D.H. et al v. Nobel Learning Communities, Inc. et al, No. 3:2015cv00460 - Document 9 (S.D. Cal. 2015)
Court Description: ORDER denying as moot 6 Motion to Expedite, ORDER of Remand, ORDER Requiring Response to Request for Attorney's Fees for Improper Removal. The action is remanded to the Superior Court of California for the County of San Diego, Central Divisio n, from which it was removed. The Court retains jurisdiction solely over Plaintiffs' request for attorney's fees for improper removal. Defendants may file an opposition to the request, not to exceed ten pages (not counting any lodged or appended material) no later than Monday, March 30, 2015. Signed by Judge Larry Alan Burns on 3/16/15. (kas)(cc: Superior Court)
Download PDF
<![CDATA[
D.H. et al v. Nobel Learning Communities, Inc. et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 D.H., a minor, by his guardian ad litem A.H., et al., CASE NO. 15cv460-LAB (KSC) ORDER DENYING AS MOOT MOTION TO EXPEDITE; 12 Plaintiff(s), 13 vs. ORDER OF REMAND; AND 14 15 ORDER REQUIRING RESPONSE TO REQUEST FOR ATTORNEY’S FEES FOR IMPROPER REMOVAL NOBEL LEARNING COMMUNITIES, INC., et al., 16 Defendant(s). 17 18 19 Defendants removed this action from state court, citing both diversity and federal 20 question jurisdiction as the basis for this Court’s exercise of jurisdiction. The Court on March 21 5, 2015 ordered Defendants to show cause why this action should not be remanded. That 22 order (the "OSC") set forth the standards for federal question jurisdiction, and pointed out the 23 burden for establishing jurisdiction fell on Defendants, as the parties invoking the Court’s 24 jurisdiction. The order cautioned that if Defendants failed to show jurisdiction, this action 25 would be remanded. 26 Defendants filed a response (Docket no. 7) and Plaintiffs, as permitted by the OSC, 27 also filed a response (Docket no. 8) seeking remand, as well as an award of fees. Plaintiffs 28 also filed an ex parte motion to expedite briefing on the OSC. (Docket no. 6.) Because the -1- 15cv460 Dockets.Justia.com 1 Court has already received briefing, and now issues its decision, the motion to expedite is 2 DENIED AS MOOT. 3 Federal Question Jurisdiction 4 Defendants’ response agrees that the complaint raises only claims created by or 5 arising under state law, but argues that some of the claims present federal questions. To be 6 sure, references to federal law are sprinkled throughout the complaint, and federal law 7 played a role in the dispute. The complaint alleges that Plaintiff D.H. is disabled, refers to a 8 settlement agreement intended to resolve alleged ADA violations, and mentions the 9 Defendant school’s ADA compliance policy and officer. Defendants argue that federal law 10 is a necessary element of Plaintiffs’ claim, and cite Grable & Sons Metal Prods., Inc. v. Darue 11 Eng’g & Mfg., 545 U.S. 308, 314 (2005) as supporting their argument. They also refer 12 indirectly to the well-pleaded complaint rule, arguing that the complaint is erroneously pled, 13 and therefore its failure to raise federal causes of action is not controlling. 14 The OSC explained the standards for determining whether federal question jurisdiction 15 exists. It should first be noted that state law, rather than federal law, creates all of Plaintiffs’ 16 rights of action. The complaint seeks relief for breach of contract, breach of the implied 17 covenant of good faith and fair dealing, intentional and negligent infliction of emotional 18 distress, and California’s Unfair Business Practices Act, §§ 17200, et seq. The contract at 19 issue here is the agreement between Plaintiffs and Defendants governing D.H.’s enrollment 20 as a student at the school. Even to the extent these refer to federal law, they are not 21 themselves federal law. While the school and the Department of Justice entered into a 22 settlement agreement to settle ADA disputes, that agreement is also not federal law. And in 23 any event, Plaintiffs are not seeking to enforce it; they allege violations only in an effort to 24 establish that Defendants acted unfairly. In short, the breach of contract claims arise under 25 state law and do not give rise to federal question jurisdiction, even if their terms attempt to 26 resolve a federal dispute or require acts in compliance with federal law. See Kokkonen v. 27 Guardian Life Ins. Co. of Am., 511 U.S. 375, 381–82 (1994) (suit to enforce agreement 28 settling federal claim does not present a federal question); Mabe v. G.C. Servs. Ltd. P'ship, -2- 15cv460 1 32 F.3d 86, 88 n.2 (4th Cir. 1994) (“A private contract cannot create federal question 2 jurisdiction simply by reciting a federal statutory standard.”); Oliver v. Trunkline Gas Co., 796 3 F.2d 86, 89 (5th Cir. 1986) (dispute over private contract incorporating federal regulation 4 does not create federal-question jurisdiction). Compare Morris v. City of Hobart, 39 F.3d 5 1105, 1111–1112 (10th Cir. 1994) (holding that federal courts lacked jurisdiction over 6 agreements entered into to settle Title VII claims, as opposed to claims brought under Title 7 VII). 8 In Grable, the plaintiffs necessarily had to establish a violation of federal law in order 9 to prevail. 545 U.S. at 314–15. Here, by contrast, Plaintiffs could prevail on their breach of 10 contract claim without establishing any violation of federal law. Compare In re Standard & 11 Poor’s Rating Agency Litig., 23 F. Supp. 3d 378, 396 (S.D.N.Y., 2014). 12 The § 17200 claim, likewise, does not require resolving a federal question, because 13 violations of both federal and state law are identified as the basis for the claim. See Nevada 14 v. Bank of Am. Corp., 672 F.3d 661, 675 (9th Cir. 2012). The complaint also points to acts 15 it identifies as generally unfair, without referencing particular laws. 16 Communications, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999) (holding that a 17 plaintiff need not show violation of a separate law to establish liability under § 17200). Even 18 if some of those acts might violate federal law, the only question the Court is called upon to 19 resolve is whether they are "unfair" under state law. 20 Diversity Jurisdiction See Cel-Tech 21 The OSC also questioned whether the amount in controversy requirement was met, 22 so as to allow the Court to exercise diversity jurisdiction. The complaint did not request more 23 than $75,000, but rather requested certain amounts in damages plus other damages in 24 unspecified amounts. The OSC found that Defendants had not adequately shown why those 25 other damages and requested relief would push the amount in controversy over the $75,000 26 threshold. Among other things, the notice of removal failed to show why the damage awards 27 it cited in other cases were analogous. Defendants’ response notes that the complaint seeks 28 nearly $9,000 in special damages for the cost of enrolling D.H. in a different school, nearly -3- 15cv460 1 $11,000 in restitution, and $4,000 in statutory damages, for a total of nearly $24,000. 2 Defendants’ response to the OSC also estimates attorney’s fees at the time of removal at 3 $7,500. 4 Beyond that, both the notice of removal and Defendants’ response to the OSC attempt 5 to make reasonable inferences about how much Plaintiffs are seeking for emotional damages 6 and punitive damages. See Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) 7 (citations omitted) (in CAFA case, holding that amount in controversy can be supported with 8 "summary-judgment-type evidence" together with reasonable deductions, inferences, or 9 extrapolations). See also Simmons v. PCR Tech., Inc., 209 F. Supp. 2d 1029, 1033–34 (N.D. 10 Cal., 2002) (evidence of emotional distress and punitive damages awards in cases with 11 analogous facts can be used to support amount in controversy). With these additions, 12 Defendants response arrives at what it considers a conservative estimate of $76,500 in 13 controversy. 14 When a defendant’s assertion is challenged, the Court can decide the issue based on 15 a preponderance of the evidence presented by both sides. Ibarra, 775 F.3d at 1197–98 16 (citation omitted). 17 The emotional distress damages, in particular, are a problem. Accepting that evidence 18 of jury verdicts in cases with analogous facts can serve as evidence to support the amount 19 in controversy, see Simmons, 209 F. Supp. 2d at 1033–34, Defendants primarily cite awards 20 in cases with significantly different facts. In this case, D.H. is in the eighth grade and was 21 expelled from the school he had attended for approximately one and a half school years. He 22 has been attending a different school since mid-January, 2015. It is unknown whether he will 23 successfully obtain preliminary injunctive relief, resulting in his immediate return to the 24 school, or whether he will only return (if ever) at the end of this litigation. 25 In Kobzeff v. Chaminade Coll. Prepatory High Sch., 15 Trials Digest 3d 94, 1998 WL 26 1017012 (L.A. Super. Ct., Dec. 4, 1998), a jury award of $20,000 was reduced to $10,000 27 (based on apportionment of fault) for negligent infliction of emotional distress. In that case, 28 a school had accused the plaintiff of possession of drug paraphernalia and expelled her, -4- 15cv460 1 allegedly in violation of the school handbook’s required procedures. But the plaintiff also 2 claimed school officials improperly touched her during the search, a factor not present here. 3 In Vladimer v. Univ. of Med. & Dentistry of N.J., 31 NJ. J.V.R.A. 11:C7, 2011 WL 4 10553084 (N.J. Super. L., Mar. 22, 2011), a dental student who was accused of jeopardizing 5 a patient’s safety expelled from dental school was awarded $25,000 for emotional distress 6 and humiliation. The amount attributable to emotional distress for expulsion as opposed to 7 other things (e.g., loss of his desired career, loss of opportunity to attend periodontal school,1 8 and humiliation resulting from the accusations) is not separated out. What is more, the 9 plaintiff in this case was a student at a professional school and not an eighth grader as in this 10 case. Defendants earlier cited an award to a dental student expelled from the University of 11 Michigan, Zwick v. Regents of the Univ. of Mich., 2008 WL 6162481 (E.D. Mich., Dec. 2, 12 2008), which is also not analogous. 13 The only jury award in an analogous case Defendants cite is an award of $10,000 for 14 a fourth grader’s improper expulsion from a private school based on some remarks his father 15 had made. Oldano v. Our Savior Lutheran Ministries, 9 Trials Digest 16th 6 (Alameda County 16 Super. Ct., Sept. 12, 2012). In addition to an award for emotional distress, the plaintiff had 17 sought damages for breach of contract, and exemplary damages. It is unclear what portion 18 of the award represented an award for breach of contract and exemplary damages, but it 19 obviously was $10,000 or less, which is not enough to nudge the amount in controversy over 20 the threshold. 21 Plaintiffs’ response disputes that the amount in controversy is met, and correctly 22 points out that most of Defendants’ estimates are too speculative. In short, Defendants have 23 not met their burden of showing the amount in controversy is satisfied and the Court can 24 exercise diversity jurisdiction in this case. 25 /// 26 /// 27 28 1 This detail is made more explicit in a different record of the award, found at 2011 WL 1562173. -5- 15cv460 1 Conclusion and Order 2 Mindful of the strong presumption against removal, and the Ninth Circuit’s directive 3 that doubts are to be resolved in favor of remand, see Gaus v. Miles, 980 F.2d 564, 566 (9th 4 Cir. 1992), the Court finds Defendants have not met their burden of establishing that the 5 Court can exercise jurisdiction over the removed action. 6 This action is therefore REMANDED to the Superior Court of California for the County 7 of San Diego — Central Division, from which it was removed. The Court retains jurisdiction 8 solely over Plaintiffs’ request for attorney’s fees for improper removal. Defendants may file 9 an opposition to the request, not to exceed ten pages (not counting any lodged or appended 10 material) no later than Monday, March 30, 2015. 11 12 13 IT IS SO ORDERED. DATED: March 16, 2015 14 15 HONORABLE LARRY ALAN BURNS United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 15cv460
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
