Nancy Nadeen Zamora v. BMW of North America, LLC, et al

Filing 25

ORDER by Judge Cormac J. Carney: Denying Plaintiff's MOTION to Remand and Request for Attorney's Fees (Dkt. 21 ). SEE DOCUMENT FOR FURTHER INFORMATION. (twdb)

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9/8/2020

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION

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NANCY NADEEN ZAMORA,

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Plaintiff,

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v.
BMW OF NORTH AMERICA, LLC,
and DOES 1 through 10,
Defendants.

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Case No.: LACV 20-00838-CJC(GJSx)

ORDER DENYING PLAINTIFF’S
MOTION TO REMAND AND
REQUEST FOR ATTORNEY’S FEES
[Dkt. 21]

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I. INTRODUCTION & BACKGROUND

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Plaintiff Nancy Zamora filed this action against Defendant BMW of North

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America, LLC, (“BMW”) and unnamed Does, alleging that BMW violated California’s

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Song-Beverly Consumer Warranty Act. (Dkt. 21-3 [Complaint, hereinafter “Compl.”].)

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Zamora’s complaint asserts that the vehicle she purchased from BMW (the “Vehicle”)
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abnormally shuts down while driving and could not be repaired despite a reasonable

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number of attempts. (Id.) Zamora initially leased the Vehicle and then purchased it for a

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total sale price of over $40,000. (Dkt. 23-8.) Zamora seeks actual damages, a civil

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penalty of at least $81,000, and attorney’s fees. (Compl.)

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Zamora filed her complaint in Los Angeles Superior Court but BMW removed the

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action to this Court asserting diversity jurisdiction. Before the Court is Zamora’s motion

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to remand and request for attorney’s fees. (Dkt. 21.) For the following reasons, both

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Zamora’s motion to remand and request for fees are DENIED.1

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II. LEGAL STANDARD

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A defendant may remove a civil action filed in state court to a federal district court

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when the federal court would have had original jurisdiction over the action. 28 U.S.C.

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§ 1441. Federal courts have diversity jurisdiction over cases where the amount in

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controversy exceeds $75,000 and there is complete diversity of citizenship between the

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parties. 28 U.S.C. § 1332. The removal statute is strictly construed “against removal

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jurisdiction” and “[f]ederal jurisdiction must be rejected if there is any doubt as to the

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right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

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1992). “The strong presumption against removal jurisdiction means that the defendant

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always has the burden of establishing that removal is proper.” Id. (quotations omitted).

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III. DISCUSSION

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Having read and considered the papers presented by the parties, the Court finds this matter appropriate
for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set
for September 14, 2020 at 1:30 p.m. is hereby vacated and off calendar.
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A. Motion to Remand

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Zamora argues that remand is proper because BMW has failed to establish both
diversity of citizenship and an amount in controversy over $75,000. The Court disagrees.

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First, BMW has established complete diversity of citizenship. BMW is a limited

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liability company whose sole member is BMW (US) Holding Corporation, a corporation

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formed in Delaware with its principal place of business in New Jersey. Because “an LLC

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is a citizen of every state of which its []members are citizens,” BMW is a citizen of

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Delaware and New Jersey. Johnson v. Columbia Properties Anchorage, LP, 437 F.3d

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894, 899 (9th Cir. 2006); see also 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be

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deemed [] a citizen of every state . . . by which it has been incorporated and of the state . .

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. where it has its principal place of business.”). Zamora does not dispute this.

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Zamora, on the other hand, is a California citizen. For diversity purposes, a person

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is a “citizen” of the state in which she is domiciled. Kanter v. Warner-Lambert Co., 265

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F.3d 853, 857 (9th Cir. 2001). “A person’s domicile is her permanent home, where she

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resides with the intention to remain or to which she intends to return.” Id.

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Although Zamora argues that BMW has failed to establish her domicile, (Dkt. 21-1

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at 5), this argument is unconvincing. BMW has presented evidence that (1) Zamora’s

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social security number was issued in California; (2) she has maintained California

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residences since 2001; (3) she has a California driver’s license; and (4) she purchased and

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serviced the Vehicle in California. (Dkt. 22 [BMW’s Opposition, hereinafter “Opp.”] at

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3–5.) This evidence indicates that California is Zamora’s permanent home where she

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intends to remain. See Kanter, 265 F.3d at 857; see also Mondragon v. Capital One Auto

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Fin., 736 F.3d 880, 886 (9th Cir. 2013) (“[N]umerous courts treat a person’s residence as
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prima facie evidence of the person’s domicile.”). Thus, complete diversity of citizenship

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exists in this case.

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

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notice of removal must include only “a plausible allegation that the amount in

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controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co.,

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LLC v. Owens, 135 S. Ct. 547, 553–54, (2014). But where “the plaintiff contests, or the

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court questions, the defendant’s allegation” and “both sides submit proof,” the defendant

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must prove the amount in controversy by a preponderance of the evidence. Id. at 554.

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Here, BMW emphasizes that Zamora’s complaint alleges that she is entitled to restitution

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“in an amount equal to the actual price paid,” which is over $40,000. (Opp. at 6.)

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Zamora’s complaint also seeks a civil penalty equal to two times her actual damages.

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(Id.) Indeed, because Zamora seeks a civil penalty of over $80,000, her own calculations

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estimate the amount in controversy at over $120,000. (Compl. at 3–4.) Accordingly, this

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requirement is satisfied.

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B. Request for Attorney’s Fees

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Zamora also requests an award of attorney’s fees and costs under 28 U.S.C.

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§ 1447(c) for filing her motion to remand. “Courts may award attorney’s fees under

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§ 1447(c) only where the removing party lacked an objectively reasonable basis for

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seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Because

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BMW had a reasonable basis for seeking removal, the Court denies Zamora’s request for

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fees. 28 U.S.C. § 1447(c).

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IV. CONCLUSION

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For these reasons, Zamora’s motion to remand and request for attorney’s fees are
DENIED.

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DATED: September 8, 2020

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HON. CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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