Sellers v. Home Depot Product Authority LLC

1 Dec 13, 2022 2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [5] PENNY JEAN SELLERS, No. 4:22-CV-05133-ACE [6] Plaintiff, 7 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND 8 v. [9] HOME DEPOT PRODUCT 10 AUTHORITY, LLC, a Foreign Limited 11 Liability Corporation #604-814-859, [12] Defendant. [13] 14 BEFORE THE COURT is Plaintiff’s November 21, 2022, motion to 15 remand this matter to the Superior Court of Benton County, Washington. ECF No. 16 7. Defendant filed a timely response on December 5, 2022, ECF No. 8, and 17 Plaintiff filed a timely reply brief on December 12, 2022, ECF No. 9. For the 18 reasons discussed below, the Court GRANTS the motion to remand but DENIES 19 the request for an award of attorney’s fees and costs. 20 LEGAL STANDARD 21 A motion to remand requires the Court to inquire whether it has subject 22 matter jurisdiction over a case. See 28 U.S.C. §§ 1441 , 1447. The two most 23 common forms of jurisdiction are federal question and diversity jurisdiction. See [24] 28 U.S.C. §§ 1331-1332 . Jurisdiction founded on 28 U.S.C. § 1332 requires that 25 the parties be in complete diversity and the amount in controversy exceed $75,000. 26 Where it is not facially evident from the complaint that more than $75,000 is in 27 controversy, the removing party must prove, by a preponderance of the evidence, 28 that the amount in controversy meets the jurisdictional threshold. Sanchez v. 1 Monumental Life Ins. Co., 102 F.3d 398, 403 (9th Cir. 1996) (citing Gaus v. Miles, 2 Inc., 980 F.2d 564, 566-567 (9th Cir. 1992) and quoting McNutt v. General Motors 3 Acceptance Corp., 298 U.S. 178, 189 (1936)); see also Rodriguez v. AT&T 4 Mobility Servs. LLC, 728 F.3d 975, 978 (9th Cir. 2013). However, where doubt 5 regarding the right to removal exists, a case should be remanded to the state court. 6 Gaus, 980 F.2d at 566 ; Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1199 (9th 7 Cir. 2015) (finding “if the evidence submitted by both sides is balanced, in 8 equipoise, the scales tip against federal-court jurisdiction”); Matheson v. 9 Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (“Where doubt 10 regarding the right to removal exists, a case should be remanded to state court.”). 11 DISCUSSION 12 A. Remand 13 Under 28 U.S.C. § 1332 , diversity jurisdiction exists where no plaintiff and 14 defendant are citizens of the same state and the amount in controversy exceeds 15 $75,000. 28 U.S.C. § 1332 (a). Plaintiff does not challenge diversity of 16 citizenship; therefore, the only matter at issue is whether Plaintiff’s claim exceeds 17 $75,000. Defendant, as the removing party, has the burden of proving, by a 18 preponderance of the evidence, that the amount in controversy exceeds $75,000. 19 Sanchez, 102 F.3d at 404 (observing that the “defendant must provide evidence 20 establishing that it is ‘more likely than not’ that the amount in controversy exceeds 21 that amount”). 22 Since, pursuant to Wash. Rev. Code § 4.28.360 ,1 the complaint in this case 23 does not set forth an amount of damages, Defendant had to estimate the value of 24 Plaintiff’s alleged damages. ECF No. 8. Although Defendant agrees the better [25] 26 1“In any civil action for personal injuries, the complaint shall not contain a 27 statement of the damages sought but shall contain a prayer for damages as shall be 28 determined.” Wash. Rev. Code § 4.28.360 . 1 practice for a removing defendant to carry the burden of jurisdictional amount is to 2 submit an affidavit or other documentary evidence, see Valdez v. Allstate Ins. Co., [3] 372 F.3d 1115, 1117 (9th Cir. 2004), Defendant avers the complaint contains 4 sufficient information to support a finding that the amount in controversy is over 5 $75,000. ECF No. 8 at 4. Specifically, Defendant cites the “Harm & Loss” 6 asserted in the complaint (severe and lasting bodily injuries; pain suffering, 7 inconvenience, mental anguish, disability or disfigurement incurred by the party, 8 emotion distress, loss of society and companionship, injury to reputation and 9 humiliation; medical bills for treatment; and lost earnings, wages, and/or 10 diminished earning capacity) and asserts a reasonable person would conclude that, 11 based upon these allegations, damages exceed $75,000. ECF No. 8 at 6-7 citing 12 ECF No. 1-1 at 5-6. 13 However, Defendant has not provided a specific dollar figure, calculation of 14 the alleged damages, or any factual evidence to demonstrate the value of Plaintiff’s 15 case. While the preponderance standard does not require a defendant to prove a 16 plaintiff’s damages, the Court “cannot base [its] jurisdiction on a defendant’s 17 speculation and conjecture.” Lowdermilk v. United States Bank Nat’l Ass’n, 479 18 F.3d 994 , 1002 (9th Cir. 2007), overruled on other grounds, Rodriguez, 728 F.3d at 19 976-977. Defendant has failed to set forth any specific factual allegations to 20 support the assertion that the amount in controversy exceeds $75,000. See e.g. 21 Jauregui v. Nationstar Mortgage LLC, 2015 WL 2154148 at *5 (C.D. Cal. 2015) 22 (finding general statements cannot establish that the jurisdictional threshold of 23 $75,000 is met by a preponderance of the evidence). 24 Instead, Defendant argues the amount in controversy requirement has been 25 deemed satisfied in analogous cases. ECF No. 8 at 4-7. “The Court cannot 26 consider awards issued in other actions unless Defendants point to specific 27 commonalities which raise an inference that a similar award is possible in this 28 case.” Singh v. Glenmark Phargenerics, Inc., 2014 WL 4231364 at *4 (D. Nev. 1 2014) citing Burk v. Med. Sav. Ins. Co., 348 F.Supp.2d 1063, 1069 (D. Ariz. 2004); 2 Conrad Associates v. Hartford Acc. & Indem. Co., 994 F.Supp. 1196, 1201 (N.D. 3 Cal. 1998 ). The Court has considered the parties’ arguments and finds that the 4 facts of Defendant’s cited cases are distinguishable from the facts of the instant 5 case (i.e., how Plaintiff was injured and/or the extent of Plaintiff’s injuries). The 6 Court finds the cases cited by Defendant are not comparable and thus do not 7 demonstrate that the jurisdiction amount in instant matter has been met. 8 Defendant has failed to meet its burden of proving, by a preponderance of 9 the evidence, that the amount in controversy exceeds $75,000. Consequently, the 10 case will be remanded. 11 B. Attorney’s Fees 12 Plaintiff seeks attorney’s fees and costs incurred in obtaining remand. “An 13 order remanding [a] case may require payment of just costs and any actual 14 expenses, including attorney’s fees, incurred as a result of the removal.” 28 U.S.C. 15 § 1447(c). However, costs and fees should only be awarded when the removing 16 party had no “objectively reasonable basis for removal.” Patel v. Del Taco, Inc., [17] 446 F.3d 996, 999 (9th Cir. 2006) (internal quotation omitted); Martin v. Franklin 18 Capital Corp., 546 U.S. 132, 141 (2005) (“[W]hen an objectively reasonable basis 19 exists, fees should be denied.”). The Court finds that removal was neither in bad 20 faith nor “objectively unreasonable.” Moreover, Plaintiff has not shown any 21 unusual circumstances that would warrant fees and costs in this matter. See ECF 22 No. 7 at 9. Consequently, Plaintiff’s request for fees and costs incurred to obtain 23 this remand is denied. 24 CONCLUSION 25 Based on the foregoing, IT IS HEREBY ORDERED Plaintiff’s Motion to 26 Remand, ECF No. 7, is GRANTED. Plaintiff’s request for attorney’s fees and 27 costs is DENIED. 28 /// 1 IT IS SO ORDERED. The District Court Executive shall REMAND this 2|| case to the Superior Court of Benton County, Washington, and CLOSE THE 3 || FILE. 4 DATED December 13, 2022. ee a ood ALEXANDER C. EKSTROM = UNITED STATES MAGISTRATE JUDGE [28] ORDER - 5