Diaz v. Allstate Northbrook Indemnity Company, No. 3:2022cv00705 - Document 9 (S.D. Cal. 2022)
Court Description: ORDER Denying 5 Plaintiff's Motion to Remand to State Court. Signed by Judge Michael M. Anello on 9/2/2022. (tcf)
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Diaz v. Allstate Northbrook Indemnity Company Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESAI DIAZ, Plaintiff, 12 13 v. 14 ALLSTATE NORTHBROOK INDEMNITY COMPANY, 15 Case No.: 22-cv-705-MMA (WVG) ORDER DENYING PLAINTIFF’S MOTION TO REMAND TO STATE COURT [Doc. No. 5] Defendant. 16 17 18 On November 17, 2021, Plaintiff Esai Diaz (“Plaintiff”) initiated a breach of 19 implied covenant and breach of contract action against Defendant Allstate Northbrook 20 Indemnity Company (“Defendant”) in the Superior Court of California, County of San 21 Diego. Doc. No. 1-2 (“State Ct. Compl.”). On May 17, 2022, Defendant filed a notice of 22 removal to this Court. Doc. No. 1 (“Notice of Removal”). Plaintiff now moves to 23 remand the action back to state court. Doc. No. 5. Defendant filed an opposition. See 24 Doc. No. 7. The Court found the matter suitable for determination on the papers and 25 without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local 26 Rule 7.1.d.1. See Doc. No. 8. For the reasons set forth below, the Court DENIES 27 Plaintiff’s motion to remand. 28 -1- 22-cv-705-MMA (WVG) Dockets.Justia.com 1 2 I. BACKGROUND This action arises from a written automobile insurance policy Defendant issued to 3 Plaintiff. State Ct. Compl. ¶ 8. The policy included $1,000,000.00 in underinsured 4 motorist coverage. Id. ¶ 9. 5 In January 2016, Plaintiff was involved in an automobile accident, and Gabriel 6 Flores was the other driver involved in the accident. Id. ¶ 11. Mr. Flores maintained 7 automobile liability insurance coverage of $15,000.00 per person and $30,000.00 per 8 occurrence. Id. In January 2018, “Plaintiff settled his claim with Mr. Flores for payment 9 of his policy limits.” Id. Then, Plaintiff “pursued his claim for underinsured motor 10 benefits under [his policy] with [his] automobile insurance carrier, ALLSTATE.” Id. 11 Plaintiff sent a few arbitration demands to Defendant, and he subsequently contacted 12 Defendant multiple times before the claim was transferred to Defendant’s arbitration 13 department. Id. ¶ 15. Then, Plaintiff and Defendant corresponded and met multiple 14 times concerning the claim and discovery. Id. Plaintiff alleges Defendant “unreasonably 15 and wrongfully refused to pay Plaintiff’s request for the underinsured motorist benefits 16 that he was entitled to receive.” Id. ¶ 12. Further, Plaintiff alleges his policy with 17 Defendant contained an implied covenant of good faith and fair dealing. Id. ¶ 13. 18 On November 17, 2021, Plaintiff filed his Complaint in the Superior Court of 19 California, County of San Diego. See generally id. Plaintiff brings two causes of action 20 against Defendant: (1) breach of implied covenant of good faith and fair dealing; and 21 (2) breach of contract. See generally id. On December 21, 2021, Defendant served on 22 Plaintiff a request for Statement of Damages. Doc. No. 1-5 at 2–3. On April 19, 2022, 23 Plaintiff served on Defendant a Statement of Damages where he sought general damages 24 of pain, suffering, inconvenience, and emotional distress to be later determined; punitive 25 damages to be later determined; and at least $46,695.00 in attorney’s fees and costs and 26 at least $5,794.52 in prejudgment interest. Doc. No. 1-6 (“Statement of Damages”) at 2. 27 On May 17, 2022, Defendant removed the action to this Court. See generally Notice of 28 Removal. Now, Plaintiff moves to remand the action to state court. See Doc. No. 5. -2- 22-cv-705-MMA (WVG) 1 II. LEGAL STANDARD 2 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 3 Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by 4 Constitution and statute.” Id. “A federal court is presumed to lack jurisdiction in a 5 particular case unless the contrary affirmatively appears.” Stock W., Inc. v. Confederated 6 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citing California ex rel. Younger v. Andrus, 7 608 F.2d 1247, 1249 (9th Cir. 1979)). The party seeking federal jurisdiction bears the 8 burden to establish jurisdiction. Kokkonen, 511 U.S. at 377 (citing McNutt v. Gen. 9 Motors Acceptance Corp., 298 U.S 178, 182–83 (1936)). Generally, subject matter 10 jurisdiction is based on the presence of a federal question, see 28 U.S.C. § 1331, or on 11 complete diversity between the parties, see 28 U.S.C. § 1332. 12 28 U.S.C. § 1441(a) provides for removal of a civil action from state to federal 13 court if the case could have originated in federal court. The removal statute is construed 14 strictly against removal, and “[f]ederal jurisdiction must be rejected if there is any doubt 15 as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 16 (9th Cir. 1992) (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 17 1979)). 18 III. DISCUSSION 19 Defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1332, 1441, 20 and 1446, alleging diversity jurisdiction. Notice of Removal at 3. Plaintiff alleges that 21 Defendant’s removal was improper because the Court lacks diversity jurisdiction and 22 removal was untimely. Doc. No. 5 at 3.1 The Court addresses each issue in turn. 23 A. 24 25 Diversity Jurisdiction Plaintiff contends in his motion that the case must be remanded because the Court lacks subject matter jurisdiction. Id. at 7. Plaintiff asserts that he is a citizen of 26 27 28 1 All citations to electronically filed documents refer to the pagination assigned by the CM/ECF system. -3- 22-cv-705-MMA (WVG) 1 California, and Defendant is also considered a citizen of California for diversity purposes 2 because “the insured is a California citizen” and the matter concerns a dispute under an 3 insurance policy the insured has with Defendant. Id. Plaintiff’s argument relies heavily 4 on 28 U.S.C. § 1332(c)(1)’s plain language. Id. at 8–9. It is based on his analysis of the 5 statute’s plain language that Plaintiff argues in conclusion “the main cause of action in 6 the subject case is a ‘direct action.’” Id. at 7. Thus, Plaintiff asserts that “the Court 7 should apply the statute’s plain language and remand the case.” Id. at 9. 8 9 Defendant contends in opposition that the Section 1332(c)(1) exception does not apply here and complete diversity exists between the parties. Doc. No. 7 at 14. 10 Defendant relies on the Ninth Circuit’s interpretation of Section 1332(c)(1) direct action 11 claims, where the court narrowed the application of Section 1332(c)(1) to direct actions. 12 Id. Defendant contends that “[b]ecause plaintiff is ‘seeking to impose liability against 13 Allstate for its own tortious conduct’ (i.e., mishandling his [underinsured motorist claim], 14 not against the other driver, it is not a ‘direct action’ within the meaning of section 15 1332(c).” Id. at 15. Importantly, Defendant points to a Southern District of California 16 case that addressed the same issue presented in this case, under identical facts, where the 17 court found that the plaintiff’s bad faith claim against their insurer was not a direct action. 18 Id. (quoting Heredia v. Allstate Indem. Co., No. 15cv1642 WQH (RBB), 2015 WL 19 6828682, at *3 (S.D. Cal. Nov. 6, 2015)). Thus, Defendant argues that the direct action 20 exception does not apply, and it is a citizen of Illinois so complete diversity exists. Id. at 21 16. 22 Pursuant to 28 U.S.C. § 1332, a federal district court has jurisdiction over “all civil 23 actions where the matter in controversy exceeds the sum or value of $75,000, exclusive 24 of interest and costs,” and the dispute is between citizens of different states. 28 U.S.C. 25 § 1332(a)(1). The Supreme Court has interpreted Section 1332 to require “complete 26 diversity of citizenship,” meaning each plaintiff must be diverse from each defendant. 27 Caterpillar Inc. v. Lewis, 519 U.S. 61, 67–68 (1996). 28 -4- 22-cv-705-MMA (WVG) 1 2 3 4 5 6 7 Section 1332(c)(1), which governs corporation’s citizenship for diversity purposes, provides: A corporation shall be deemed a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of . . . every State and foreign state of which the insured is a citizen. 8 28 U.S.C. § 1332(c)(1). The Ninth Circuit elaborated that “[t]his portion of § 1332(c) 9 was enacted . . . specifically to eliminate from diversity jurisdiction tort claims in which 10 both the injured party and the tortfeasor are local residents, but which, under state ‘direct 11 action’ statutes, are brought against the tortfeasor’s foreign insurance carrier without 12 joining the tortfeasor as a defendant.” Beckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 13 901 (9th Cir. 1982). As used in the amendment, “direct action” has been uniformly 14 defined as “those cases in which a party suffering injuries or damage for which another is 15 legally responsible is entitled to bring suit against the other’s liability insurer without 16 joining the insured or first obtaining a judgment against him.” Id. at 902–03. Essentially, 17 the court acknowledged, that “unless the cause of action urged against the insurance 18 company is of such a nature that the liability sought to be imposed could be imposed 19 against the insured, the action is not a direct action.” Id. at 902 (quoting Walker v. 20 Firemans Fund Ins. Co., 260 F. Supp. 95, 96 (D. Mont. 1996)). In Beckham, the Ninth 21 Circuit found that the action did not involve a “direct action” subject to the Section 22 1332(c) exception because the plaintiff did not “seek[] to impose liability on Safeco for 23 the negligence of Safeco’s insured, Mankin. Rather, she is seeking to impose liability on 24 Safeco for its own tortious conduct, i.e., Safeco’s bad faith refusal to settle her claim 25 against Mankin.” Id. The Ninth Circuit’s interpretation of Section 1332(c)(1) “makes 26 clear that in a suit brought by an injured or damaged party, unless the action brought 27 against the insurer could have been brought against the person who is legally responsible 28 -5- 22-cv-705-MMA (WVG) 1 for the injury or damage, the action is not a ‘direct action’ under 28 U.S.C. § 1332(c)(1).” 2 Heredia, 2015 WL 6828682, at *3. 3 In the present action, Plaintiff brings a bad faith action against Defendant, 4 specifically alleging claims for breach of the covenant of bad faith and fair dealing and 5 breach of contract—which existed between the parties pursuant to Plaintiff’s 6 underinsured motorist policy with Defendant. State Ct. Compl. ¶¶ 8, 9, 11–13. Such bad 7 faith claims “could not be brought against the party responsible for the car accident from 8 which Plaintiff[’s] injuries arose,” so the present action is not a “direct action.” Heredia, 9 2015 WL 6828682, at *3. Accordingly, the Section 1332(c)(1) rule for determining 10 insurance company citizenship in a direct action case does not apply to this case. Thus, 11 Defendant’s citizenship for diversity purposes must be determined by its place of 12 incorporation and principal place of business. 28 U.S.C. § 1332(c)(1). Defendant is 13 incorporated in and has its principal place of business in Illinois. Notice of Removal at 3; 14 see also Doc. No. 7 at 13 (citing Gordon Decl. ¶ 3).2 Thus, Defendant is deemed an 15 Illinois citizen for diversity purposes. Plaintiff is a citizen of California. State Ct. 16 Compl. ¶ 1. Accordingly, there is complete diversity between the parties, and diversity 17 jurisdiction exists in the present case. 18 B. 19 Timeliness of Removal Plaintiff asserts in his motion that removal of the case was untimely because 20 Defendant was served the initial complaint in the case on November 17, 2021 and the 21 Notice of Removal was filed on May 17, 2022. Doc. No. 5 at 4. Plaintiff specifically 22 23 24 25 26 27 28 2 Defendant in opposition asserts that one of Plaintiff’s bases for remand is that he purchased the policy in California and dealt only with California offices and staff. Doc. No. 7 (citing Doc. No. 5 at 4). It appears, however, that Plaintiff only makes this assertion in the “background” section of the motion, and does not elaborate on the issue throughout the motion’s remainder. See Doc. No. 5 at 7–11. The Court does not dive into the merits of either party’s argument on this issue because his “direct action” argument seems to truly be the basis for his diversity argument. And in any event, the Court need not dive into any such argument by Plaintiff because, as Defendant points out through declarations and case law, Defendant is incorporated and has its principal place of business in Illinois. Doc. No. 7 at 13 (citing Gordon Decl. ¶ 3). -6- 22-cv-705-MMA (WVG) 1 argues that (1) his “Complaint made allegations that support claims for a litany of 2 damages including attorney’s fees and costs, pain and suffering, emotional distress, and 3 punitive damages[;]” and (2) Defendant “was previously well aware of Plaintiff’s claim 4 for damages in the underlying underinsured motorist case which amounted to over 5 $150,000.00.” Id. at 6. 6 Defendant contends, in response to Plaintiff’s sufficiency of allegations argument, 7 the Complaint did not establish an amount in controversy, namely because the face of the 8 Complaint only contains vague factual allegations to support Plaintiff’s damages claim. 9 Doc. No. 7 at 9. Defendant points to numerous courts within the Ninth Circuit that have 10 “held damages claims must be specific to establish an amount in controversy.” Id. In 11 response to Plaintiff’s knowledge argument, Defendant argues that its “subjective 12 knowledge is irrelevant for purposes of triggering removal and establishing amount in 13 controversy.” Id. at 10. Additionally, Defendant asserts that “the damages recoverable in 14 a[n underinsured motorist] claim are entirely different from those recoverable in a bad 15 faith case.” Id. Further, Defendant elaborates that its May 17, 2022 removal was timely 16 based upon Plaintiff’s April 19, 2022 filing of his Statement of Damages, which 17 conforms with the “other papers” of Section 1446(b)(3) requiring removal within thirty 18 days after the “other paper” that makes the case removal is filed. Id. at 11–12. 19 Defendant points to many other cases, most of which are within this Circuit, that held a 20 Statement of Damages constitutes an “other paper” to start the thirty-day removal. Id. 21 Thus, Defendant asserts removal was timely. Id. 22 In order to remove a case from state to federal court, the defendant must file “a 23 notice of removal . . . containing a short and plain statement of the grounds for removal, 24 together with a copy of all process, pleadings, and orders serviced upon such defendant or 25 defendants in such action.” 28 U.S.C. § 1446(a). Section 1446(b) governs timeliness of 26 removal: 27 28 (1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a -7- 22-cv-705-MMA (WVG) 1 2 3 4 5 6 7 copy of the initial pleading . . . , or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. ... (3) . . . [I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 8 Id. § 1446(b)(1) & (3). To summarize, section 1446(b) provides two thirty-day time 9 periods for removal. The first thirty-day period is only triggered “if the case stated by the 10 initial pleading is removable on its face.” Harris v. Bankers Life & Cas. Co., 425 F.3d 11 689, 694 (9th Cir. 2005). The second thirty-day period is only “triggered if the initial 12 pleading does not indicate that the case is removable, and the defendant receives ‘a copy 13 of an amended pleading, motion, or other paper’ from which removability may first be 14 ascertained.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010). 15 “Section 1446(b)’s time limits are mandatory, and a timely objection to a late petition 16 will defeat removal.” Chavarria v. Mgmt & Training Corp., No. 16-cv-617-H (RBB), 17 2016 WL 11621563, at *2 (S.D. Cal. May 13, 2016) (first citing Smith v. Mylan Inc., 761 18 F.3d 1042, 1045 (9th Cir. 2014); and then citing Carvalho, 629 F.3d at 885); Carvalho, 19 629 F.3d at 885 (“If the notice of removal was untimely, a plaintiff may move to remand 20 the case back to state court.”). Moreover, Section 1446(b)’s time limits “should be 21 construed narrowly in favor of remand to protect the jurisdiction of state courts.” Harris, 22 425 F.3d at 698. 23 Here, Defendant was served with Plaintiff’s Complaint and Summons on 24 November 17, 2021. State Ct. Compl. at 9. However, Defendant did not file its removal 25 notice until May 17, 2022, six months later. Notice of Removal at 11. Thus, if Section 26 1446(b)’s first thirty-day window applies to the present action, then Defendant’s removal 27 was untimely. See 28 U.S.C. § 1446(b)(1). 28 -8- 22-cv-705-MMA (WVG) 1 1. 2 Section 1446(b)’s first thirty-day period only applies if the initial pleading “is Removal Within Thirty Days of Initial Pleading 3 removable on its face.” Carvalho, 629 F.3d at 885. Accordingly, “the first thirty-day 4 requirement is triggered by defendant’s receipt of an ‘initial pleading’ that reveals a basis 5 for removal. If no ground for removal is evident in that pleading, the case is ‘not 6 removable’ at that stage.” Harris, 425 F.3d at 694; see Rodriguez v. Boeing Co., No. CV 7 14-04265-RSWL (AGRx), 2014 WL 3818108, at *4 (C.D. Cal. Aug. 1, 2014) (providing 8 that when considering amount in controversy, “[a] pleading need not identify a specific 9 amount in controversy in order to trigger the thirty-day removal period under 28 U.S.C. 10 § 1446(b)(1)” (citing Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005))). 11 The Ninth Circuit has adopted the same approach as other circuits concerning 12 indeterminate pleadings: “[T]he ground for removal must be revealed affirmatively in the 13 initial pleading in order for the first thirty-day clock under § 1446(b) to begin.” Harris, 14 425 F.3d at 695. In determining whether an initial pleading is removable, the court must 15 examine “the four corners of the applicable pleadings, not through subjective knowledge 16 or a duty to make further inquiry.” Id. at 694. “[D]efendants need not make 17 extrapolations or engage in guess work; yet the statute ‘requires a defendant to apply a 18 reasonable amount of intelligence in ascertaining removability.’” Kuxhausen v. BMW 19 Fin. Servs. NA LLC, 707 F.3d 1136, 1140 (Feb. 25, 2013) (quoting Whitaker v. Am. 20 Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001)). Indeed, the Ninth Circuit has also 21 22 23 24 25 emphasized that “a defendant does not have a duty of inquiry if the initial pleading or other document is ‘indeterminate’ with respect to removability.” . . . Accordingly, “even if a defendant could have discovered grounds for removability through investigation, it does not lose the right to remove because it did not conduct such an investigation and then file a notice of removal within thirty days of receiving the indeterminate document.” 26 27 Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 791 (9th Cir. 2018) (quoting Roth v. CHA 28 Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013)). “Even the simplest of -9- 22-cv-705-MMA (WVG) 1 inquiries is not required.” Stiren v. Lowes Home Ctrs., LLC, No. 8:19-cv-00157-JLS 2 (KES), 2019 WL 1958511, at *3 (C.D. Cal. May 2, 2019). Instead, the thirty-day period 3 is only triggered “when the jurisdictional minimum is apparent from the face of the 4 document.” Id.; see also Sweet v. United Parcel Serv., Inc., No. CV 09-02653 DDP 5 (RZx), 2009 WL 1664644, at *3 (C.D. Cal. June 15, 2009) (“[Harris] rejected the 6 proposition that a defendant has a duty to investigate—in its own record or otherwise—a 7 basis for removal when the pleading does not disclose one on its face.”). Further, the 8 Ninth Circuit has provided that “[p]referring a clear rule, and unwilling to embroil the 9 courts in inquiries ‘into the subjective knowledge of [a] defendant,’ we declined to hold 10 that materials outside the complaint start the thirty-day clock.” Kuxhausen, 707 F.3d at 11 1140. 12 Here, the Court finds the amount in controversy was unascertainable based on 13 Plaintiff’s initial pleading. 3 The general damages allegations are not sufficient to trigger 14 the first thirty-day period pursuant to section 1446(b)(1). See State Ct. Compl. ¶¶ 14–17, 15 Prayer for Relief. Specifically, Plaintiff seeks general non-economic and compensatory 16 damages, including those for pain, suffering, and emotional distress; economic damages, 17 including attorney’s fees, costs, expenses tied to the arbitration for the underlying policy; 18 general attorney’s fees and costs; and punitive damages.4 See Prayer for Relief. Thus, 19 the Complaint does not allege damages from which Defendant could have reasonably 20 21 22 23 24 25 26 27 28 3 Additionally, Plaintiff’s motion appears to be devoid of any argument as to how the allegations in his Complaint are sufficient to indicate the amount in controversy exceeded $75,000. And Defendant put forth information in its Notice of Removal and opposition pertaining to information later discovered that indicated to it that the case had become removable—to which Plaintiff did not rebut the fact that the amount in controversy does not exceed $75,000 nor why his Complaint was removable on its face. 4 At most, Plaintiff states in his Complaint that “his case was obviously and clearly worth more than the underlying $15,000.” State Ct. Compl. ¶ 14. Still, this statement is insufficient to provide Defendant with the ability to reasonably calculate whether the amount in controversy exceeded $75,000, notably because Defendant would have had to engage in a good amount of “guess work” in order to fill in the gap between $15,000 and $75,000. -10- 22-cv-705-MMA (WVG) 1 calculated whether the amount in controversy exceeded $75,000. 5 See Freed v. Home 2 Depot U.S.A., Inc., No. 18-cv-00359, 2018 WL 6588526, at *2 (S.D. Cal. May 25, 2018) 3 (“Plaintiff's general allegations relating to damages in her complaint are insufficient to 4 trigger the first thirty-day period under section 1446(b)(1). She omitted specific 5 allegations such as the types of injuries she suffered from, what medical procedures she 6 received, and any details about her job, nor did her complaint include a request [for] 7 punitive damages.”); Gonzalez v. Costco Wholesale Corp., No. EDCV 21-1140 JBG 8 (KK), 2021 WL 4916608, at *3 (C.D. Cal. Oct. 21, 2021) (“For injuries, pain-and- 9 suffering, and loss of employment suffered due to a slip-and-fall, Plaintiff seeks recovery 10 for general damages, medical and incidental expenses, loss of earnings and earning 11 capacity, pre-judgment interest, and costs of the suit. . . . The Court cannot discern from 12 these allegations alone whether the amount in controversy exceeds $75,000.”); Owens v. 13 Westwood Coll. Inc., No. CV 13-4334-CAS-(FFMx), 2013 WL 4083624, at *2 (C.D. Cal. 14 Aug. 12, 2013) (“[T]he complaint is silent on amount of damages. Nor does it include 15 information—such as the amount of the loan at issue—from which defendants could 16 reasonably calculate that the amount in controversy exceeded $75,000.”). And Defendant 17 was under no obligation to supply information that Plaintiff had omitted from his initial 18 pleading. See Harris, 425 F.3d at 694; Durham v. Lockheed Martin Corp., 445 F.3d 19 1247, 1251 (9th Cir. 2006). Further, to the extent Plaintiff asserts Defendant was aware 20 of his damages claim on the underlying underinsured motorist case and the claim’s value, 21 his argument lacks merit. Whether the case is removable on the complaint’s face does 22 not implicate the defendant’s subjective knowledge. See Kuxhausen, 707 F.3d at 1140; 23 Harris, 425 F.3d at 694; see also Avans v. Foster Wheeler Constr. Co., No. 1:10-cv-0922 24 LJO JLT, 2010 WL 3153972, at *4 (E.D. Cal. Aug. 6, 2012) (“[A] defendant’s own 25 records cannot logically constitute ‘other paper’ under § 1446(b). . . . Thus, the court 26 27 28 5 The Court notes that the Complaint is even silent as to, for example, the fees, costs, and expenses connected to the arbitration—damages Plaintiff specifically seeks to recover. See Prayer for Relief. -11- 22-cv-705-MMA (WVG) 1 held that even if the defendant ‘could have ascertained that the amount in controversy . . . 2 by reviewing its own records . . . this would not have triggered the thirty day period for 3 removal under § 1446(b).” (quoting Molina v. Lexmark Int’l, Inc., No. CV 08-04796 4 MMM (FMx), 2008 WL 4447678, at *18 (C.D. Cal. Sept. 30, 2008))). Accordingly, 5 without allegations or information sufficient for Defendant to calculate whether the 6 amount in controversy exceeded $75,000, this case is not one where it was removable on 7 the face of the Complaint. 8 2. 9 As to the second thirty-day requirement, “even if a case were not removable at the Removal Within Thirty Days of an “Other Paper” 10 outset, if it is rendered removable by virtue of a change in the parties or other 11 circumstance revealed in a newly-filed ‘paper,’ then the second thirty-day window is in 12 play.” Harris, 425 F.3d at 694. Defendants are not charged “with notice of removability 13 until they’ve received a paper that gives them enough information to remove.” Durham, 14 445 F.3d at 1251. The term “other paper” is not defined in the statute, but “courts within 15 the Ninth Circuit have interpreted this term broadly.” Ali v. Setton Pistachio of Terra 16 Bella, Inc., No. 1:19-cv-00959-LJO-BAM, 2019 WL 6112772, at *2 (E.D. Cal. Nov. 18, 17 2019); Roth, 720 F.3d at 1126 (providing that plaintiffs “need only provide to the 18 defendant a document from which removability may be ascertained [to] trigger the thirty- 19 day removal period”); see also, e.g., Rynearson v. Motricity, Inc., 626 F. Supp. 2d 1093, 20 1097 (W.D. Wash. 2009). A Statement of Damages is generally considered an “other 21 paper” that could trigger the thirty-day period if it “is sufficient to put a defendant on 22 notice regarding the amount in controversy as long as the estimate is ‘sufficiently 23 supported by details of the injuries claimed and clearly indicate[s] that the amount in 24 controversy exceed[s] the jurisdictional amount.’” De Paredes v. Walmart Inc., No. 25 2:20-cv-08297-RGK-AFM, 2020 WL 6799074, at *2 (C.D. Cal. Nov. 17, 2020) (quoting 26 Babasa v. LensCrafters, Inc., 498 F.3d 972, 975 (9th Cir. 2007)); see Stiren, 2019 WL 27 1958511, at *3; Paine v. Sunflower Farmers Markets, LLC, No. 2:19-cv-00771-JAM-DB, 28 2019 WL 4187734, at *3 (E.D. Cal. Sept. 4, 2019); Brown v. Target Corp., No. CV 16-12- 22-cv-705-MMA (WVG) 1 7384-JFW (ASx), 2016 WL 6781100, at *2 (C.D. Cal. Nov. 16, 2016) (collecting cases); 2 Cleveland v. West Ridge Acad., No. 1:14-cv-01825-SKO, 2015 164592, at *5 (E.D. Cal. 3 Jan. 13, 2015) (collecting cases). 4 Here, Plaintiff served on Defendant a Statement of Damages, providing 5 information on damages he seeks, which specifically list a minimum amount of recovery 6 sought for attorney’s fees and prejudgment interest. See Statement of Damages. Thus, 7 the Court finds Plaintiff’s Statement of Damages 6 qualifies as an “other paper” within the 8 meaning of the statute that triggers the thirty-day removal clock. Therefore, Defendant 9 had thirty days from April 19, 2022—the date Defendant was served with Plaintiff’s 10 Statement of Damages—to remove this case. Defendant removed the case on May 17, 11 2022. Thus, removal was timely. 12 13 Accordingly, because there is complete diversity and removal was timely, the Court has subject matter jurisdiction and remand is improper.7 14 15 16 *** 17 18 19 20 21 6 The Court may consider “summary-judgment-type evidence relevant to the amount in controversy at the time of removal” when ruling on a motion to remand. Kroske, 432 F.3d at 980 (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997)). 22 7 23 24 25 26 27 28 “Where the complaint does not specify amount of damages sought, the removing defendant must prove by a preponderance of the evidence that the amount in controversy requirement has been met.” Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 683 (9th Cir. 2006) (citing Gaus, 980 F.2d at 566). The parties do not dispute whether the amount in controversy exceeds $75,000, as is required for this Court to maintain subject matter jurisdiction. See generally Doc. Nos. 5, 7. In any event, Defendant provided in its Notice of Removal a copy of Plaintiff’s Statement of Damages, in addition to introduction of jury verdicts in other cases as evidence to show the amount in controversy exceeds the jurisdictional minimum. Notice of Removal at 7–11. And Plaintiff did not dispute or rebut Defendant’s assertion concerning the amount in controversy—and he appears to agree the amount in controversy well exceeds $75,000. See Doc. No. 5 at 6. The amount in controversy has thus been satisfied. Accordingly, the Court has subject matter jurisdiction. -13- 22-cv-705-MMA (WVG) 1 IV. CONCLUSION 2 For the foregoing reasons, the Court DENIES Plaintiff’s motion to remand. 3 IT IS SO ORDERED. 4 Dated: September 2, 2022 5 _____________________________ 6 HON. MICHAEL M. ANELLO United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- 22-cv-705-MMA (WVG)
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