Demaria et al v. FCA US LLC et al

Filing 23

ORDER denying 8 Plaintiff's Motion to Remand. Demaria's motion to remand is DENIED. (Doc. No. 8.) Because the Court denies his motion, Demaria's request for attorney's fees and costs is also DENIED. (Doc. No. 8-1 at 11.) The parties requests for jurisdictional discovery are DENIED. (Id. at 10; Doc. No. 16 at 21). Signed by Judge Anthony J. Battaglia on 6/23/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SALVATORE A. DEMARIA; NIDHAL N. DEMARIA, 15 16 ORDER DENYING PLAINTIFF’S MOTION TO REMAND Plaintiffs, 13 14 Case No.: 17-CV-0539-AJB-BGS v. FCA US LLC, A Delaware Limited Liability Company; DOES 1 through 10, Inclusive, (Doc. No. 8) Defendant. 17 18 19 Presently before the Court is Plaintiffs Salvatore and Nidhal Demaria’s (“Demaria”) 20 motion to remand.1 (Doc. No. 8.) Defendant FCA US LLC (“FCA”) opposes the motion. 21 (Doc. No. 16.) Having reviewed the parties’ moving papers and controlling legal authority, 22 and pursuant to Local Civil Rule 7.1.d.1, the Court finds the matter suitable for decision 23 on the papers and without oral argument. Accordingly, the hearing currently set for July 6, 24 2017, at 2:00 p.m. in Courtroom 4A is hereby VACATED. For the reasons set forth below, 25 the Court DENIES Demaria’s motion. 26 27 1 28 While there are two plaintiffs, the Court refers to them in the singular throughout this order. 1 17-CV-0539-AJB-BGS BACKGROUND 1 2 This dispute arises from FCA’s alleged breach of warranty obligations owed to 3 Demaria for a new 2011 Jeep Grand Cherokee (“Jeep”) he purchased from FCA. Demaria 4 asserts FCA concealed a known defect from him, specifically, a defect with the totally 5 integrated power module (“TIPM”), which is responsible for controlling and distributing 6 electrical power to the entire vehicle. (Doc. No. 1 ¶¶ 9, 12, 14.) Based on this concealment, 7 Demaria instituted this action in San Diego Superior Court on August 3, 2016, bringing 8 causes of action for breaches of express and implied warranties in violation of California’s 9 Song-Beverly Consumer Warranty Act (“Song-Beverly Act” or “Act”), as well as a cause 10 of action for fraudulent inducement/concealment under California state common law. 11 (Doc. No. 1 ¶ 1.) 12 FCA removed the action to this Court on March 17, 2017, asserting the Court has 13 diversity jurisdiction. (Doc. No. 1 at 1.) On April 18, 2017, Demaria filed the instant motion 14 to remand, arguing FCA has failed to carry its burden of establishing that the amount in 15 controversy exceeds $75,000 and that the parties are completely diverse. (Doc. No. 8.) FCA 16 filed an opposition, (Doc. No. 16), and Demaria replied, (Doc. No. 20). This order follows. 17 LEGAL STANDARD 18 The right to remove a case to federal court is entirely a creature of statute. See 19 Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal 20 statute, 28 U.S.C. § 1441, allows defendants to remove an action when a case originally 21 filed in state court presents a federal question, or is between citizens of different states and 22 involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); 28 23 U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in 24 federal court can be removed. 28 U.S.C. § 1441(a); see also Caterpillar Inc. v. Williams, 25 482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 26 1988). 27 “[J]urisdiction founded on [diversity] requires that parties be in complete diversity 28 and the amount in controversy exceed $75,000.” Matheson v. Progressive Specialty Ins. 2 17-CV-0539-AJB-BGS 1 Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam); see 28 U.S.C. § 1332(a)(1). 2 Complete diversity requires that the plaintiff’s citizenship is diverse from that of each 3 named defendant. 28 U.S.C. §§ 1332(a)(1), 1332(c)(1); Caterpillar Inc. v. Lewis, 519 U.S. 4 61, 68 n.3 (1996). Whether or not complete diversity is present is determined at the time 5 of removal. See Am. Dental Indus., Inc. v. EAX Worldwide, Inc., 228 F. Supp. 2d 1155, 6 1157 (D. Or. 2002) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 7 (1938)). 8 The Ninth Circuit “strictly construe[s] the removal statute against removal 9 jurisdiction,” and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right 10 of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per 11 curiam) (citations omitted). “The ‘strong presumption’ against removal jurisdiction means 12 that the defendant always has the burden of establishing that removal is proper.” Id.; see 13 also McNutt v. Gen. Motors Acceptance Corp., Inc., 298 U.S. 178, 189 (1936) (finding that 14 the removing party must prove its allegations by a preponderance of the evidence). The 15 Court takes this proof from the notice of removal and may, if it chooses, construe the 16 opposition to the motion to remand as an amendment to the notice of removal. See Cohn v. 17 Petsmart Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002). DISCUSSION 18 19 Demaria argues three points that he contends require remand of this action to 20 California state court: (1) FCA’s amount-in-controversy calculation ignores California 21 state law; (2) FCA, as a limited liability company (“LLC”), has not established the 22 citizenship of its foreign member, nor has it established Demaria’s citizenship; and (3) 23 comity dictates that this case be remanded to state court. (Doc. Nos. 8, 20.) The Court will 24 consider each argument in turn. 25 I. Amount in Controversy 26 In his complaint, Demaria seeks, inter alia, “reimbursement of the price paid for the 27 [Jeep] less that amount directly attributable to use by the Plaintiff[] prior to discovery of 28 the nonconformities” and “a civil penalty of up to two times the amount of actual damages 3 17-CV-0539-AJB-BGS 1 in that FCA [] has willfully failed to comply with its responsibilities under the [Song- 2 Beverly] Act.” (Doc. No. 1-2 ¶¶ 147, 150.) Demaria asserts that FCA has not proven the 3 amount in controversy exceeds $75,000. (Doc. No. 8-1 at 7–8; Doc. No. 20 at 7–8.) 4 Demaria contends FCA’s notice of removal asserts that actual damages exceed 5 $31,000, but offers no explanation as to how this figure was reached. (Doc. No. 8-1 at 7– 6 8.) In response, FCA points to the retail installment sale contract (“RISC”), attached to the 7 complaint, as well as FCA warranty claim reports, documents upon which it bases its 8 calculation that the actual damages at issue are at least $31,842. (Doc. No. 16 at 16–18.) 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. 1-2 at 34–37.) The 19 RISC lists the cash price of the vehicle and accessories as $28,842 and finance charge as 20 $4156. (Id. at 34.) FCA predicates its actual damages analysis on these figures combined. 21 (Doc. No. 16 at 16–17.)2 Given that the statute permits Demaria to also recover, among 22 other things, sales tax and official fees, which FCA did not use in its amount-in-controversy 23 24 25 26 27 28 2 In the notice of removal, FCA stated the purchase price of the Jeep exceeds $31,000 without including finance charges. (Doc. No. 1 ¶ 19.) The Court assumes FCA relied on the total cash price, which includes miscellaneous taxes and fees, as the basis for this assertion. The RISC shows that figure to be $33,924.49. (Doc. No. 1-2 at 35.) 4 17-CV-0539-AJB-BGS 1 calculation, the Court finds FCA’s use of the cash price and finance charge conservatively 2 estimates “the actual price paid or payable by” Demaria.3 3 As noted above, however, this figure does not end the inquiry. Rather, the restitution 4 awardable under section 1793.2(d)(2)(B) must be reduced by the amount directly 5 attributable to Demaria’s use of the Jeep prior to the first repair or attempted repair. This 6 set-off amount is determined by multiplying the “actual price of the new motor vehicle 7 paid or payable by the buyer . . . by a fraction having as its denominator 120,000 and having 8 as its numerator the number of miles traveled by the new motor vehicle prior to the time 9 the buyer delivered the vehicle” for correction of the problem. Cal. Civ. Code § 10 1793.2(d)(2)(C). 11 The complaint does not include the Jeep’s mileage when Demaria took it to the 12 dealership for the first relevant repair. Rather, the complaint lists February 18, 2011, as the 13 date he “delivered the [Jeep] to an authorized FCA [] repair facility for repair.” (Doc. No. 14 1-2 ¶ 95.) On that date, the Jeep had 6325 miles on it. (Doc. No. 16-10 at 3.) When Demaria 15 purchased the Jeep, it had 40 miles on its odometer. (Doc. No. 1-2 at 34.) Accordingly, the 16 Court finds FCA has presented sufficient evidence to establish it is more likely than not 17 that the mileage attributable to Demaria’s use, for purposes of the instant motion, is 6285. 18 Utilizing the formula provided by section 1793.2(d)(2)(C), this results in a mileage offset 19 of $1728.27, which reduces the actual damages at issue to $31,269.73. 20 21 3 22 23 24 25 26 27 28 Demaria argues the inclusion of finance charges in the amount-in-controversy calculation is improper under 28 U.S.C. § 1332(a)(1). (Doc. No. 20 at 7–8.) First, the Song-Beverly Act makes finance charges recoverable; as such, their inclusion in the amount-incontroversy calculation is appropriate. See Alvarado v. FCA US, LLC, No. EDCV 17-505 JGB (DTBx), 2017 WL 2495495, at *4 (C.D. Cal. June 8, 2017) (“Plaintiff argues that it is improper to consider interest when considering the amount-in-controversy. [] Plaintiff, however, seeks restitution, incidental, consequential, and general damages, costs and expenses for alleged violations of the Song-Beverly Act claims. Under the Song-Beverly Act, the actual price paid or payable by the buyer includes any paid finance charges.”). Second, use of the vehicle’s cash price alone, when trebled, would exceed the jurisdictional threshold. 5 17-CV-0539-AJB-BGS 1 This does not end the inquiry eithet. In the complaint, Demaria also seeks civil 2 penalties. (Doc. No. 1-2 ¶ 150.) California Civil Code section 1794(c) and (e) permits a 3 buyer to recover a civil penalty not to exceed two times the amount of actual damages 4 where the buyer establishes the defendant’s failure to comply with the Song-Beverly Act 5 is willful. “Courts[,] as a matter of law, calculate the amount in controversy based upon the 6 maximum amount of civil penalties available to plaintiff.” Garcia v. FCA US, LLC, No. 7 1:16-cv-00730-DAD-BAM, 2016 WL 4445337, at *4 (E.D. Cal. Aug. 24, 2016) (quoting 8 Saulic v. Symantec Corp., No. SA 07-cv-00610-AHS-PLAx, 2007 WL 5074883, at *4 9 (C.D. Cal. Dec. 26, 2007)); see also Chabner v. United of Omaha Life Ins. Co., 225 F.3d 10 1042, 1046 n.3 (9th Cir. 2000) (noting district courts can consider treble damages where 11 authorized by statute). Here, the Act permits recovery of up to two times actual damages. 12 Because Demaria “is seeking recovery from a pot that [FCA] has shown could exceed 13 [$75,000] and [Demaria] has neither acknowledged nor sought to establish that the [] 14 recovery is potentially any less,” the Court finds inclusion of a full civil penalty award is 15 appropriate. Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 401 (9th Cir. 2010); see also 16 id. at 401 (“Once the proponent of federal jurisdiction has explained plausibly how the 17 stakes exceed [the amount in controversy], . . . then the case belongs in federal court unless 18 it is legally impossible for the plaintiff to recover that much.” (quoting Spivey v. Vertrue, 19 Inc., 528 F.3d 982, 986 (7th Cir. 2008))). 20 As determined above, the actual damages figure at issue is $31,269.73. When 21 trebled, the amount in controversy, exclusive of incidental and consequential damages, and 22 attorney’s fees and costs, is $93,809.19. Because this figure exceeds the jurisdictional 23 threshold, the Court finds FCA has carried its burden as to the amount in controversy. 24 Garcia, 2016 WL 4445337, at *4. 25 II. Diversity of Citizenship 26 Demaria next argues that FCA, as an LLC, has failed to establish the citizenship of 27 its foreign member. (Doc. No. 8-1 at 9–10; Doc. No. 20 at 4–6.) Demaria also asserts FCA 28 has failed to establish Demaria’s citizenship. (Doc. No. 20 at 3–4.) In opposition, FCA asks 6 17-CV-0539-AJB-BGS 1 the Court to consider Book 2 of the Dutch Civil Code, Article 2:64-1, which states that 2 “[a]n Open Corporation (‘naamloze vennootschap’) is a legal person . . . .” (Doc. No. 16 at 3 9–14.) FCA argues that its ultimate owner is a naamloze vennotschap (“N.V.”); 4 accordingly, FCA is a citizen of the Netherlands and thus diverse from Demaria. (Id.) 5 Removal based on diversity requires that the citizenship of each plaintiff be diverse 6 from the citizenship of each defendant (e.g., complete diversity). Caterpillar Inc., 519 U.S. 7 at 68. For purposes of diversity, an LLC is a citizen of every state in which its 8 “owners/members” are citizens. Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 9 894, 899 (9th Cir. 2006) (explaining that courts are to treat LLCs like partnerships, which 10 have the citizenships of all of their members). “Section 1332(a)(2) applies to foreign legal 11 entities of all kinds, so long as the entity is considered a juridical person under the law that 12 created it.” Cohn v. Rosenfeld, 733 F.2d 625, 629 (9th Cir. 1984). A “juridical person” is 13 an “entity, such as a corporation, created by law and given certain legal rights and duties 14 of a human being[.]” Black’s Law Dictionary 979, 1324–25 (10th ed. 2014). Factors 15 relevant to whether an entity is a juridical person include the entity’s ability to sue and be 16 sued in its own name, whether any recovery in such litigation becomes an asset of the 17 entity, and whether the laws of the foreign country recognize the entity as a legally 18 independent organized enterprise. Cohn, 733 F.2d at 629. 19 In the notice of removal and accompanying declaration, FCA explained it is an LLC 20 organized under the laws of the State of Delaware. (Doc. No. 1 ¶ 11; Doc. No. 1-8 ¶ 2.) Its 21 sole member is FCA North American Holding LLC, also a limited liability company 22 organized under the laws of the State of Delaware. (Doc. No. 1 ¶ 11; Doc. No. 1-8 ¶ 3.) In 23 turn, FCA North American Holding LLC’s sole member is Fiat Chrysler Automobiles, 24 N.V. (“Fiat N.V.”), which is a publicly traded company incorporated under the laws of the 25 Netherlands with its principal place of business in London, England. (Doc. No. 1 ¶ 11; 26 Doc. No. 1-8 ¶ 4.) 27 It is Fiat N.V.’s citizenship that Demaria contends FCA has failed to establish by a 28 preponderance of evidence. Specifically, Demaria asserts Kris Krueger’s declaration fails 7 17-CV-0539-AJB-BGS 1 to establish that Fiat N.V. is a juridical person under the laws of the Netherlands because 2 the Krueger declaration is conclusory, contains improper legal conclusions, lacks 3 foundation, and lacks any documentary evidence. (Doc. No. 8-1 at 10.) 4 The Court overrules Demaria’s objections. Federal Rule of Civil Procedure 44.1 5 provides, “In determining foreign law, the court may consider any relevant material or 6 source, including testimony, whether or not submitted by a party or admissible under the 7 Federal Rules of Evidence.” As such, FCA’s evidence need not pass muster under the 8 Federal Rules of Evidence to be considered on the instant motion.4 Having considered 9 Krueger’s declaration, along with Scott Shepardson’s declaration and the accompanying 10 translation of the Dutch Civil Code provided, the Court is satisfied that FCA has proven it 11 is more likely than not a citizen of the Netherlands.5 The Dutch Civil Code provides that 12 an N.V. is a “legal person” that can, inter alia, be held jointly and severally liable for its 13 directors’ juridical acts. (Doc. No. 16-2 at 2, 5.) The Court’s conclusion is in keeping with 14 those of other courts, finding N.V.s to be foreign entities. See Garcia, 2016 WL 4445337, 15 at *3 (finding FCA “adequately asserted and established that [Fiat N.V.] is a juridical 16 person under the laws of Netherlands and that [FCA] is not a citizen of California”); 17 Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 20 (D.D.C. 2005) (dismissing foreign 18 plaintiffs’ claims against defendant N.V. because 28 U.S.C. § 1332 “does not confer 19 jurisdiction over suits by a group consisting of only foreign persons against another foreign 20 person”). 21 Demaria further asserts that remand is appropriate because FCA has failed to 22 establish that Demaria is a citizen of California. (Doc. No. 20 at 3–4.) In the notice of 23 24 25 26 27 28 For this reason, the Court DENIES Demaria’s request for jurisdictional discovery. (Doc. No. 8-1 at 10.) 5 Demaria also raises evidentiary objections to the Shepardson declaration. (Doc. No. 204.) First, Demaria’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. 4 8 17-CV-0539-AJB-BGS 1 removal, FCA stated Demaria is a citizen and resident of California. (Doc. No. 1 ¶ 10.) 2 That statement references the complaint, which simply states that Demaria resides “in the 3 City of San Diego, County of San Diego, and State of California.” (Doc. No. 1-2 ¶ 1.) 4 Demaria argues that because the complaint does not allege that he is a citizen of California, 5 and because the notice of removal relies on the complaint, FCA has failed to prove 6 Demaria’s citizenship for purposes of removal. (Doc. No. 20 at 3–4.) 7 If the record contained only the information Demaria asserts it does, the Court would 8 agree. “The natural person’s state citizenship is [] determined by her state of domicile, not 9 her state of residence. A person’s domicile is her permanent home, where she resides with 10 the intention to remain or to which she intends to return. A person residing in a given state 11 is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter 12 v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (citations omitted). However, 13 while Demaria stated in the complaint that he is a resident of California, the civil cover 14 sheet clarifies that Demaria is also a California citizen. (Doc. No. 1-1 at 1.) In Item III, 15 Demaria indicated he is a citizen of this (e.g., California) state. (Id.) In the absence of any 16 evidence or argument to the contrary, the record supports finding it is more likely than not 17 that Demaria is a citizen of California. See Lastra v. PHH Mortg. Corp., No. 10cv2573– 18 LAB (BLM), 2011 WL 768135, at *1 n.2 (S.D. Cal. Feb. 28, 2011) (noting that defendant 19 intended to allege plaintiff is a citizen of California given that the civil cover sheet 20 identifies plaintiff as such). In sum, the Court finds FCA has carried its burden of 21 establishing diversity jurisdiction. 22 III. Comity 23 Demaria lastly asserts that the Court should decline jurisdiction on comity principles 24 because this case involves “consideration of numerous state-specific issues on sensitive, 25 uniquely state-law issues of regulation and statutory interpretation.” (Doc. No. 8-1 at 4–6.) 26 As a federal district court located within the State of California, this is not the Court’s first 27 case dealing with claims predicated on the Song-Beverly Act or similar California state 28 consumer protection laws. As such, the Court is confident in its ability to faithfully interpret 9 17-CV-0539-AJB-BGS 1 and apply California state law to the issues of this case. While the Court is cognizant that 2 Demaria has litigated this case for several months in state court, Demaria should rest 3 assured that this district seeks to move cases quickly in keeping with the spirit of Federal 4 Rule of Civil Procedure 16. The Court therefore declines to remand this case based upon 5 principles of comity. CONCLUSION 6 7 Based on the foregoing, Demaria’s motion to remand is DENIED. (Doc. No. 8.) 8 Because the Court denies his motion, Demaria’s request for attorney’s fees and costs is 9 also DENIED. (Doc. No. 8-1 at 11.) The parties’ requests for jurisdictional discovery are 10 DENIED. (Id. at 10; Doc. No. 16 at 21.) 11 12 IT IS SO ORDERED. 13 Dated: June 23, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 17-CV-0539-AJB-BGS

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