Higuera v. Target Corporation et al

Filing 3

ORDER Remanding Action to State Court. Signed by Judge M. James Lorenz on 2/19/2009. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 12 13 CLAUDIA HIGUERA, Plaintiff, v. TARGET CORPORATION et al., Defendants. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) Civil No. 09cv287-L(BLM) ORDER REMANDING ACTION TO STATE COURT

On February 17, 2009, Defendant Target Corporation ("Defendant") filed a notice of

14 removal, removing this slip and fall personal injury action from State court. The notice of 15 removal is based on diversity jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441. 16 The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of N.Y.,

17 790 F.2d 769, 774 (9th Cir. 1986). It possesses only that power authorized by the Constitution 18 or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). It is 19 constitutionally required to raise issues related to federal subject matter jurisdiction, and may do 20 so sua sponte. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998); see Indus. 21 Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). 22 "Except as otherwise expressly provided by Act of Congress, any civil action brought in a

23 State court of which the district courts of the United States have original jurisdiction, may be 24 removed by the defendant or the defendants, to the district court of the United States for the 25 district and division embracing the place where such action is pending." 28 U.S.C. §1441(a). 26 Original jurisdiction exists in cases of complete diversity, where each of the plaintiffs is a citizen 27 of a different state than each of the defendants, and the amount in controversy exceeds $ 75,000. 28 28 U.S.C. §1332; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
09cv287

1

The removal statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc.,

2 980 F.2d 564, 566 (9th Cir. 1992); see also O'Halloran v. University of Wash., 856 F.2d 1375, 3 1380 (9th Cir. 1988). "Federal jurisdiction must be rejected if there is any doubt as to the right of 4 removal in the first instance." Gaus, 980 F.2d at 566. "The strong presumption against removal 5 jurisdiction means that the defendant always has the burden of establishing that removal is 6 proper." Id.; see also Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712 n.3 (9th 7 Cir. 1990); O'Halloran, 856 F.2d at 1380; Rockwell Int'l Credit Corp. v. U.S. Aircraft Ins. 8 Group, 823 F.2d 302, 304 (9th Cir. 1987), overruled on other grounds, Partington v. Gedan, 923 9 F.2d 686 (9th Cir. 1991). 10 The complaint does not allege damages in excess of $75,000, but seeks unspecified

11 general damages, medical and related expenses, loss of income and damage to personal property. 12 (Compl. at 4.) Defendant asserts that the matter in controversy "is presumed" to exceed $75,000 13 exclusive of interest and costs because Plaintiff's counsel did not respond to Defendant's 14 counsel request to stipulate to a sum less than $75,000. (Notice of Removal at 3.) Defendant's 15 "allegation, although attempting to recite some `magical incantation,' neither overcomes the 16 `strong presumption' against removal jurisdiction, nor satisfies [the removing party's] burden of 17 setting forth, in the removal petition itself, the underlying facts supporting its assertion that the 18 amount in controversy exceeds [the jurisdictional minimum]." Gaus, 980 F.2d at 577 (emphasis 19 and quotations in original, internal citations omitted). 20 Defendant has failed to meet its burden of establishing removal jurisdiction. "If at any

21 time before final judgment it appears that the district court lacks subject matter jurisdiction, the 22 case shall be remanded." 28 U.S.C. § 1447(c). Accordingly, this action is REMANDED to the 23 Superior Court of the State of California for the County of San Diego. 24 IT IS SO ORDERED.

25 DATED: February 19, 2009 26 27 28
2
09cv287

M. James Lorenz United States District Court Judge

1 COPY TO: 2 HON. BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE 3 ALL PARTIES/COUNSEL 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3
09cv287