Pineda v. Home Depot, USA, Inc.,

Filing 18

MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr., on 8/5/11, ORDERING this case REMANDED to Superior Court of State of CA, San Joaquin County. Plaintiff's 10 Motion to Remand is GRANTED. Plaintiff's 10 Motion for Attorneys Fees is DENIED. Defendant's 7 Motion to Dismiss is DENIED as moot. Certified copy of remand order sent to other court. CASE CLOSED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRED PINEDA

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No. 2:11-cv-01278-MCE-CMK

Plaintiff,
v.

MEMORANDUM AND ORDER

THE HOME DEPOT, U.S.A., INC. and
DOES 1 through 100, inclusive,

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Defendants.
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Plaintiff Fred Pineda (“Plaintiff”) originally commenced

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this action in Superior Court of California for the County of

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San Joaquin.

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action against Defendant, The Home Depot, U.S.A., Inc.

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(“Defendant”):

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of age-hostile work environment retaliation; 3) failure to

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prevent age discrimination; 4) wrongful termination;

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5) retaliation; and 6) intentional infliction of emotional

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distress.

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the case to this Court. (ECF No. 1.)

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filed a Motion to Dismiss pursuant to Federal Rule of Civil

Plaintiff alleges the following six causes of

1) age discrimination; 2) harassment on the basis

On May 12, 2011, Defendant timely and properly removed

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On May 19, 2011, Defendant

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Procedure 12(b)(6). (ECF No. 7.) Plaintiff has now filed a Motion

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to Remand the case back to state court (ECF No. 10), alleging

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that Defendant failed to demonstrate the requisite amount in

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controversy necessary to establish diversity jurisdiction.

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the reasons set forth below, Plaintiff’s Motion for Remand is

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granted.1

For

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STANDARD

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A defendant may remove any civil action from state court to

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federal district court if the district court has original

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jurisdiction over the matter.

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district courts have original jurisdiction over civil actions in

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two instances: (1) where a question of law is presented that

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arises “under the Constitution, laws, or treaties of the United

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States,” or (2) “where the matter in controversy exceeds the sum

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or value of $75,000, exclusive of interest and costs,” and there

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is complete diversity of citizenship between the parties.

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28 U.S.C. §§ 1332 and 1331, respectively.

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28 U.S.C. § 1441(a).

Generally,

The removing party bears the burden of establishing federal

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jurisdiction.

Ethridge v. Harbor House Rest., 861 F.2d 1389,

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1393 (9th Cir. 1988).

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of removal in the first instance, remand must be granted.

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Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations

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omitted).

If the court has any doubt as to the right

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Because oral argument will not be of material assistance, the
Court orders this matter submitted on the briefs. E.D. Cal.
Local Rule 230(h).
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Where jurisdiction is based upon diversity, 28 U.S.C. § 1332

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requires that the amount in controversy exceed $75,000.

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Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090

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(9th Cir. 2003).

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does not specify the amount of damages being sought, the

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defendant bears the burden of demonstrating, by a preponderance

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of the evidence, that the amount in controversy requirement is

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satisfied.

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404 (9th Cir. 1996); Gaus, 980 F.2d at 567.

In removal cases, if the state court complaint

Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,

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ANALYSIS

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A. Plaintiff’s Motion for Remand

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When federal jurisdiction is sought on the basis of

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diversity, jurisdiction will be established if the matter in

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controversy exceeds the sum or value of $75,000 and the case is

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between citizens of different states.

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The parties concede that this matter is between citizens of

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different states.2

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therefore, is whether Defendant has sufficiently demonstrated

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that the amount in controversy exceeds $75,000.

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28 U.S.C. § 1332(a)(1).

The salient issue raised by this motion,

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Plaintiff is a resident of California. (Pls.’ Compl. ¶¶ 1-2,
Jan. 11, 2011, ECF No. 1). Defendant is a Delaware corporation
with its principal place of business in Georgia. (Def.’s Pet. For
Removal, ¶¶ 10-11, May 12, 2011, ECF No. 1).
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Plaintiff’s Complaint requests pecuniary damages, punitive

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damages, attorney’s fees pursuant to the alleged damages suffered

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under each of his state causes of action.3

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Plaintiff’s claim for pecuniary loss includes lost wages and

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benefits, mental, physical and nervous discomfort, annoyance,

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distress, anguish, worry, anxiety, pain and suffering, and

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possible medical expenses.

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amount to be determined “according to proof.” (Compl. ¶¶ 47, 51.)

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Specifically,

However, the Complaint only states an

Defendant argues that even though Plaintiff does not claim a

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specific amount, viewed in their entirety, Plaintiff makes it

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"factually apparent from the body of the Complaint that the claim

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exceeds the jurisdictional amount."

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No. 1).

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its claim that the jurisdictional amount can be inferred from the

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complaint.4

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(Pet. for Removal 5-6, ECF

Defendant cites cases from the Fifth Circuit to support

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Attorney’s fees may be included in the amount in controversy if
they are recoverable pursuant to statute or contract. Cal. Gov.
Code § 12965(b) allows a court, in its discretion, to provide
reasonable attorney's fees and costs to the prevailing party in
cases of unlawful employment practices brought under § 12940.
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Defendant cites Luckett v. Delta Airlines, Inc., 171 F.3d 295
(5th Cir. 1999)(affirming the district court's determination that
a complaint alleging damage to property, travel expenses, an
emergency ambulance trip, a six day stay in the hospital, and
pain and suffering exceeded $75,000) and White v. FCI USA, Inc.,
319 F.3d 672 (5th Cir. 2003)(affirming the district court’s
determination that a complaint alleging a long list of
compensatory damages, punitive damages and attorney’s fees
exceeded $75,000).
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However, the Ninth Circuit has made clear that, where a

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plaintiff's state court complaint does not specify a particular

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amount of damages, the removing defendant bears the burden of

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establishing the jurisdictional amount is met “by a preponderance

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of the evidence.” Sanchez, 102 F.3d at 404.

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the defendant must provide evidence establishing “more likely

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than not” that the amount in controversy exceeds the

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jurisdictional minimum.

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statute vests in the court to enforce the limitations of its

Id.

Under this burden,

Further, "[t]he authority which the

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jurisdiction precludes the idea that jurisdiction may be

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maintained by mere averment."

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Gaus, 980 F.2d at 566.

Defendant does not provide even speculative numbers as to

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Plaintiff’s potential lost wages, benefits or medical expenses,

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but simply re-lists Plaintiff's claims and infers that altogether

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they must exceed $75,000. (Pet. 5-6, ECF No. 1). Further, while

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punitive and emotional distress damages may be considered in

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determining the amount in controversy, Defendant has submitted no

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evidence indicating what Plaintiff’s punitive and emotional

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distress damages might be under the circumstances.

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that such damages are appropriate in the instant case, the Court

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will not speculate as to what would constitute a reasonable

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estimate of those damages.

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Even granting

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Far from demonstrating “by a preponderance of the evidence,”

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that the present dispute involves claims exceeding $75,000,

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Defendant has simply made conclusory assertions insufficient

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under Ninth Circuit precedent. This Court, therefore, declines to

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exercise its discretion to request additional discovery and/or

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briefing regarding the amount in controversy.

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Plaintiff’s Motion to Remand is granted.

Therefore,

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B.

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Plaintiff’s Request for Attorney’s Fees

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Plaintiff seeks attorney’s fees from Defendant in the amount

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of $652.50 because he alleges Defendant “has utterly failed to

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meet the standard of proof for removal and used inapposite case

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law in an effort to disguise the absence of any evidence.”

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(Pl.’s Mot. for Remand, 6, June 7, 2011, ECF No. 10.)

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If the district court determines that removal was improper,

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the court “may require payment of just costs and any actual

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expenses, including attorney fees, incurred as a result of the

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removal.”

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to award costs and fees whenever it finds that removal was wrong

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as a matter of law.

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Corp., 208 F.3d 1102, 1106 n.6 (9th Cir. 2000).

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of a case, fees should be denied when an objectively reasonable

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basis for removal exists. Dall v. Albertson's Inc., 349 F. App'x.

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158, 160 (9th Cir. 2009)(citing Martin v. Franklin Capital Corp.,

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546 U.S. 132 (2005)).

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28 U.S.C. § 1447(c).

The Court has broad discretion

Balcorta v. Twentieth-Century Fox Film

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Following remand

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While Defendant has not demonstrated “by a preponderance of

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the evidence,” that Plaintiff’s claims exceed $75,000, failing to

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do so does not demonstrate Defendant did not have an “objectively

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reasonable” belief that claims would exceed the amount.

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quantity and diverse types of damages sought justify Defendant’s

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belief that the claims exceeded $75,000, even if it failed to

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prove they did exceed the amount by the standard required by law.

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The mere

Therefore, Plaintiff’s request for attorney’s fees is
denied.

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CONCLUSION

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Given the strong presumption against removal and Defendant’s

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failure to demonstrate the requisite amount in controversy is

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met, the Court must remand this case to the state court.

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Accordingly, Plaintiff’s Motion for Remand (ECF No. 10) is

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GRANTED.

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DENIED.

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moot.

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Plaintiff’s Motion for Attorney’s Fees (ECF No. 10) is
Defendant’s Motion to Dismiss (ECF No. 7) is DENIED as

IT IS SO ORDERED.

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Dated: August 5, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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