Edgard O Agosto v. Wal Mart Stores Inc et al

Filing 11

(IN CHAMBERS) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE REMANDED FOR LACK OF SUBJECT MATTER JURISDICTION by Judge Cormac J. Carney. (See document for details.) The Court therefore orders Defendant to show cause why this case should not be rem anded for lack of subject matter jurisdiction. Defendant shall file an opposition to the Courts order to show case by February 19, 2013. Plaintiff shall have until February 26, 2013 to file a response. This matter will be decided on the papers without any hearing. (rla)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 13-00161-CJC(JPRx)

Date: February 8, 2013

Title: EDGARD O. AGOSTO V. WAL-MART STORES, INC., ET AL.

PRESENT:
HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
Michelle Urie
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS: (IN CHAMBERS) ORDER TO SHOW CAUSE WHY THIS
ACTION SHOULD NOT BE REMANDED FOR LACK OF SUBJECT MATTER
JURISDICTION
Plaintiff Edgard O. Agosto (“Plaintiff”) filed this action in Orange County
Superior Court on December 21, 2012. (Dkt. No. 1 [Notice of Removal] Corcetti Decl.
Exh. A [Compl.].) Plaintiff, a former employee of Defendant Wal-Mart Stores, Inc.
(“Defendant”), alleges five causes of action relating to disability discrimination, wrongful
termination, retaliation, and intentional infliction of emotional distress. Id. On January
31, 2013, Defendant removed the action to this court on the basis of diversity jurisdiction.
Defendant contends that the parties are citizens of different states and the amount in
controversy exceeds $75,000.
Whether subject matter jurisdiction exists may be raised by the Court sua sponte at
any time. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”). A defendant may
remove a civil action filed in state court to a federal district court if the federal court may
exercise original jurisdiction over the action. 28 U.S.C. § 1441(b). A federal court can
assert subject matter jurisdiction over cases that (1) involve questions arising under
federal law or (2) are between diverse parties and involve an amount in controversy that
exceeds $75,000. 28 U.S.C. §§ 1331, 1332. The defendant removing the action to
federal court bears the burden of establishing that the district court has subject matter
jurisdiction over the action, and the removal statute is strictly construed against removal
jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 13-00161-CJC(JPRx)

Date: February 8, 2013
Page 2

must be rejected if there is any doubt as to the right of removal in the first instance.”).
Where the complaint does not specify the amount in controversy, the removing defendant
bears the burden of establishing, by a preponderance of the evidence, that the amount in
controversy exceeds [$75,000].” Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,
404 (9th Cir. 1996); Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir.
2007). If it is not “facially apparent” from the complaint that the amount in controversy
exceeds $75,000, “the court may consider facts in the removal petition, and may require
parties to submit summary-judgment-type evidence relevant to the amount in controversy
at the time of removal.” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th
Cir. 1997) (internal quotations and citation omitted).
It does not appear to the Court that Defendant has established by a preponderance
of the evidence that the amount in controversy exceeds the jurisdictional minimum. The
Complaint reveals only that the amount in controversy exceeds $25,000, (Compl. ¶ 2),
and Defendant’s calculations that the amount in fact exceeds $75,000 are not compelling.
In determining that Plaintiff has lost wages and potential future lost wages of at least
$60,352.00, Defendant calculates that Plaintiff earned $9.20 per hour and worked 40
hours per week. But the only evidence Defendant provides in support of this assertion is
the declaration of one of Defendant’s own attorneys, which states that “[u]pon
information and belief, as of December 3, 2012, Plaintiff earned approximately $9.20 per
hour. He was working as a full-time employee.” (Corcetti Decl. ¶ 7.) Defendant does
not offer the source of this information, explain how defense counsel has personal
knowledge of those facts, or provide any other evidence to support its assumptions that
the remaining monetary amounts sought, such as those for pain and suffering and
punitive damages, will likely cumulatively exceed $75,000.
The Court therefore orders Defendant to show cause why this case should not be
remanded for lack of subject matter jurisdiction. Defendant shall file an opposition to the
Court’s order to show case by February 19, 2013. Plaintiff shall have until February
26, 2013 to file a response. This matter will be decided on the papers without any
hearing.
jmc
MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk MU