The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA J S-6
CIVIL MINUTES - GENERAL
Case No. 2:24-cv-00169-SVW-KS Date July 1, 2024
Tamara Jackson v. Federal Express Corporation et al.
Title
Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE
Paul M. Cruz NA
Deputy Clerk Court Reporter / Recorder
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
N/A N/A
Proceedings: ORDER GRANTING PLAINTIFF’S MOTION TO REMAND [12]
I. Introduction
Before the Court is a motion for remand filed by Plaintiff Tamara Jackson (“Plaintiff”).
For the following reasons, Plaintiff's motion is GRANTED.
II. Background
A. Procedural History
Plaintiff filed a complaint in the Superior Court of California, County of Los Angeles, on
Dec. 1, 2023. Notice of Removal, Ex. A (“Compl.”), ECF No. 1-1. Defendant Federal Express
Corporation (“Defendant” or “FedEx’’) removed this action to federal court on January 8, 2024.
Notice of Removal, ECF No. 1. Plaintiff filed a motion for remand on Jan. 31, 2024. ECF. No. 12.
Defendant opposed the motion for remand on Feb. 16, 2024. ECF No. 15. Plaintiff replied to
Defendant’s opposition on Feb. 26, 2024. ECF No. 16. The Court heard oral argument from the
parties on March 11, 2024. ECF No. 19.
B. Factual Allegations
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UNITED STATES DISTRICT COURT
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Case No. 2:24-cv-00169-SVW-KS Date July 1, 2024
Tamara Jackson v. Federal Express Corporation et al.
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Plaintiff is a natural person residing in Los Angeles County, California. Compl. § 1.
Defendant is a Delaware corporation with its principal place of business in Memphis, Tennessee.
Id. § 2. Plaintiff is a former employee of Defendant, who alleges that she was wrongfully
terminated. Jd. § 10-23.
Prior to filing suit, on Nov. 20, 2023, Plaintiff filed a charge against Defendant with the
California Department of Fair Employment and Housing (“DFEH”). In response, Plaintiff received
a notice of case closure and a right to sue letter. Compl. § 9.
Plaintiff alleges that she commenced employment for Defendant as a package handler on
or around Sept. 23, 2013. Jd. § 11. Her job entailed moving packages, documents, heavyweight
goods, and “freight cans.” Jd. Plaintiff maintains that she was injured in 2016 while working and
subsequently began physical therapy for her back and shoulder injury.' Compl. § 12. From
approximately 2018 until June 2020, Plaintiff was placed on a medical leave.’ Jd. She returned
from her leave in June 2020 with restrictions prohibiting her from pushing or pulling “freight cans”
without assistance from other employees. Jd. § 13. Defendant accommodated Plaintiff's medical
restrictions by placing her in the role of operations agent, which entailed administrative duties such
as payroll and data entry. /d. Plaintiff stayed in the role of operations agent until March 2022. Jd.
On March 2, 2022, Plaintiff was informed by her doctor that she “required an ergonomic
workstation evaluation from Defendant to continue working.” Jd. ¥ 14. Plaintiff alleges that
Defendant did not provide the ergonomic workstation and, “as a result, Plaintiff's doctor placed
her on a medical leave of absence until she could receive an ergonomic workstation evaluation.”
Id. Plaintiff informed her human resources representative, Mr. Richard Allen (“Allen”), of these
developments and began her medical leave. Jd.
! Plaintiff's complaint is vague regarding the injuries she sustained to her back and shoulder. It is similarly vague as
to the exact dates in 2016 on which Plaintiff was injured and commenced physical therapy.
? Plaintiff's complaint does not specify who placed Plaintiff on medical leave.
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UNITED STATES DISTRICT COURT
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In approximately April 2022, Plaintiff's work restrictions were updated by her doctor to
include no lifting, pushing, or pulling objects over ten pounds; no bending, twisting, squatting, or
kneeling; and no placing the spine in unusual or awkward positions. Jd. § 15. Plaintiff was
instructed by her doctor to remain on medical leave if accommodations were not provided. Jd.
From April 2022 until Sept. 15, 2022, Plaintiff's medical leave was updated intermittently,
and she provided updates to Allen through Defendant’s workers’ compensation carrier. Jd. { 16.
One month later, on or around Sept. 15, 2022, Plaintiff received a letter from Allen stating
that Defendant “could no longer hold her position . . . open.” Jd. § 17. Plaintiff was therefore
instructed to re-apply to work with the Defendant based on current open positions. Jd. Plaintiff
alleges none of the positions offered were compliant with her work restrictions, and she therefore
continued her medical leave as instructed by her doctor. Jd.
In October 2022, Plaintiff informed Allen of updated work restrictions preventing her from
engaging in repetitive bending or twisting of her spine. Jd. § 18. Plaintiff was told that her position
had been filled: she was again advised to apply to an open position that complied with her work
restrictions. Jd.
In approximately January 2023, Plaintiff had shoulder surgery and informed Allen of this
fact. Id. ¥ 19. Plaintiff continued on medical leave and was released from her shoulder restriction
in April 2023. Jd. Plaintiff alleges that during this time, she regularly attempted to return to work
by filling a position that complied with her work restrictions. /d. Plaintiff maintains that Allen
informed her that she could extend her leave while she searched for a new position. /d.
On May 15, 2023, Plaintiff alleges her medical leave was extended once more with Allen,
who instructed her to continue looking for new positions with Defendant. Jd. 20.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Case No. 2:24-cv-00169-SVW-KS Date July 1, 2024
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On July 9, 2023, Plaintiff maintains she was informed by Allen that her medical leave had
expired and that her employment would be terminated on July 17, 2023. Jd. § 21. Plaintiff was
then terminated on July 17, 2023. Jd. ¥ 22.
Following termination, Plaintiff filed suit, alleging the following violations of the Fair
Employment and Housing Act, Cal. Gov’t Code §§ 12900, ef seg. (“FEHA”): (1) disability
discrimination, (2) failure to provide reasonable accommodations, (3) failure to engage in a good
faith interactive process to determine reasonable accommodations, (4) retaliation, (5) failure to
prevent discrimination and retaliation, and (6) wrongful termination. Jd. □□ 21-91.
Plaintiff seeks past and future economic and non-economic damages; pre- and post-
judgment interest, costs and attorney’s fees; injunctive relief: declaratory relief; punitive damages;
and all other relief the Court deems just and proper. /d. at 15. The complaint does not attach a
dollar amount to the relief sought; however, the civil cover sheet indicates that the amount
demanded by Plaintiff exceeds $25,000.00. Jd.; Notice of Removal, Ex. C (Civil Case Cover
Sheet), ECF No. 1-1.
Ill. Legal Standard
“Federal courts are courts of limited jurisdiction .. . .” Gunn v. Minton, 568 U.S. 251, 256
(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994)). As such, a
federal court can only exercise jurisdiction over actions where a federal question exists, or where
there is (1) complete diversity of citizenship between the parties and (2) the amount in controversy
exceeds $75,000. 28 U.S.C. §§ 1331, 1332.
Pursuant to 28 U.S.C. § 1441(a), “a defendant may remove any action filed in state court if a
federal district court would have had original jurisdiction.” Gonzales v. CarMax Auto Superstores,
LIC, 840 F.3d 644, 648 (9th Cir. 2021). The Ninth Circuit strictly construes the removal statute
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UNITED STATES DISTRICT COURT
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Case No. 2:24-cv-00169-SVW-KS Date July 1, 2024
Tamara Jackson v. Federal Express Corporation et al.
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against removal, and jurisdiction must be rejected if there is any doubt as to the right of removal
in the first instance. Gaus v. Miles, Inc., 980 F.2d 564, 565 (9th Cir. 1997). Accordingly, there is
a strong presumption against removal jurisdiction that results in the defendant shouldering the
burden of establishing that removal is proper. Jd. (citing Nishimoto v. Federman-Bachrach &
Assocs., 903 F.2d 709, 712 n.3 (9th Cir.1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195
(9th Cir.1988)). The burden includes “actually proving the facts to support jurisdiction, including
the jurisdictional amount.” Jd. (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 (1936)).
IV. Discussion
A. Complete Diversity of Citizenship is Present in This Case
Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity between the
parties, meaning the plaintiff is not a citizen of the same state as any defendant. U//oa v. California
Newspaper Partners, No. LA CV20-11776, 2021 WL 6618815, 2021 U.S. Dist. LEXIS 251909,
at *2 (C.D. Cal. Oct. 21, 2021) (citing Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir.
2009)). Plaintiff is a natural person residing in Los Angeles County, California. Notice of
Removal, Ex. A (“Compl.”) § 1, ECF No. 1-1. Defendant is a Delaware corporation with its
principal place of business in Memphis, Tennessee. Jd. at § 2.
It is apparent, and the parties do not dispute, that the complete diversity requirement is
satisfied here. See generally Mot. to Remand, ECF No. 12; Opp’n to Pl.’s Mot. to Remand, ECF
15; Pl.’s Reply ISO Mot. to Remand, ECF 16. Therefore, the Court proceeds to the next stage of
the analysis.
B. The Amount in Controversy Does Not Exceed $75,000
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES - GENERAL
Case No. 2:24-cv-00169-SVW-KS Date July 1, 2024
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Title
“The Court must first consider whether it is facially apparent from the Complaint that the
jurisdictional amount has been satisfied.” Nevarez v. FedEx Supply Chain, Inc., No. EDCV 23-
2337 JGB (SPx), 2024 WL 734227, 2024 U.S. Dist. LEXIS 30598, at *2 (C.D. Cal. Feb. 21, 2024)
(citing Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1031 (N.D. Cal. 2002)). Here, the Complaint
does not specify the amount in controversy; rather, it states that Plaintiff seeks past and future
economic and non-economic damages; pre- and post-judgment interests; costs and attorney’s fees;
injunctive relief; declaratory relief; punitive damages; and all other relief the Court deems just and
proper. Compl. 15.
If it is not facially apparent from the Complaint that the jurisdictional minimum is met, the
removing party must prove the minimum is met by a preponderance of the evidence. U//oa, 2021
WL 6618815, 2021 U.S. Dist. LEXIS 251909, at *3 (citing Valdez v. Allstate Ins. Co., 372 F.3d
1115, 1117 (9th Cir. 2004)). “The removing party ‘can meet this burden by offering facts
supporting [that] the amount in controversy exceeds the jurisdictional minimum or producing
evidence of jury verdicts for damages awarded in cases with analogous facts.’” Jd. (alteration
original) (citing Vasquez v. Arvato Dig. Servs., LLC, No. CV 11-02836 RSWL (AJWx), 2011 WL
2560261, 2011 U.S. Dist. LEXIS 69154, *3 (C.D. Cal. June 27, 2011)). The removing party must
provide evidence that establishes that it is more likely than not that the jurisdictional minimum is
met. Id.
Furthermore, the amount in controversy includes all relief claimed at the time of removal
to which the plaintiff would be entitled if she prevails. Chavez v. JPMorgan Chase, 888 F.3d 413,
418 (9th Cir. 2018).
1. Lost Wages
Defendant alleges Plaintiff's pay as an operations agent was $19.53 per hour and that she
was scheduled to work 20 hours per week. Sasso Decl. 4, ECF No. 15-2. Plaintiff does not dispute
this fact. Defendant therefore calculates that Plaintiff's annual income was $20,311.20 per year.
Def.’s Opp’n to Pl.’s Mot. to Remand (“Opp.”) 8, ECF No. 15. Defendant further calculates that
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UNITED STATES DISTRICT COURT
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Plaintiff's back pay claim would be, at a minimum, $28,774.20 for the 17 months between the date
of her termination (July 17, 2023) and an expected trial date of January 1, 2025 (roughly one year
from the date of removal). Jd. Defendant then maintains that an award of two years’ front pay to
Plaintiff would total at least $40,622.40. According to Defendant, an award of two years’ front pay
is “conservative.” Jd. In sum, Defendant contends that Plaintiffs claim for lost wages, including
both front and back pay, would total $69,396.60.
Plaintiff argues Defendant’s calculation of lost wages fails for two reasons: (1) Defendant’s
lost wages calculation includes wages up to trial without considering Plaintiff's duty to mitigate
and (2) Defendant fails to consider the standard followed by the Central District, which states the
amount in controversy must be determined as of the date of removal. Both of Plaintiff's arguments
are mistaken.
“(Mitigation of damages is an affirmative defense, and a potential defense does not reduce
the amount in controversy for purposes of establishing federal jurisdiction.” Beltran v. Procare
Pharmacy, LLC, No. 2:19-cv-08819-ODW(RAOx), 2020 WL 748643, 2020 U.S. Dist. LEXIS
26098, at *3 (C.D. Cal. Feb. 14, 2020) (quoting Jackson v. Compass Grp. USA, Inc., No. 19-cev-
194678-PSG (GJSx), 2019 WL 3493991, 2019 U.S. Dist. LEXIS 129001, at *4 (C.D. Cal. July
31, 2019)). Therefore, Plaintiff's argument that her affirmative burden to mitigate her damages
reduces the amount in controversy fails.
Secondly, Plaintiff contends that, because the amount in controversy is determined at
removal, her lost wages should be calculated solely up to the date of removal. Mot. to Remand 3,
ECF No. 12. Under this reasoning, Plaintiff’s lost wages would total $21,760 from the date of
termination to the date of removal. To support this interpretation, the Plaintiff sites numerous cases
that predate the Ninth Circuit’s opinion in Chavez, where the Ninth Circuit clarified the following:
3 Even if mitigation were to be considered, Defendant points out that Plaintiff herself alleges that “she will for a period
of time in the future be unable to obtain gainful employment, as her ability to obtain such employment and earning
capacity have been severely diminished.” Opp 2.
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“When we say that the amount in controversy 1s assessed at the time of removal, we mean that we
consider damages that are claimed at the time the case is removed by the defendant.” 888 F.3d at
417. “That the amount in controversy is assessed at the time of removal does not mean that the
mere futurity of certain classes of damages precludes them from being part of the amount in
controversy.” Jd. Therefore, as the Complaint seeks past and future lost wages as of the date of
removal, both past and future lost wages are considered at stake in the litigation and are considered
in assessing whether the amount in controversy is met.
Regardless of the weaknesses of Plaintiff's arguments, the Court has its own burden to
verify whether it has subject matter jurisdiction over this case. Hertz Corp. v. Friend, 559 U.S. 77,
94 (2010). The Court begins by evaluating Defendant’s lost wages estimate, with which it agrees
in part and disagrees in part. Defendant estimates that, if successful, Plaintiff will likely be awarded
at least two years of front pay; as support, Defendant cites three cases (the most recent of which is
37 years old) that show front pay awards “span a number of years” in California. Although the
court did grant front pay in these cited state court cases, Defendant does not show how these cases
are factually analogous with the present case at issue apart from being employment cases with
front pay awards spanning a “number of years.”
In Smith v. Brown-Forman Distillers Corp., 241 Cal. Rptr. 916 (Cal. Ct. App. 1987), an
employee sued his employer after resigning from his job because his employer would have
otherwise required him to commit a crime as a condition of his employment. In that case, the
employee was awarded front pay compensating him from the time of his resignation to what would
have been the date of his mandatory retirement several years thereafter. Jd. at 917. Here, there is
no allegation that Defendant forced Plaintiff to engage in illegal behavior. Moreover, there is not
a rational anchor point off of which to estimate forward-looking damages; rather than use a
retirement date, Defendant simply invented the ‘conservative’ estimate of two years — an estimate
which just so happens to get them almost all the way to the amount in controversy threshold.
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UNITED STATES DISTRICT COURT
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In Rabago-Alvarez v. Dart Industries, Inc., 127 Cal. Rptr. 222 (Cal. Ct. App. 1976), an
employee successfully sued her employer for wrongful termination and was awarded four years’
worth of front pay. The Plaintiff in Rabago was courted away from her previous job for several
months and promised permanent employment. Jd. at 224. Despite satisfactory work, the employee
was terminated a mere two months after being hired, as retaliation for expressing discomfort with
being forced to visit a strip club with her male coworkers. Jd. Again, Rabago-Alvarez is not
factually analogous with the present case and thus is not indicative of a front pay award here.
In Drzewiecki v. H&R Block, Inc., 101 Cal. Rptr. 169 (Cal. Ct. App. 1972), an employee
sued his employer for wrongful termination and was awarded ten years of front pay. Jd. at 172.
The employee in Drzewiecki had a contract which only permitted his employer to fire him for
cause. Jd. at 174. Nevertheless, the employee was terminated once the business he had set up for
his employer became profitable. Jd. at 175. The court determined that, based on the employee’s
age, physical characteristics, etc., he was likely to satisfactorily perform another 10 years of work,
thus justifying the front pay award. Here again, there is little factual sumilarity between Drzewiecki
and the instant case; Plaintiff has not alleged a contract only permitting her to be fired for cause,
and even if she had, cause seems distinctly possible under the facts alleged.
In short, Defendant has failed to cite any case involving wrongful termination due to a
disability—a subject for which there is ample caselaw. Defendant has merely speculated that front
pay will be appropriate and conjured a number that serves its own purposes. To avoid trivializing
the requirements outlined for diversity jurisdiction in § 1332, the Court instead adopts the custom
embraced by other district courts to estimate lost front pay from the date of removal up to the
expected trial date. See Beltran v. Procare Pharmacy, LLC, 2020 WL 748643, 2020 U.S. Dist.
LEXIS 26098, at *3; Nevarez v. FedEx Supply Chain, Inc., 2024 WL 734227, 2024 U.S. Dist.
LEXIS 30598, at *4. As a trial date has not been set in this case, the Court conservatively estimates
a trial date of one year from the date of removal and accepts Defendant’s estimated trial date of
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Jan. 1, 2025. Consequently, the Court estimates Plaintiff's total lost wages, including both front
and back pay, amount to $29,654.35.4
2. Emotional Distress Damages
Defendant does not provide an estimate for Plaintiff's emotional distress damages, but
states that “[p]laintiffs who prevail in wrongful discharge claims often recover large emotional
distress damages.” Notice of Removal § 21, ECF No. 1-1. Defendant supports this assertion by
citing five cases.
In determining the amount in controversy, a district court can consider emotional distress
damage awards in similar cases, but the cases considered must be factually analogous to the case
at issue. Nevarez v. FedEx Supply Chain, Inc., No. EDCV 23-2337 JGB (SPx), 2024 WL 734227,
at *4 (C_D. Cal. Feb. 21, 2024). Here, the cases cited by Defendant are not factually analogous.
First, Defendant cites four cases in which wrongfully terminated whistleblowers were
awarded emotional damages. See Notice of Removal 4 22—25, ECF No. 1-1. Defendant offers no
explanation for how emotional damages awarded to wrongfully terminated whistleblowers are
factually analogous to a plaintiff alleging wrongful disability termination. See Mot. to Remand 6,
ECF No. 12. Once again, the Court notes that wrongful termination due to disability is not a little-
tread area of the law.
Defendant also cites three cases involving wrongful termination based on retaliation for
objecting to various forms of disability-related discrimination. Opp. 6. These cases are at least in
the correct arena of the law, but again, Defendant fails to explain how they shed any light on the
present case, which only alleges retaliation in the most threadbare and boilerplate fashion.
* The Court arrived at this number by multiplying Plaintiff's $20,311.20 annual salary by 1.46 (representing 534 days
between July 17, 2023, and January 1, 2025, as expressed in years).
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For these reasons, the Court declines to include emotional distress damages in assessing
whether the jurisdictional minimum has been met. See Reyes v. Staples Office Superstore, LLC.,
No. CV 19-07086-CJC(SKx), 2019 WL 4187847, 2019 U.S. Dist. LEXIS 150735 (C.D. Cal. Sept.
3, 2019)) (declining to consider emotional distress damages when the defendant failed to point to
factually analogous cases and merely cited cases with large emotional distress awards); Barrera v.
Albertsons LLC, 2019 WL 1220764, 2019 U.S. Dist. LEXIS 42840, at *3 (C.D. Cal. Mar. 15,
2019) (refusing to include emotional distress damages when the defendant cited employment cases
with large emotional distress awards without analogizing how the cases were similar to the instant
action).
3. Attorney’s Fees
Attorney’s fees must be included when determining the amount of controversy if they are
recoverable by statute. Ramirez v. Builder Services Inc., No. EDCV 22-1571, 2023 WL 115561,
2023 U.S. Dist. LEXIS 2252, at *7 (C_D. Cal. Jan. 5, 2023) (citing Fritsch v. Swift Trans. Co. of
Ariz., LLC, 899 F. 3d 785, 794 (9th Cir. 2018)). Here, FEHA allows a prevailing party to recover
reasonable attorney’s fees. Cal. Gov’t Code § 12965(c)(6). “However, courts should still reject a
defendant’s calculation of future attorneys’ fees if it fails to satisfy its burden of proof using
summary-judgment-type evidence.” Ramirez 2023 WL 115561, 2023 U.S. Dist. LEXIS 2252, at
*7 (quoting Reyes, 2019 WL 4187847, 2019 U.S. Dist. LEXIS 150735, at *4).
Defendant contends that if this case proceeds to trial, the attorney’s fees alone would
exceed the jurisdictional minimum of $75,000. Defendant cites to his 20 years of experience
litigating employment claims and two state cases where attorney’s fees surpassed $200,000.
Defendant neither provides the Court with a concrete estimate for attorney’s fees nor provides
analysis as to how the cited cases are factually analogous with the present case at issue. In other
words, the evidence submitted by Defendant falls short of ‘summary-judgment-type evidence.’
Defendant’s estimate is therefore speculative, and the Court will not consider that estimate when
determining the amount in controversy.
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4. Punitive Damages
Punitive damages may be included when determining whether the jurisdictional minimum
is met. Ramirez, 2023 WL 115561, 2023 U.S. Dist. LEXIS 2252, at *6 (citing Gibson v. Chrysler
Corp., 261 F.3d 927, 945 (9th Cir. 2001)). However, courts may reject including punitive damages
in determining jurisdiction if the defendant fails to cite factually analogous cases and 1f the court
deems defendant’s arguments regarding punitive damages speculative. Jd. (citing Molnar v. 1-800-
Flowers.com, Inc., 2009 WL 481618, 2009 U.S. Dist. LEXIS 131768, at *6 (C.D. Cal. Feb. 23,
2009)).
Defendant argues the potential punitive award in this case alone may satisfy the
jurisdictional minimum. Defendant again does not provide an estimate, but rather cites a 30-year-
old district court case from Iowa to support its conclusion. In Aucina v. Amoco Oil Co., 871 F.Supp.
332, 334 (S.D. Iowa Dec. 30, 1994), the court found punitive damages alone could exceed the
jurisdictional minimum given the “purpose of punitive damages is to capture a defendant’s
attention and deter others from similar conduct.” But the Court is not persuaded. Defendant has
neither explained how Azcina 1s factually analogous with the present case at issue, nor cited any
other factually analogous cases. Therefore, the Court has no basis to include punitive damages in
its assessment of whether the jurisdictional minimum has been met.
Vv. Conclusion
In light of the analysis above, the Court finds the amount in controversy to be $29,654.35.
Because that amount falls short of the $75,000.00 threshold required by § 1332, the Court
GRANTS Plaintiff's motion and REMANDS this matter to the State court.
IT IS SO ORDERED.
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