Dario Pulcini et al v. Ford Motor Company et al

Filing 14

MINUTES (IN CHAMBERS) ORDER GRANTING Plaintiffs' Motion to Remand (Doc. 9 ) by Judge Josephine L. Staton: The matter is REMANDED to the Los Angeles Superior Court, Case No. 24VECV03471. (MD JS-6. Case Terminated.) (jp)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:24-cv-08846-JLS-AS
Title: Dario Pulcini et al v. Ford Motor Company et al

Date: November 19, 2024

Present: Honorable JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE

Kelly Davis
Deputy Clerk
Attorneys Present for Plaintiffs:
Not Present

N/A
Court Reporter
Attorneys Present for Defendant:
Not Present

PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING PLAINTIFFS’
MOTION TO REMAND (Doc. 9)
Before the Court is a Motion to Remand filed by Plaintiffs Dario Pulcini and
Priscila Soto Bautista (“Plaintiffs”). (Mot., Doc. 9.) Defendant Ford Motor Company
(“Defendant”) opposed, and Plaintiffs responded. (Opp., Doc. 12; Reply, Doc. 13.) The
Court finds this matter appropriate for decision without oral argument, and the hearing set
for November 22, 2024, at 10:30 a.m. is VACATED. Fed. R. Civ. P. 78(b); C.D. Cal. R.
7-15. For the following reasons, the Court GRANTS Plaintiffs’ Motion.
I.

BACKGROUND

On July 24, 2024 Plaintiffs filed this action in California state court, alleging
violations of California’s Song-Beverly Act arising out of their 2023 purchase of a 2022
Ford Edge (the “Subject Vehicle”). (See Ex. 1 to Mot., Compl., Doc. 9-3.) Plaintiffs
allege that they are “individuals residing in the City of Los Angeles, State of California”
and that the approximate value for the Subject Vehicle is $59,632.59.” (Id. ¶¶ 2, 8.)
Plaintiffs seek “a civil penalty of up to two times the amount of actual damages.” (Id. ¶
33.) Plaintiffs served the Complaint on Defendant on August 2, 2024. (Proof of Service,
Doc. 9-4.)
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CIVIL MINUTES – GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:24-cv-08846-JLS-AS
Title: Dario Pulcini et al v. Ford Motor Company et al

Date: November 19, 2024

On August 23, 2024, Defendant served discovery on Plaintiffs. (Exs. C & D to
Notice of Removal (“NOR”), Docs. 1-4, 1-5.) On October 4, 2024, Plaintiffs served their
initial responses to Defendant’s Requests for Admission (“RFA”) in which they admitted,
among other things, that the total damages sought in the action exceeded $75,000 and that
at the time Plaintiffs purchased the Subject Vehicle they were citizens of the State of
California. (Ex. E to NOR at 5, 6, Doc. 1-6.)
On October 14, 2024, 11 days after receiving Plaintiffs’ responses to its RFAs,
Defendant removed the action to this Court. (NOR, Doc. 1.) Defendant invoked this
Court’s diversity jurisdiction—contending that, given the vehicle’s $59,632.59
approximate value and Plaintiffs’ admission that at the time they purchased the Subject
Vehicle they were citizens of California, the amount in controversy exceeds $75,000 and
complete diversity of citizenship exists. (Id. ¶¶ 9–20); see 28 U.S.C. § 1332(a)–(b).
Defendant argued that removal was timely, because “the Complaint was not facially
removable as Plaintiffs failed to plead an amount in controversy or Plaintiffs’ citizenship”
and Defendant sought to remove after its receipt of Plaintiffs’ responses to its discovery
requests. (Id. ¶ 2.) See also 28 U.S.C. § 1446(b)(1).
On October 24, 2024, Plaintiffs moved to remand to state court, arguing that
Defendant’s removal was untimely under section 1446(b)(1). 1 (See Mot.) Defendant
opposes remand, stating that it “was unable to ascertain the … amount in controversy
until Plaintiffs served their initial responses to [its] RFA’s in which Plaintiffs admitted
1

The Court GRANTS Plaintiffs’ request that the Court take judicial notice of the public
filings in the following actions: Estes, Russell v. Ford Motor Company, Case No. 3:24-cv-01609JAH-MMP (S.D. Cal.); Ryan Mead v. Ford Motor Company et al, Case No. 5:24-cv-02124-SSSDTB (C.D. Cal.); Lopez v. Ford Motor Company, Case No. 3:24-cv-06705-JD (N.D. Cal.);
Shelly F. Simonich et al v. Ford Motor Company, Case No. 2:24-at-01296 (E.D. Cal.). (See
Plaintiffs’ Request for Judicial Notice (“RJN”), Doc. 13-2.) A court may judicially notice court
documents that are already in the public record or have been filed in other courts. See Reyn's
Pasta Bella, LLC v. Visa USA Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
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CIVIL MINUTES – GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:24-cv-08846-JLS-AS
Title: Dario Pulcini et al v. Ford Motor Company et al

Date: November 19, 2024

that the total amount of damages [sought] exceeds $75,000.” (Opp. at 9.) Nor could
Defendant “ascertain Plaintiffs’ citizenship until October 4, 2024, when Plaintiffs
admitted to being citizens of California in their responses to Ford’s RFAs.” (Id. at 10.)
In reply in support of their motion to remand, Plaintiffs filed a request for judicial
notice of four Notices of Removal and their supporting papers filed by Defendant in four
pending actions in district courts across California. (See RJN; Estes NOR, Doc. 13-3;
Mead NOR, Doc. 13-4; Lopez NOR, Doc. 13-5; Simonich NOR, Doc. 13-6.) In all four
Notices, Defendant removed under section 1446(b)(1) and relied on allegations in the
complaints as to where plaintiffs “reside[d]” to contend that diversity of citizenship was
established. (See Estes NOR ¶ 11; Compl. ¶ 2, Estes v. Ford Motor Co., No. 3:24-cv01609 (S.D. Cal. 2024); Mead NOR, ¶ 18; Compl. ¶ 2, Mead v. Ford, Motor Co., No.
5:24-cv-02124 (C.D. Cal. 2024); Lopez NOR, ¶ 36; Compl. ¶ 2, Lopez v. Ford Motor
Co., No. 3:24-cv-06705 (N.D. Cal. 2024); Simonich NOR ¶ 37; Compl. ¶ 2, Simonich v.
Ford Motor Co., No. 2:24-cv-02845 (E.D. Cal. 2024); see also RJN.) Defendant also
relied on plaintiffs’ claims for actual damages as to the approximate value of their subject
vehicle and/or a civil penalty two times the amount of actual damages so as to establish
that the amount in controversy exceeded $75,000. (See Estes NOR ¶ 9; Mead NOR, ¶¶
12–13; Lopez NOR, ¶¶ 23–24; Simonich NOR ¶¶ 23–25; see also RJN.)
II.

LEGAL STANDARD

A defendant may remove a case that was filed in state court to a federal court in
the same district and division if the federal court would have had original jurisdiction
over the action. See 28 U.S.C. § 1441(a)–(b); Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987). Generally, subject matter jurisdiction is based on the presence of a federal
question, see 28 U.S.C. § 1331, or complete diversity between the parties, see 28 U.S.C.
§ 1332. Thus, “[a] defendant may remove an action to federal court based on federal
question jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d
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CIVIL MINUTES – GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:24-cv-08846-JLS-AS
Title: Dario Pulcini et al v. Ford Motor Company et al

Date: November 19, 2024

1039, 1042 (9th Cir. 2009). A federal court has diversity jurisdiction under 28 U.S.C. §
1332 if the amount in controversy exceeds $75,000 and the parties to the action are
citizens of different states. See 28 U.S.C. § 1332(a). However, “[i]t is to be presumed
that a cause lies outside the limited jurisdiction of the federal courts and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Hunter, 582 F.3d at
1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chemical Co., 443 F.3d 676, 684
(9th Cir. 2006) (cleaned up)). Courts “strictly construe the removal statute against
removal jurisdiction,” and “the defendant always has the burden of establishing that
removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
A notice of removal must be filed within thirty days of the defendant's receipt of
the initial pleading, or, “if the case stated by the initial pleading is not removable,” then
the notice of removal must be filed within thirty days of the defendant's receipt “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).
In other words, “[S]ection 1446(b) identifies two thirty-day periods for removing a case.”
Carvalho v. Equifax Information Services, LLC, 629 F.3d 876, 885 (9th Cir. 2010). “The
first thirty-day removal period is triggered ‘if the case stated by the initial pleading is
removable on its face.’” Id. (quoting Harris v. Bankers Life & Casualty Co., 425 F.3d
689, 694 (9th Cir. 2005)). “The second thirty-day removal period is triggered if the
initial pleading does not indicate that the case is removable, and the defendant receives a
copy of an amended pleading, motion, order or other paper from which removability may
first be ascertained.” Id. (cleaned up). The “removal clock does not start until a paper
makes a ground for removal ‘unequivocally clear and certain.’” Dietrich v. Boeing Co.,
14 F.4th 1089, 1091 (9th Cir. 2021). Sworn discovery responses received from another
party in the pending litigation constitute “other paper” within the meaning of 28 U.S.C. §
1446(b) from which a party may properly be put on notice that a case is or has become
removable. See Riggs v. Continental Baking Co., 678 F. Supp. 236, 238 (N.D. Cal.
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CIVIL MINUTES – GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:24-cv-08846-JLS-AS
Title: Dario Pulcini et al v. Ford Motor Company et al

Date: November 19, 2024

1998). “If the notice of removal was untimely, a plaintiff may move to remand the case
back to state court.” Carvalho, 629 F.3d at 884.
III.

ANALYSIS

Plaintiffs base their Motion on only one argument—that Defendant’s removal was
untimely because it came more than 30 days after Plaintiffs served Defendant with the
Complaint, from which removability was “clear and ascertainable[.]” (Mot. at 6.)
As to the amount-in-controversy, Plaintiffs assert that because the Complaint
specified that the Subject Vehicle had an approximate value of $59,632.59 and sought
restitution and civil penalties in an amount two times the actual damages it was clear
from the face of the Complaint that the amount in controversy is at least $75,000. (Mot.
at 11.) The Court agrees. The approximate value of the Subject Vehicle—$59,632.59—
plus double that amount in civil penalties—a total of $136,596.72—easily exceeds the
$75,000 threshold before adding incidental damages, costs, and attorneys’ fees. (See
Compl. at 10.) The Complaint thus “made it unequivocally clear and certain that the
amount in controversy exceeded $75,000 in this action.” Grajeda v. Nissan N. Am., Inc.,
2024 WL 3462350, at *3 (C.D. Cal. July 17, 2024) (Staton, J.) (finding that the amount in
controversy could be determined from the face of a complaint where plaintiff sought
damages in excess of $50,000 and civil penalties in an amount two times plaintiff’s actual
damages) (internal quotation and citation omitted).
As to diversity of citizenship, Plaintiffs assert that because they “pleaded that they
are individuals residing in the City of Los Angeles, State of California” the removability
of the action was clear from the face of the Complaint. (Mot. at 7.) Defendant counters
that the Notice of Removal was timely because it was filed within 30 days of its receipt
of Plaintiffs’ responses to its RFAs, in which Plaintiffs for the first time “admitted to
being citizens of California.” (Opp. at 10.) Specifically, citing Harris v. Bankers Life
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:24-cv-08846-JLS-AS
Title: Dario Pulcini et al v. Ford Motor Company et al

Date: November 19, 2024

and Casualty Co., 425 F.3d 689 (9th Cir. 2005), Defendant argues that a complaint does
not trigger the first thirty-day window for removal when it discloses only a plaintiff’s
residency, not citizenship.
However, as explained in Ervin v. Ballard Marine Construction, 2016 WL
4239710, at *3 (N.D. Cal Aug. 11, 2016), “Harris is distinguishable because the
complaint in that case only listed the plaintiff's former residence, and had no facts
regarding residency or citizenship at the time the complaint was filed.” And courts in the
Central District, including this Court, have found that diversity jurisdiction exists based
on allegations of residency. See, e.g., Longoria v. Ford Motor Co., 2022 WL 16961482
at *3 (C.D. Cal. Nov. 16, 2022) (Staton, J.). This is consistent with the rule that, for
purposes of removal based on diversity of citizenship, a plaintiff’s state of residence is
presumptively considered to be their state of citizenship. See Bradley Min. Co. v. Boice,
194 F.2d 80, 84 (9th Cir. 1951); see also Adams v. W. Marine Prod., Inc., 958 F.3d 1216,
1221 (9th Cir. 2020).
In addition, Plaintiffs assert that Defendant “has previously conceded and argued
in unrelated matters that diversity is achieved by citing to [language in a complaint
stating only where plaintiff(s) resided.]” (Mot. at 7.) Plaintiffs contend that Defendant
relies on language like that in Paragraph 2 of Plaintiffs’ Complaint “only when it is
convenient for it to do so; and then in a complete about-face, question[s] the reliability of
virtually the same language when Plaintiff has taken issue with the timeliness of the
instant removal.” (Mot. at 7–8.)
The Court notes that Defendant has filed a notice of removal based on language
like that in Paragraph 2 of Plaintiffs’ Complaint in at least four other actions. (See Estes
NOR; Mead NOR; Lopez NOR; Simonich NOR.) In each of these cases, Defendant
removed under section 1446(b)(1) and relied on allegations in the complaints as to where
plaintiffs “reside[d]” to contend that diversity of citizenship was established. (See Estes
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CIVIL MINUTES – GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:24-cv-08846-JLS-AS
Title: Dario Pulcini et al v. Ford Motor Company et al

Date: November 19, 2024

NOR ¶ 11; Estes Compl. ¶ 2; Mead NOR, ¶ 18; Mead Compl. ¶ 2; Lopez NOR, ¶ 36;
Lopez Compl. ¶ 2; Simonich NOR ¶ 37; Simonich Compl. ¶ 2; see also RJN.) Other
Courts in this district have recently granted motions to remand in cases where a defendant
argued that language “d[id] not make removability unequivocally clear and certain” in
one case and then “argued the opposite … in a slew of other cases.” Bryant v. Nissan N.
Am., Inc., 2024 WL 3220713, at *2 (C.D. Cal. June 28, 2024); see also Hauffen v. Nissan
N. Am., Inc., 2024 WL 3462347, at *5 (C.D. Cal. July 15, 2024). The Court agrees with
Plaintiffs that Defendant cannot have it both ways.
The Court therefore rejects Defendant’s contention that its thirty-day window to
file the Notice of Removal opened upon receipt of Plaintiffs’ amended discovery
responses, rather than upon receipt of Plaintiffs’ Complaint. (Opp. at 9–10.) The thirtyday removal period commenced when Defendant received Plaintiffs’ Complaint on
August 2, 2024, and expired before Defendant's October 14, 2024 Notice of Removal.
(See Proof of Service; see also NOR.) Therefore, because Defendant's Notice of
Removal was untimely, the Motion to Remand is GRANTED.
IV.

CONCLUSION

For the above reasons, the Court GRANTS Plaintiffs’ Motion. The matter is
REMANDED to the Los Angeles Superior Court, Case No. 24VECV03471.
Initials of Deputy Clerk: kd

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