Maika Fauteux v. Walmart Inc. et al

Filing 12

ORDER by Judge Dale S. Fischer DENYING MOTION to Remand (Dkt. No. #8 ). (SEE ORDER FOR SPECIFICS). (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

MAIKA FAUTEUX,
Plaintiff,
v.

CV 20-925 DSF (RAOx)
Order DENYING Motion to
Remand (Dkt. No. 8)

WALMART, INC.,
Defendant.

Plaintiff moves for remand. The Court deems this matter
appropriate for decision without oral argument. See Fed. R. Civ. P. 78;
Local Rule 7-15. The hearing set for April 6, 2020 is removed from the
Court’s calendar.
This personal injury case is about a bicycle accident in Tucson,
Arizona involving a bicycle purchased from Defendant in Tucson. The
case was initially filed in Los Angeles Superior Court on March 12,
2019. The complaint did not plead Plaintiff’s citizenship or the amount
in controversy. On May 4, 2019, after some dispute between the
parties regarding the appropriateness of the forum, Plaintiff filed a
second case in the United States District Court for the District of
Arizona. Eventually, Defendant filed a motion to dismiss the state
court case. In opposition to that motion, Plaintiff revealed that she was
a resident of California. When the motion to dismiss the state court
case was denied, the parties agreed to dismiss the federal case in
Arizona. In October 2019, Defendant requested a statement of
damages under California law, but Plaintiff responded that every
category of damages was “[u]nknown at this time.” On January 9,
2020, after Defendant moved to compel, Plaintiff provided responses to

the amount of damages sought, which exceeds the federal statutory
amount in controversy. The case was removed to this court on January
29, 2020.
Plaintiff moves for remand, arguing that the removal was untimely.
The notice of removal of a civil action or proceeding shall be
filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
...
Except as provided in subsection (c), if the case stated by
the initial pleading is not removable, a notice of removal
may be filed within thirty days after receipt by the
defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which
it may first be ascertained that the case is one which is or
has become removable.
28 U.S.C. § 1446(b)(1), (3).
Plaintiff argues that Defendant had notice of the amount in
controversy in this case from the Arizona federal action concerning the
same subject matter well prior to 30 days before removal. While this
argument has appeal, it has been rejected by the Ninth Circuit.
Peabody v. Schroll Trust, 892 F.2d 772, 775 (9th Cir. 1989). Plaintiff
also argues that Defendant’s acknowledgment of Plaintiff’s oral
demand began the time for removal. But the time for removal begins
after the “receipt” of “an amended pleading, motion, order or other

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paper.” An oral demand is not a pleading, motion, or other paper and a
written statement by defense counsel is not received by a defendant. 1
Despite Defendants’ obvious awareness of the amount in controversy
well before 30 days prior to removal, the peculiar circumstances of the
case make the removal timely under 28 U.S.C. § 1446. The motion to
remand is DENIED.
IT IS SO ORDERED.

Date: March 25, 2020

___________________________
Dale S. Fischer
United States District Judge

Plaintiff includes an exhibit of an undated demand letter that, if sent at all,
appears to have been sent prior to litigation. Pl. Ex. E. Plaintiff does not
mention the letter in the moving brief and does not seem to rely on it in her
motion. To the extent that Plaintiff intends to rely on the letter, a
prelitigation demand does not begin the time under 28 U.S.C. § 1446(b)(3)
because it does not occur after the initial pleading. See Carvalho v. Equifax
Info. Servs., LLC, 629 F.3d 876, 885–86 (9th Cir. 2010).
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