Jaffe v. Gurstel Chargo PA et al

Filing 24

ORDER granting Plaintiff's 7 Motion to Remand and remanding this action to Maricopa County Superior Court; all remaining motions are denied as moot. Signed by Judge Frederick J Martone on 3/22/12.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sol Jaffe,
Plaintiff,

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vs.

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Gurstel Chargo, PA, et al.,
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Defendants.
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No. CV-12-0188-PHX-FJM
ORDER

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The court has before it plaintiff’s motion for remand (doc. 7), defendant HSBC North
America Holding, Inc.’s response (doc, 12), and plaintiff’s reply (doc. 19).

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Plaintiff filed a 4-count complaint in state court, asserting claims against HSBC,

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Capital One Financial Corporation, and Gurstel Chargo, P.A., a law firm, for intentional

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infliction of physical and emotional distress, gross negligence, malicious prosecution, and

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harassment. This is one of multiple actions filed by plaintiff against a variety of defendants,

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arising from what he believes were malicious lawsuits filed against him related to his credit

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card debt.

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Defendants removed this action on the basis of both federal question and diversity

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jurisdiction. Plaintiff moves to remand, arguing that this is a state tort action, raising no

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federal issues, and the amount in controversy is less than the $75,000 statutory minimum.

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See 28 U.S.C. § 1332(a).

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In the complaint’s prolix, rambling statement of facts, plaintiff makes multiple

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references to constitutional violations by various named defendants, as well as state courts

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and state court judges, who are not defendants in this action. In the separate paragraphs

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describing his causes of action, however, plaintiff clearly sets forth only state law claims.

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Plaintiff contends that his complaint does not assert federal constitutional violations, but only

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state law claims. He offers to amend his complaint in order to delete any references to

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constitutional violations.

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In parsing through plaintiff’s complaint, we conclude that while the narrative of facts

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contains stray references to constitutional violations, plaintiff’s stated causes of action assert

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only state law tort claims. No federal question is presented by this complaint.

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Plaintiff also opposes HSBC’s effort to remove this action on the basis of diversity

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jurisdiction. He argues that the amount in controversy does not exceed the $75,000 statutory

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minimum. When a complaint does not demand a specific dollar amount, the party seeking

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removal must prove by a preponderance of the evidence that the amount in controversy

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exceeds $75,000. Lewis v. Verizon Communications, Inc., 627 F.2d 395, 397 (9th Cir.

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2010). Under this burden, the defendant must provide evidence establishing that “it is more

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likely than not” that the amount in controversy exceeds the jurisdictional minimum.

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Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir, 2007); see also Gaus v.

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Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992) (holding that defendant “bears the burden of

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actually proving facts to support jurisdiction”).

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HSBC argues that plaintiff has pled a litany of serious damages that will more likely

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than not exceed the statutory minimum. Plaintiff alleges “extreme emotional and physical

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duress that [he] will probably not recover from,” increased car insurance premiums, serious

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medical conditions that required him to “go and/or call his doctor for increased pain, sleep

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and anxiety medications.” Complaint ¶ 16. Plaintiff alleges that defendants’ actions

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“increased his hypertension, caused anxiety and sleepless nights.” Id. Plaintiff also seeks

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punitive damages. In his motion for remand, plaintiff offers to settle all claims for $6,900.

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(Doc. 7 at 4). He alleged in his certificate of compulsory arbitration that his damages exceed
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$50,000. (Doc. 1, ex. F at 84).

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We conclude that HSBC’s reference to vague allegations in the complaint fails to

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provide sufficient evidence to establish that it is more likely than not that plaintiff’s claims

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exceed the jurisdictional amount in order to overcome “the strong presumption against

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removal jurisdiction.” See Gaus, 980 F.2d at 566. Because significant doubt exists regarding

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the right to removal, this case must be remanded to state court. See Matheson v. Progressive

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Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (holding that “[w]here doubt

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regarding the right to removal exists, the case should be remanded to state court”).

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Therefore, IT IS ORDERED GRANTING plaintiff’s motion to remand (doc. 7), and

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REMANDING this action to the Superior Court of Arizona in Maricopa County. All

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remaining motions are denied as moot.

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DATED this 22nd day of March, 2012.

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