Vigil v. Waste Connections, Inc.

Filing 10

ORDER and ORDER to SHOW CAUSE signed by Judge Kimberly J. Mueller on 2/11/15: The motion to remand is DENIED. The parties shall, within fourteen days of the issuance of this order, SHOW CAUSE why this case should not be transferred to the District of Nebraska. (Kaminski, H)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY VIGIL and LORI VIGIL, 12 Plaintiffs, 13 14 No. 2:14-cv-02383-KJM-CKD v. ORDER AND ORDER TO SHOW CAUSE WASTE CONNECTIONS, INC., 15 Defendant. 16 17 Anthony and Lori Vigil brought this suit to recover damages for injuries Mr. Vigil 18 19 sustained when a steel pole fell from the defendant’s garbage truck, broke through the Vigils’ 20 windshield, and struck Mr. Vigil in the face. Compl., Nguyen Decl. Ex. 1, at 5, ECF No. 5-3. 21 The defendant, Waste Connections, Inc., removed the action to federal court on the basis of 22 federal diversity jurisdiction. Not. Rem. 3, ECF No. 1-1. Mr. and Mrs. Vigil moved to remand 23 the case, arguing Waste Connections’ removal was untimely. Mot. Remand 1-2, ECF No. 5. 24 After considering the parties’ briefing and reviewing the record, the court DENIES the motion to 25 remand. 26 I. 27 28 BACKGROUND Mr. and Mrs. Vigil allege their injuries occurred on November 28, 2013, while they were driving in North Platte, Nebraska. Compl. at 5. They filed a complaint on April 24, 1 1 2014, in Sacramento County Superior Court. Id. at 1. They allege causes of action in negligence, 2 negligence per se, and loss of consortium, id. at 4-7, and seek damages for lost wages, lost 3 earning capacity, lost use of their property, hospital and medical expenses, property damages, and 4 loss of consortium, id. at 3. They do not seek punitive damages and specify no dollar amount of 5 their damages, requesting instead an amount “according to proof,” id. at 3, but they filed their 6 case as an unlimited civil case, in which damages exceed $25,000, id. at 1. Waste Connections 7 was served with the complaint on May 16, 2014. Proof of Service of Summons, Mot. Remand 8 Ex. 2, at 1, ECF No. 5-3. The state court denied its motions to transfer in July 2014, see Ngyuen 9 Decl. ¶ 7, ECF No. 5-2, and to quash summons in August 2014, id. ¶ 9. Waste Connections 10 answered the complaint on August 1, 2014. Answer, Nguyen Decl. Ex. 3, at 3, ECF No. 5-3. 11 Waste Connections removed this action on the basis of the court’s diversity 12 jurisdiction. Not. Removal ¶¶ 3-5, ECF No. 1-1. According to the complaint, Waste Connections 13 is a corporation whose principal place of business is in California. Compl. at 2. Waste 14 Connections’ deputy general counsel and assistant secretary, however, avers it is a Delaware 15 corporation with its principal place of business in The Woodlands, Texas. Cloninger Decl., 16 Kearns Decl. Ex. A, ¶¶ 1-2, ECF No. 6-1. The complaint does not specify the Vigils’ citizenship 17 or residence. A motor vehicle accident report dated December 6, 2012, states the Vigils’ address 18 is in North Platte, Nebraska. Report, Nguyen Decl. Ex. 8, at 1, ECF No. 5-3. Waste Connections 19 appears to have believed as early as August 1, 2014, that the Vigils were Nebraska citizens. See 20 Mem. P.&A. Supp. Def.’s Mot. Quash, Nguyen Decl. Ex. 6, at 10, ECF No. 5-3 (urging the 21 California court to quash summons because the parties’ residences were in Nebraska and Texas). 22 On September 10, 2014, the Vigils denied the amount in controversy was less than $75,000 and 23 admitted they were not “current resident[s] of the state of California” and were “current 24 resident[s] of the state of Nebraska.” Resp. Req. for Adm., Not. Rem. Ex. E, at 2-3, ECF No. 1-7. 25 After receiving this information, Waste Connections filed a notice of removal on October 9, 2014. 26 ECF No. 1. The Vigils moved for remand on November 7, 2014. ECF No. 5. They argue Waste 27 Connections removed the case too late. 28 ///// 2 1 2 3 II. JURISDICTION A. Removal Jurisdiction A defendant may remove a state civil action to a U.S. district court which 4 embraces the place the civil action is pending. 28 U.S.C. § 1441(a). Removal is proper only if 5 the district court has original jurisdiction over the state action. Id. Congress has defined 6 additional procedural requirements: removal may be mandatory within two particular thirty-day 7 periods. 28 U.S.C. § 1446(b); Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1139 8 (2013). The Ninth Circuit has defined these periods in terms of their “triggers”: “The first thirty- 9 day removal period is triggered ‘if the case stated by the initial pleading is removable on its face.’ 10 The second thirty-day removal period is triggered if the initial pleading does not indicate that the 11 case is removable, and the defendant receives ‘a copy of an amended pleading, motion, order or 12 other paper’ from which removability may first be ascertained.” Carvalho v. Equifax Info. Servs., 13 LLC, 629 F.3d 876, 885 (9th Cir. 2010) (quoting 28 U.S.C. § 1446(b) and Harris v. Bankers Life 14 & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005)). In other words, if a defendant receives an initial 15 pleading that “reveals” a basis for removal, or if a basis for removal is “evident” from an initial 16 pleading, the defendant may not remove the case more than thirty days after receiving that initial 17 pleading. Harris, 425 F.3d at 694. 18 The statute does not define “removable” or what duty a defendant has, if any, to 19 determine whether an action may be removed. Kuxhausen, 707 F.3d at 1139. Some cases are 20 clearly removable, some are clearly not, and others are “indeterminate,” that is, “the face of the 21 complaint does not make clear whether the required jurisdictional elements are present.” Id. The 22 Ninth Circuit, following the lead of several other federal circuit courts, held in Harris that “notice 23 of removability under § 1446(b) is determined through examination of the four corners of the 24 applicable pleadings, not through [the defendant’s] subjective knowledge or a duty to make 25 further inquiry.” 425 F.3d at 694. This is a “bright-line approach” meant to “bring certainty and 26 predictability to the process,” “avoid[] gamesmanship in pleading,” and avoid “the spectre of 27 inevitable collateral litigation” about whether the pleadings were sufficient, whether the 28 defendant subjectively knew a case could be removed, or whether the defendant’s inquiry 3 1 sufficed. Id. at 697. Of course, a defendant may not feign ignorance and delay removal to a 2 strategically advantageous date. Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125 3 (9th Cir. 2013). But a plaintiff must also not prevent or delay removal by artfully sparse 4 pleading. Id. 5 Here, Waste Connections contends this court has original jurisdiction over the 6 Vigils’ claims on the basis of 28 U.S.C. § 1332(a)(1). That section provides for this court’s 7 original subject matter jurisdiction over all civil actions between citizens of different states in 8 which the amount in controversy exceeds $75,000. Id. 9 B. Amount in Controversy 10 The amount-in-controversy requirement is a jurisdictional requirement like any 11 other, of which defendants are not charged with notice until they have “a paper that gives them 12 enough information to remove.” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th 13 Cir. 2006). Defendants are not expected to extrapolate or make guesses about the amount in 14 controversy. Kuxhausen, 707 F.3d at 1140. They need not supply information the plaintiff has 15 omitted, but must “‘apply a reasonable amount of intelligence’” to decide whether a case may be 16 removed. Id. at 1140 (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 17 2001)). If a plaintiff believes a case may be removable, and worries the defendant may 18 strategically delay removal, the plaintiff need only send the defendant a pleading or “other paper” 19 from which removability may be ascertained; the applicable thirty-day period is then triggered. 20 Roth, 720 F.3d at 1126. The same plaintiff may not complain this rule unfairly allows removal. 21 If a case may truly be removed, allowing a plaintiff to conceal this fact would grant the same 22 unfair advantage denied to defendants. 23 Here, the Vigils’ agree their complaint does not state a specific amount in 24 controversy. Mem. P.&A. Remand (Mem.) 7:4-5, ECF No. 5-1. Instead the Vigils rely on an 25 inference from the “violent and substantial force” required to send a steel pole through a 26 windshield and their allegation of the “serious injuries” the pole caused. Id. at 7. They note the 27 complaint states the action is an unlimited civil case in which the amount in controversy “exceeds 28 $25,000.” Id. But the complaint does not describe Mr. Vigil’s injuries, his lost earnings, or any 4 1 specific information about his damages. Neither does the fact of unlimited jurisdiction suffice. 2 See Carvalho, 629 F.3d at 886. These allegations do not inform Waste Connections of the 3 amount in controversy. It is not “evident,” “apparent,” or “manifested” within “the four corners” 4 of the complaint. Harris, 425 F.3d at 693, 694-95 (emphasis omitted) (quoting Lovern v. General 5 Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997)). Federal courts in California generally agree 6 the initial thirty-day deadline of § 1446(b)(1) is not triggered when the complaint does not 7 affirmatively disclose the amount in controversy, a question frequently arising in removal of 8 potential class actions. See, e.g., Kuxhausen, 707 F.3d at 1140-41 (rejecting, in a case in which 9 jurisdictional amount was $5 million, reasoning of district court that “given 200 class members 10 and given [the plaintiff’s] demand for rescission of a vehicle contract exceeding $50,000, there 11 were class-wide damages of at least $10,000,000,” because complaint did not specify value of 12 each class member’s claims (internal quotation marks omitted)); Carvalho, 629 F.3d at 886 13 (finding complaint did not trigger the first thirty-day period even though plaintiff had previously 14 made a $25,000 settlement demand and contemplated several hundred more potential plaintiffs); 15 Owen v. L’Occitane, Inc., No. 12-09841, 2013 WL 941967, at *7 (C.D. Cal. Mar. 8, 2013) 16 (describing other similar cases). 17 This rule is a general one, and perhaps could give way to an exception in the right 18 circumstances. In Banta v. Am. Med. Response, Inc., No. 11-03586, 2011 WL 2837642 (C.D. 19 Cal. July 15, 2011), for example, the defendants claimed ignorance of the amount in controversy 20 despite several related and similar cases, and despite their knowledge of the key facts necessary to 21 compute potential damages. See 2011 WL 2837642, at *3, 5-7. Most courts have not adopted the 22 same reasoning, however. See, e.g., Owen, 2013 WL 941967, at *6-7. The Banta court 23 acknowledged its decision was contrary to others in this circuit. See 2011 WL 2837642, at *6 24 n.5. Here, the Vigils’ reliance on Banta is misplaced, in that this case is not amenable to a 25 potential Harris exception. The complaint is sketchy. It provides no detail of the injuries alleged. 26 Imposing on Waste Connections the obligation to verify the amount in controversy would require 27 the sort of guesswork spurned in Harris. See 425 F.3d at 697. 28 ///// 5 1 The case as pled in the complaint was therefore not removable. Waste 2 Connections first became aware the amount in controversy exceeded $75,000 on September 10, 3 2014, when the Vigils answered its requests for admission. Resp. Req. for Adm., Not. Rem. 4 Ex. E, at 2-3, ECF No. 1-7. Responses to request for admission are “other papers” within the 5 meaning of 28 U.S.C. § 1446(b). Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 n.62 (11th 6 Cir. 2007); DeJohn v. AT & T Corp., No. 10-07107, 2011 WL 9105, at *2 (C.D. Cal. Jan. 3, 7 2011). Regardless of when Waste Connections learned the parties were diverse, their notice of 8 removal was timely under 28 U.S.C. § 1446(b)(3) when filed on October 9, 2014. 9 C. 10 Diversity of Citizenship Because the case as pled in the complaint was not removable, and Waste 11 Connections did not learn the amount in controversy exceeded $75,000 until September 10, 2014, 12 the court need not decide at what point Waste Connections became aware of the parties’ diversity. 13 III. 14 TRANSFER The parties have not raised the issue of venue before this court; however, a court 15 may raise the issue of defective venue on its own motion. Costlow v. Weeks, 790 F.2d 1486, 1488 16 (9th Cir. 1986). Section 1406(a) of Title 28 provides that a court may transfer a case “to any 17 district or division in which it could have been brought” when a case lays venue in the “wrong 18 division or district.” Venue is proper in “a judicial district in which a substantial part of the 19 events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). If venue is 20 proper, but another district or division appears a better fit, section 1404(a) of Title 28 allows 21 transfer “to any other district or division where it might have been brought” “[f]or the 22 convenience of parties and witnesses, in the interest of justice.” To determine whether transfer is 23 proper, the court must “balance the preference accorded plaintiff’s choice of forum with the 24 burden of litigating in an inconvenient forum.” Decker Coal Co. v. Commonwealth Edison Co., 25 805 F.2d 834, 843 (9th Cir. 1986) (citations omitted). 26 Mr. and Mrs. Vigil are citizens of Nebraska, and Waste Connections is a citizen of 27 Texas. None of the events alleged occurred in California. Nebraska common law appears to 28 apply to the Vigils’ claims, and the evidence and witnesses are very probably in either Nebraska 6 1 or Texas. The court is aware of no factor that favors litigation in this district other than the 2 Vigils’ initial choice of forum. 3 IV. CONCLUSION 4 The motion to remand is DENIED. The parties shall, within fourteen days of the 5 issuance of this order, SHOW CAUSE why this case should not be transferred to the District of 6 Nebraska under 28 U.S.C. §§ 1404(a) or 1406(a). 7 8 IT IS SO ORDERED. DATED: February 11, 2015. 9 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?