Buie v. ESA Management, LLC

Filing 16

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr. on 5/15/18 ORDERING that Plaintiff's Motion to Remand 7 is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FERDINA BUIE,

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Plaintiff,

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No. 2:17-cv-02455-MCE-AC

v.

MEMORANDUM AND ORDER

EXTENDED STAY HOTELS, et. al,

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Defendant.

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By way of this action, Plaintiff Ferdina Buie (“Plaintiff”) seeks damages from

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Defendant Extended Stay America Management (“Defendant” or “ESA Management”),

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which owns or operates an Extended Stay hotel in Roseville, California, where Plaintiff

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allegedly experienced a slip and fall accident on the premises. Plaintiff originally filed

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her action in Placer County Superior Court, and ESA Management removed it to this

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Court on November 20, 2017, citing diversity of citizenship grounds. ECF No. 1.

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Presently before the Court is Plaintiff’s Motion to Remand the action back to state court.

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ECF No. 7. For the reasons set forth below, that Motion is DENIED.1

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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs pursuant to E.D. Cal. Local Rule 230(g).

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STANDARD

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When a case “of which the district courts of the United States have original

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jurisdiction” is initially brought in state court, the defendant may remove it to federal court

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“embracing the place where such action is pending.” 28 U.S.C. § 1441(a). There are

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two bases for federal subject matter jurisdiction: (1) federal question jurisdiction under

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28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A district court

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has federal question jurisdiction in “all civil actions arising under the Constitution, laws,

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or treaties of the United States.” Id. § 1331. A district court has diversity jurisdiction

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“where the matter in controversy exceeds the sum or value of $75,000, . . . and is

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between citizens of different states, or citizens of a State and citizens or subjects of a

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foreign state . . . .” Id. § 1332(a)(1)-(2).

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A defendant may remove any civil action from state court to federal district court if

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the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). “The

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party invoking the removal statute bears the burden of establishing federal jurisdiction.”

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Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988) (citing Williams v.

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Caterpillar Tractor Co., 786 F.2d 928, 940 (9th Cir. 1986)). Courts “strictly construe the

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removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566

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(9th Cir. 1992) (internal citations omitted). “[I]f there is any doubt as to the right of

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removal in the first instance,” the motion for remand must be granted. Id. Therefore, “[i]f

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at any time before final judgment it appears that the district court lacks subject matter

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jurisdiction, the case shall be remanded” to state court. 28 U.S.C. § 1447(c).

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If the district court determines that removal was improper, then the court may also

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award the plaintiff costs and attorney’s fees accrued in response to the defendant’s

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removal. 28 U.S.C. § 1447(c). The court has broad discretion to award costs and fees

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whenever it finds that removal was wrong as a matter of law. Balcorta v. Twentieth-

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

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ANALYSIS

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As a preliminary matter, Plaintiff implores the Court to disregard Defendant’s tardy

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Opposition because it was filed seven (7) days late without explanation. The Court will

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not overlook Defendant’s delay and Defendant is admonished that any further failure to

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comply with the Court’s rules may result in sanctions. Nonetheless, because it appears

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no prejudice has arisen from that delay—and in the interest of deciding the pending

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motion on the merits rather than on a procedural or calendaring error—the Court has

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considered all filings by both parties.2

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Plaintiff argues that remand is warranted because Defendant’s Notice of Removal

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is defective. Specifically, Plaintiff asserts Defendant failed to comply with §§ 1441

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through 1452 by (1) failing to provide evidence that the amount in question was greater

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than $75,000; (2) failing to establish complete diversity; and (3) failing to provide all

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orders and pleadings from the underlying state court action. Mot., ECF No. 7, at 2.

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Regarding the amount in controversy, Plaintiff is correct that the Complaint

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alleges no specific amount, and Defendant’s statement that the amount exceeds

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$75,000 is conclusory. Plaintiff’s prayer for damages seeks non-economic damages in

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excess of $10,000; medical and incidental expenses; loss of earnings; and prejudgment

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interest. It is hard to imagine these amounts would not add up to exceed $75,000.

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Nonetheless, as the removing party Defendant bears the burden of establishing federal

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jurisdiction, Ethridge, 861 F.2d at 1393, and it must do so by a preponderance of the

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evidence, Gaus, 980 F.2d at 567. Plaintiff seems to rely heavily on this standard in

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arguing that Defendant has failed to prove the amount in controversy, but—tellingly—

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nowhere does Plaintiff actually assert that the amount in controversy doesn’t exceed the

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required minimum.3

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Plaintiff’s Objections to Defendant’s evidence, ECF No. 11, are also overruled.

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Of course, Plaintiff is free to argue or stipulate that the amount it seeks is less than $75,000, but
has not done so here.

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Indeed, Defendant has included with its Opposition a Statement of Damages

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signed by Plaintiff’s attorney wherein Plaintiff claims $1,125,000 in total damages, not

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including interest. The Court may—and does—consider this evidence in determining

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that removal was proper. See Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395, 400

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(9th Cir. 2010) (defendant “may rely upon affidavits and declarations to make [the

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required] showing; the law in the Ninth Circuit expressly contemplates the district court's

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consideration of some evidentiary record”); see also Valdez v. Allstate Ins. Co., 372 F.3d

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1115, 1117 (9th Cir. 2004) (court may consider “summary-judgment-type evidence

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relevant to the amount in controversy at the time of removal”). Although “[i]t is best to

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make this showing in the notice of removal itself, . . . a party can supplement its showing

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in an opposition to a motion to remand.” Waller v. Hewlett-Packard Co., 11CV0454-LAB

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RBB, 2011 WL 8601207, at *2 (S.D. Cal. May 10, 2011) (citing Cohn v. Petsmart, Inc.,

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281 F.3d 837, 840 n.1 (9th Cir. 2002) (“the district court did not err in construing

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Petsmart's opposition as an amendment to its notice of removal”). The Court therefore

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finds that the amount in controversy exceeds $75,000.

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Similarly, Plaintiff argues that Defendant has failed to establish complete diversity,

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but nowhere does Plaintiff assert that complete diversity is lacking. Rather, it asserts

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that Defendant’s statement in its Notice of Removal that it is a Delaware LLC based in

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Delaware is not enough to allege citizenship of an LLC. For purposes of diversity

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jurisdiction, “an LLC is a citizen of every state of which its owners/members are citizens.”

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Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006).

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Along with its Opposition, Defendant now submits the Statement of Information from

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ESA Management, filed with the State of California, which shows that ESA Management

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LLC is a Delaware Company with its primary place of business in North Carolina. The

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form also states that the member of the LLC is Extended Stay America, Inc. with a North

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Carolina address. As above, the Court considers this document in determining that

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Defendant has established complete diversity between the parties.

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Plaintiff’s final argument that the action should be remanded because Defendant

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failed to provide all relevant papers from the underlying state court action is similarly not

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well taken.4 Defendant admits that it inadvertently neglected to include certain case

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management documents, but the Court does not find this excusable neglect to be

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grounds to remand the action where complete diversity exists between the parties and

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the amount in controversy exceeds $75,000.

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CONCLUSION

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For the reasons set forth above, Plaintiff’s Motion to Remand, ECF No. 7, is
DENIED.
IT IS SO ORDERED.
Dated: May 15, 2018

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The missing case management documents have now been provided to the Court as Exhibit A to
Plaintiff’s Motion.

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