Ryerson v. EW-SN Transport, Inc.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 JEFFREY ALAN RYERSON, Case No. 2:20-CV-2321 JCM (BNW) 8 Plaintiff(s), ORDER 9 v. 10 RIMANTAS PETRAVICIUS, an individual, EW-SN TRANSPORT, INC., a New Jersey 11 Corporation, et al., 12 Defendant(s). — 13 — 14 Presently before the court is plaintiff Jeffery Ryerson’s motion to remand. (ECF No. 15 6). Defendant EW-SN Transport Inc. responded in opposition (ECF No. 9) to which 16 Ryerson replied (ECF No. 12). 17 I. BACKGROUND 18 This is a negligence case arising out of a car crash. (ECF No. 6 at 3). Defendant 19 Rimantas Petravicius was driving a semi-truck in the course and scope of his employment 20 with EW-SN Transport. (Id.). Petravicius approached an intersection and made an unsafe 21 left turn into Ryerson’s path of travel. (Id.). Ryerson was unable to avoid the trailer attached 22 to the semi-truck and collided with Petravicius. (Id.). EW-SN Transport removed this case 23 on diversity grounds. (Id.). Ryerson now moves to remand, arguing that the amount in 24 controversy does not exceed $75,000. (Id.). 25 II. LEGAL STANDARD 26 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. 27 Kroger, 437 U.S. 365, 374 (1978). Accordingly, there is a strong presumption against 28 removal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 1 Under the removal statute, a defendant may remove any civil action over which the court has 2 original jurisdiction. 28 U.S.C. § 1441 (a). 3 After a defendant learns that an action is removable, it has thirty days to file a notice 4 of removal. Id. § 1446(b). That is, “the thirty-day clock doesn't begin ticking until a 5 defendant receives ‘a copy of an amended pleading, motion, order or other papers from 6 which it can determine that the case is removable.” Durham v. Lockheed Martin Corp., 445 7 F.3d 1247, 1250 (9th Cir. 2006) (quoting 28 U.S.C. § 1446 (b)(2)). 8 A plaintiff can challenge removal with a motion to remand. 28 U.S.C. § 1447 (c). 9 The defendant must then prove by a preponderance of the evidence that the court has original 10 jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Thus, if removal rests 11 on diversity jurisdiction, the removing defendant must show by a preponderance of the 12 evidence that there is complete diversity and that the amount in controversy exceeds 13 $75,000. 28 U.S.C. § 1332 (a). The removing defendant does not have to predict the 14 eventual award with legal certainty. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th 15 Cir. 2004). But it “bears the burden of actually proving the facts to support jurisdiction, 16 including the jurisdictional amount.” Gaus, 980 F.2d at 567 . The court resolves ambiguity 17 in favor of remand. Hunter, 582 F.3d at 1042 . 18 “In determining the amount in controversy, the court first looks to the complaint. 19 Generally, ‘the sum claimed by the plaintiff controls if the claim is apparently made in good 20 faith.’ ” Ibarra v. Manheim Invests., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (citing St. 21 Paul Mercury Indem., 303 U.S. at 289). If the face of the complaint is not dispositive, the 22 removing defendant may offer “summary judgment-type evidence” to show that the amount 23 in controversy threshold is met. Valdez, 372 F.3d at 1117 ; see also Singer v. State Farm 24 Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997). The evidence may include damages 25 estimates and attorney’s fees and costs authorized by statute or contract. Kroske v. U.S. Bank 26 Corp., 432 F.3d 976, 980 (9th Cir. 2005); see also McCaa v. Massachusetts Mut. Life Ins. 27 Co., 330 F. Supp. 2d 1143, 1149 (D. Nev. 2004). 28 . . . 1 III. DISCUSSION 2 Defendant offers three pieces of evidence to meet its burden. First, Ryerson has 3 claimed more than $24,000 in past special damages which does not include past general 4 damages, lost wages, future special damages, and future general damages, all of which 5 Ryerson will presumably seek at trial. (ECF No. 9 at 7). Second, Ryerson made a settlement 6 demand for the policy limits and $150,000 before removal. (Id. at 10). The court should not 7 consider his $74,000 settlement demand after removal. (Id. at 9; cf. ECF No. 6 at 5 8 (“Plaintiff would accept $74,000 on or before the time this Motion is resolved, providing the 9 Court with unequivocal evidence that Defendant’s assertion that Plaintiff is seeking over 10 $75,000 is unsupported.”)). Third, Ryerson rebuffed a stipulation to remand in exchange for 11 agreeing not to seek more than a $75,000 recovery. (ECF No. 9 at 9). 12 A settlement demand is relevant only if it “reflect[s] a reasonable estimate of the 13 plaintiff’s claim.” Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); see also Burns 14 v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994) (noting that while a “settlement 15 offer, by itself, may not be determinative, it counts for something”); Soriano v. USAA Ins. 16 Agency, Inc., No. 3:09-cv-00661-RCJ-RAM, 2010 WL 2609045 , at *2 (D. Nev. June 24, 17 2010). 18 The court is not convinced that the $150,000 settlement demand is good evidence of 19 the value of Ryerson’s case. Cf. Wolf v. State Farm Mut. Auto. Ins. Co., No. 2:14-CV20 00589-GMN, 2014 WL 6882937 , at *4 (D. Nev. Dec. 4, 2014); Randolph v. Albertsons LLC, 21 No. 2:20-cv-1896-JCM-NJK, 2020 WL 7055894 , at *2 (D. Nev. Dec. 2, 2020) (declining to 22 consider a settlement letter as a reasonable estimate of the amount in controversy). Ryerson 23 did not state in the letter that the “that the $150,000 figure reflected as a [sic] specific 24 calculation of . . . prospective damages.” (ECF No. 12 at 4). He provided only a $24,000 25 calculation of past special damages. (Id.). And Ryerson now disavows this settlement offer 26 unlike the plaintiff in Cohn. (ECF No. 6 at 7); Cohn, 281 F.3d at 840 (“Cohn could have 27 argued that the demand was inflated and not an honest assessment of damages, but he made 28 no attempt to disavow his letter or offer contrary evidence.”). Apart from the $24,000 in past special damages evidenced by medical records (ECF No. 9 at 30-41), defendant offers no 2| good estimate of the amount of other damages Ryerson may seek. 3 Taking all this together, defendant has not met its burden to show that the amount in 4| controversy exceeds $75,000 by the preponderance of the evidence. This case is remanded. 5 | And the court will not impose sanctions (ECF No. 9 at 10) or award fees and costs. (ECF No. 6) 6at8). IV. CONCLUSION 8 Accordingly, 9 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Ryerson’s motion to 10 | remand (ECF No. 6) be, and the same hereby is, GRANTED. 11 IT IS FURTHER ORDERED that the clerk shall REMAND this case back to the 12| Eighth Judicial District Court for Clark County, Nevada, Case No. A-20-821999-C, and 13 | CLOSE this case. 14 DATED May 7, 2021. 15 hte ©. Ataltan 16 UMITED, STATES DISTRICT JUDGE — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — es C. Mahan District Judge _4-