1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KISHA WALTERS, an individual, No. 2:21-cv-02299-JAM-JDP 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO REMAND 14 DOLLAR TREE DISTRIBUTION, INC., and DOES 1 through 10, 15 inclusive, 16 Defendants. 17 18 This matter is before the Court on Plaintiff Kisha Walters’ 19 (“Plaintiff”) motion to remand for lack of subject matter 20 jurisdiction. See Mot. to Remand (“Mot.”), ECF No. 9. Defendant 21 Dollar Tree Distribution, Inc. (“Defendant”) opposes the motion. 22 See Opp’n, ECF No. 16. Plaintiff replied. See Reply, ECF 23 No. 22. For the reasons set forth below, the Court DENIES 24 Plaintiff’s motion to remand.1 25 /// 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for March 15, 2022. 1 I. BACKGROUND 2 Plaintiff filed her complaint in the San Joaquin County 3 Superior Court on December 15, 2020. Ex. A to Notice of Removal 4 (“Compl.”), ECF No. 1. Defendant then removed the action to this 5 Court on December 13, 2021. Notice of Removal at 1, ECF No. 1. 6 Defendant’s Notice of Removal asserts that this Court has subject 7 matter jurisdiction over Plaintiff’s complaint pursuant to 8 diversity jurisdiction under 28 U.S.C. § 1332(a). Id. at 3. 9 Plaintiff asserts that removal was improper and seeks remand on 10 the grounds that Defendant has not met the jurisdictional amount 11 in controversy requirement. Mot. at 2. 12 Plaintiff was formerly employed by Defendant as an 13 operations manager in Defendant’s Stockton distribution center in 14 the State of California. Compl. ¶ 9. Plaintiff alleges four 15 causes of action under the California Fair Employment & Housing 16 Act (“FEHA”): (1) Discrimination under Section 12940(a); 17 (2) Harassment under Section 12940(j); (3) Retaliation under 18 Sections 12940(h) and (m)(2); and (4) Failure to Prevent 19 Discrimination, Harassment, and Retaliation under Section 20 12940(k). See Compl. Plaintiff seeks relief for “compensatory, 21 special, and general damages,” “punitive and/or exemplary 22 damages,” and “statutory attorneys’ fees and costs.” Id. 23 II. OPINION 24 Federal district courts have subject matter jurisdiction 25 over civil actions between parties with diverse citizenship 26 where “the amount in controversy exceeds the sum of or value of 27 $75,000, exclusive of interests and costs.” 28 U.S.C. 28 § 1332(a). Such an action may be removed to federal court under 1 28 U.S.C. § 1441(a). The removal statute is strictly construed, 2 and the Court must reject federal jurisdiction if there is any 3 doubt as to whether removal was proper. Duncan v. Stuetzle, 76 4 F.3d 1480, 1485 (9th Cir. 1996). 5 The parties do not dispute that the diversity requirement 6 is met. They only dispute whether the amount in controversy 7 exceeds $75,000. Plaintiff argues that remand is proper because 8 she pleads entitlement to less than $75,000 in damages. Mot. at 9 2. Defendant opposes remand arguing that the amount in 10 controversy is greater than $75,000. Opp’n at 11. 11 A. Legal Standard 12 When the jurisdiction of the Court is challenged, as it is 13 here, the party invoking federal jurisdiction has the burden of 14 proving by a preponderance of the evidence that removal is 15 proper. Geographic Expeditions, Inc. v. Estate of Lhotka, 599 16 F.3d 1102, 1106-07 (9th Cir. 2010). The parties may submit 17 evidence outside the complaint including affidavits, 18 declarations, or “summary-judgment-type evidence relevant to the 19 amount in controversy at the time of removal.” Singer v. State 20 Farm Mut. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (internal 21 citation omitted). The district court “must [then] make 22 findings of jurisdictional fact to which the preponderance 23 standard applies.” Dart Cherokee, 574 U.S. at 89 (internal 24 citation omitted). 25 “[I]n assessing the amount in controversy, a court must 26 assume that the allegations of the complaint are true and assume 27 that a jury will return a verdict for the plaintiff on all 28 claims made in the complaint.” Campbell v. Vitran Exp., Inc., 1 471 Fed.Appx 646, 648 (9th Cir. 2012) (internal citation 2 omitted). “In that sense, the amount in controversy reflects 3 the maximum recovery the plaintiff could reasonably recover.” 4 Arias v. Residence Inn by Marriott, 936 F.3d 920, 927 (9th Cir. 5 2019) (citing Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 417 6 (9th Cir. 2018)). 7 B. Analysis 8 Plaintiff’s complaint does not allege a specific amount of 9 damages but does allege, generally and without limitation, that 10 she seeks compensatory, special, and general damages; punitive 11 and/or exemplary damages; and statutory attorney’s fees and 12 costs. Opp’n at 5; see also Compl. In a FEHA action, a 13 plaintiff may recover any economic damages that are generally 14 available in non-contractual actions, including lost benefits 15 and wages. State Dep’t of Health Servs. v. Super. Ct., 31 Cal. 16 4th 1026, 1042 (2003). Although Plaintiff does not specifically 17 seek lost wages in her complaint, lost wages are subsumed in her 18 plea for “compensatory, special, and general damages” absent an 19 assertion to the contrary. See Compl. 20 Jurisdictional facts are assessed on the basis of a 21 plaintiff's complaint at the time of removal. 28 U.S.C. § 1441. 22 Further, the weight of authority in this Circuit limits the 23 amount of lost wages considered in the amount in controversy to 24 those accrued at the time of removal. See Daley v. Walmart 25 Stores, Inc., No. SA CV 18-0518-DOC, 2018 WL 3104630, at *4 26 (C.D. Cal. Jun. 21, 2018). The Court therefore calculates lost 27 wages from the time of Plaintiff’s termination through the time 28 of removal. 1 Plaintiff alleges she was wrongfully terminated on December 2 11, 2019. Compl. ¶ 31. Defendant removed this action on 3 December 13, 2021. See Notice of Removal. Since two years have 4 elapsed between Plaintiff’s wrongful termination and Defendant’s 5 Notice of Removal, the Court will calculate her lost wages as 6 twice her annual salary. 7 Defendant asserts that Plaintiff made $81,120 annually at 8 the time of her termination. Decl. of Cynthia Cunningham ¶ 5, 9 ECF No. 1-2. Plaintiff does not dispute this estimate in her 10 moving papers. See Mot.; see Reply. Accepting Defendant’s 11 estimate of Plaintiff’s annual salary, Plaintiff’s lost wages 12 for two years is $162,240 (2 x $81,120), exceeding the required 13 jurisdictional amount. 14 Plaintiff objects to the inclusion of lost wages in 15 Defendant’s amount in controversy calculation for two reasons. 16 Mot. at 3. First, Plaintiff contends that Defendant has 17 presented “no evidence . . . that Plaintiff is seeking to 18 recover ‘lost wages,’” and therefore Defendant’s calculations 19 are “purely conclusory and speculative.” Mot. at 3-4. Second, 20 Plaintiff contends that, even if lost wages were included, the 21 amount would be mitigated to the extent that Plaintiff has 22 secured subsequent employment. Id. at 4. Both arguments are 23 unavailing.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KISHA WALTERS, an individual, No. 2:21-cv-02299-JAM-JDP 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO REMAND 14 DOLLAR TREE DISTRIBUTION, INC., and DOES 1 through 10, 15 inclusive, 16 Defendants. 17 18 This matter is before the Court on Plaintiff Kisha Walters’ 19 (“Plaintiff”) motion to remand for lack of subject matter 20 jurisdiction. See Mot. to Remand (“Mot.”), ECF No. 9. Defendant 21 Dollar Tree Distribution, Inc. (“Defendant”) opposes the motion. 22 See Opp’n, ECF No. 16. Plaintiff replied. See Reply, ECF 23 No. 22. For the reasons set forth below, the Court DENIES 24 Plaintiff’s motion to remand.1 25 /// 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for March 15, 2022. 1 I. BACKGROUND 2 Plaintiff filed her complaint in the San Joaquin County 3 Superior Court on December 15, 2020. Ex. A to Notice of Removal 4 (“Compl.”), ECF No. 1. Defendant then removed the action to this 5 Court on December 13, 2021. Notice of Removal at 1, ECF No. 1. 6 Defendant’s Notice of Removal asserts that this Court has subject 7 matter jurisdiction over Plaintiff’s complaint pursuant to 8 diversity jurisdiction under 28 U.S.C. § 1332(a). Id. at 3. 9 Plaintiff asserts that removal was improper and seeks remand on 10 the grounds that Defendant has not met the jurisdictional amount 11 in controversy requirement. Mot. at 2. 12 Plaintiff was formerly employed by Defendant as an 13 operations manager in Defendant’s Stockton distribution center in 14 the State of California. Compl. ¶ 9. Plaintiff alleges four 15 causes of action under the California Fair Employment & Housing 16 Act (“FEHA”): (1) Discrimination under Section 12940(a); 17 (2) Harassment under Section 12940(j); (3) Retaliation under 18 Sections 12940(h) and (m)(2); and (4) Failure to Prevent 19 Discrimination, Harassment, and Retaliation under Section 20 12940(k). See Compl. Plaintiff seeks relief for “compensatory, 21 special, and general damages,” “punitive and/or exemplary 22 damages,” and “statutory attorneys’ fees and costs.” Id. 23 II. OPINION 24 Federal district courts have subject matter jurisdiction 25 over civil actions between parties with diverse citizenship 26 where “the amount in controversy exceeds the sum of or value of 27 $75,000, exclusive of interests and costs.” 28 U.S.C. 28 § 1332(a). Such an action may be removed to federal court under 1 28 U.S.C. § 1441(a). The removal statute is strictly construed, 2 and the Court must reject federal jurisdiction if there is any 3 doubt as to whether removal was proper. Duncan v. Stuetzle, 76 4 F.3d 1480, 1485 (9th Cir. 1996). 5 The parties do not dispute that the diversity requirement 6 is met. They only dispute whether the amount in controversy 7 exceeds $75,000. Plaintiff argues that remand is proper because 8 she pleads entitlement to less than $75,000 in damages. Mot. at 9 2. Defendant opposes remand arguing that the amount in 10 controversy is greater than $75,000. Opp’n at 11. 11 A. Legal Standard 12 When the jurisdiction of the Court is challenged, as it is 13 here, the party invoking federal jurisdiction has the burden of 14 proving by a preponderance of the evidence that removal is 15 proper. Geographic Expeditions, Inc. v. Estate of Lhotka, 599 16 F.3d 1102, 1106-07 (9th Cir. 2010). The parties may submit 17 evidence outside the complaint including affidavits, 18 declarations, or “summary-judgment-type evidence relevant to the 19 amount in controversy at the time of removal.” Singer v. State 20 Farm Mut. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (internal 21 citation omitted). The district court “must [then] make 22 findings of jurisdictional fact to which the preponderance 23 standard applies.” Dart Cherokee, 574 U.S. at 89 (internal 24 citation omitted). 25 “[I]n assessing the amount in controversy, a court must 26 assume that the allegations of the complaint are true and assume 27 that a jury will return a verdict for the plaintiff on all 28 claims made in the complaint.” Campbell v. Vitran Exp., Inc., 1 471 Fed.Appx 646, 648 (9th Cir. 2012) (internal citation 2 omitted). “In that sense, the amount in controversy reflects 3 the maximum recovery the plaintiff could reasonably recover.” 4 Arias v. Residence Inn by Marriott, 936 F.3d 920, 927 (9th Cir. 5 2019) (citing Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 417 6 (9th Cir. 2018)). 7 B. Analysis 8 Plaintiff’s complaint does not allege a specific amount of 9 damages but does allege, generally and without limitation, that 10 she seeks compensatory, special, and general damages; punitive 11 and/or exemplary damages; and statutory attorney’s fees and 12 costs. Opp’n at 5; see also Compl. In a FEHA action, a 13 plaintiff may recover any economic damages that are generally 14 available in non-contractual actions, including lost benefits 15 and wages. State Dep’t of Health Servs. v. Super. Ct., 31 Cal. 16 4th 1026, 1042 (2003). Although Plaintiff does not specifically 17 seek lost wages in her complaint, lost wages are subsumed in her 18 plea for “compensatory, special, and general damages” absent an 19 assertion to the contrary. See Compl. 20 Jurisdictional facts are assessed on the basis of a 21 plaintiff's complaint at the time of removal. 28 U.S.C. § 1441. 22 Further, the weight of authority in this Circuit limits the 23 amount of lost wages considered in the amount in controversy to 24 those accrued at the time of removal. See Daley v. Walmart 25 Stores, Inc., No. SA CV 18-0518-DOC, 2018 WL 3104630, at *4 26 (C.D. Cal. Jun. 21, 2018). The Court therefore calculates lost 27 wages from the time of Plaintiff’s termination through the time 28 of removal. 1 Plaintiff alleges she was wrongfully terminated on December 2 11, 2019. Compl. ¶ 31. Defendant removed this action on 3 December 13, 2021. See Notice of Removal. Since two years have 4 elapsed between Plaintiff’s wrongful termination and Defendant’s 5 Notice of Removal, the Court will calculate her lost wages as 6 twice her annual salary. 7 Defendant asserts that Plaintiff made $81,120 annually at 8 the time of her termination. Decl. of Cynthia Cunningham ¶ 5, 9 ECF No. 1-2. Plaintiff does not dispute this estimate in her 10 moving papers. See Mot.; see Reply. Accepting Defendant’s 11 estimate of Plaintiff’s annual salary, Plaintiff’s lost wages 12 for two years is $162,240 (2 x $81,120), exceeding the required 13 jurisdictional amount. 14 Plaintiff objects to the inclusion of lost wages in 15 Defendant’s amount in controversy calculation for two reasons. 16 Mot. at 3. First, Plaintiff contends that Defendant has 17 presented “no evidence . . . that Plaintiff is seeking to 18 recover ‘lost wages,’” and therefore Defendant’s calculations 19 are “purely conclusory and speculative.” Mot. at 3-4. Second, 20 Plaintiff contends that, even if lost wages were included, the 21 amount would be mitigated to the extent that Plaintiff has 22 secured subsequent employment. Id. at 4. Both arguments are 23 unavailing. 24 First, the Court disagrees with the argument that the 25 Defendant may not include lost wages in its calculations merely 26 because Plaintiff refuses to affirm or deny her claim to said 27 wages. “[T]he amount in controversy reflects the maximum 28 recovery the plaintiff could reasonably recover.” Arias, 936 1 F.3d at 927 (emphasis added). Plaintiff has broadly pled 2 recovery for “compensatory, special, and general damages.” See 3 Compl. Absent an admission that Plaintiff will not seek lost 4 wages, Defendant is justified in including lost wages in its 5 amount-in-controversy calculations, because it is an available 6 remedy for FEHA violations. 7 Second, as Defendant points out, the amount in controversy 8 requirement looks to the value of Plaintiff’s claims if she were 9 to succeed. Opp’n at 7. Any mitigation would go to the 10 question of what Defendant actually owes rather than what is 11 presently at controversy. It is inappropriate for the Court to 12 consider mitigation when assessing the amount in controversy, 13 because “mitigation of damages is an affirmative defense, and a 14 ‘potential defense does not reduce the amount in controversy for 15 purposes of establishing federal jurisdiction.’” Jackson v. 16 Compass Grp. USA, Inc., 2019 WL 3493991, at *4 (C.D. Cal. 17 Jul. 31, 2019) (quoting Perez v. Alta-Dena Certified Dairy, LLC, 18 647 F. App’x 682, 684 (9th Cir. 2016)). 19 Accordingly, in the absence of conflicting evidence, 20 Defendant has proved by a preponderance of the evidence that the 21 jurisdictional amount in controversy has been met based on 22 Plaintiff’s lost wages ($162, 240). The Court need not reach 23 the parties’ remaining arguments about Plaintiff’s other 24 recoverable damages for emotional distress, future attorneys’ 25 fees, or punitive damages. 26 III. ORDER 27 For the reasons above, the Court finds that Defendant has 28 established by a preponderance of the evidence that the amount in nee enn nen enn nnn ne nn nnn nn on nnn nn
1 controversy exceeds $75,000 exclusive of interest and costs. As 2 the parties do not dispute diversity of citizenship, the Court 3 has subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c). 4 | Accordingly, the Court DENIES Plaintiff’s Motion to Remand. 5 IT IS SO ORDERED. 6 Dated: May 6, 2022 ke A teiren staves odermacr 7008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28