Vicente et al v. SGN Acquisition Company LLC et al

Filing 7

ORDER OF REMAND to King County Superior Court by Judge Ricardo S Martinez. (RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ADRIAN VICENTE and VICTORIAH
ARSENIAN, HUSBAND AND WIFE,
CASE NO. C13-529RSM

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Plaintiffs,
ORDER OF REMAND
v.
SGN ACQUISITION COMPANY LLC and
ANTHONY MISNER,
Defendants.

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Plaintiffs Adrian Vicente and Victoriah Arsenian filed this action for anticipatory breach of

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contract and other state law causes of action, all arising from Mr. Vicente’s former employment with

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Defendants SGN Acquisition Company LLC and Anthony Misner. The matter is now before the Court

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for consideration of a Notice of Removal filed by Defendants. Dkt. # 1. This action was filed in King

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County Superior Court on or about March 12, 2013, and Defendant timely removed it to this Court on

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March 22, 2013. Having sua sponte considered the Notice of Removal and the complaint filed in state

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court, the Court has determined that the Notice of Removal is defective and does not state a basis for

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ORDER OF REMAND - 1

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this Court’s jurisdiction.

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LEGAL STANDARD AND ANALYSIS
Defendants removed this action from state court pursuant to 28 U.S.C. § 1441(b) and § 1446,

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invoking this Court's jurisdiction on diversity grounds under 28 U.S.C. § 1332. This section creates

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federal jurisdiction over state law causes of action when the parties are diverse in citizenship and the

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amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). The complaint here does not allege any

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specific amount in damages. Defendants acknowledge this but assert in the Notice of Removal that

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counsel “has a reasonable good faith belief that Plaintiffs are seeking damages in excess of the

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jurisdictional amount of this Court, $75,000.. . . “ Notice of Removal, Dkt. # 1, p. 3. Defendants

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note that plaintiff Vicente, who was paid on a commission basis, is requesting lost compensation and

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other benefits, and disgorgement of profits. Id. However, nowhere have Defendants stated any facts as

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to what those amounts of lost compensation and other losses might be, and in the absence of such facts

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the Court cannot speculate or assume that damages exceed the jurisdictional prerequisite.

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The “burden of establishing federal jurisdiction is on the party seeking removal, and the removal

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statute is strictly construed against removal jurisdiction.” Prize Frize, Inc. v. Matrix Inc., 167 F.3d 1261,

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1265 (9th Cir.1999). Any doubt as to the right of removal is resolved in favor of remand. Gaus v.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). This Court must sua sponte review all removed actions to

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confirm that federal jurisdiction is proper. Sparta Surgical Corp. v. Nat'l Ass'n. Sec. Dealers, Inc., 159

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F.3d 1209, 1211 (9th Cir.1998) (“If a district court lacks subject matter jurisdiction over a removed

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action, it has the duty to remand it....”). A court may raise the question of subject matter jurisdiction

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sua sponte at any time. Snell v. Cleveland, Inc., 316 F. 3d 822, 826 (9th Cir. 2002); citing

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Fed.R.Civ.Proc. 12(h)(3).

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Where, as here, the complaint filed in state court does not specify damages, “it is not facially

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evident from the complaint that more than $75,000 is in controversy, [and] the removing party must

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prove, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional

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threshold.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1091 (9th Cir.2003); see also

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Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir.2004). “In a removed case, . . . the plaintiff

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ORDER OF REMAND - 2

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chose a state rather than federal forum. Because the plaintiff instituted the case in state court, ‘there is a

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strong presumption that the plaintiff has not claimed a large amount in order to confer jurisdiction on a

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federal court[.]’” Singer v. State Farm Mutual Auto. Ins. Co., 116 F. 3d 373, 375 (9th Cir. 1997)

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(quoting St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 290 (1938). Accordingly, the

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removing defendant must set forth “in the removal petition itself, the underlying facts supporting its

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assertion that the amount in controversy exceeds [$75,000].” Gaus v. Miles, 980 F.2d 564, 567 (9th Cir.

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1992); see also Wilson v. Union Security Life Ins. Co., 250 F.Supp.2d 1260, 1261-63 (D.Idaho 2003).

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In addition to the removal petition, the Court may consider “summary judgment type evidence relevant

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to the amount in controversy at the time of removal,” such as affidavits or declarations. Valdez v.

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Allstate Insurance Co., 372 F. 3d 1115, 1117 (9th Cir. 2004).
Defendants here have failed to make the requisite showing of facts which demonstrate by a

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preponderance of the evidence that the Plaintiff seeks damages in excess of $75,000. The statement that

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counsel has a “reasonable good faith belief” that damages exceed $75,000 is opinion, not probative

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evidence. Defendant has thus offered no facts whatsoever to support the Court's exercise of jurisdiction.

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Gaus, 980 F.2d at 567. The mere allegation that the jurisdictional minimum has been met “neither

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overcomes the ‘strong presumption’ against removal jurisdiction, nor satisfies [Defendant's] burden of

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setting forth, in the removal petition itself, the underlying facts supporting its assertion that the amount

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in controversy exceeds $[75,000].” Id.; see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404

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n. 5 (9th Cir.1996).

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“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first

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instance.” Gaus, 980 F.2d at 566. “The strong presumption against removal jurisdiction means that the

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

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Federman-Bachrach & Assoc., 903 F.2d 709, 712 n. 3 (9th Cir.1990). Defendant has not overcome this

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presumption or met this burden by a preponderance of the evidence. Any doubt must be resolved in

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favor of remand. Gaus v. Miles, Inc., 980 F.2d at 566.

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ORDER OF REMAND - 3

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Accordingly, this case is hereby REMANDED to the King County Superior Court, Cause No.
13-2-07956 - 9 SEA. The Clerk shall close this file and send a certified copy of this Order to the Clerk

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of Court for the King County Superior Court.
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Dated this 5th day of April 2013.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER OF REMAND - 4