an 9 affirmative defense); Nankin v. Cont’l Airlines, Inc., No. CV 09-07851 MMM RZX, 2010 10 WL 342632, at *6 (C.D. Cal. Jan. 29, 2010) (“conclud[ing] that the Montreal Convention 11 does not completely preempt state law causes of action” and “provides no basis for 12 asserting that federal subject matter jurisdiction exists”); Serrano v. Am. Airlines, Inc., No. 13 CV08-2256 AHM (FFMX), 2008 WL 2117239, at *7 (C.D. Cal. May 15, 2008) (“[T]he 14 Montreal Convention does not completely preempt claims such as Plaintiffs’ from being 15 litigated in state court.”). 16 In the absence of binding authority from the Ninth Circuit, the Court follows the 17 “majority approach” and concludes that the Montreal Convention does not completely 18 preempt Plaintiff’s state law claims, but rather serves as an affirmative defense. See, e.g., 19 Rocha, 2014 WL 12626317, at *3 (collecting cases following this “majority approach”); 20 Greig, 28 F. Supp. 3d at 977 (noting “numerous district court opinions from within the 21 Ninth Circuit” concluding that the Montreal Convention may serve as an affirmative 22 defense). The Court therefore concludes that Defendant has failed to establish that the 23 Court has federal-question jurisdiction. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 CONCLUSION 2 In light of the foregoing, the Court REMANDS this action to the Superior Court of 3 || the State of California, County of San Diego. 4 IT IS SO ORDERED. 5 6 || Dated: January 9, 2020 tt 7 ja Janis L. Sammartino 3 United States District Judge

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