Gerber v. FCA US LLC et al

Filing 25

ORDER denying 9 , 10 Plaintiff's Motion to Remand. Gerber's motion to remand is DENIED. (Doc. Nos. 9, 10.) Because the Court denies his motion, Gerber's request for attorneys fees and costs is also DENIED. (Doc. No. 9-1 at 13.) The parties' requests for jurisdictional discovery are DENIED. (Id. at 12; Doc. No. 15 at 1617). Signed by Judge Anthony J. Battaglia on 6/23/2017. (All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

MICHAEL GERBER,

Case No.: 17-CV-0518-AJB-BGS
Plaintiff,

12
13

v.

14

ORDER DENYING PLAINTIFF’S
MOTION TO REMAND

FCA US LLC, A Delaware Limited
Liability Company; DOES 1 through 10,
Inclusive,

15
16

(Doc. Nos. 9, 10)

Defendant.

17
18
19

Presently before the Court is Plaintiff Michael Gerber’s (“Gerber”) motion to

20

remand. (Doc. Nos. 9, 10.) Defendant FCA US LLC (“FCA”) opposes the motion. (Doc.

21

No. 15.) Having reviewed the parties’ moving papers and controlling legal authority, and

22

pursuant to Local Civil Rule 7.1.d.1, the Court finds the matter suitable for decision on the

23

papers and without oral argument. Accordingly, the hearing currently set for July 6, 2017,

24

at 2:00 p.m. in Courtroom 4A is hereby VACATED. For the reasons set forth below, the

25

Court DENIES Gerber’s motion.

26

BACKGROUND

27

This dispute arises from FCA’s alleged breach of warranty obligations owed to

28

Gerber for a new 2012 Jeep Grand Cherokee (“Jeep”) he purchased from FCA. Gerber
1
17-CV-0518-AJB-BGS

1

asserts FCA concealed a known defect from him, specifically, a defect with the totally

2

integrated power module (“TIPM”), which is responsible for controlling and distributing

3

electrical power to the entire vehicle. (Doc. No. 1 at 9 ¶ 4.) Based on this concealment,

4

Gerber instituted this action in San Diego Superior Court on June 30, 2016, bringing causes

5

of action for breaches of express and implied warranties in violation of California’s Song-

6

Beverly Consumer Warranty Act (“Song-Beverly Act” or “Act”), as well as a cause of

7

action for fraudulent inducement/concealment under California state common law. (Doc.

8

No. 1 at 2 ¶ 1.)

9

FCA removed the action to this Court on March 16, 2017, asserting the Court has

10

diversity jurisdiction. (Doc. No. 1 at 1.) On April 17, 2017, Gerber filed the instant motion

11

to remand, arguing FCA has failed to carry its burden of establishing that the amount in

12

controversy exceeds $75,000 and that the parties are completely diverse. (Doc. Nos. 9, 10.)

13

FCA filed an opposition, (Doc. No. 15), and Gerber replied, (Doc. No. 20). This order

14

follows.
LEGAL STANDARD

15
16

The right to remove a case to federal court is entirely a creature of statute. See

17

Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal

18

statute, 28 U.S.C. § 1441, allows defendants to remove an action when a case originally

19

filed in state court presents a federal question, or is between citizens of different states and

20

involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); 28

21

U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in

22

federal court can be removed. 28 U.S.C. § 1441(a); see also Caterpillar Inc. v. Williams,

23

482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir.

24

1988).

25

“[J]urisdiction founded on [diversity] requires that parties be in complete diversity

26

and the amount in controversy exceed $75,000.” Matheson v. Progressive Specialty Ins.

27

Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam); see 28 U.S.C. § 1332(a)(1).

28

Complete diversity requires that the plaintiff’s citizenship is diverse from that of each
2
17-CV-0518-AJB-BGS

1

named defendant. 28 U.S.C. §§ 1332(a)(1), 1332(c)(1); Caterpillar Inc. v. Lewis, 519 U.S.

2

61, 68 n.3 (1996). Whether or not complete diversity is present is determined at the time

3

of removal. See Am. Dental Indus., Inc. v. EAX Worldwide, Inc., 228 F. Supp. 2d 1155,

4

1157 (D. Or. 2002) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,

5

(1938)).

6

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

7

jurisdiction,” and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right

8

of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per

9

curiam) (citations omitted). “The ‘strong presumption’ against removal jurisdiction means

10

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

11

also McNutt v. Gen. Motors Acceptance Corp., Inc., 298 U.S. 178, 189 (1936) (finding that

12

the removing party must prove its allegations by a preponderance of the evidence). The

13

Court takes this proof from the notice of removal and may, if it chooses, construe the

14

opposition to the motion to remand as an amendment to the notice of removal. See Cohn v.

15

Petsmart Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002).
DISCUSSION

16
17

Gerber argues four points that he contends require remand of this action to California

18

state court: (1) FCA’s amount-in-controversy calculation ignores California state law; (2)

19

FCA, as a limited liability company (“LLC”), has not established the citizenship of its

20

foreign member, nor has it established Gerber’s citizenship; (3) comity dictates that this

21

case be remanded to state court; and (4) FCA’s failure to attach all pleadings that were filed

22

in state court render FCA’s removal procedurally improper. (Doc. Nos. 9, 10, 20.) The

23

Court will consider each argument in turn.

24

I.

Amount in Controversy

25

In his complaint, Gerber seeks, inter alia, “reimbursement of the price paid for the

26

[Jeep] less that amount directly attributable to use by the Plaintiff prior to discovery of the

27

nonconformities” and “a civil penalty of up to two times the amount of actual damages in

28

that FCA [] has willfully failed to comply with its responsibilities under the [Song-Beverly]
3
17-CV-0518-AJB-BGS

1

Act.” (Doc. No. 1 at 31 ¶¶ 145, 148.) Gerber asserts that FCA has not proven the amount

2

in controversy exceeds $75,000. (Doc. No. 9-1 at 7–10; Doc. No. 20 at 7–8.)

3

Gerber contends FCA’s notice of removal improperly relies on an approximation of

4

the cash price, but offers no explanation as to why this number is the proper figure to base

5

the amount-in-controversy calculation on. (Doc. No. 9-1 at 8–9.) In response, FCA points

6

to the retail installment sale contract (“RISC”), attached to the complaint, as well as FCA

7

warranty claim reports, documents upon which it bases its calculation that the actual

8

damages at issue are $38,629.50. (Doc. No. 15 at 12–14.)

9

California Civil Code section 1793.2(d)(2)(B) defines “restitution” in relevant part

10

as “an amount equal to the actual price paid or payable by the buyer, . . . including any

11

collateral charges such as sales or use tax, license fees, registration fees, and other official

12

fees[.]” Section 1793.2(d)(2)(C) goes on to permit the defendant to reduce the amount

13

payable to the buyer “by that amount directly attributable to use by the buyer prior to the

14

time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized

15

service and repair facility for correction of the problem that gave rise to the

16

nonconformity.” Cal. Civ. Code § 1793.2(d)(2)(C).

17

The complaint does not allege the total amount sought with respect to these damages.

18

However, as noted, the RISC is attached to the complaint. (Doc. No. 1 at 36.) The RISC

19

lists the total cash price as $45,022.73. (Id.) FCA predicates its actual damages analysis on

20

this figure. (Doc. No. 15 at 12; see Doc. No. 1 at 4 ¶ 19.) Given that the statute permits

21

Gerber to recover collateral charges, which FCA did not use in its amount-in-controversy

22

calculation, the Court finds FCA’s use of the total cash price conservatively estimates “the

23

actual price paid or payable by” Gerber.

24

As noted above, however, this figure does not end the inquiry. Rather, the restitution

25

awardable under section 1793.2(d)(2)(B) must be reduced by the amount directly

26

attributable to Gerber’s use of the Jeep prior to the first repair or attempted repair. This set-

27

off amount is determined by multiplying the “actual price of the new motor vehicle paid or

28

payable by the buyer . . . by a fraction having as its denominator 120,000 and having as its
4
17-CV-0518-AJB-BGS

1

numerator the number of miles traveled by the new motor vehicle prior to the time the

2

buyer delivered the vehicle” for correction of the problem. Cal. Civ. Code §

3

1793.2(d)(2)(C).

4

The complaint does not include the Jeep’s mileage when Gerber took it to the

5

dealership for the first relevant repair. Rather, the complaint lists April 29, 2013, as the

6

date he “delivered the [Jeep] to an authorized FCA [] repair facility for repair.” (Doc. No.

7

1 at 23 ¶ 95.) On that date, the Jeep had 17,082 miles on it. (Doc. No. 15-1 ¶ 10; Doc. No.

8

15-9 at 3.) When Gerber purchased the Jeep, it had 42 miles on its odometer. (Doc. No. 1

9

at 36.) Accordingly, the Court finds FCA has presented sufficient evidence to establish it

10

is more likely than not that the mileage attributable to Gerber’s use, for purposes of the

11

instant motion, is 17,040. Utilizing the formula provided by section 1793.2(d)(2)(C), this

12

results in a mileage offset of $6393.23, which reduces the actual damages at issue to

13

$38,629.50.

14

This does not end the inquiry either. In the complaint, Gerber also seeks civil

15

penalties. (Doc. No. 1 at 31 ¶ 148.) California Civil Code section 1794(c) and (e) permits

16

a buyer to recover a civil penalty not to exceed two times the amount of actual damages

17

where the buyer establishes the defendant’s failure to comply with the Song-Beverly Act

18

is willful. “Courts[,] as a matter of law, calculate the amount in controversy based upon the

19

maximum amount of civil penalties available to plaintiff.” Garcia v. FCA US, LLC, No.

20

1:16-cv-00730-DAD-BAM, 2016 WL 4445337, at *4 (E.D. Cal. Aug. 24, 2016) (quoting

21

Saulic v. Symantec Corp., No. SA 07-cv-00610-AHS-PLAx, 2007 WL 5074883, at *4

22

(C.D. Cal. Dec. 26, 2007)); see also Chabner v. United of Omaha Life Ins. Co., 225 F.3d

23

1042, 1046 n.3 (9th Cir. 2000) (noting district courts can consider treble damages where

24

authorized by statute). Here, the Act permits recovery of up to two times actual damages.

25

Because Gerber “is seeking recovery from a pot that [FCA] has shown could exceed

26

[$75,000] and [Gerber] has neither acknowledged nor sought to establish that the []

27

recovery is potentially any less,” the Court finds inclusion of a full civil penalty award is

28

appropriate. Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 401 (9th Cir. 2010); see also
5
17-CV-0518-AJB-BGS

1

id. at 401 (“Once the proponent of federal jurisdiction has explained plausibly how the

2

stakes exceed [the amount in controversy], . . . then the case belongs in federal court unless

3

it is legally impossible for the plaintiff to recover that much.” (quoting Spivey v. Vertrue,

4

Inc., 528 F.3d 982, 986 (7th Cir. 2008))).

5

As determined above, the actual damages figure at issue is $38,629.50. When

6

trebled, the amount in controversy, exclusive of incidental and consequential damages,

7

finance charges, and attorney’s fees and costs, is $115,888.50. Because this figure exceeds

8

the jurisdictional threshold, the Court finds FCA has carried its burden as to the amount in

9

controversy. Garcia, 2016 WL 4445337, at *4.

10

II.

Diversity of Citizenship

11

Gerber next argues that FCA, as an LLC, has failed to establish the citizenship of its

12

foreign member. (Doc. No. 9-1 at 10–12; Doc. No. 20 at 4–6.) Gerber also asserts FCA has

13

failed to establish Gerber’s citizenship. (Doc. No. 20 at 3–4.) In opposition, FCA asks the

14

Court to consider Book 2 of the Dutch Civil Code, Article 2:64-1, which states that “[a]n

15

Open Corporation (‘naamloze vennootschap’) is a legal person . . . .” (Doc. No. 15 at 6–

16

10.) FCA argues that its ultimate owner is a naamloze vennotschap (“N.V.”); accordingly,

17

FCA is a citizen of the Netherlands and thus diverse from Gerber. (Id.)

18

Removal based on diversity requires that the citizenship of each plaintiff be diverse

19

from the citizenship of each defendant (e.g., complete diversity). Caterpillar Inc., 519 U.S.

20

at 68. For purposes of diversity, an LLC is a citizen of every state in which its

21

“owners/members” are citizens. Johnson v. Columbia Props. Anchorage, LP, 437 F.3d

22

894, 899 (9th Cir. 2006) (explaining that courts are to treat LLCs like partnerships, which

23

have the citizenships of all of their members). “Section 1332(a)(2) applies to foreign legal

24

entities of all kinds, so long as the entity is considered a juridical person under the law that

25

created it.” Cohn v. Rosenfeld, 733 F.2d 625, 629 (9th Cir. 1984). A “juridical person” is

26

an “entity, such as a corporation, created by law and given certain legal rights and duties

27

of a human being[.]” Black’s Law Dictionary 979, 1324–25 (10th ed. 2014). Factors

28

relevant to whether an entity is a juridical person include the entity’s ability to sue and be
6
17-CV-0518-AJB-BGS

1

sued in its own name, whether any recovery in such litigation becomes an asset of the

2

entity, and whether the laws of the foreign country recognize the entity as a legally

3

independent organized enterprise. Cohn, 733 F.2d at 629.

4

In the notice of removal and accompanying declaration, FCA explained it is an LLC

5

organized under the laws of the State of Delaware. (Doc. No. 1 at 3 ¶ 11; Doc. No. 1-2 ¶

6

2.) Its sole member is FCA North American Holding LLC, also a limited liability company

7

organized under the laws of the State of Delaware. (Doc. No. 1 at 3 ¶ 11; Doc. No. 1-2 ¶

8

3.) In turn, FCA North American Holding LLC’s sole member is Fiat Chrysler

9

Automobiles, N.V. (“Fiat N.V.”), which is a publicly traded company incorporated under

10

the laws of the Netherlands with its principal place of business in London, England. (Doc.

11

No. 1 at 3 ¶ 11; Doc. No. 1-2 ¶ 4.)

12

It is Fiat N.V.’s citizenship that Gerber contends FCA has failed to establish by a

13

preponderance of evidence. Specifically, Gerber asserts Kris Krueger’s declaration fails to

14

establish that Fiat N.V. is a juridical person under the laws of the Netherlands because the

15

Krueger declaration is conclusory, contains improper legal conclusions, lacks foundation,

16

and lacks any documentary evidence. (Doc. No. 9-1 at 12; see Doc. No. 9-3.)

17

The Court overrules Gerber’s objections. Federal Rule of Civil Procedure 44.1

18

provides, “In determining foreign law, the court may consider any relevant material or

19

source, including testimony, whether or not submitted by a party or admissible under the

20

Federal Rules of Evidence.” As such, FCA’s evidence need not pass muster under the

21

Federal Rules of Evidence to be considered on the instant motion.1 Having considered

22

Krueger’s declaration, along with Scott Shepardson’s declaration and the accompanying

23

translation of the Dutch Civil Code provided, the Court is satisfied that FCA has proven it

24
25
26
27

For this reason, the Court DENIES Gerber’s request for jurisdictional discovery. (Doc.
No. 9-1 at 12.)
1

28

7
17-CV-0518-AJB-BGS

1

is more likely than not a citizen of the Netherlands.2 The Dutch Civil Code provides that

2

an N.V. is a “legal person” that can, inter alia, be held jointly and severally liable for its

3

directors’ juridical acts. (Doc. No. 15-2 at 2, 5.) The Court’s conclusion is in keeping with

4

those of other courts, finding N.V.s to be foreign entities. See Garcia, 2016 WL 4445337,

5

at *3 (finding FCA “adequately asserted and established that [Fiat N.V.] is a juridical

6

person under the laws of Netherlands and that [FCA] is not a citizen of California”);

7

Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 20 (D.D.C. 2005) (dismissing foreign

8

plaintiffs’ claims against defendant N.V. because 28 U.S.C. § 1332 “does not confer

9

jurisdiction over suits by a group consisting of only foreign persons against another foreign

10

person”).

11

Gerber further asserts that remand is appropriate because FCA has failed to establish

12

that Gerber is a citizen of California. (Doc. No. 20 at 3–4.) In the notice of removal, FCA

13

stated Gerber is a citizen and resident of California. (Doc. No. 1 at 3 ¶ 10.) That statement

14

references the complaint, which simply states that Gerber “is an individual residing in the

15

City of San Diego, County of San Diego, and State of California.” (Id. at 9 ¶ 1.) Gerber

16

argues that because the complaint does not allege that he is a citizen of California, and

17

because the notice of removal relies on the complaint, FCA has failed to prove Gerber’s

18

citizenship for purposes of removal. (Doc. No. 20 at 3–4.)

19

If the record contained only the information Gerber asserts it does, the Court would

20

agree. “The natural person’s state citizenship is [] determined by her state of domicile, not

21

her state of residence. A person’s domicile is her permanent home, where she resides with

22

the intention to remain or to which she intends to return. A person residing in a given state

23

is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter

24
25
26
27
28

2

Gerber also raises evidentiary objections to the Shepardson declaration. (Doc. No. 20-4.)
First, Gerber’s filing violates the undersigned’s Civil Case Procedures, which require that
objections relating to the motion be set forth in the party’s opposition or reply. Second, the
Court OVERRULES the objections based on Federal Rule of Civil Procedure 44.1.
8
17-CV-0518-AJB-BGS

1

v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (citations omitted). However,

2

while Gerber stated in the complaint that he is a resident of California, the civil cover sheet

3

clarifies that Gerber is also a California citizen. (Doc. No. 1-1 at 1.) In Item III, Gerber

4

indicated he is a citizen of this (e.g., California) state. (Id.) In the absence of any evidence

5

or argument to the contrary, the record supports finding it is more likely than not that

6

Gerber is a citizen of California. See Lastra v. PHH Mortg. Corp., No. 10cv2573–LAB

7

(BLM), 2011 WL 768135, at *1 n.2 (S.D. Cal. Feb. 28, 2011) (noting that defendant

8

intended to allege plaintiff is a citizen of California given that the civil cover sheet

9

identifies plaintiff as such). In sum, the Court finds FCA has carried its burden of

10

establishing diversity jurisdiction.

11

III.

Gerber’s Remaining Arguments

12

Gerber’s final arguments do not alter the foregoing conclusions. Gerber asserts that

13

the Court should decline jurisdiction on comity principles because this case involves

14

“consideration of numerous state-specific issues on sensitive, uniquely state-law issues of

15

regulation and statutory interpretation.” (Doc. No. 9-1 at 4–6.) As a federal district court

16

located within the State of California, this is not the Court’s first case dealing with claims

17

predicated on the Song-Beverly Act or similar California state consumer protection laws.

18

As such, the Court is confident in its ability to faithfully interpret and apply California state

19

law to the issues of this case. While the Court is cognizant that Gerber has litigated this

20

case for several months in state court, Gerber should rest assured that this district seeks to

21

move cases quickly in keeping with the spirit of Federal Rule of Civil Procedure 16. The

22

Court therefore declines to remand this case based upon principles of comity.

23

Gerber lastly contends that FCA’s removal of this action was procedurally improper

24

for FCA’s failure to attach certain pleadings to its notice of removal. (Doc. No. 9-1 at 13.)

25

Gerber cites no authority to support this position. In fact, the weight of authority provides

26

that the Court should not remand for defects in the removal procedure where the pleadings

27

that are attached to the notice of removal provide the Court with sufficient information

28

from which it can evaluate whether federal jurisdiction exists. See, e.g., Kuxhausen v. BMW
9
17-CV-0518-AJB-BGS

1

Fin. Servs. NA LLC, 707 F.3d 1136, 1142 (9th Cir. 2013) (construing defendant’s failure

2

to attach original complaint to notice of removal as a “de minimis procedural defect [that]

3

was curable even after expiration of the thirty-day removal period” (citation and internal

4

quotation marks omitted)); Romero v. Tornier Med. Grp. N.V., No. SA CV 16-1060-DOC

5

(JCGx), 2016 WL 3749695, at *3 (C.D. Cal. July 13, 2016) (“To the extent Plaintiff is

6

arguing the case should be remanded because Defendant failed to attach the motion to

7

consolidate, that argument fails.”). Furthermore, FCA’s failure is easily remedied by FCA

8

filing those pleadings on this Court’s docket.3 Accordingly, the Court declines to remand

9

the case on this basis.
CONCLUSION

10
11

Based on the foregoing, Gerber’s motion to remand is DENIED. (Doc. Nos. 9, 10.)

12

Because the Court denies his motion, Gerber’s request for attorney’s fees and costs is also

13

DENIED. (Doc. No. 9-1 at 13.) The parties’ requests for jurisdictional discovery are

14

DENIED. (Id. at 12; Doc. No. 15 at 16–17.)

15
16

IT IS SO ORDERED.

17

Dated: June 23, 2017

18
19
20
21
22
23
24
25
26
27
3

28

Gerber attempted to file these documents as exhibits to his motion to remand; however,
all he attached were the exhibits cover sheets. (Doc. Nos. 9-4, 9-5.)
10
17-CV-0518-AJB-BGS