The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 23-2458-KK-DTBx Date: February 12, 2024
Title:
Present: The Honorable KENLY KIYA KATO, UNITED STATES DISTRICT JUDGE
Noe Ponce Not Reported
Deputy Clerk Court Reporter
Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):
None Present None Present
Proceedings: (In Chambers) Order DENYING Plaintiff’s Motion to Remand [Dkt. 11]
I.
INTRODUCTION
On January 4, 2024, plaintiff Francisca Macias (“Plaintiff”) filed a Motion to Remand
(“Motion”) this action to state court arguing defendant Sams West Inc.’s (“Defendant”) removal of
this action was untimely. ECF Docket No. (“Dkt.”) 11. On January 18, 2023, Defendant filed an
Opposition and a Declaration of Counsel. Dkts. 12-13. Plaintiff did not file a Reply. The matter
thus stands submitted.
Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court
finds that these matters are appropriate for decision without oral argument. For the reasons set
forth below, the Motion is DENIED.
II.
BACKGROUND
Plaintiff commenced this action by filing a form Complaint in Riverside Superior Court on
March 16, 2023. Dkt. 1-2. The allegations in the Complaint are limited to a single sentence stating
“Plaintiff was walking down the frozen food aisle as [sic] Sam’s Club in Riverside, California when
she slipped and fell on a foreign substance on the floor.” Id. at 4. On April 17, 2023, Defendant
was served with a copy of the summons and Complaint. Dkt. 1-1, Declaration of Erin L. Benler-
Ward, ¶ 4; Dkt. 11-2, Ex. 1 at 6. On May 17, 2023, Defendant served its Answer. Dkt. 1-4.
On November 2, 2023, Plaintiff provided a Statement of Damages stating she was seeking
$600,000 in general damages and $17,562 in special damages. Dkt. 1-7.
Defendant filed its Notice of Removal on December 4, 2023, asserting the Court possesses
diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1). Dkt. 1 ¶ 10. According to
the Notice of Removal, Defendant removed the action within 30 days of its receipt of Plaintiff’s
Statement of Damages. Id. ¶ 19.
III.
LEGAL STANDARD
Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over
matters authorized by the Constitution and Congress. Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994). A suit filed in state court may be removed to federal court if the federal court
would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). A removed action must be
remanded to state court if the federal court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).
“The removal statute is strictly construed against removal jurisdiction, and the burden of
establishing federal jurisdiction falls to the party invoking the statute.” California ex rel. Lockyer v.
Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (citing Ethridge v. Harbor House Rest., 861 F.2d
1389, 1393 (9th Cir. 1988)).
IV.
DISCUSSION
A. APPLICABLE LAW
In attempting to invoke this Court’s diversity jurisdiction, Defendant must prove that there
is complete diversity of citizenship between the parties and that the amount in controversy exceeds
$75,000. 28 U.S.C. § 1332. To establish citizenship for diversity purposes, a natural person must be
a citizen of the United States and be domiciled in a particular state. Kantor v. Wellesley Galleries,
Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). Persons are domiciled in the places they reside with the
intent to remain or to which they intend to return. See Kanter v. Warner-Lambert Co., 265 F.3d
853, 857 (9th Cir. 2001). For the purposes of diversity jurisdiction, a corporation is a citizen of any
state where it is incorporated and of the state where it has its principal place of business. 28 U.S.C. §
1332(c); Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).
To determine the amount in controversy, “courts first look to the complaint” and generally
find the “sum claimed by the plaintiff controls if the claim is apparently made in good faith.” Ibarra
v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (citation and internal quotation marks
omitted). Where the amount in controversy is unclear or ambiguous from the face of the state-court
complaint, “a defendant’s amount in controversy allegation is normally accepted . . . unless it is
‘contested by the plaintiff or questioned by the court.’” Jauregui v. Roadrunner Transp. Servs., Inc.,
28 F.4th 989, 992 (9th Cir. 2022) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 574
U.S. 81, 87 (2014)).
“When a plaintiff contests the amount in controversy allegation, ‘both sides submit proof
and the court decides, by a preponderance of the evidence, whether the amount in controversy
requirement has been satisfied.’” Jauregui, 28 F.4th at 992. Parties may submit evidence, “including
affidavits or declarations, or other summary-judgment-type evidence relevant to the amount in
controversy at the time of removal.” Ibarra, 775 F.3d at 1197 (internal quotation marks and citation
omitted). “A defendant may rely on reasonable assumptions to prove that it has met the statutory
threshold.” Harris v. KM Indus., Inc., 980 F.3d 694, 701 (9th Cir. 2020). “[A] defendant cannot
establish removal jurisdiction by mere speculation and conjecture[.]” Ibarra, 775 F.3d at 1197.
“The defendant also has the burden of showing that it has complied with the procedural
requirements for removal.” Sotelo v. Browning-Ferris Indus. of California, Inc., No. 2:20-CV-
06927-SB-PVCx, 2020 WL 7042816, at *2 (C.D. Cal. Nov. 30, 2020) (quoting Riggs v. Plaid
Pantries, Inc., 233 F. Supp. 2d 1260, 1264 (D. Or. 2001)). These procedures include a requirement
that the “notice of removal of a civil action or proceeding shall be filed within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is based[.]” 28 U.S.C. § 1446(b)(1). “[I]f
the case stated by the initial pleading is not removable, a notice of removal may be filed within 30
days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one which is or
has become removable.” 28 U.S.C. § 1446(b)(3).
In Harris v. Bankers Life and Cas. Co., 425 F.3d 689 (9th Cir. 2005), the Ninth Circuit
clarified that if an initial pleading is not removable on its face, then the first 30-day period for
removal is not triggered. Harris, 425 F.3d at 694. “In such case, the notice of removal may be filed
within thirty days after the defendant receives ‘an amended pleading, motion, order or other paper’
from which it can be ascertained from the face of the document that removal is proper.” Id.
(quoting 28 U.S.C. § 1446(b)(3)). As the Ninth Circuit has explained:
Section 1446(b) identifies two thirty-day periods for removing a case. The first
thirty-day removal period is triggered if the case stated by the initial pleading
is removable on its face. The second thirty-day removal period is triggered if
the initial pleading does not indicate that the case is removable, and the
defendant receives a copy of an amended pleading, motion, order or other
paper from which removability may first be ascertained.
Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1139 (9th Cir. 2013) (internal quotation
marks omitted) (citing Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010); 28
U.S.C. § 1446(b).
The Ninth Circuit does not “charge defendants with notice of removability until they’ve
received a paper that gives them enough information to remove.” Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1251 (9th Cir. 2006). Therefore, a defendant does not have a duty to
investigate whether the matter is removable even where there may be a “clue” indicating that federal
jurisdiction may exist. Harris, 425 F.3d at 696. Instead, the “notice of removability under 1446(b) is
determined through examination of the four corners of the applicable pleadings, not through
subjective knowledge or a duty to make further inquiry.” Id. at 694.
///
B. ANALYSIS
Here, neither party disputes complete diversity of citizenship exists between Plaintiff, a
citizen of the state of California and Defendant, a citizen of the state of Arkansas where it is
incorporated and has its principal place of business. See dkt. 1-10, 1-11. Similarly, neither party
challenges whether the amount in controversy exceeds $75,000. See dkts. 11-1, 12. Rather, the
disputed issue here is when Defendants became aware that the amount in controversy exceeds
$75,000.
Plaintiff first argues the removal of this action was untimely under 28 U.S.C. § 1446(b)(1)
“because [D]efendant failed to file its Notice of removal within 30 days after service of the
Summons and Complaint.” Dkt. 11-1 ¶ 1. However, while Plaintiff checks the box indicating
“action is an unlimited civil action (exceeds $25,000),” there is nothing to put Defendants on notice
that the amount in controversy exceeds $75,000. Dkt. 1-2 at 1. Among other things, there is no
indication as to the nature or extent of Plaintiff’s injuries or details regarding her claimed damages.
See dkt. 1-2. Hence, it was not facially apparent from the Complaint that the amount in controversy
exceeded the jurisdictional minimum for diversity jurisdiction. Harris, 425 F.3d at 694.
Plaintiff next argues the removal of this action was untimely 28 U.S.C. § 1446(b)(3) because
(1) Defendant failed to file its Notice of Removal within 30 days after receiving an April 28, 2023
email in which she was informed that Plaintiff had undergone shoulder surgery and would be going
to physical therapy,” and (2) Defendant failed to file its Notice of Removal within 30 days after
service of Plaintiff’s August 22, 2023 responses to Form Interrogatories in which Plaintiff disclosed
she had injured her shoulder and that she had undergone surgery to repair her shoulder.” Dkt. 11-2,
Declaration of J. Luis Garcia (“Garcia Decl.”) ¶ 2, Ex. 2. While the email provides more detail than
the Complaint and states Plaintiff “had right shoulder surgery” and “still has to go through
rehab/physical therapy,” there is nothing indicating the extent or seriousness of her injury. Id.
Similarly, Plaintiff’s responses to the Form Interrogatories do not provide information regarding the
extent or seriousness of her injury from which Defendant would have known the amount in
controversy exceeds $75,000. Garcia Decl. ¶ 4, Ex. 3. In fact, despite discovery requests, it appears
that Plaintiff has still not provided medical, or billing records associated with her medical care. See
dkt. 13, Declaration of Bron E. D’Angelo (“D’ Angelo Decl.”) ¶ 3.
Ultimately, there is nothing in the “four corners” of the Complaint, the April 28, 2023 email,
or Plaintiff’s August 22, 2023 discovery responses that would have informed Defendant that the
amount in controversy exceeds $75,000. At most, the documents identified by Plaintiff may have
suggested federal jurisdiction may exist. However, the law is clear that Defendant has no duty to
investigate whether the matter is removable even where there may be a “clue” indicating that federal
jurisdiction may exist. See Harris, 425 F.3d at 696.
The Court, therefore, finds Defendant timely removed this action on December 4, 2023, i.e.,
within 30 days after receipt of Plaintiff’s Statement of Damages.1 See FED. R. CIV. P. 6(a)(1)(C).
The Notice of Removal was, thus, timely under 28 U.S.C. § 1446(b).
1 Per Federal Rule of Civil Procedure 6(a)(1)(B), when computing time, every day is counted,
“including intermediate Saturdays, Sundays, and legal holidays.” If the last day falls on “a Saturday,
Sunday, or legal holiday, the period continues to run until the end of the next day that is not a
V.
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Remand.
Plaintiff’s request for sanctions is also DENIED.
IT IS SO ORDERED.
Saturday, Sunday, or legal holiday.” FED. R. CIV. P 6(a)(1)(C). Here, thirty days from November 2,
2023, when Plaintiff provided the Statement of Damages, falls on Saturday, December 2, 2023.
Thus, the Notice of Removal, which was filed on Monday, December 4, 2023, was timely filed per
Federal Rule of Civil Procedure 6(a)(1)(C). Id.