Thomas Morin v. American Expediting Company et al

Filing 13

MINUTES (In Chambers) Order Remanding Action by Judge Fernando M. Olguin: IT IS ORDERED that: (1) The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of subject matter jurisdiction pursuant to 28 USC section 1447(c). (2) The Clerk shall send a certified copy of this Order to the state court. (Made JS-6. Case Terminated.) (jp)

JS-6

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

CV 16-8552 FMO (AGRx)

Title

Thomas Morin v. American Expediting Company

Present: The Honorable

Date

December 9, 2016

Fernando M. Olguin, United States District Judge

Cheryl Wynn

None

None

Relief Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorney Present for Plaintiff(s):

Attorney Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order Remanding Action

On October 13, 2016, Thomas Morin (“plaintiff”) on behalf of himself and others similarly
situated, filed a Complaint in the Los Angeles County Superior Court against American Expediting
Company (“defendant”) asserting state-law claims. (See Dkt. 1-1, Complaint). On November 16,
2016, defendant removed that action on diversity jurisdiction grounds pursuant to 28 U.S.C. §§
1332 and 1441. (See Dkt.1, Notice of Removal (“NOR”) at 1). Having reviewed the pleadings,
the court hereby remands this action to state court for lack of subject matter jurisdiction. See 28
U.S.C. § 1447(c).
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114
S.Ct. 1673, 1675 (1994). The courts are presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126
S.Ct. 1854, 1861 (2006). Federal courts have a duty to examine jurisdiction sua sponte before
proceeding to the merits of a case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119
S.Ct. 1563, 1569 (1999), “even in the absence of a challenge from any party.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244 (2006).
“The right of removal is entirely a creature of statute and a suit commenced in a state court
must remain there until cause is shown for its transfer under some act of Congress.” Syngenta
Crop Prot., Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 369 (2002) (internal quotation marks
omitted). Where Congress has acted to create a right of removal, those statutes, unless otherwise
stated, are strictly construed against removal jurisdiction.1 See id. Unless otherwise expressly
provided by Congress, “any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or the defendants, to
the district court[.]” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir. 2013)

1

For example, an “antiremoval presumption” does not exist in cases removed pursuant
to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014).
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 4

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

CV 16-8552 FMO (AGRx)

Date

Title

Thomas Morin v. American Expediting Company

December 9, 2016

(same). A removing defendant bears the burden of establishing that removal is proper. See
Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting the
“longstanding, near-canonical rule that the burden on removal rests with the removing defendant”);
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam) (“The strong presumption
against removal jurisdiction means that the defendant always has the burden of establishing that
removal is proper.”) (internal quotation marks omitted). Moreover, if there is any doubt regarding
the existence of subject matter jurisdiction, the court must resolve those doubts in favor of
remanding the action to state court. See Gaus, 980 F.2d at 566 (“Federal jurisdiction must be
rejected if there is any doubt as to the right of removal in the first instance.”).
“Under the plain terms of § 1441(a), in order properly to remove [an] action pursuant to that
provision, [the removing defendant] must demonstrate that original subject-matter jurisdiction lies
in the federal courts.” Syngenta Crop Prot., 537 U.S. at 33, 123 S.Ct. at 370. Failure to do so
requires that the case be remanded, as “[s]ubject matter jurisdiction may not be waived, and. . .
the district court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n, Inc. v.
Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). Indeed, “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c); see Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n. 2
(9th Cir. 1988) (“It is elementary that the subject matter jurisdiction of the district court is not a
waivable matter and may be raised at anytime by one of the parties, by motion or in the
responsive pleadings, or sua sponte by the trial or reviewing court.”); Washington v. United Parcel
Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court may remand an action where
the court finds that it lacks subject matter jurisdiction either by motion or sua sponte).
The court’s review of the NOR and the attached state court Complaint make clear that this
court does not have subject matter jurisdiction over the instant matter. See 28 U.S.C. § 1441(a);
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only state-court
actions that originally could have been filed in federal court may be removed to federal court by
the defendant.”) (footnote omitted). In other words, plaintiff could not have originally brought this
action in federal court, as plaintiff does not competently allege facts supplying diversity
jurisdiction.2 See 28 U.S.C. § 1332(a).
There is no basis for subject matter jurisdiction because the amount in controversy does
not appear to exceed the diversity jurisdiction threshold of $75,000. See 28 U.S.C. § 1332(a).3
Defendant bears the burden of proving by a preponderance of the evidence that the amount in

2

Defendant seeks only to invoke the court’s diversity jurisdiction pursuant to 28 U.S.C.
1332(a). (See Dkt 1, NOR at 2-10).
3

In relevant part, 28 U.S.C. § 1332(a) provides that “district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs[.]”
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 4

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

CV 16-8552 FMO (AGRx)

Date

Title

Thomas Morin v. American Expediting Company

December 9, 2016

controversy meets the jurisdictional threshold of $75,000. See Valdez v. Allstate Ins. Co., 372
F.3d 1115, 1117 (9th Cir. 2004); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090
(9th Cir. 2003) (per curiam) (“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. Where doubt regarding the right
to removal exists, a case should be remanded to state court.”) (footnotes omitted). Here, the
amount of damages plaintiff seeks cannot be determined from the Complaint, as the Complaint
does not set forth a specific amount.4 (See, generally, Dkt. 1-1, Complaint at 24-25).
Even accepting defendant’s contentions regarding plaintiff’s potential ability to collect on
his claims for willful misclassification, unpaid wages, missed meal and rest periods, waiting time
penalties, and unreimbursed expenses, (see Dkt. 1, NOR at 5-8), the amount for such claims is
only $47,595.50. (See id.). Perhaps recognizing that this amount falls well below the jurisdictional
threshold, defendant asserts that attorney’s fees should also be considered. (See id. at 8-9).
“[W]here an underlying statute authorizes an award of attorneys’ fees, either with
mandatory or discretionary language, such fees may be included in the amount in controversy.”
Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 1000 (9th Cir. 2007), overruled on other
grounds as recognized by Rodriguez v. AT & T Mobility Serv. LLC, 728 F.3d 975, 976-77 (9th Cir.
2013). “[C]ourts are split as to whether only attorneys’ fees that have accrued at the time of
removal should be considered in calculating the amount in controversy, or whether the calculation
should take into account fees likely to accrue over the life of the case.” Hernandez v. Towne Park,
Ltd., 2012 WL 2373372, *19 (C.D. Cal. 2012) (collecting cases); see Reames v. AB Car Rental
Servs., Inc., 899 F.Supp.2d 1012, 1018 (D. Or. 2012) (“The Ninth Circuit has not yet expressed
any opinion as to whether expected or projected future attorney fees may properly be considered

4

Defendant does not discuss that the underlying action was filed as a class action. (See,
generally, Dkt. 1, NOR). The NOR simply seeks to establish that the name plaintiff meets the
jurisdictional threshold. (See id. at 3-10). Defendant makes no attempt to show that this court has
jurisdiction based on CAFA. (See, generally, id.). In class action litigation outside of CAFA,
diversity jurisdiction is established where at least one class member is diverse from the defendant
and no named plaintiff is non-diverse, see Snyder v. Harris, 394 U.S. 332, 339-40, 89 S.Ct. 1053,
1058-59 (1969) (“[I]f one member of a class is of diverse citizenship from the class’ opponent, and
no nondiverse members are named parties, the suit may be brought in federal court even though
all other members of the class are citizens of the same State as the defendant[.]”); Serrano v. 180
Connect, Inc., 478 F.3d 1018, 1021 n. 4 (9th Cir. 2007), and at least one of named plaintiffs meets
the amount in controversy requirement. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 549 & 566-67, 125 S.Ct. 2611, 2615 & 2625 (2005) (“[W]here the other elements of
jurisdiction are present and at least one named plaintiff in the action satisfies the
amount-in-controversy requirement, [28 U.S.C.] § 1367 [] authorize[s] supplemental jurisdiction
over the claims of other plaintiffs in the same Article III case or controversy, even if those claims
are for less than the jurisdictional amount.”).
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 3 of 4

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

CV 16-8552 FMO (AGRx)

Date

Title

Thomas Morin v. American Expediting Company

December 9, 2016

‘in controversy’ at the time of removal for purposes of the diversity-jurisdiction statute, and the
decisions of the district courts are split on the issue.”). The court is persuaded that “the better
view is that attorneys’ fees incurred after the date of removal are not properly included because
the amount in controversy is to be determined as of the date of removal.” Dukes v. Twin City Fire
Ins. Co., 2010 WL 94109, *2 (D. Ariz. 2010) (citing Abrego Abrego, 443 F.3d at 690). Indeed,
“[f]uture attorneys’ fees are entirely speculative, may be avoided, and are therefore not ‘in
controversy’ at the time of removal.” Dukes, 2010 WL 94109, at *2; accord Palomino v. Safeway
Ins. Co., 2011 WL 3439130, *2 (D. Ariz. 2011).
Here, defendant provides no evidence of the amount of attorney’s fees that were incurred
at the time of removal. (See, generally, Dkt. 1, NOR at 8-9). Thus, defendant has not shown by
a preponderance of the evidence that the inclusion of attorney’s fees in the instant case would
cause the amount in controversy to reach the $75,000 threshold. See Walton v. AT & T Mobility,
2011 WL 2784290, *2 (C.D. Cal. 2011) (declining to reach the issue of whether future attorney’s
fees could be considered in the amount in controversy because the defendant “did not provide any
factual basis for determining how much attorney’s fees have been incurred thus far and will be
incurred in the future[, and] [b]ald assertions are simply not enough”).
In sum, given that any doubt regarding the existence of subject matter jurisdiction must be
resolved in favor of remanding the action to state court, see Gaus, 980 F.2d at 566, the court is
not persuaded, under the circumstances here, that defendant has met its burden of proving by a
preponderance of the evidence that the amount in controversy meets the jurisdictional threshold.
See Matheson, 319 F.3d at 1090 (“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. Where doubt
regarding the right to removal exists, a case should be remanded to state court.”) (footnote
omitted); Valdez, 372 F.3d at 1118. Therefore, there is no basis for diversity jurisdiction.
This order is not intended for publication. Nor is it intended to be included in or
submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED that:
1. The above-captioned action shall be remanded to the Superior Court of the State of
California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of
subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
2. The Clerk shall send a certified copy of this Order to the state court.
Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

cw

Page 4 of 4