Tereza Chalikyan v. Progressive Choice Insurance Company et al

Filing 27

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND by Judge Dean D. Pregerson: Defendant has failed to meet its burden to show by a preponderance of the evidence that the amount in controversy exceeds $75,000. Accordingly, Plaintiff's Motion to Remand is GRANTED, and the case is REMANDED to Los Angeles County Superior Court. MD JS-6. Case Terminated. (Attachments: # 1 remand letter) (bp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TEREZA CHALIKYAN, an
individual,

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Plaintiff,
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v.
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PROGRESSIVE CHOICE INSURANCE
COMPANY,

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Defendant.
___________________________

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Case No. CV 10-10009 DDP (SSx)
ORDER GRANTING PLAINTIFF’S MOTION
TO REMAND
[Motion filed on 1/26/11]

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Presently before the court is Plaintiff’s Motion to Remand.

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Having considered the submissions of the parties, the court GRANTS

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the motion and adopts the following order.

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I.

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Background
In 2006, Plaintiff purchased car insurance from Defendant.

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(Complaint ¶ 10).

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it caught fire on the freeway.

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immediately filed a claim with Defendant.

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several months of investigation and communication with Plaintiff,

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who has limited English skills, Defendant denied Plaintiff’s claim

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due to “lack of cooperation.”

In June 2009, Plaintiff’s car was damaged after
(Complaint ¶ 12).

Plaintiff

(Complaint ¶ 13).

(Complaint ¶¶ 29, 34-35).

After

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On November 15, 2010, Plaintiff filed suit against Defendant

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in Los Angeles County Superior Court, alleging causes of action for

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breach of contract and breach of the duty of good faith and fair

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dealing.

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as well as unspecified damages for emotional distress, punitive

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damages, and attorney’s fees and costs.

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Defendants removed to this court on December 29, 2010.

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now seeks to remand the case to state court.

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II.

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Plaintiff’s complaint seeks $25,000 in contract damages,

(Complaint at 12).
Plaintiff

Discussion
Federal subject matter based on diversity jurisdiction exists

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only where “the matter in controversy exceeds the sum or value of

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$75,000 exclusive of interest and costs.” 28 U.S.C. § 1332(a).

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“[I]n cases where a plaintiff’s state court complaint does not

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specify a particular amount of damages, the removing defendant

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bears the burden of establishing by a preponderance of the

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evidence, that the amount in controversy exceeds” the

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jurisdictional amount.

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F.3d 398, 404 (9th Cir. 1996)

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against removal jurisdiction, which “must be rejected if there is

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any doubt as to the right of removal in the first instance.”

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Geographic Expeditions, Inc. v. Estate of Lhotka ex. rel Lhotka,

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599 F.3d 1102, 1107 (9th Cir. 2010) (citing Gauss v. Miles, Inc.,

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980 F.2d 564, 567 (9th Cir. 1992).

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allegations in the complaint in the light most favorable to the

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non-movant and must accept all material allegations — as well as

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any reasonable inferences to be drawn from them — as true.

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Star Int’l v. Arizona Corp. Comm'n , 720 F.2d 578, 581 (9th Cir.

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1983).

Sanchez v. Monumental Life Ins. Co., 102
There is a strong presumption

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The court must view all

North

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Here, Defendant has not met its burden to demonstrate that the

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amount in controversy more likely than not exceeds $75,000.

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Defendant acknowledges that Plaintiff seeks only $25,000 in

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contract damages.

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assert that it is “legally certain” that the punitive damages and

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attorney’s fees sought will, in conjunction with contract damages,

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exceed the jurisdictional amount.

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Defendant is correct that punitive damages may be considered in

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determining the amount in controversy, Gibson v. Chrysler Corp.,

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261 F.3d 927. 946 (9th Cir. 2001), Defendant provides no evidence

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to support its claims.

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(Notice of Removal ¶ 7).

Defendant goes on to

(Notice of Removal ¶ 7).

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Removing parties must identify underlying facts to support

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assertions that the jurisdictional amount is met.

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at 567.

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that the amount in controversy is less than $75,000 as proof that

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the amount in controversy in facts exceeds the jurisdictional

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minimum.

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stipulate, however, does not constitute an underlying fact of

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Plainitiff’s complaint sufficient to satisfy Defendant’s burden.

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See Higuera v. Target Corp., 2009 WL 435176 at *1 (S.D. Cal. 2009).

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Gaus, 980 F2d.

Here, Defendant points to Plaintiff’s refusal to stipulate

(Notice of Removal ¶ 7).

Plaintiff’s refusal to so

Defendant’s only other evidence, submitted in support of the

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opposition to the instant motion, consists of Defendant’s counsel’s

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declaration that, based on his litigation experience, Plaintiff’s

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counsel’s “attorney’s fees on an hourly basis will exceed

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$100,000.”

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Opposition to Motion to Remand ¶ 7).

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sufficient to establish that the amount in controversy is met,

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particularly considering the fact that Plaintiff retained her

(Declaration of Michael J. O’Neill in Support of

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Counsel’s declaration is not

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counsel on a contingency basis.

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Shernoff in Support of Reply ¶ 3).

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III.

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(Declaration of William M.

Conclusion
Defendant has failed to meet its burden to show by a

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preponderance of the evidence that the amount in controversy

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exceeds $75,000.

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GRANTED, and the case is REMANDED to Los Angeles County Superior

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Court.

Accordingly, Plaintiff’s Motion to Remand is

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IT IS SO ORDERED.

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Dated: August 25, 2011
DEAN D. PREGERSON
United States District Judge

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