Breining Institute v. Institute for Credentialing Excellence

Filing 10

ORDER signed by Judge Kimberly J. Mueller on 3/20/2013 REMANDING CASE to Superior Court of California, County of Sacramento; DENYING all pending motions as moot, without prejudice. Copy of remand order sent to other court. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BREINING INSTITUTE,
Plaintiffs,

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No. CIV S-13-0542 KJM KJN

v.
INSTITUTE FOR CREDENTIALING
EXCELLENCE, dba NATIONAL
COMMISSION FOR CERTIFYING
AGENCIES,

ORDER

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Defendant.
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Breining Institute is one of ten organizations approved by the California

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Department of Alcohol and Drug Programs to register and certify substance abuse counselors in

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the State of California. 9 CAL. CODE REGS. § 13035(a)(1). In turn, it must be accredited by the

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National Commission for Certifying Agencies (NCCA). Id. § 13035(c)(2).

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On March 8, 2013, Breining filed a petition for writ of administrative mandate in

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Sacramento County Superior Court, seeking an order directing NCCA to vacate its decision

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denying Breining’s application for renewal of its accreditation and to consider the renewal

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application through a fair process. ECF No. 1-2 at 2-136; see generally Anton v. San Antonio

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Cmty. Hosp., 19 Cal. 3d 802, 815-20 (1977) (recognizing that administrative mandamus

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procedure applies to non-governmental agencies); CAL. CIV. PROC. CODE § 1094.5.
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On March 19, 2013, NCCA, a non-profit corporation organized and existing

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under the laws of the District of Columbia with its principal place of business in the District of

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Columbia, removed the action to this court, invoking this court’s jurisdiction under 28 U.S.C.

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§ 1441(b). ECF No. 1. In its notice of removal, NCCA claims that “the amount in controversy

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exceeds $75,000 excluding interest and costs.” Id. at 2.

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Breining has now filed an application for a temporary restraining order, which
draws the court’s attention to the case at this point in time. ECF No. 4.

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District courts have original jurisdiction in two situations: 1) federal question

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jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United

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States;” and 2) diversity jurisdiction where “the matter in controversy exceeds the sum or value

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of $75,000, exclusive of interest and costs” and there is complete diversity between the parties.

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28 U.S.C. §§ 1331, 1332(a). The removal statute, 28 U.S.C. § 1441(a), provides: “[A]ny civil

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action brought in a State court of which the district courts of the United States have original

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jurisdiction, may be removed by the defendant or the defendants, to the district court of the

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United States for the district and division embracing the place where such action is pending.”

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The Ninth Circuit “strictly construe[s] the removal statute against removal

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jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863

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F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 818

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(9th Cir. 1985)). “Federal jurisdiction must be rejected if there is any doubt as to the right of

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removal in the first instance.” Id. (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062,

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1064 (9th Cir. 1979)). There is a “strong presumption” against removal jurisdiction, which

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“means that the defendant always has the burden of establishing that removal is proper.” Id.; see

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also Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006). Furthermore,

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“removal jurisdiction is strictly construed in favor of remand.” Nasrawi v. Buck Consultants,

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LLC, 776 F. Supp. 2d 1166, 1169 (E.D. Cal. 2011) (citing Harris v. Bankers Life and Cas. Co.,

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425 F.3d 689, 698 (9th Cir. 2005)). Accordingly, “the court resolves all ambiguity in favor of

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remand to state court.” Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).

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“Where the complaint does not specify the amount of damages sought, the

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removing defendant must prove by a preponderance of the evidence that the amount in

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controversy requirement has been met.” Abrego Abrego, 443 F.3d at 683. A court “cannot base

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[its] jurisdiction on Defendant’s speculation and conjecture.” Lowdermilk v. U.S. Bank Nat’l

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Ass’n, 479 F.3d 994, 1002 (9th Cir. 2007).

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NCCA has not met its burden of providing sufficient evidence that it is “more

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likely than not” that the amount in controversy requirement is satisfied, as it has provided

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nothing but an unadorned, unsupported statement concerning the amount in controversy.

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Plaintiff seeks a fair hearing, not damages, and it is not clear that plaintiff could even seek

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damages in an administrative mandamus action. See CAL. CIV. PROC. CODE § 1094.5(f) (“The

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court shall enter judgment either commanding respondent to set aside the order or decision, or

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denying the writ.”); Smith v. Shewry, 173 Cal. App. 4th 1163, 1172 (2009) (stating that the

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nature of administrative mandamus is to challenge a specific decision in an administrative

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hearing as to a particular party). Because defendant has not borne its burden of establishing the

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amount in controversy, the court need not consider whether an administrative mandamus

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proceeding is an action, subject to removal. See Mata v. City of Los Angeles, 20 Cal. App. 4th

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141, 149 (1993) (stating that an administrative mandamus petition is technically not an action,

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but rather is a special proceeding); CAL. CIV. PROC. CODE §§ 22, 23.

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Because defendant has not borne its burden of showing the jurisdictional amount

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for diversity jurisdiction has been met, the court REMANDS this case to Sacramento County

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Superior Court and DENIES all pending motions as moot, without prejudice.

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IT IS SO ORDERED.
DATED: March 20, 2013.

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UNITED STATES DISTRICT JUDGE

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