Linda McMahon v. Marriott International, Inc.

— 1 — 2 JS-6 — 3 — — 4 — — 5 — — 6 — — 7 — — 8 — UNITED STATES DISTRICT COURT — 9 — CENTRAL DISTRICT OF CALIFORNIA — 10 — 11 LINDA McMAHON, ) Case No. CV 21-1847-JPR ) 12 Plaintiff, ) ) ORDER GRANTING PLAINTIFF’S MOTION 13 v. ) TO REMAND AND REMANDING CASE TO ) LOS ANGELES COUNTY SUPERIOR COURT 14 MARRIOTT INT’L, INC., ) ) 15 Defendant. ) ) — 16 — — 17 — PROCEDURAL HISTORY — 18 — Plaintiff filed this premises-liability action in Los — 19 — Angeles County Superior Court on June 25, 2020. (Removal Notice, — 20 — Sarkesians Decl. ¶ 2 & Ex. A at 2.)1 Although her Complaint did — 21 — not specify the amount of damages she sought, see Cal. Civ. Proc. — 22 — Code § 425.10(b), she indicated that the action was an “unlimited — 23 — civil case” with damages “exceed[ing] $25,000.” (Id. at 3.) She — 24 — specifically sought damages for “mental and emotional pain, — 25 — suffering, worry and anxiety”; “medical and related expenses”; — 26 — — 27 — 28 1 The Court uses the pagination generated by its Case Management/Electronic Case Filing system. — 1 — 1 and “loss of earnings and earning capacity.” (Id. at 5, 7.) 2 Defendant filed its Answer to the Complaint on November 12, 2020. 3 (Removal Notice, Sarkesians Decl. ¶ 3 & Ex. B.) 4 On February 26, 2021, Defendant removed the case to this 5 Court, claiming that it first learned that the amount in 6 controversy exceeded $75,000 for purposes of diversity 7 jurisdiction on January 28, when Plaintiff served certain 8 discovery responses, and therefore removal was timely under 28 9 U.S.C. § 1446 (b).2 (Removal Notice, Sarkesians Decl., ¶¶ 4-5 & 10 Ex. C.) 11 On March 22, 2021, Plaintiff moved to remand to state court, 12 arguing that the removal notice was untimely because Defendant 13 had been on notice since mid-November 2020, and certainly no 14 later than January 5, 2021, that the amount in controversy 15 exceeded $75,000. (Mot. at 5-7; Irons Decl. ¶¶ 4-5 & Ex. 2.) 16 Defendant opposed on April 1, 2021; Plaintiff did not file a 17 reply. The Court heard argument on April 22, 2021, and took the 18 matter under submission. 19 For the reasons discussed below, this action is REMANDED to 20 Los Angeles County Superior Court because Defendant’s removal of 21 it to this Court was untimely.3 — 22 — — 23 — — 24 — 2 It is undisputed that Plaintiff is a citizen of New York and 25 Defendant is a Delaware corporation with its headquarters and principal place of business in Maryland. Plaintiff’s citizenship 26 was disclosed in the November 12/January 5 letter discussed below. (Mot., Irons Decl. ¶ 5 & Ex. 2 at 3.) — 27 — 28 3 Both parties consented to this Court’s jurisdiction to conduct all further proceedings in this case. — 2 — 1 DISCUSSION 2 Statutes allowing removal to federal court are “strictly 3 construed” against removal jurisdiction. Syngenta Crop Prot., 4 Inc. v. Henson, 537 U.S. 28, 32 (2002). The removing defendant 5 bears the burden of showing that removal is proper. Abrego 6 Abrego v. Dow Chem. Co., 443 F.3d 676, 682-83 (9th Cir. 2006) 7 (per curiam). 8 When a complaint doesn’t on its face warrant removal based 9 on diversity jurisdiction, § 1446(b)(3) requires that removal be 10 accomplished within 30 days “after receipt by the defendant, 11 through service or otherwise, of a copy of an amended pleading, 12 motion, order or other paper from which it may first be 13 ascertained that the case is one which is or has become 14 removable.” “Other paper” includes responses to discovery, see § 15 1446(c)(3)(A), as well as correspondence among counsel, including 16 settlement demands, see Cohn v. Petsmart, Inc., 281 F.3d 837 , 840 17 (9th Cir. 2002) (per curiam). Remand is “mandatory” when a 18 plaintiff timely objects to removal and the district court finds 19 that the challenged removal petition was late. Kuxhausen v. BMW 20 Fin. Servs. NA LLC, 707 F.3d 1136 , 1142 n.4 (9th Cir. 2013). 21 The parties do not dispute that at least as of January 5, 22 2021, Defendant received from Plaintiff a settlement demand in an 23 amount somewhat exceeding the $75,000 diversity-jurisdiction 24 threshold.4 (Mot., Irons Decl. ¶ 5 & Ex. 2 at 5.) The letter — 25 — 26 4 Apparently Plaintiff first sent the same demand letter, along with supporting evidence, to Defendant on November 12, 2020. — 27 — (Mot., Irons Decl. ¶ 4.) Although Plaintiff advised Defendant that 28 it had been put in the mail and that Defendant should expect it soon, and Defendant acknowledged as much, Defendant claims never to — 3 — 1 laid out Plaintiff’s medical expenses, which fell shy of the 2 $75,000 threshold, and did not specifically mention any losses 3 from pain and suffering or lost earnings. (Id. at 2-5.) 4 On January 28, 2021, Plaintiff served discovery responses, 5 indicating a greater figure for her medical expenses — although 6 still below $75,000 — and stating that she did not “attribute any 7 loss of income or earning capacity” to the accident. (Removal 8 Notice, Sarkesians Decl. ¶ 4 & Ex. C at 13-16, 18.) She also 9 indicated that she might require future “physical therapy to 10 relieve ongoing pain.” (Id. at 16.) 11 Defendant claims that Plaintiff’s settlement demand in the 12 November 12 letter (which it says it did not receive until 13 January 5) was not “reasonable” and therefore did not put it on 14 notice that removal was possible. (Opp’n at 3-5.) It relies for 15 this argument primarily on Cohn, which stated that a settlement 16 demand counts as an “other paper” when it represents a 17 “reasonable estimate of the plaintiff’s claim.” (Id. at 3 18 (citing 281 F.3d at 840 ).) Because Plaintiff’s stated medical 19 expenses in the letter were less than half the $75,000 minimum 20 and her actual paid expenses were considerably less still, 21 Defendant argues, the amount demanded, $85,000, was not 22 reasonable. (Id. at 4.) It claims that it could not have known 23 the case was removable until Plaintiff served her discovery 24 responses on January 28 and then subsequently confirmed that she 25 would not stipulate to a recovery of no more than $74,999. (Id. — 26 — — 27 — have received it and did not follow up until January 5, 2021, when 28 Plaintiff emailed him the letter. (See Mot., Irons Decl. ¶¶ 4, 6; Opp’n, Sarkesians Decl. ¶ 3.) — 4 — 1 at 5.) 2 But the settlement demand must be read in the context of the 3 Complaint, which claimed damages not just for medical expenses 4 but for pain and suffering and lost earnings as well. See, e.g., 5 Groysman v. Liberty Ins. Corp., No. 19-CV-667-CAB-BGS, 2019 WL 6 2120227, at *2 (S.D. Cal. May 15, 2019) (stating that 7 interrogatory response seeking damages of “not less than $50,000” 8 for property losses to condominium, when read in context of 9 complaint asking for unspecified amounts of other kinds of 10 damages as well, triggered notice that amount in controversy was 11 at least $75,000). On January 5, when the settlement demand was 12 emailed to Defendant, Plaintiff had not yet served her discovery 13 responses, and therefore Defendant should have surmised that the 14 $85,000 demand included pain-and-suffering and lost-earnings 15 damages as well. See, e.g., Bloomer v Serco Mgmt. Servs., Inc., 16 No. EDCV 16-2651 JGB (RAOx), 2017 WL 721241 , at *4 (C.D. Cal. 17 Feb. 23, 2017) (finding notice of removal untimely and remanding 18 to state court because plaintiff’s settlement demand of $99,000, 19 when read in light of complaint’s prayer for various kinds of 20 damages, was not unreasonable). 21 Although Defendant’s counsel claimed at the hearing that he 22 “knew” Plaintiff was no longer seeking earnings damages, he 23 presented no such evidence, not even his own declaration, and he 24 acknowledged that he had “inferred” that from his conversations 25 with opposing counsel rather than having her tell him so 26 directly. He was also uncertain on whether such conversations — 27 — — 28 — — 5 — 1 took place before Plaintiff served her discovery responses.5 2 Accordingly, Defendant has not met its burden of showing that it 3 had a basis for thinking the settlement demand, which was not 4 outlandish or obviously inappropriate, see Burns v. Windsor Ins. 5 Co., 31 F.3d 1092, 1097 (11th Cir. 1994) (observing that 6 settlement offer would be unreasonable when it was “grossly 7 inconsistent” with “alleged damages”), was not reasonable.6 8 As of January 5, then, the 30-day clock began to run because 9 Defendant knew, or should have known, that Plaintiff had made a 10 reasonable settlement demand of more than $75,000. It is true 11 that in her January 28 discovery responses Plaintiff stated that 12 she would not seek lost-earnings damages, but the $85,000 13 settlement demand remained reasonable, as Defendant concedes by 14 then seeking to remove the case, because her claimed medical 15 damages went up. 16 For all these reasons, Defendant was required to remove this 17 case to this Court by no later than February 4, 2021. Because it 18 did not do so until February 26, the removal was more than three 19 weeks late and this action must be remanded to state court. 20 Accordingly, Plaintiff’s motion to remand is GRANTED, and it is — 21 — — 22 — 23 5 At the hearing, Plaintiff’s counsel did not address Defendant’s statements in this regard and continued to argue that — 24 — her settlement demand of $85,000 put Defendant on notice that the 25 removal clock was triggered. 26 6 Plaintiffs, of course, have an incentive not to make unreasonable demands if they don’t want their case removed to 27 federal court, as Plaintiff here clearly does not. Defendant has never suggested that Plaintiff’s settlement demand was made in bad 28 faith, another reason why it should be taken at face value. — 6 — 1 |] ORDERED that this action be REMANDED to Los Angeles County 2} Superior Court. — 3 — 4 Rrewhlatlr sf 28,202) ‘ U.S. MAGISTRATE JUDGE — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —