Markham v. Cash & Carry Stores, LLC et al

Filing 6

ORDER TO SHOW CAUSE directing Defendant Cash & Carry to show cause within 10 days why this matter should not be remanded to state court re subject matter jurisdiction. Signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DEBORAH MARKHAM,
Plaintiff,

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CASE NO. C17-0746JLR
ORDER TO SHOW CAUSE

v.
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CASH & CARRY STORES, LLC,
et al.,

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Defendants.

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The court has reviewed Defendant Cash & Carry Stores, LLC’s notice of removal
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(Not. (Dkt. # 1)) and finds that it does not adequately establish subject matter jurisdiction
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over this action. Specifically, Cash & Carry fails to show complete diversity or the
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requisite amount in controversy. See 28 U.S.C. § 1332(a).
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Cash & Carry asserts that the court’s jurisdiction is based on diversity of
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citizenship. (Not. at 2.) For purposes of assessing diversity, the court must consider the
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domicile of all members of a limited liability company. Johnson v. Columbia Props.
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ORDER - 1

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Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“[A]n LLC is a citizen of every state

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of which its owners/members are citizens.”); see also Local Rules W.D. Wash. LCR

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101(e). Plaintiff Deborah Markham alleges that she is a Washington resident. (Compl.

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(Dkt. # 2) ¶ 1.2.) However, neither the complaint nor the notice of removal identifies

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Cash & Carry’s members or the domicile of those members. (See id. ¶ 1.3 (alleging that

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Cash & Carry is “a limited liability corporation formed under the laws of the State of

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Washington”); Not. at 2.)

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Furthermore, Cash & Carry’s corporate disclosure statement fails to establish Cash
& Carry’s domicile. (CDS (Dkt. # 4).) Cash & Carry alleges that it is a wholly owned

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subsidiary of Smart & Final Stores, LLC (id. ¶ 3), which makes Cash & Carry’s domicile

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the same as Smart & Final’s domicile, see Johnson, 437 F.3d at 899. Because Smart &

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Final is also an LLC, it too shares a domicile with each of its members. See Johnson, 437

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F.3d at 899. However, Cash & Carry alleges only that Smart & Final “is a California

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[LLC] with its principal place of business in Commerce, California.” (CDS ¶ 4.)

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Without knowing Smart & Final’s members and their domiciles, the court cannot

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determine Cash & Carry’s domicile. See Johnson, 437 F.3d at 899.

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In addition, Cash & Carry’s conclusory assertion that the amount in controversy

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exceeds $75,000.00 is insufficient. (See Not. at 2 (asserting that the amount in

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controversy meets the jurisdictional threshold “pursuant to Plaintiff’s Statement of

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Damages and 28 U.S.C. § 1332(a)”).) Ms. Markham’s statement of damages is not in the

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record. (See Dkt.; see also Not. at 2); RCW 4.28.360. Furthermore, although Ms.

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Markham’s complaint alleges several injuries, some of which are severe, it is not facially

ORDER - 2

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apparent that her damages exceed $75,000.00. (Compl. ¶¶ 5.1-5.6.) “Where . . . it is

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unclear or ambiguous from the face of a state-court complaint whether the requisite

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amount in controversy is pled, . . . the removing defendant bears the burden of

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establishing, by a preponderance of the evidence, that the amount in controversy exceeds

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the jurisdictional threshold.” Urbino v. Orkin Servs. of Cal., Inc., 726 F.3d 1118,

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1121-22 (9th Cir. 2013) (internal citations and quotations omitted). Cash & Carry’s

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conclusory statement, unsupported by factual evidence, does not meet its burden of

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establishing the requisite amount in controversy by a preponderance of the evidence. See

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id.; Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090-91 (9th Cir. 2003)

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(“Where doubt regarding the right to removal exists, a case should be remanded to state

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court. . . . [W]e have endorsed the . . . practice of considering facts presented in the

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removal petition as well as any summary-judgement-type evidence relevant to the

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amount in controversy at the time of removal. Conclusory allegations as to the amount in

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controversy are insufficient.” (internal quotations omitted)).

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If subject matter jurisdiction is lacking, the court must remand. 28 U.S.C.

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§ 1447(c) (“If at any time before final judgment it appears that the district court lacks

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subject matter jurisdiction, the case shall be remanded.”). Accordingly, the court

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ORDERS Cash & Carry to SHOW CAUSE why this matter should not be remanded to

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state court by providing evidence demonstrating the court’s subject matter jurisdiction

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ORDER - 3

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within ten (10) days of the date of this order. Ms. Markham may, but is not required to,

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respond to this order subject to the same deadline.

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Dated this 23rd day of May, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 4