Benitez v. Roelfsema et al, No. 2:2017cv04209 - Document 16 (D. Ariz. 2018)
Court Description: ORDER denying Plaintiff's Motion to Remand (Doc. 7 ) with leave to refile following the parties' exchange of the MIDPs initial discovery disclosures. The parties shall exchange the mandatory initial discovery disclosures (see Doc. 3 ) no later than 3/23/2018. The parties shall file simultaneous, supplemental briefs on the Motion to Remand not to exceed 5 pages no later than 4/13/2018. The parties are not to repeat any argument already made in the briefs, and the Court will consider arguments raised in both the original and supplemental briefs. The parties are not to file responses or replies. ORDERED denying Plaintiff's Motion for Oral Argument (Doc. 11 ). Signed by Judge John J Tuchi on 2/28/18. (DXD)
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Benitez v. Roelfsema et al 1 Doc. 16 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Maria C Benitez, Plaintiff, 10 11 ORDER v. 12 No. CV-17-04209-PHX-JJT Gene Gordon Roelfsema, et al., 13 Defendants. 14 At issue is Plaintiff Maria C Benitez’s Motion to Remand (Doc. 7, Mot.), to which 15 Defendants Gene and Jeanne Roelfsema (collectively, “Defendants”) filed a Response 16 (Doc. 9, Resp.), to which Plaintiff filed a Reply (Doc. 10, Reply), and to which 17 Defendants filed a Sur-Reply (Doc. 14, Sur-Reply). The matter is appropriate for 18 resolution without oral argument. See LRCiv 7.2(f). The Court has reviewed these 19 documents, the evidence and citations Defendants and Plaintiff have provided, 20 Defendants’ Notice of Removal (Doc. 1, Notice of Removal), and Plaintiff’s Complaint 21 (Doc. 1, Ex. A, Compl.), and finds that the evidence submitted at this time is insufficient 22 to establish by a preponderance of the evidence that the amount in controversy exceeds 23 $75,000. However, the Court will grant Defendants’ request for limited jurisdictional 24 discovery. Thus, the Court denies Plaintiff’s Motion to Remand (Doc. 7) with leave to 25 refile. 26 I. BACKGROUND 27 On January 13, 2017, Plaintiff Maria Benitez was driving her 2011 Chevy Malibu 28 eastbound on 32nd Street in Yuma, Arizona. (Compl. ¶ 6.) As Benitez passed through the Dockets.Justia.com 1 intersection of 32nd Street and S. Avenue 7 East on a green light, Defendant Gene 2 Roelfsema drove northbound into the same intersection and crashed into Benitez. 3 (Compl. ¶¶ 7–8.) Benitez suffered injuries to her right wrist, left hand, and chest as a 4 result of the accident for which she sought treatment at the Yuma Regional Medical 5 Center. (Compl. ¶ 9.) Those injuries have caused Benitez significant pain and suffering 6 and have impaired her ability to enjoy life and perform everyday activities. 7 (Compl. ¶ 10.) 8 On November 15, 2017, Benitez filed suit in Yuma County Superior Court 9 alleging a single count of negligence. (Compl. ¶¶ 11–18.) Benitez’s Complaint seeks to 10 recover damages for her physical injury, pain, discomfort, suffering, anxiety, past 11 medical expense, lost income to date, inability to enjoy life in the same manner as before 12 the collision, as well as any other temporary injury she suffered. (Compl. ¶ 17.) 13 Defendants timely removed the action to this Court based on diversity jurisdiction. 14 (Notice of Removal.) Benitez now moves to remand, contending that the amount in 15 controversy is below the jurisdictional threshold of $75,000. (Mot. at 3–4.) 16 II. LEGAL STANDARD 17 Federal courts may exercise removal jurisdiction over a case only if subject matter 18 jurisdiction exists. 28 U.S.C. § 1441(a); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 19 (9th Cir. 2004). The removing party bears the burden of providing a signed notice of 20 removal that contains a short and plain statement of the grounds for removal. 28 U.S.C. 21 § 1446(a). 22 Federal courts have diversity jurisdiction over actions between citizens of different 23 states where the amount in controversy exceeds $75,000, exclusive of interest and costs. 24 28 U.S.C. § 1332(a). The Supreme Court has concluded that, under § 1446(a), “a 25 defendant’s notice of removal need include only a plausible allegation that the amount in 26 controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co. v. 27 Owens, 135 S. Ct. 547, 554 (2014). “Evidence establishing the amount is required by 28 § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s -2- 1 allegation.” Id. “[D]iversity jurisdiction is determined at the time the action commences, 2 and a federal court is not divested of jurisdiction . . . if the amount in controversy 3 subsequently drops below the minimum jurisdictional level.” Hill v. Blind Indus. & Servs 4 of Md., 179 F.3d 754, 757 (9th Cir. 1999). 5 When a defendant’s assertion of the amount in controversy is challenged, then 6 “both sides submit proof and the court decides, by a preponderance of the evidence, 7 whether the amount-in-controversy requirement has been satisfied.” Dart Cherokee 8 Basin, 135 S. Ct. at 554. The Ninth Circuit has noted that the Supreme Court did not 9 decide the procedure for each side to submit proof, leaving district courts to set such 10 procedure. See Ibarra v. Manheim Inv., 775 F.3d 1193, 1199-1200 (9th Cir. 2015) (citing 11 Dart Cherokee Basin, 135 S. Ct. at 554). “[E]vidence may be direct or circumstantial,” 12 and “a damages assessment may require a chain of reasoning that includes assumptions.” 13 Id. at 1199. “When this is so, those assumptions cannot be pulled from thin air but need 14 some reasonable ground underlying them.” Id. Courts may consider evidence of jury 15 awards or judgments in similarly situated cases to make an amount in controversy 16 determination. Ansley v. Metro. Life Ins. Co., 215 F.R.D. 757, 578 & n.4 (D. Ariz. 2003). 17 III. ANALYSIS 18 The Court begins by examining whether Defendants’ Notice of Removal satisfies 19 the requirement of alleging diversity jurisdiction. See Dart Cherokee Basin, 135 S. Ct. at 20 554. First, the Notice of Removal contains a declaration—which Plaintiff does not 21 challenge—that both Defendants are citizens of Wyoming. (Notice of Removal ¶ 3, 22 Ex. B.) Thus, Defendants demonstrate complete diversity of citizenship because Plaintiff 23 has alleged that she is an Arizona citizen. (Notice of Removal ¶ 3; Compl. ¶ 2.) Second, 24 Defendants allege that the amount in controversy exceeds the jurisdictional threshold of 25 $75,000. (Notice of Removal ¶ 4.) Plaintiff’s claim is for a sum uncertain; however, 26 Plaintiff has both certified that her damages are greater than the $50,000 limit for 27 compulsory arbitration in Yuma County Superior Court,1 17C A.R.S. Super. Ct. Local 28 1 Although Plaintiff avers to this Court that compulsory arbitration in Yuma -3- 1 Prac. Rules, Yuma County, Rule 10A, and demanded that Defendants’ insurer tender for 2 settlement its available policy limit, which is $300,000. (Notice of Removal ¶ 4, Exs. C– 3 D.) Therefore, the Court concludes that Defendants’ statement that the amount in 4 controversy exceeds the jurisdictional threshold of $75,000 is plausible. 5 Plaintiff contests the amount in controversy in her Motion to Remand; however, 6 Plaintiff’s argument amounts to little more than “no it isn’t.” (Mot. at 3–4.) In her 7 Motion, Plaintiff fails to cite to any legal authority and only submits two relevant pieces 8 of evidence: (1) an affidavit from counsel stating that his August 21, 2017 letter 9 demanding tender of Defendant’s insurance policy limit was only an attempt to initiate 10 settlement discussions (Mot. Ex. 1 ¶ 4); and (2) a sworn affidavit by Plaintiff that her 11 “damages in this matter do not now exceed $75,000” and that she would “accept a 12 settlement of $75,000 if Defendant offers it now.” (Mot. Ex. 2 ¶ 3 (emphasis added).) 13 In her Reply, Plaintiff argues that the affidavits amount to a stipulation which 14 conclusively establishes that the amount in controversy falls below the threshold for this 15 Court’s jurisdiction.2 (Reply at 3–4.) Plaintiff points to Luce v. Kohl’s Department Stores, 16 23 F. Supp. 3d 82 (D. Conn. 2014) and Patel v. Nike Retail Services, 58 F. Supp. 3d 1032 17 (N.D. Cal. 2014) for support, suggesting that these cases constitute “controlling legal 18 authority” for her proposition. (Reply at 4–5.) Plaintiff is not only incorrect to argue that 19 two out-of-district court opinions “control” this Court, but she also is incorrect because 20 neither case stands for the proposition that a plaintiff’s stipulation is, as a matter of law, 21 dispositive for the purpose of a motion to remand. For example, although the court in 22 Luce concluded that it “could properly rely on a damages-clarifying stipulation as a basis 23 24 25 26 27 28 County Superior Court now applies only to matters of $20,000 or less, she does so without citation to any authority. (Mot. at 3.) Given the clear language of Rule 10A, and the certification by Plaintiff’s counsel under Rule 11(a) of the Arizona Rules of Civil Procedure that her damages exceeded the limit for compulsory arbitration, the Court assumes that the minimum amount in controversy is $50,000. (See Notice of Removal Ex. F.) 2 Ordinarily, the Court does not address arguments raised for the first time in the reply brief, see Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007); however, it will do so here because Defendants have been afforded the benefit of a Sur-Reply. (See Doc. 13, Order.) -4- 1 to order that a removed case be remanded to state court,” the court noted that doing so 2 was a “practical solution” rather than an outcome required by law. Luce, 23 F. Supp. 3d 3 at 84–85. 4 As both Luce and Patel note, several courts have questioned the value of post-hoc 5 stipulations, id. at 83 n.1 (citing Benjamin T. Clark, A Device Designed to Manipulate 6 Diversity Jurisdiction: Why Courts Should Refuse to Recognize Post-Removal Damage 7 Stipulations, 58 Okla. L. Rev. 221 (2005)), and some require that “stipulations be 8 executed prior to the notice of removal as a sign of their bona fides and cannot await the 9 motion to remand,” Patel, 58 F. Supp. 3d at 1039 (quoting Wright & Miller, 14A Fed. 10 Prac. & Proc. Juris. § 3702.1 (4th ed.)); see also, e.g., Hampton v. Safeco Ins. Co. of Am., 11 614 F. App’x 321, 324 (6th Cir. 2015) (“[W]e evaluate jurisdiction at the time of removal 12 and the alleged stipulation offer does not affect jurisdiction once it has attached.”); Back 13 Doctors Ltd v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). The 14 Court shares these concerns and is not persuaded by Plaintiff’s after-the-fact affidavit, 15 particularly given that it speaks only to the value of the controversy now rather than the 16 value at the time of removal or during the course of further proceedings. Accordingly, the 17 Court rejects Plaintiff’s contention that her affidavit resolves the Motion to Remand. (See 18 Reply at 4.) 19 However, Defendants fail to establish by a preponderance of the evidence that the 20 amount in controversy exceeds $75,000. In the Response, Defendants submit evidence 21 identical to that included with the Notice of Removal—Plaintiff’s certification that the 22 value of her claim exceeds $50,000 and Plaintiff’s demand to Defendants’ insurer to 23 tender Defendants’ policy limit, which amounted to $300,000. (Resp. at 3–5.) However, 24 as Plaintiff argues, it is not clear that she was aware of the value of Defendants’ coverage 25 at the time she demanded Defendants’ insurer tender the limit. (See Mot. at 2, Ex. 1 ¶ 4.) 26 Thus, although the Court can reasonably say that the dollar value of the controversy is 27 within the range of $50,000 to $300,000, it is left blindly throwing darts to determine the 28 precise value. Although plausible that the amount in controversy exceeds $75,000, it is -5- 1 equally plausible that it does not. As such, the Court cannot say by a preponderance of 2 the evidence that the amount in controversy exceeds $75,000. 3 Nevertheless, given the preliminary nature of the matter, the Court agrees that 4 limited discovery is warranted and would assist the Court in determining whether it has 5 jurisdiction over this matter. (Resp. at 5–6); see Ibarra, 775 F.3d at 1199–20 (granting 6 district courts discretion in crafting procedures for the submission of evidence for the 7 purpose of a motion to remand); Admiral Ins. Co v. Aspen Ins. UK Ltd., 2017 WL 8 6945090, at *1 (S.D. Cal. June 16, 2017) (allowing limited discovery for the purpose of a 9 motion to remand). Therefore, the parties shall respond to the initial discovery requests 10 set forth in the Mandatory Initial Discovery Pilot (“MIDP”). Following the exchange of 11 discovery, both Plaintiff and Defendants may submit a supplemental brief on the Motion 12 to Remand not to exceed five (5) pages. 13 IT IS THEREFORE ORDERED denying Plaintiff’s Motion to Remand (Doc. 7) 14 with leave to refile following the parties’ exchange of the MIDP’s initial discovery 15 disclosures. 16 17 IT IS FURTHER ORDERED that the parties shall exchange the mandatory initial discovery disclosures (see Doc. 3) no later than March 23, 2018. 18 IT IS FURTHER ORDERED that the parties shall file simultaneous, supplemental 19 briefs on the Motion to Remand not to exceed five (5) pages no later than April 13, 2018. 20 The parties are not to repeat any argument already made in the briefs, and the Court will 21 consider arguments raised in both the original and supplemental briefs. The parties are 22 not to file responses or replies. 23 24 25 IT IS FURTHER ORDERED denying Plaintiff’s Motion for Oral Argument (Doc. 11). Dated this 28th day of February, 2018. 26 27 28 Honorable John J. Tuchi United States District Judge -6-
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