Berg v. United Air Lines, Inc.
Filing
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Order by Hon. Samuel Conti for Defendant to Show Cause Re: Subject-Matter Jurisdiction, and Denying Without Prejudice 14 Defendant's Motion for Partial Summary Judgment. (sclc2, COURT STAFF) (Filed on 8/1/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DEBRA BERG,
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Plaintiff,
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v.
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UNITED AIR LINES, INC., and DOES 1 )
through 20, inclusive,
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Defendants.
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For the Northern District of California
United States District Court
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Case No. 11-3612-SC
ORDER TO SHOW CAUSE RE:
SUBJECT-MATTER JURISDICTION
AND DENYING WITHOUT
PREJUDICE DEFENDANT'S
PARTIAL MOTION FOR SUMMARY
JUDGMENT
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I.
INTRODUCTION
Now pending before the Court is a fully briefed motion for
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partial summary judgment filed by Defendant United Air Lines, Inc.
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("United") against Plaintiff Debra Berg ("Berg").
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("Mot."), 15 ("Opp'n"), 16 ("Reply").1
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in the California Superior Court in and for the County of San
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Francisco, whereupon United removed to this Court.
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("Not. of Removal") Ex. A ("Compl.").
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negligence claims against United.
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Berg allegedly sustained in a slip-and-fall incident in United's
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"Red Carpet Club," located within the San Francisco International
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ECF Nos. 14
Berg originally sued United
ECF No. 1
Berg's complaint asserts two
The first relates to injuries
Counsel for United, Richard Grotch, submitted two declarations in
support of United's motion for partial summary judgment. ECF Nos.
14-1 ("Grotch Decl. ISO Mot."), 16-1 ("Grotch Decl. ISO Reply").
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Airport, while Berg was waiting to board a flight to her home state
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of Oregon.
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right foot in the incident.
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relates to further injuries Berg allegedly sustained when, having
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boarded her flight after the fall, she elevated her injured foot on
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the armrest of the seat in front of her and it was struck by the
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flight's beverage cart.
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here, United moves for summary judgment on the first claim only.
Compl. ¶¶ 8-9.
Berg alleges that she fractured her
Id. ¶ 9.
The second negligence claim
Id. ¶¶ 13-14.
For reasons not relevant
Before deciding this motion (which is the first filed by
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United States District Court
For the Northern District of California
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either party), the Court must be satisfied that it has subject-
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matter jurisdiction over the case.
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for the reasons set forth below, the Court ORDERS United to show
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cause why this case should not be remanded back to state court for
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lack of subject-matter jurisdiction.
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is not satisfied that it has jurisdiction over this case, the Court
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DENIES United's motion for partial summary judgment without
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prejudice.
The Court is not.
Accordingly,
Moreover, because the Court
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II.
DISCUSSION
United removed to this Court pursuant to the general removal
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statute, 28 U.S.C. § 1441.
That statute permits a defendant sued
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in state court to remove to federal court if the federal court
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would have had original jurisdiction over the case in the first
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place.
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original jurisdiction under 28 U.S.C. § 1332, the diversity
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jurisdiction statute.
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diversity jurisdiction pertinent to this case are (1) complete
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diversity of state citizenship between the two sides of a lawsuit
Here, Defendant asserts that this Court would have had
Not. of Removal at 2.
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The requirements of
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and (2) an amount in controversy in excess of $75,000.
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U.S.C. § 1332(a)(1).
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See 28
The act of removal alone does not establish the district
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court's jurisdiction, and the passage of time does not cure
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jurisdictional defects: "If at any time before final judgment it
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appears that the district court lacks subject matter jurisdiction,
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the case shall be remanded."
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is a "'strong presumption against removal jurisdiction."
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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (quoting St. Paul
28 U.S.C. § 1447(c).
Moreover, there
Gaus v.
United States District Court
For the Northern District of California
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Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 290 (1938)).
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presumption "means that the defendant always has the burden of
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establishing that removal is proper."
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consider whether it is 'facially apparent' from the complaint that
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the jurisdictional amount is in controversy.
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consider facts in the removal petition, and may 'require parties to
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submit summary-judgment-type evidence relevant to the amount in
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controversy at the time of removal.'"
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Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (quoting Allen v.
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R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995)).
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Id.
This
"The district court may
If not, the court may
Singer v. State Farm Mut.
Having reviewed Berg's complaint, United's notice of removal,
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and the other papers submitted by the parties, the Court is not
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satisfied that the requisite jurisdictional amount is in
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controversy.
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-- general and special damages -- but it gives no indication of the
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amount.
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substantive paragraphs of the complaint allege that Berg "has
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undergone medical treatment" and expects to undergo more, and that
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she has "suffered loss of wages and loss of earning capacity," but
Berg's complaint specifies the type of relief sought
ECF No. 1 ("Not. of Removal") Ex. A ("Compl.") at 4.
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The
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in neither case does she quantify her losses.2
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On the Civil Case Cover Sheet appended to the complaint, Berg
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checked the box invoking the state court's "unlimited
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jurisdiction," which means that Berg demands more than $25,000.
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This does not establish that she is demanding more than $75,000.
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As for United's notice of removal, it merely recites Berg's alleged
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injuries and asserts in conclusory fashion that the jurisdictional
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amount is satisfied, without attempting to explain how the alleged
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injuries put more than $75,000 in controversy.
United States District Court
For the Northern District of California
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at 3.
Compl. ¶¶ 10, 16.
See Not. of Removal
None of the other papers in the docket touch on the issue.
The Court perceives that neither party has an incentive to
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test United's conclusion that more than $75,000 is in controversy.
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United has evinced a desire to have this case heard in federal
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court, and Berg wants her case to be worth more than $75,000.
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is often said that parties bargain in the shadow of trial, but this
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is a case where the parties seem to be litigating in the shadow of
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settlement.
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to police its own removal jurisdiction sua sponte, despite neither
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party having raised the issue.
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Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004); cf. Kelton
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Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d
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1190, 1192-93 (9th Cir. 2003) (holding that a court may not sua
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sponte remand for procedural defects in removal but noting a
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distinction between procedural and jurisdictional defects and that
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a "district court must remand if it lacks jurisdiction").
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It
That is all well and good, but the Court is duty-bound
United Investors Life Ins. Co. v.
Defects
The complaint also recites that the amount of damages exceed the
jurisdictional minimum "of this court." Compl. ¶¶ 10, 16. The
court to which Berg refers, of course, is the state court where she
originally filed her complaint, not this Court, which has its own,
separate jurisdictional requisites.
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in subject-matter jurisdiction cannot be "avoided by waiver or
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stipulation to submit to federal jurisdiction."
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at 376.
Singer, 116 F.3d
In cases like this one, "where a plaintiff's state court
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complaint does not specify a particular amount of damages, the
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removing defendant bears the burden of establishing, by a
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preponderance of the evidence, that the amount in controversy
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exceeds [the jurisdictional minimum]."
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Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996).
Sanchez v. Monumental Life
"Under this burden,
United States District Court
For the Northern District of California
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the defendant must provide evidence establishing that it is 'more
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likely than not' that the amount in controversy exceeds that
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amount."
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United, as the defendant and removing party, bears this burden.
Id.; see also 28 U.S.C. § 1446(c)(2)(B) (same standard).
The discovery cutoff in this action was July 5, 2012, and a
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jury trial is set for September 4, 2012.
ECF No. 12.
At this late
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date, United should have all the evidence it needs to address the
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amount-in-controversy issue.3
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III. CONCLUSION
For the foregoing reasons, the Court hereby ORDERS United to
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show cause why this case should not be remanded to state court for
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lack of federal subject-matter jurisdiction pursuant to 28 U.S.C. §
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1447(c).
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United shall submit a brief of not more than eight (8)
United's papers complain that Berg has been unforthcoming in
response to at least some of United's discovery requests. See,
e.g., Grotch Decl. ISO Reply ¶¶ 3-4. However, they also
demonstrate that United has successfully taken some discovery,
including Berg's deposition. See, e.g., Grotch Decl. ISO Mot. Ex.
C (Berg's responses to interrogatories); Grotch Decl. ISO Reply Ex.
A (excerpts of Berg's deposition transcript). Tellingly, United
conducted enough discovery to seek summary judgment on one of
Berg's claims.
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pages in length.
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count toward the page limit.
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than ten (10) days from the signature date of this Order.
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to Civil Local Rule 7-1(b), the Court will not hear oral argument
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on this matter.
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Supporting declarations and exhibits shall not
The brief shall be submitted not more
Pursuant
Because the Court is not satisfied that it has jurisdiction
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over this action, the Court DENIES United's motion for partial
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summary judgment without prejudice.
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The jury trial scheduled for September 4, 2012, shall proceed
United States District Court
For the Northern District of California
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on schedule unless otherwise ordered by the Court.
The Court's
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jury trial preparation order of July 20, 2012 remains in effect.
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IT IS SO ORDERED.
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Dated: August 1, 2012
UNITED STATES DISTRICT JUDGE
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