McDonald v. BMW of North America, LLC et al

Filing 14

ORDER Granting Motion to Remand and Remanding to State Court [Doc. No. 6 ](Certified copy sent to State Court via US Mail Service.) Signed by Judge Cathy Ann Bencivengo on 11/28/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IAN MCDONALD,

Case No.: 3:17-CV-2011-CAB-BLM
Plaintiff,

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v.

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ORDER GRANTING MOTION TO
REMAND AND REMANDING CASE
TO STATE COURT

BMW OF NORTH AMERICA, LLC,

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Defendant.

[Doc. No. 6]

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On July 14, 2017, Plaintiff filed a complaint in state court seeking damages arising

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out of alleged defects to a 2012 BMW 650I vehicle that Plaintiff purchased in 2011. The

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complaint asserts violations of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code

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1794 et seq., breach of express written warranty, breach of the implied warranty of

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merchantability, fraud, and violation of the Magnuson-Moss Warranty Act. The complaint

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alleges that Plaintiff suffered damages exceeding $25,000, alleges that Plaintiff is entitled

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to civil penalties of two times actual damages [Doc. No. 1-2 at ¶¶ 11-14], and also prays

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for attorney’s fees and punitive damages [Id. at 14-15].

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Plaintiff served the state court complaint on Defendant BMW of North America,

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LLC (“BMW”) on July 24, 2017. On September 29, 2017, BMW removed the complaint

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3:17-CV-2011-CAB-BLM

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to this court on the basis of diversity jurisdiction. Plaintiff now moves to remand on the

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grounds that BMW’s removal was untimely. As the Ninth Circuit has explained:

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The mechanics and requirements for removal are governed by 28 U.S.C. §
1446. Section 1446(b) “identifies two thirty-day periods for removing a case.”
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010).
“The first thirty-day removal period is triggered if the case stated by the initial
pleading is removable on its face.” Id. (internal quotation marks omitted).
“The second thirty-day removal period is triggered if the initial pleading does
not indicate that the case is removable, and the defendant receives ‘a copy of
an amended pleading, motion, order or other paper’ from which removability
may first be ascertained.” Id. (quoting § 1446(b)).

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Kuxhausen v. BMW Fin. Servs. NA, LLC, 707 F.3d 1136, 1139 (9th Cir. 2013). In its notice
of removal and in opposition to the instant motion, BMW argues that the complaint was
not removable on its face because it does not state the purchase price of Plaintiff’s vehicle
or otherwise state the amount Plaintiff seeks in damages. Thus, BMW contends its removal
was timely within the second thirty-day removal period because it occurred the same day
that BMW obtained the sales contract for Plaintiff’s vehicle showing a purchase price in
excess of $100,000. [Doc. No. 11 at 2.] The Court is not persuaded.
In its notice of removal, BMW stated that “Plaintiff did not provide any information
regarding amount [sic] in controversy in the Complaint.” [Doc. No. 1 at ¶ 4.] This
statement is incorrect. The complaint states that Plaintiff’s damages exceed $25,000, and
prays for actual damages, statutory penalties of two times actual damages, attorney’s fees
and punitive damages. In its notice of removal, BMW acknowledges that each of these
categories of recovery are properly included in the amount in controversy calculation and
in fact calculates the amount in controversy using the vehicle purchase price as the amount
of Plaintiff’s actual damages and multiplying it by three to arrive at a total amount of
monetary damages and penalties sought in the complaint. However, even using the

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3:17-CV-2011-CAB-BLM

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minimum amount of damages alleged in the complaint—$25,0011—the $75,000 minimum

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for diversity jurisdiction is satisfied when accounting for civil penalties. Accordingly, this

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case was removable based on the face of the complaint.

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Kuxhausen, on which BMW relies, does not require a different conclusion. In that

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class action case, the issue was whether the complaint clearly stated that $5,000,000 in

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controversy as required for diversity jurisdiction pursuant to the Class Action Fairness Act

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(“CAFA”). The Ninth Circuit rejected the defendant’s argument that it was not required

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to calculate the total amount in controversy by multiplying the value of the putative class

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members’ individual claims by the number of class members. Kuxhausen, 707 F.3d at

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1140. Nevertheless, the Court ultimately held that “because nothing in Kuxhausen’s

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complaint ‘indicate[d] that the amount demanded by each putative class member

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exceed[ed]” an amount sufficient to yield a total amount in controversy for the class

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exceeding $5,000,000, the complaint “fell short of triggering the removal clock under

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Section 1446(b).” Id. at 1141 (emphasis in original). In other words, when the amount in

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controversy cannot be calculated based on numbers in the complaint, the removal clock is

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no triggered simply because the defendant could guess the damage amount or figure it out

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through its own investigation.

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BMW, however, would not have needed to engage in guesswork or investigation to

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ascertain that this case was removable based on the allegations in the complaint.

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Knowledge of the purchase price of Plaintiff’s vehicle may have helped BMW determine

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the total amount at stake, but it was not necessary to determine that more than $75,000 is

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in controversy. Just as BMW multiplied the purchase price by three to argue in the notice

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of removal that Plaintiff is seeking a minimum of $314,164.50, it could have multiplied

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$25,001 (the minimum amount of damages alleged in the complaint) by three to determine

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The complaint stated that Plaintiff’s damages exceed $25,000. [Doc. No. 1-2 at ¶ 11.] Notably, the
complaint also attached a complaint from a prior class action that Plaintiff contends tolled the statute of
limitations for his claim. That complaint alleged that the amount in controversy for each of the Plaintiffs’
individual claims exceeded $50,000. [Doc. 1-2 at 71.]
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that Plaintiff seeks, at a minimum, in excess of $75,000, not including attorney’s fees or

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punitive damages. Performing this calculation would not have required any extrapolations,

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subjective knowledge, or evidence outside of the complaint, and multiplying these figures

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that were stated in the complaint was part of BMW’s duty to ascertain removability.

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Kuxhausen, 707 F.3d at 1140 (holding that the removal statute “requires a defendant to

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apply a reasonable amount of intelligence in ascertaining removability. Multiplying

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figures clearly stated in a complaint is an aspect of that duty.”) (internal citation and

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quotation marks omitted). Accordingly, unlike in Kuxhausen, the complaint triggered the

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removal clock under Section 1446(b). Because BMW did not remove within thirty days

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of being served with the complaint, its removal was untimely.
In light of the foregoing, it is hereby ORDERED that Plaintiff’s motion to remand
is GRANTED. This case is REMANDED to San Diego County Superior Court.

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It is SO ORDERED.

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Dated: November 28, 2017

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3:17-CV-2011-CAB-BLM