Francisco Hernandez v. Bodycote Thermal Processing Inc et al

Filing 12

MINUTES (In Chambers) ORDER TO SHOW CAUSE by Judge Christina A. Snyder. Defendant is hereby ORDERED to SHOW CAUSE on or before March 29, 2012, why the instant action should not be remanded for lack of subject matter jurisdiction. SEE ORDER. (im)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-1797 CAS (PLAx)

Title

FRANSISCO HERNANDEZ v. BODYCOTE THERMAL
PROCESSING, INC., ET AL.

Present: The Honorable

Date

March 9, 2012

CHRISTINA A. SNYDER

CATHERINE JEANG
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

I.

(In Chambers:) ORDER TO SHOW CAUSE REGARDING
WHY ACTION SHOULD NOT BE REMANDED FOR LACK
OF SUBJECT MATTER JURISDICTION

INTRODUCTION & BACKGROUND

On January 18, 2011, plaintiff Francisco Hernandez filed the instant action in Los
Angeles County Superior Court against Bodycote Thermal Processing, Inc. and Does
1–50, alleging: (1) disability discrimination-wrongful termination, (2) age discriminationwrongful termination, and (3) retaliation in violation of Cal. Gov. Code §§ 12940 et seq.;
(4) wrongful termination in violation of public policy; and (5) intentional infliction of
emotional distress. The gravamen of plaintiff’s complaint is that defendant unlawfully
terminated him on May 17, 2011, after a doctor restricted his work activity due to injury.
See Compl. ¶¶ 1–5. The complaint is silent as to the amount-in-controversy.
Defendant filed a notice of removal on March 2, 2012, on the basis of diversity of
citizenship pursuant to 28 U.S.C. § 1332(a). Defendant asserts that jurisdiction is proper
because complete diversity of citizenship exists and because plaintiff could potentially
recover as much as $167,602.79 based on the types of damages he seeks. Notice of
Removal ¶ 23.
II.

LEGAL STANDARD

Courts in the Ninth Circuit strictly construe the removal statute against removal
jurisdiction. Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). Removal founded on
diversity requires that the parties be in complete diversity and that the amount-inCV-90 (06/04)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-1797 CAS (PLAx)

Date

March 9, 2012

Title

FRANSISCO HERNANDEZ v. BODYCOTE THERMAL
PROCESSING, INC., ET AL.

controversy exceed $75,000. See Matheson v. Progressive Speciality Ins. Co., 319 F.3d
1089, 1090 (9th Cir. 2003); 28 U.S.C. § 1332(a)(1). “Where it is not facially evident
from the complaint that more than $75,000 is in controversy, the removing party must
prove, by a preponderance of the evidence, that the amount in controversy meets the
jurisdictional threshold” required for subject matter jurisdiction.1 Id. Conclusory
allegations are insufficient. Id. at 1091.

1

The 9th Circuit’s requirement—that a removing party prove the amount in
controversy by a preponderance of the evidence when the complaint is silent as to the
amount sought—appears to have been recently reaffirmed by Congress. Revised 28
U.S.C. § 1446(c), which came into effect January 6, 2012, now provides:
(2) If removal of a civil action is sought on the basis of the jurisdiction
conferred by section 1332(a), the sum demanded in good faith in the initial
pleading shall be deemed to be the amount in controversy, except that–
(A) the notice of removal may assert the amount in controversy if the initial
pleading seeks–
(i) nonmonetary relief; or
(ii) a money judgment, but the State practice either does not permit demand
for a specific sum or permits recovery of damages in excess of the amount
demanded; and
(B) removal of the action is proper on the basis of an amount in controversy
asserted under subparagraph (A) if the district court finds, by the
preponderance of the evidence, that the amount in controversy exceeds the
amount specified in section 1332(a).
The revised law thus requires defendants to prove the amount-in-controversy by a
preponderance of the evidence in situations where a plaintiff’s demanded amount is
uncertain and is in accordance with Ninth Circuit law. See Matheson, 319 F.3d at 1090.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-1797 CAS (PLAx)

Title

FRANSISCO HERNANDEZ v. BODYCOTE THERMAL
PROCESSING, INC., ET AL.

III.

Date

March 9, 2012

DISCUSSION

Plaintiff does not specify the amount of damages he seeks to recover; instead, the
complaint requests compensatory damages, including lost earnings and benefits,
emotional distress damages, punitive damages, attorneys fees, and legal costs. Prayer for
Relief ¶¶ 1–5.
Defendant asserts that the amount in controversy is met because plaintiff’s alleged
lost wages and benefits already amount to $47,602.79. Notice of Removal ¶ 23.
Defendant further argues that if plaintiff is awarded all the damages he requests, he will
recover at least $167,602.79. Id.
The Court is unpersuaded that defendant has carried its burden of proving by a
preponderance of the evidence that the amount-in-controversy exceeds $75,000. See
Matheson, 319 F.3d at 1090. Although defendant provides evidence that it is possible
that plaintiff’s claims could exceed $75,000, defendant fails to demonstrate, using nonspeculative evidence, that it is more likely than not that damages will exceed $75,000.
Gaus, 980 F.2d at 567. Accordingly, the Court cannot conclude by a preponderance of
the evidence that the amount-in-controversy exceeds $75,000. See id.; Matheson, 319
F.3d at 1090.
IV.

CONCLUSION

Based on the foregoing, defendant is hereby ORDERED to SHOW CAUSE on or
before March 29, 2012, why the instant action should not be remanded for lack of subject
matter jurisdiction.
IT IS SO ORDERED.
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