1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 THEODORA RANDOLPH, Case No. 2:20-CV-1896 JCM (NJK)
8 Plaintiff(s), ORDER
9 v.
10 ALBERTSONS LLC D/B/A ALBERTSONS #1059, 11 Defendant(s). 12
13 Presently before the court is plaintiff Theodora Randolph’s (“Randolph”) motion to 14 remand. (ECF No. 10). Defendant Albertsons LLC (“Albertsons”) filed a response in 15 opposition (ECF No. 12) to which Randolph replied (ECF No. 13). 16 I. Background 17 Randolph alleges that she was visiting the Albertsons at 5500 Boulder Highway in 18 Las Vegas when she was struck from both sides by the automatic sliding glass doors while 19 exiting the store. (Compl., ECF No. 1-2 at ¶ 11). Randolph suffered injuries to her neck, 20 back, ankle, and upper arm and has post-traumatic headaches. (Pl.’s Req. for Exemption 21 from Arbitration, ECF No. 1-2 at 35). As of October 1, 2020, Randolph has incurred 22 $32,811.24 in medical bills. (Id. at 38). 23 Randolph sued Albertsons in Nevada state court, alleging a simple negligence claim. 24 (ECF No. 1-2). Albertsons removed the case to this court (ECF No. 1) and Randolph now 25 asks the court to remand the case. (ECF No. 10). 26 . . . 27 . . . 28 1 II. Legal Standard 2 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. 3 Kroger, 437 U.S. 365, 374 (1978). Accordingly, there is a strong presumption against 4 removal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 5 Under the removal statue, a defendant may remove any civil action over which the federal 6 district court has original jurisdiction. 28 U.S.C. § 1441(a). 7 After a defendant learns that an action is removable, it has thirty days to file a notice 8 of removal. Id. §1446(b). That is, “the thirty-day clock doesn't begin ticking until a 9 defendant receives ‘a copy of an amended pleading, motion, order or other paper’ from 10 which it can determine that the case is removable.” Durham v. Lockheed Martin Corp., 445 11 F.3d 1247, 1250 (9th Cir. 2006) (quoting 28 U.S.C. § 1446(b)(2)). 12 A plaintiff can challenge removal with a motion to remand. 28 U.S.C. § 1447(c). On 13 a motion to remand, the removing defendant must show by a preponderance of the evidence 14 that the court has original jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). 15 The court will resolve all ambiguities in favor of remand. Hunter, 582 F.3d at 1042. Thus, if 16 removal is based on diversity jurisdiction, the removing defendant must show by a 17 preponderance of the evidence that there is complete diversity and that the amount in 18 controversy exceeds $75,000. 28 U.S.C. § 1332(a). 19 The removing defendant does not have to predict the eventual award with legal 20 certainty. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). But it “bears the 21 burden of actually proving the facts to support jurisdiction, including the jurisdictional 22 amount.” Gaus, 980 F.2d at 567. 23 III. Discussion 24 The parties disagree over whether the amount in controversy exceeds $75,000. “In 25 determining the amount in controversy, courts first look to the complaint. Generally, ‘the 26 sum claimed by the plaintiff controls if the claim is apparently made in good faith.’ ” Ibarra 27 v. Manheim Invests., Inc. 775 F.3d 1193, 1197 (9th Cir. 2015) (citing St. Paul Mercury 28 Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). 1 Here, Randolph does not plead a specific damages amount. (ECF No. 1-2 at 12). Her 2 prayer for relief is: “(1) For special and general damages, both past and future, in an amount 3 in excess of $15,000; (2) Prejudgment interest; (3) Statutory penalties and/or damages; (4) 4 Attorneys’ fees and costs of suit; and (5) For such other and further relief as the Court may 5 deem just and proper.” (Id.). Because Nevada’s Rules of Civil Procedure allow a plaintiff to 6 generally plead damages “in excess of $15,000” without further specification of the amount, 7 no adverse inference should be made from Randolph’s complaint. Nev. R. Civ. P. 8(a)(4); 8 Soriano v. USAA Ins. Agency, Inc., No. 3:09-cv-00661-RCJ-RAM, 2010 WL 2609045, at *2 9 (D. Nev. June 24, 2010). 10 As a result, it is not evident from the face of Randolph’s complaint that the amount in 11 controversy requirement is met. Thus, the “amount-in-controversy inquiry in the removal 12 context is not confined to the face of the complaint.” Valdez v. Allstate Ins. Co., 372 F.3d 13 1115, 1117 (9th Cir. 2004). The parties can offer any “summary-judgement-type evidence,” 14 id., and, as aforementioned, Albertsons must show by a preponderance of the evidence that 15 the amount in controversy exceeds $75,000. Gaus, 980 F.2d at 567; Sanchez v. Monumental 16 Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). 17 Albertsons offers Randolph’s Request for Exemption from Arbitration which avers 18 that the amount in controversy exceeds $50,000. (ECF No. 1-2 at 35). It also offers 19 Randolph’s January 2, 2020 pre-litigation $164,800 settlement offer as the “only reliable 20 computation” of Randolph’s unspecified future medical specials and general damages. (ECF 21 No. 12 at 4). In other words, it has met its burden to show that “what the plaintiff hopes to 22 get out of the litigation” exceeds the jurisdictional amount. (Id. (quoting Rising-Moore v. 23 Red Roof Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006)). And Randolph’s offer of judgment 24 for less than $75,000 should be disregarded because it was offered after removal to defeat 25 diversity jurisdiction. (Id. at 5). 26 In response, Randolph states that her medical bills to date total $32,811.24 and that “a 27 jury would need to give [her] double her medical bills and an additional $9,378.52 before 28 this Court would have jurisdiction, an unlikely scenario.” (ECF No. 10 at 3). Randolph 1 states that she only sought exemption from arbitration because “she believed her case to have 2 a value in excess of $50,000” but “there is a difference between $50,000 and $75,000.” 3 (ECF No. 13 at 2). 4 A settlement letter is relevant only if it “reflect[s] a reasonable estimate of the 5 plaintiff’s claim.” Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); see also Burns 6 v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994) (noting that while a “settlement 7 offer, by itself, may not be determinative, it counts for something”); Soriano v. USAA Ins. 8 Agency, Inc., No. 3:09-cv-00661-RCJ-RAM, 2010 WL 2609045, at *2 (D. Nev. June 24, 9 2010).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 THEODORA RANDOLPH, Case No. 2:20-CV-1896 JCM (NJK)
8 Plaintiff(s), ORDER
9 v.
10 ALBERTSONS LLC D/B/A ALBERTSONS #1059, 11 Defendant(s). 12
13 Presently before the court is plaintiff Theodora Randolph’s (“Randolph”) motion to 14 remand. (ECF No. 10). Defendant Albertsons LLC (“Albertsons”) filed a response in 15 opposition (ECF No. 12) to which Randolph replied (ECF No. 13). 16 I. Background 17 Randolph alleges that she was visiting the Albertsons at 5500 Boulder Highway in 18 Las Vegas when she was struck from both sides by the automatic sliding glass doors while 19 exiting the store. (Compl., ECF No. 1-2 at ¶ 11). Randolph suffered injuries to her neck, 20 back, ankle, and upper arm and has post-traumatic headaches. (Pl.’s Req. for Exemption 21 from Arbitration, ECF No. 1-2 at 35). As of October 1, 2020, Randolph has incurred 22 $32,811.24 in medical bills. (Id. at 38). 23 Randolph sued Albertsons in Nevada state court, alleging a simple negligence claim. 24 (ECF No. 1-2). Albertsons removed the case to this court (ECF No. 1) and Randolph now 25 asks the court to remand the case. (ECF No. 10). 26 . . . 27 . . . 28 1 II. Legal Standard 2 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. 3 Kroger, 437 U.S. 365, 374 (1978). Accordingly, there is a strong presumption against 4 removal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 5 Under the removal statue, a defendant may remove any civil action over which the federal 6 district court has original jurisdiction. 28 U.S.C. § 1441(a). 7 After a defendant learns that an action is removable, it has thirty days to file a notice 8 of removal. Id. §1446(b). That is, “the thirty-day clock doesn't begin ticking until a 9 defendant receives ‘a copy of an amended pleading, motion, order or other paper’ from 10 which it can determine that the case is removable.” Durham v. Lockheed Martin Corp., 445 11 F.3d 1247, 1250 (9th Cir. 2006) (quoting 28 U.S.C. § 1446(b)(2)). 12 A plaintiff can challenge removal with a motion to remand. 28 U.S.C. § 1447(c). On 13 a motion to remand, the removing defendant must show by a preponderance of the evidence 14 that the court has original jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). 15 The court will resolve all ambiguities in favor of remand. Hunter, 582 F.3d at 1042. Thus, if 16 removal is based on diversity jurisdiction, the removing defendant must show by a 17 preponderance of the evidence that there is complete diversity and that the amount in 18 controversy exceeds $75,000. 28 U.S.C. § 1332(a). 19 The removing defendant does not have to predict the eventual award with legal 20 certainty. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). But it “bears the 21 burden of actually proving the facts to support jurisdiction, including the jurisdictional 22 amount.” Gaus, 980 F.2d at 567. 23 III. Discussion 24 The parties disagree over whether the amount in controversy exceeds $75,000. “In 25 determining the amount in controversy, courts first look to the complaint. Generally, ‘the 26 sum claimed by the plaintiff controls if the claim is apparently made in good faith.’ ” Ibarra 27 v. Manheim Invests., Inc. 775 F.3d 1193, 1197 (9th Cir. 2015) (citing St. Paul Mercury 28 Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). 1 Here, Randolph does not plead a specific damages amount. (ECF No. 1-2 at 12). Her 2 prayer for relief is: “(1) For special and general damages, both past and future, in an amount 3 in excess of $15,000; (2) Prejudgment interest; (3) Statutory penalties and/or damages; (4) 4 Attorneys’ fees and costs of suit; and (5) For such other and further relief as the Court may 5 deem just and proper.” (Id.). Because Nevada’s Rules of Civil Procedure allow a plaintiff to 6 generally plead damages “in excess of $15,000” without further specification of the amount, 7 no adverse inference should be made from Randolph’s complaint. Nev. R. Civ. P. 8(a)(4); 8 Soriano v. USAA Ins. Agency, Inc., No. 3:09-cv-00661-RCJ-RAM, 2010 WL 2609045, at *2 9 (D. Nev. June 24, 2010). 10 As a result, it is not evident from the face of Randolph’s complaint that the amount in 11 controversy requirement is met. Thus, the “amount-in-controversy inquiry in the removal 12 context is not confined to the face of the complaint.” Valdez v. Allstate Ins. Co., 372 F.3d 13 1115, 1117 (9th Cir. 2004). The parties can offer any “summary-judgement-type evidence,” 14 id., and, as aforementioned, Albertsons must show by a preponderance of the evidence that 15 the amount in controversy exceeds $75,000. Gaus, 980 F.2d at 567; Sanchez v. Monumental 16 Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). 17 Albertsons offers Randolph’s Request for Exemption from Arbitration which avers 18 that the amount in controversy exceeds $50,000. (ECF No. 1-2 at 35). It also offers 19 Randolph’s January 2, 2020 pre-litigation $164,800 settlement offer as the “only reliable 20 computation” of Randolph’s unspecified future medical specials and general damages. (ECF 21 No. 12 at 4). In other words, it has met its burden to show that “what the plaintiff hopes to 22 get out of the litigation” exceeds the jurisdictional amount. (Id. (quoting Rising-Moore v. 23 Red Roof Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006)). And Randolph’s offer of judgment 24 for less than $75,000 should be disregarded because it was offered after removal to defeat 25 diversity jurisdiction. (Id. at 5). 26 In response, Randolph states that her medical bills to date total $32,811.24 and that “a 27 jury would need to give [her] double her medical bills and an additional $9,378.52 before 28 this Court would have jurisdiction, an unlikely scenario.” (ECF No. 10 at 3). Randolph 1 states that she only sought exemption from arbitration because “she believed her case to have 2 a value in excess of $50,000” but “there is a difference between $50,000 and $75,000.” 3 (ECF No. 13 at 2). 4 A settlement letter is relevant only if it “reflect[s] a reasonable estimate of the 5 plaintiff’s claim.” Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); see also Burns 6 v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994) (noting that while a “settlement 7 offer, by itself, may not be determinative, it counts for something”); Soriano v. USAA Ins. 8 Agency, Inc., No. 3:09-cv-00661-RCJ-RAM, 2010 WL 2609045, at *2 (D. Nev. June 24, 9 2010). 10 The court is not convinced that the settlement letter reflects a reasonable estimate of 11 Randolph’s claim. Cf. Wolf v. State Farm Mut. Auto. Ins. Co., No. 2:14-CV-00589-GMN, 12 2014 WL 6882937, at *4 (D. Nev. Dec. 4, 2014). Randolph also now disavows her 13 “inflated” settlement offer unlike the plaintiff in Cohn. (ECF No. 13 at 2); Cohn, 281 F.3d at 14 840 (“Cohn could have argued that the demand was inflated and not an honest assessment of 15 damages, but he made no attempt to disavow his letter or offer contrary evidence.”). And 16 apart from Randolph’s settlement letter, Albertsons offers no good estimate of Randolph’s 17 damages. In fact, Randolph’s January 2, 2020 settlement letter and her October 1, 2020 18 request for exemption from arbitration both state the same $32,811.24 amount in accrued 19 medical bills, which suggests that she is not accruing any more potential medical special 20 damages. Compare (ECF No. 1-2 at 35), with (ECF No. 12-1). 21 At bottom, the evidence at this stage shows that Randolph “has a case valued between 22 $50,000 and $75,000.” (ECF No. 13 at 4). Because Albertsons has not established by a 23 preponderance of the evidence that the amount in controversy exceeds $ 75,000, this case is 24 remanded back to state court. 25 . . . 26 . . . 27 . . . 28 . . . 1) IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Randolph’s motion 4| toremand (ECF No. 10) be, and the same hereby is, GRANTED. 5 DATED December 2, 2020. 6 NE itas C. Aalan 4 UNITED,\STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
es C. Mahan District Judge _5-