Jill Ashley Fisher v. HNTB Corporation et al, No. 2:2018cv08173 - Document 27 (C.D. Cal. 2018)
Court Description: ORDER DENYING PLAINTIFF'S MOTION TO REMAND 16 by Judge Andre Birotte Jr. See document for details. (gk)
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Jill Ashley Fisher v. HNTB Corporation et al Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JILL ASHLEY FISHER, 11 Plaintiff, 12 v. Case No. 2:18-cv-08173-AB-MRW ORDER DENYING PLAINTIFF’S MOTION TO REMAND 13 14 15 HNTB CORPORATION, et al., Defendants. 16 17 18 I. INTRODUCTION 19 Before the Court is Plaintiff Jill Ashley Fisher’s (“Plaintiff”) Motion to Remand 20 this case to state court. (Dkt. No. 16 (“Mot.”).) Defendants HNTB Corporation, Amy 21 Turner, and Lisa Ely (collectively “Defendants”) filed an opposition. (See Dkt. No. 22 22 (“Opp’n”).) Plaintiff filed a reply. (See Dkt. No. 23 (“Reply”).) The Court heard 23 oral argument on November 30, 2018 and took the matter under submission. Having 24 carefully reviewed the parties’ submissions and considered the arguments presented 25 during oral argument, and for the reasons explained below, the Court DENIES 26 Plaintiff’s Motion to Remand. 27 28 1. Dockets.Justia.com 1 II. 2 BACKGROUND A. The Parties 3 Plaintiff is, and at all relevant times was, a resident of Orange County, 4 California. (Dkt. No. 1 (“Removal”), Ex. 2. (“Compl.”) ¶ 1.) HNTB Corporation 5 (“HNTB”) is, and at all relevant times was, incorporated in Delaware and has its 6 principal place of business in Missouri.1 (See Removal, Ex. 9, Declaration of Amy 7 Turner (“Turner Decl.”) ¶ 3.) Amy Turner and Lisa Ely (collectively, “the Individual 8 Defendants”) are, and at all relevant times were, citizens and residents of Kansas.2 9 (See Turner Decl. ¶¶ 8-9; Removal, Ex. 8, Declaration of Lisa Ely (“Ely Decl.”) 10 ¶¶ 3-4.) 11 B. 12 Factual Background This lawsuit involves an employment dispute arising from HNTB’s alleged 13 wrongful termination of Plaintiff. (See generally Compl.) Plaintiff began working at 14 HNTB as a Senior Administrative Receptionist on December 29, 2014. (Compl. ¶ 8.) 15 In January 2017, HNTB promoted Plaintiff to the position of Senior Administrative 16 Facilities. (Compl. ¶ 9.) Plaintiff alleges that she has Amyotrophic Lateral Sclerosis 17 (“ALS”). (Compl. ¶ 10.) 18 In June 2017, Plaintiff informed her supervisor, Terrie Breit, that her doctor 19 suspected she had ALS and scheduled surgery on August 2, 2017. (Compl. ¶ 11.) At 20 that time, Plaintiff requested medical leave from July 21, 2017 to October 24, 2017. 21 (Id.) Plaintiff’s doctor later extended her medical leave to January 30, 2018. (Id.) 22 Plaintiff alleges that while on medical leave, the Individual Defendants, who 23 also worked at HNTB, “required that [Plaintiff’s] doctor send proof of her disability, 24 including information regarding her diagnosis and specifics on her condition, every 25 26 27 28 1 HNTB’s citizenship is undisputed. Plaintiff disputed this fact in the moving papers, arguing the Individual Defendants are, and at all relevant times were, residents of Orange County, California. (Compl. ¶ 2.) 2 2. 1 two to four week[s],” which “took a toll on her” by causing her to feel “overwhelmed, 2 stressed, and anxious.” (Id.) Plaintiff further alleges HNTB terminated her 3 employment on January 25, 2018 because she took medical leave and requested 4 accommodations prior to returning to work. (Compl. ¶ 12.) 5 6 C. Procedural History Plaintiff initiated this action against Defendants on August 20, 2018 in Los 7 Angeles Superior Court. (See Compl.; Opp’n, Declaration of Laura Booth (“Booth 8 Decl.”) ¶ 3, Ex. A.) Plaintiff alleges the following six causes of action: (1) violation 9 of the Fair Employment and Housing Act (“FEHA”); (2) breach of express oral 10 contract; (3) breach of implied-in-fact contract; (4) negligent hiring, supervision, and 11 retention; (5) wrongful termination in violation of public policy; and (6) intentional 12 infliction of emotional distress (“IIED”). (Id.) The first cause of action for violation 13 of the FEHA and sixth cause of action for IIED are the only causes of action against 14 the Individual Defendants. (Id.) 15 On August 23, 2018, HNTB was served with the summons and complaint. 16 (Turner Decl. ¶ 10; Removal ¶ 6; Opp’n at 6; Booth Decl. ¶ 3, Ex. A.) On September 17 5, 2018, Amy Turner was served with the summons and complaint. (Booth Decl. ¶ 4, 18 Ex. B.) 19 On September 20, 2018, HNTB timely removed the action to this Court based 20 on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Booth Decl. ¶ 5, Ex. C; see 21 also Removal.) HNTB simultaneously filed declarations of the Individual Defendants 22 stating they were residents and citizens of Kansas at the time Plaintiff filed the 23 complaint and at the time of removal. (Booth Decl. ¶ 6, Exs. D, E.) In the Individual 24 Defendants’ declarations they indicated their consent to removal. (Id.) 25 On September 27, 2018, Turner joined in the removal of this action. (See Dkt. 26 No. 13; Booth Decl. ¶ 8, Ex. F.) HNTB also filed a civil cover sheet on September 27 20, 2018, which indicated that Plaintiff was a citizen of California. (See Dkt. No. 2.) 28 3. 1 At the time of removal, Ely had not been served with the summons or 2 complaint, but she consented to removal in her declaration filed with the Notice of 3 Removal. (Booth Decl. ¶ 7, Ex. E; Ely Decl. ¶¶ 5-6.) Ely was not served until on or 4 about October 18, 2018. (Booth Decl. ¶ 9.) On October 31, 2018, Ely joined in the 5 removal of this action. (See Dkt. No. 18; Booth Decl. ¶ 10, Ex. G.) 6 On October 17, 2018, Plaintiff filed the instant Motion to Remand. (Removal at 7 1.) Defendants filed an opposition on November 9, 2018, and Plaintiff filed a reply on 8 November 16, 2018. (See Opp’n; Reply.) 9 10 III. LEGAL STANDARD Under 28 U.S.C. § 1441(a), a civil action may be removed to the district court 11 where the action is pending if the district court has original jurisdiction over the 12 action. Under 28 U.S.C. § 1332, a district court has original jurisdiction of a civil 13 action where the matter in controversy exceeds the sum or value of $75,000, exclusive 14 of interest and costs, and the dispute is between “citizens of different states.” Section 15 1332 requires complete diversity, i.e., that “the citizenship of each plaintiff is diverse 16 from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 67-68 17 (1996). Section 1441 limits removal to cases where no defendant “properly joined 18 and served . . . is a citizen of the State in which such action is brought.” 28 U.S.C. 19 § 1441(a)(b)(2). Section 1446(b) governs the timeliness of removals. If the case 20 stated by the initial pleading is “removable on its face,” then a defendant has thirty 21 days from receipt of the pleading to remove the case. Carvalho v. Equifax Info. Servs., 22 LLC, 629 F.3d 876, 884-85 (9th Cir. 2010). 23 Removal statutes are “strictly construe[d] against removal.” Gaus v. Miles, 24 Inc., 980 F.2d 564, 566 (9th Cir. 1992). Federal jurisdiction must be rejected if there 25 is any doubt as to the right of removal in the first instance. Id. Accordingly, the 26 removing party bears a heavy burden of establishing original jurisdiction in the district 27 court. Id. 28 4. 1 IV. 2 In the moving papers, Plaintiff provides three principal arguments in support of DISCUSSION 3 remand: (1) Defendants failed to establish complete diversity between Plaintiff and 4 Defendants; (2) Defendants failed to establish that the amount in controversy exceeds 5 $75,000; (3) HNTB removed the action before Plaintiff had served any defendant. 6 (See generally Mot.) 7 8 9 A. Obligation to Meet and Confer The Court reminds the parties that Local Rule 7-3 requires counsel to meet and confer at least seven days prior to filing a motion in a civil matter. To satisfy Local 10 Rule 7-3, counsel must first “contact opposing counsel to discuss thoroughly, 11 preferably in person, the substance of the contemplated motion and any potential 12 resolution.” If the moving party does not comply with Local Rule 7-3, the Court may 13 refuse to hear the motion. See, e.g., Singer v. Live Nation Worldwide, Inc., No. SACV 14 11-0427 DOC (MLGx), 2012 WL 123146, *2 (C.D. Cal. Jan. 13, 2012) (denying 15 motion due to the movant’s failure to abide by Local Rule 7-3). 16 After reading the communications attached as Exhibit 2 to Plaintiff’s counsel’s 17 declaration in support of Plaintiff’s Motion to Remand, the Court concludes that 18 Plaintiff has not complied with Local Rule 7-3. In reference to the Motion to Remand, 19 Plaintiff’s counsel sent an email to defense counsel on September 27, 2018 that stated 20 “[w]e intend on filing a motion to remand for this matter on the basis that the matter 21 was removed before Plaintiff had a chance to serve all the entities involved. Please let 22 us know if you will agree to remand the matter without our filing of the motion.” 23 (Mot., Declaration of Kristina Unanyan, Ex. 2.) On September 28, 2018, defense 24 counsel responded, stating “[w]e believe we removed on proper grounds and we will 25 not agree to remand the action.” (Id.) 26 The parties made no effort to “thoroughly” discuss “the substance of the 27 contemplated motion,” as required by the local rules. The majority of the arguments in 28 the motion to remand are unnecessary and could have easily been resolved without 5. 1 court intervention.3 Although the Court, in its discretion, will nonetheless rule on the 2 merits of the dispute, any future failure to engage in the required meet-and-confer 3 process, including the requirement to “thoroughly” discuss “the substance” of the 4 contemplated motion, will result in appropriate sanctions. 5 B. The Complete Diversity Requirement Is Satisfied4 6 Plaintiff’s argument with respect to complete diversity is two-fold: First, 7 Plaintiff argues that Defendants have not met their burden to establish that Plaintiff is 8 a citizen of California because the complaint alleges only Plaintiff’s residence. (Mot. 9 at 6-7, 10-12.) Second, Plaintiff argues the Court lacks original jurisdiction because, 10 among other things, there is not complete diversity between Plaintiff, a citizen of 11 California, and the Individual Defendants, who Plaintiff contends are citizens of 12 California. (Mot. at 7.) 13 A natural person’s citizenship is determined by state of domicile, not residence. 14 “A person’s domicile is her permanent home, where she resides with the intention to 15 remain or to which she intends to return.” Kanter v. Warner-Lambert Co., 265 F.3d 16 853, 857 (9th Cir. 2001). Plaintiff alleges that she resides, and has resided during all 17 relevant times, in California. (See Compl. ¶ 1.) That is, Plaintiff affirmatively alleges 18 she has been a resident of California from at least 2014 (when alleges she began 19 working for HNTB) through the present. Plaintiff’s contention that more than four 20 years of living and working exclusively in California is insufficient to establish 21 California is Plaintiff’s “permanent home” is unavailing. As Defendants note in their 22 opposition, this finding is consistent with Plaintiff’s allegation that she worked for 23 HNTB in Orange County, California from December 29, 2014 through January 25, 24 25 26 27 28 3 For example, it was unnecessary for Plaintiff to devote seven pages of her motion arguing the Individual Defendants are not sham defendants when the Individual Defendants’ declarations clearly state they are, and at all relevant times were, residents and citizens of Kansas. Had the parties discussed the merits of the motion, Plaintiff would have known the sham defendant rule was not at issue. 4 At the hearing on the motion to remand, Plaintiff conceded complete diversity exists. 6. 1 2018 (Compl. ¶¶ 1-2, 8-12), as well as Plaintiff’s moving papers in which she states 2 she is a “Californian[].” (Mot. at 7; Opp’n at 5, 7-9; Reply at 5.) Plaintiff has neither 3 presented evidence nor made statements to the contrary. See Lopez v. Nationstar 4 Mortg. LLC, No. CV-15-03288-MWF (AJWx), 2015 WL 6478263, at *2 (C.D. Cal. 5 Oct. 26, 2015) (“Plaintiff alleges in the [First Amended Complaint] that his primary 6 place of residence is in Diamond Bar, California. In the absence of evidence to the 7 contrary, Plaintiff is considered a citizen of California for federal diversity 8 purposes.”). Therefore, the Court concludes that Plaintiff is a citizen of California. 9 Plaintiff argues, “even if [Defendants] ha[ve] established the domiciles of the 10 parties at issue . . . there is not complete diversity” because Plaintiff and the Individual 11 Defendants “are all Californians.” (Mot. at 7.) The Court disagrees. In support of the 12 Notice of Removal and Opposition to the Motion to Remand, Defendants submitted 13 declarations of the Individual Defendants confirming the Individual Defendants’ 14 current addresses are, and at this action was filed were, located in Kansas and that the 15 Individual Defendants are, and at the time this action was filed were, citizens of 16 Kansas. (See Ely Decl. ¶¶ 3-4; Turner Decl. ¶¶ 8-9.) Given the absence of any 17 evidence to the contrary, the Court finds the Individual Defendants are citizens of 18 Kansas. 19 The complete diversity requirement is therefore satisfied because Plaintiff is a 20 citizen of California, the Individual Defendants are citizens of Kansas, and HNTB is a 21 citizen of Delaware and Missouri.5 22 C. 23 The Amount in Controversy Requirement Is Met The Court must decide whether Defendants have demonstrated that the amount 24 in controversy exceeds $75,000. Plaintiff’s complaint seeks damages for past and 25 future lost wages and employment benefits, emotional distress, attorneys’ fees and 26 costs, pre-judgment and post-judgment interest, and punitive damages, and specifies 27 28 5 A corporation is a “citizen” both of the state in which it was incorporated and the state where it has its principal place of business. See 28 U.S.C. § 1332(c). 7. 1 that the amount sought exceeds $25,000. (See Compl. ¶¶ 13-15, 16; see also Compl. 2 at 16 (prayer for relief).) The Court finds Defendants have satisfied their burden of 3 plausibly alleging an amount in controversy exceeding $75,000 in their Notice of 4 Removal. Accordingly, the Court must determine whether Defendants have met their 5 burden by presenting evidence establishing, by a preponderance of the evidence, that 6 the jurisdictional amount in controversy is satisfied. 7 1. 8 9 10 Past and Future Lost Wages and Employment Benefits Defendants assert that lost wages should be based on the length of time from termination through the date of trial, which Defendants estimate is one year from the date of removal. (Removal ¶ 24; Opp’n at 12.) 11 In support of removal and their opposition, Defendants submitted the 12 declaration of HNTB’s Senior Benefits Analyst (and defendant) Amy Turner, in 13 which she declared that on the date of Plaintiff’s termination, Plaintiff’s annual salary 14 was $61,900.80 and her hourly rate was $29.76. (Turner Decl. ¶ 5.) 15 Plaintiff was terminated on January 25, 2018, and Defendants filed their Notice 16 of Removal on September 20, 2018—a period of approximately 34 weeks. Based on 17 Plaintiff’s annual salary of $61,900.80, Plaintiff’s weekly salary was approximately 18 $1190.40 per week ($61,900.80 divided by 52 weeks). Therefore, Plaintiff’s lost 19 wages at the time of removal were at least $40,473.60 ($1190.40 per week multiplied 20 by 34 weeks). 21 The Court may also include other benefits in the lost wages analysis. See 22 Melendez v. HMS Host Family Rests., Inc., No. CV 11-3842 ODW (CWx), 2011 WL 23 3760058, at *3 (C.D. Cal. Aug. 25, 2011). Here, Turner declared that Plaintiff 24 received employment benefits6 that totaled $12,816.72 annually. (Turner Decl. ¶¶ 5- 25 26 27 28 6 Specifically, Turner declared Plaintiff received the following benefits at HNTB’s cost: medical; dental; vision; supplemental life insurance (three times Plaintiff’s annual salary); paid holidays (worth $29.76 per hour for nine holidays); paid time off (worth $29.76 per hour for 120 hours of paid time off per year); sick time (worth $29.76 per hour for 56 hours of sick time per year); short-term disability; long-term 8. 1 7.) Plaintiff’s employment benefits are worth approximately $246.48 per week 2 ($12,816.72 divided by 52 weeks). Plaintiff’s past lost employment benefits are 3 therefore worth $8,380.32 ($246.48 multiplied by 34 weeks). 4 Accordingly, the total amount of Plaintiff’s past lost wages and employment 5 benefits, for purposes of jurisdiction, is at least $48,853.92 ($40,473.60 in lost past 6 wages plus $8,380.32 for lost employment benefits). 7 “Because Plaintiff ‘claims at the time of removal that her termination caused 8 her to lose future wages, . . . then there is no question that future wages are “at stake” 9 in the litigation, whatever the likelihood that she will actually recover them.’” Molina 10 v. Target Corp., No. CV 18-03181-RSWL-FFM, 2018 WL 3935347, at *3 (C.D. Cal. 11 Aug. 14, 2018) (quoting Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 417 (9th 12 Cir. 2018)). Therefore, the Court must also consider lost future7 wages from the date 13 of removal until trial.8 The parties have not set a trial date; however, the Court finds 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disability; life insurance basic in the sum of $124,000; life insurance AD&D in the sum of $124,000; disability insurance in the sum of $818.40; 401k with company match of sixty percent of first $1,600; ESOP with company match of fifty percent of first $4,000. (Turner Decl. ¶ 6.) 7 In the notice of removal and opposition, Defendants refer to wages from the date of removal to the date of trial as “back pay.” (Removal ¶ 24; Opp’n at 11-12.) The weight of authority, however, requires the Court to ascertain jurisdiction at the time of removal. Fortescue v. Ecolab Inc., 2014 WL 296755, at *2 (C.D. Cal. Jan. 28, 2014) (“[I]n determining the amount in controversy, the court declines to project lost wages forward to some hypothetical trial date.”); Soto v. Kroger Co., 2013 WL 3071267, *3 (C.D. Cal. June 17, 2013); see also Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1032 (N.D. Cal. 2002) (limiting amount of lost wages considered in amount in controversy to those accrued at time of removal). Accordingly, the Court separates lost wages into two categories: past wages—i.e., lost wages between the date of Plaintiff’s termination and the date of removal—and future wages—i.e., lost wages between the date of removal and trial. 8 At the hearing, Plaintiff argued she will likely find gainful employment before trial, and therefore, any amount for future lost wages is speculative. “Such mitigation, however, is inapplicable to the amount-in-controversy calculation.” Molina v. Target Corp., No. CV 18-03181-RSWL-FFM, 2018 WL 3935347, at *3 (C.D. Cal. Aug. 14, 2018); see also Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1108 (9th Cir. 2010) (“[I]f a district court had to evaluate every possible defense that could reduce recovery below the jurisdictional amount the district court would essentially 9. 1 Defendants’ proposed date of trial for purposes of this motion—one year from the 2 date of removal—is a conservative estimate of the trial date. (See Removal ¶ 24; 3 Opp’n at 11-12.) Therefore, Plaintiff’s future wages at stake is $61,900.80, the 4 amount of Plaintiff’s annual salary.9 5 6 7 8 9 The sum of Plaintiff’s past and future lost wages is $102,374.40; the sum of past and future lost wages and past employment benefits is $110,754.72. 2. Emotional Distress and Punitive Damages Plaintiff’s complaint seeks unspecified damages for emotional distress. (See generally Compl.) Emotional distress damages are properly considered in the amount 10 in controversy for jurisdiction purposes. See, e.g., Kroske v. U.S. Bank Corp., 432 11 F.3d 976, 980 (9th Cir. 2005); Cain v. Hartford Life & Acc. Ins. Co., 890 F. Supp. 2d 12 1246, 1250 (C.D. Cal. 2012); see also Simmons, 209 F. Supp. 2d at 1034. “To 13 establish the amount of emotional distress in controversy, a defendant may introduce 14 evidence of jury verdicts in other cases.” Cain, 890 F. Supp. 2d at 1250 (citing Rivera 15 v. Costco Wholesale Corp., No. C 08-02202 CW, 2008 WL 2740399, at *1 (N.D. Cal. 16 July 11, 2008)). Defendants cite several cases that consider other emotional distress 17 awards for purposes of deciding a motion to remand or in affirming awards for 18 emotional distress in other employment discrimination or retaliation cases, where 19 emotional distress damages ranged from $30,000 to $3.5 million. (See Removal ¶ 28.) 20 Plaintiff also seeks an unspecified amount in punitive damages. “It is well 21 established that punitive damages are part of the amount in controversy” for purposes 22 of establishing diversity jurisdiction. Gibson v. Chrysler Corp., 261 F.3d 927, 945 23 (9th Cir. 2001); see Bell v. Preferred Life Assur. Soc. of Montgomery, Ala., 320 U.S. 24 238, 240 (1943). In order to establish probable punitive damages, a party asserting 25 26 27 28 have to decide the merits of the case before it could determine if it had subject matter jurisdiction.”). 9 The Court finds it is unnecessary to calculate or address future lost employment benefits given that the sum of lost past and future wages and past employment benefits substantially exceeds $75,000. 10. 1 federal diversity jurisdiction may also introduce evidence of jury verdicts in cases 2 involving analogous facts.” Surber v. Reliance Nat. Indem. Co., 110 F. Supp. 2d 3 1227, 1232 (N.D. Cal. 2000). Defendants have neither cited cases nor produced any 4 evidence of jury verdicts awarding punitive damages. (See Removal ¶ 29.) Instead, 5 Defendants rely on Supreme Court cases that held punitive damages must bear a 6 “reasonable relationship” to actual damages and found “punitive damages of four 7 times the amount of action damages, while ‘close to the line,’ of being excessive, were 8 still constitutional.” (Id. (citations omitted).) From there, Defendants conclude that 9 “Plaintiff’s punitive damage claim could range from $195,000 to over $330,000” 10 11 based on the “economic damages figures for backpay.” (Id.) Without deciding whether this case is sufficiently analogous to those cited by 12 Defendants, or quantifying the exact value of Plaintiff’s claims for emotional distress 13 or punitive damages, the Court recognizes that emotional distress and punitive 14 damages are more likely than not to be more than nominal. See Hurd v. Am. Income 15 Life Ins., No. CV-13-05205 RSWL-MRW, 2013 WL 5575073, at *7 (C.D. Cal. Oct. 16 10, 2013) (“Punitive damages and emotional distress damages in disability 17 discrimination cases can be ‘substantial’ even when lost wages fall short of the 18 jurisdictional minimum.”). In other words, they are likely worth at least $1 each. 19 20 3. Attorneys’ Fees Defendants correctly note that attorneys’ fees may be considered for purposes 21 of determining whether the amount in controversy requirement is met. (Removal 22 ¶ 30.) However, a “district court may reject the defendant’s attempts to include future 23 attorneys’ fees in the amount in controversy if the defendant fails to satisfy this burden 24 of proof.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 795 (9th Cir. 25 2018). 26 In the Notice of Removal, Defendants assert that “Plaintiff’s attorneys’ fees 27 alone would exceed $75,000” assuming only “one of Plaintiff’s FEHA causes of 28 action[] is litigated through trial.” (Removal ¶ 30.) Defendants fail to provide the 11. 1 specific estimate of attorneys’ fees, hourly rates, or evidence of attorneys’ fees in 2 similar cases. The Court will not include attorneys’ fees in the amount in controversy 3 calculation because the estimated attorneys’ fees that could be awarded is speculative. 4 See Eberle v. Jaguar Land Rover N. Am., LLC, No. 2:18-cv-06650-VAP-PLA, 2018 5 WL 4674598, at *3 (C.D. Cal. Sept. 26, 2018) (“Defendant has merely indicated that 6 while it ‘is presently unaware of Plaintiff’s counsel [sic] hourly rate, it reasonably 7 anticipates the fees “likely to be expended” in this case will be in excess of the “less 8 than $5,000” amount stated in Plaintiff’s motion.’ This is not enough.”) (citation 9 omitted). 10 11 4. Aggregation of Claims The amount in controversy, for purposes of jurisdiction, is the total “amount at 12 stake in the underlying litigation.” Theis Research, Inc. v. Brown & Bain, 400 F.3d 13 659, 662 (9th Cir. 2005). As stated above, the Court finds that there is at least 14 $102,374.40 in lost past and future wages, $8,380.32 in lost past employment benefits, 15 $1 in emotional distress, and $1 in punitive damages at stake. Accordingly, the Court 16 is persuaded that Defendants have established by a preponderance of the evidence 17 that, when viewed in combination, Plaintiff’s claims exceed $75,000, exclusive of 18 interest and costs. 19 D. The Forum Defendant Rule Does Not Apply 20 Even if diversity jurisdiction is present, 28 U.S.C. § 1441(b) prohibits removal 21 if one or more of the named defendants is a citizen of the forum state, i.e., California, 22 in the instant action. The statute states, in pertinent part, that a case can be removed 23 based on diversity jurisdiction “only if none of the parties in interest properly joined 24 and served as defendants is a citizen of the State in which such action is brought.” 28 25 U.S.C. § 1441(b); see also Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir. 26 2006). This is known as the “forum defendant” or “local defendant” rule. 27 28 Plaintiff contends the forum defendant rule applies here. The Court disagrees because, as explained above, none of the named defendants are citizens of California. 12. 1 V. 2 For the reasons set forth above, the Court DENIES Plaintiff’s Motion to 3 CONCLUSION Remand. 4 5 IT IS SO ORDERED. 6 7 8 9 Dated: December 03, 2018 _______________________________________ HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13.
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