Sevag Yaralian v. Home Depot U.S.A., Inc. et al

Filing 22

ORDER DENYING PLAINTIFFS MOTION TO REMAND 15 . Plaintiffs Evidentiary Objection is OVERRULED 19 by Judge Dean D. Pregerson . (lc) Modified on 12/9/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SEVAG YARALIAN,

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Plaintiff,

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v.

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HOME DEPOT U.S.A., INC.,

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Defendants.
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Case No. CV 15-06930 DDP (GJSx)
ORDER DENYING PLAINTIFF’S MOTION
TO REMAND
[Dkt. No. 15]

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Presently before the Court is Plaintiff Sevag Yaralian’s

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Motion to Remand.

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submissions, the Court adopts the following Order.

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I.

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(Dkt. No. 15.)

After reviewing the parties’

BACKGROUND
Plaintiff brings the present action against Defendant Home

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Depot U.S.A., Inc. for damages resulting from an injury Plaintiff

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sustained while shopping at a store owned and operated by

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Defendant.

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Defendant’s negligence, a heavy piece of lumber fell on his

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forehead, causing a serious injury.

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Plaintiff seeks an unspecified amount of damages as a result of his

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injury.

(See Compl. ¶ 11.)

(Id. at 4:19-28.)

Plaintiff contends that due to

(Id.)

In his complaint,

Defendant timely removed the case to

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this Court on the basis of diversity jurisdiction.

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of Removal.)

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the action to state court pursuant to 28 U.S.C. § 1447(c).

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Pl. Mot. Remand.)

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II.

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(See Def. Not.

Plaintiff now moves this Court for an order remanding
(See

LEGAL STANDARD
A defendant may remove a case from state court to federal

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court if the case could have originally been filed in federal

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court.

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against removal and the Defendant has the burden of establishing

28 U.S.C. § 1441(a).

There is a “strong presumption”

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that removal is proper by a preponderance of evidence.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); Morrison v. Zangpo,

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No. C-08-1945 EMC, 2008 WL 2948696, at *1 (N.D. Cal. July 28,

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2008).

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after receiving, “through service or otherwise, . . . a copy of the

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initial pleading setting forth the claim for relief upon which such

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action or proceeding is based.”

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a “motion to remand the case on the basis of any defect other than

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lack of subject matter jurisdiction must be made within 30 days

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after the filing of the notice of removal under section 1446(a).”

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28 U.S.C. § 1447(c).

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III. ANALYSIS

Gaus v.

A defendant has thirty days in which to remove the case

28 U.S.C. § 1446(b)(1).

Likewise,

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Plaintiff argues that his “[m]otion for remand should be

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granted because there is a strong presumption against removal

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jurisdiction, the court must strictly construe the removal statute,

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and Defendant fails to carry its burden of establishing federal

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jurisdiction is proper in this case.”

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Specifically, Plaintiff alleges that “Defendant failed to establish

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(Pl. Mot. Remand at 3:5-8.)

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by a preponderance of the evidence that the amount in controversy

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exceeds the jurisdictional threshold.”

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(Id. at 3:22-24.)

Defendant argues in response “that it has met its burden of

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establishing the amount of controversy in this matter exceeds the

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threshold statutory amount of $75,000.”

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Defendant points to Plaintiff’s pre-litigation settlement demand of

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$196,000 and Plaintiff’s refusal to stipulate that the amount in

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controversy does not exceed $75,000.

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3, 7.)

(Def. Opp’n at 2:8-9.)

(Decl. Caitlin R. Johnson ¶¶

Defendant notes that not only did Plaintiff make a pre-

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litigation settlement demand for $196,000, but also Plaintiff

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refused to reduce the demand after commencing litigation.

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3, 4.)

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action . . . if [Plaintiff] stipulated that the amount in

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controversy does not exceed $75,000,” but Plaintiff refused.

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¶ 7.)

(Id.

¶¶

Further, Defendant offered to “stipulate to remand the

(Id.

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Plaintiff responds that his “refusal to stipulate is not

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dispositive or even a persuasive factor in establishing the Court’s

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subject matter jurisdiction.”

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Plaintiff argues that the settlement letter is not relevant because

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“Defendant has utterly failed to provide a shred of evidence or

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analysis to support a finding that any alleged settlement offer was

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a reasonable estimate of Plaintiff’s claim.”

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Plaintiff contends that the dismissal of Plaintiff’s prayer for

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punitive damages renders “unreliable” Plaintiff’s pre-litigation

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settlement demand.

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an evidentiary objection to Defendant’s reference to the settlement

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amount without including the actual settlement letter under the

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Best Evidence Rule.

(Pl. Reply at 5:16-18.)

(Id. at 6:25-27.)

(Dkt. No. 19.)
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Further,

(Id. at 6:18-19.)

Lastly, Plaintiff also makes

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“Where the complaint does not demand a dollar amount, the

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removing defendant bears the burden of proving by a preponderance

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of evidence that the amount in controversy exceeds [the

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jurisdictional threshold].”

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Co., 116 F.3d 373, 376 (9th Cir. 1997) (citing Sanchez v.

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Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)).

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“When a ‘[d]efendant’s calculations [are] relatively conservative,

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made in good faith, and based on evidence wherever possible,’ the

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court may find that the ‘[d]efendant has established by a

Singer v. State Farm Mut. Auto Ins.

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preponderance of the evidence that the amount in controversy’ is

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met.”

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MCE, 2014 WL 1415971, at *7 (E.D. Cal. Apr. 14, 2014) (quoting

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Behrazfar v. Unisys Corp., 687 F. Supp. 2d 999, 1004 (C.D. Cal.

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2009)).

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the removal petition as well as any ‘summary-judgment-type evidence

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relevant to the amount in controversy at the time of removal.’

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Conclusory allegations as to the amount in controversy are

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insufficient.”

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F.3d 1089, 1090-91 (9th Cir. 2003) (quoting Singer, 116 F.3d at

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377)(footnotes omitted).

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Geerlof v. C & S Wholesale Grocers, Inc., No. 2:13-cv-02175-

The court may additionally “consider[] facts presented in

Matheson v. Progressive Specialty Ins. Co., 319

Evidence in an opposition to a motion for remand is treated as

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an amendment to the notice of removal and can be considered for

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purposes of establishing the amount in controversy.

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Petsmart, Inc., 281 F.3d 837, 840 n. 1 (9th Cir. 2002).

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evidence may include settlement letters, affidavits, declarations,

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and a party’s refusal to stipulate that damages are below the

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statutory threshold.

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972, 975 (9th Cir. 2007) (quoting Cohn, 281 F.3d at 840) (“We

Cohn v.
This

See Babasa v. LensCrafters, Inc., 498 F.3d

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previously have held that ‘[a] settlement letter is relevant

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evidence of the amount in controversy if it appears to reflect a

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reasonable estimate of the plaintiff’s claim.’”); Geerlof, No.

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2:13-cv-02175-MCE, 2014 WL 1415974, at *4 (E.D. Cal. Apr. 14,

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2014)(quoting Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400

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(9th Cir. 2010)) (“When a defendant must show that the amount in

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controversy exceeds the statutory amount, the defendant ‘may rely

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upon affidavits and declarations to make that showing; . . . .’”);

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Morella v. Safeco Ins. Co. of Ill., No. 2:12-cv-00672-RSL, 2012 WL

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2903084, at *1 (W.D. Wash. July 16, 2012) (finding that a refusal

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to stipulate was relevant although not conclusive in determining

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amount in controversy).

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Here, Defendant has satisfied its burden of proving the amount

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in controversy exceeds the statutory amount.

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Removal, Defendant concluded that, based on the allegations in the

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complaint, the amount in controversy exceeds $75,000 in this case.

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(Def. Not. of Removal ¶ 10.)

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any evidence beyond its assertion, and such conclusory allegations

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are insufficient to meet the preponderance of evidence standard.

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But Defendant’s assertion is now supported by evidence presented in

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Defendant’s Opposition to Plaintiff’s Motion for Remand.

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In its Notice of

However, Defendant failed to provide

Specifically, Defendant presents evidence of Plaintiff’s pre-

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litigation settlement demand of $196,000, Plaintiff’s refusal to

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reduce the demand, and Plaintiff’s refusal to stipulate that the

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amount in controversy does not exceed $75,000.

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Johnson ¶¶ 3, 4, 7; Def. Response to Pl. Evidentiary Objection, Ex.

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A (attaching the actual settlement letter from Plaintiffs in

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response to Plaintiff’s evidentiary objection).)
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(Decl. Caitlin R.

As the Ninth

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Circuit has made clear, “the amount in controversy inquiry in the

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removal context is not confined to the face of the complaint.”

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Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).

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Instead, “the defendant ‘may rely upon affidavits and

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declarations’” to show that the amount in controversy exceeds the

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statutory amount.

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at *4 (quoting Lewis, 627 F.3d at 400).

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demand outlines in a reasonable manner the basis for Plaintiff’s

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settlement amount, which is above $75,000 even without the punitive

Geerlof, No. 2:13-cv-02175-MCE, 2014 WL 1415971,
Here, the settlement

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damages included.

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supported by the evidence it now submits, the Court finds Defendant

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has established that the amount in controversy exceeds $75,000.

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IV.

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Because Defendant’s calculations are reasonably

CONCLUSION
For the reasons discussed above, the Court DENIES Plaintiff’s

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Motion to Remand.

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Objection is OVERRULED.

(Dkt. No. 15.)

Plaintiff’s Evidentiary

(Dkt. No. 19.)

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IT IS SO ORDERED.

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Dated: December 9, 2015
DEAN D. PREGERSON
United States District Judge

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