Opinion
5:23-cv-2212-HDV-SHKx
02-16-2024
Jesus Gomez v. Old Dominion Freight Line
Present Honorable Hernan D. Vera, United States District Judge.
CIVIL MINUTES - GENERAL
Proceedings: In Chambers-Order on Plaintiff's Motion to Remand [Dkt. No. 8]
I. INTRODUCTION AND BACKGROUND
Plaintiff Jesus Gomez brought this discrimination and wrongful termination action against Defendant Old Dominion Freight Line, Inc.-his former employer-in San Bernardino Superior Court on August 22, 2023. Complaint [Dkt. No. 1, Ex. A]. Plaintiff alleges that Defendant fired him because he refused to transport hazardous materials and reported Defendant's unlawful conduct. Complaint ¶¶ 22-24.
Defendant removed this action to federal court on October 27, 2023, invoking diversity jurisdiction under 28 U.S.C. § 1332(a) and 28 U.S.C. § 1441(b). Notice of Removal (“NOR”) [Dkt. No. 1]. To allege an amount in controversy above $75,000-one of the requirements for federal jurisdiction under the statute Defendant invokes-the NOR calculates and aggregates various sums that Plaintiff might recover based on his legal claims.
Before the Court is Plaintiff's Motion to Remand (“Motion”) [Dkt. No. 8], filed on November 22, 2023. Plaintiff argues that Defendant has failed to establish that the amount in controversy is above $75,000. Importantly, Plaintiff does not directly contest any of Defendant's calculations of potential damages-made here by specific reference to Plaintiff's payment records and work history. Rather than provide any contrary evidence or argue any specific rebuttal, Plaintiff simply asserts that Defendant's evidence is insufficient. Applying established Ninth Circuit law, the Court concludes that this facial attack, set against Defendant's plausible allegations, cannot defeat removal.
The Motion is denied.
II. STANDARD
A federal district court has “original jurisdiction of all civil actions where the [amount in controversy] exceeds the sum or value of $75,000, exclusive of interest and costs,” 28 U.S.C. § 1332(a), and there is “complete diversity of citizenship” between each plaintiff and each defendant, Caterpillar Inc. v. Lewis, 519 U.S. 61, 67-68 (1996). A defendant's notice of removal “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Sys. Co., LLC v. Owens, 574 U.S. 81, 83 (2014).
In the absence of an amount in controversy alleged in a 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 Transportation Servs., Inc., 28 F.4th 989, 992 (9th Cir. 2022) (quoting Dart Cherokee, 574 U.S. at 87). The removing party's assumptions must have “some reasonable ground underlying them,” and “may be reasonable if [they are] founded on the allegations of the complaint.” Arias v. Residence Inn by Marriott, 936 F.3d 920, 925 (9th Cir. 2019) (citation omitted).
After a removing defendant alleges that the amount in controversy requirement is met, “the plaintiff can contest the amount in controversy by making either a ‘facial' or a ‘factual' attack on the defendant's jurisdictional allegations.” Harris v. KM Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020) (citing Salter v. Quality Carriers, Inc., 974 F.3d 959, 964 (9th Cir. 2020)). “A ‘facial' attack accepts the truth of the [defendant's] allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.'” Salter, 974 F.3d at 964 (quoting Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014)). In evaluating a facial attack, “the court, accepting the allegations as true and drawing all reasonable inferences in the defendant's favor, ‘determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.'” Salter, 974 F.3d at 964 (quoting Leite, 749 F.3d at 1121).
In contrast, a factual attack “contests the truth of the ... allegations themselves.” Harris, 980 F.3d at 699 (citation omitted). The burden is then “on the defendant to show, by a preponderance of the evidence, that the amount in controversy exceeds” the jurisdictional threshold. Id. (citing Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015)). Although a plaintiff may rely on evidence to mount a factual attack, “[a] factual attack ... need only challenge the truth of the defendant's jurisdictional allegations by making a reasoned argument as to why any assumptions on which they are based are not supported by evidence.” Harris, 980 F.3d at 700. Conversely, where a plaintiff “d[oes] not challenge the rationality, or the factual basis, of [a defendant's] assertions” and “argue[s] only that [defendant] must support its assertion with competent proof,” that challenge is a “facial attack, rather than a factual attack.” See Salter, 974 F.3d at 964.
Although cases like Salter and Harris concern removal under the Class Action Fairness Act of 2005 (“CAFA”), courts in this district have recognized that the same principles apply to diversity cases removed pursuant to 28 U.S.C. § 1332(a). See Johnson v. Wal-Mart Assocs., Inc., No. CV-22-7425-MWF-MRWX, 2023 WL 2713988, at *4 (C.D. Cal. Mar. 30, 2023) (collecting cases).
III. DISCUSSION
Defendant's NOR devotes more than ten pages to alleging an amount in controversy above $75,000. Defendant calculates at least $75,456 in potential lost-earnings damages by multiplying Plaintiff's average weekly pay by the number of weeks between Plaintiff's “alleged last day of work” and the date of removal. NOR at 10-11. Defendant alleges emotional distress damages of at least $25,000 and cites case law approving that assumption. Id. at 13 (citing Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005)). Because Plaintiff seeks punitive damages, see Complaint ¶¶ 29, 38, 49, which are appropriately considered here, see Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001), Defendant points out that punitive damages alone can exceed $75,000 in retaliation and wrongful termination cases. NOR at 15 (collecting examples). Defendant calculates a further $10,750 in Labor Code penalties and estimates that attorneys' fees alone will exceed $75,000. NOR at 16-17. Taken as true, these allegations support an amount in controversy well over the jurisdictional threshold.
This amount does not even account for lost wages through trial, which courts properly consider in assessing the amount in controversy. See Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 41415 (9th Cir. 2018) (“[T]he amount in controversy is not limited to damages incurred prior to removal-for example, it is not limited to wages a plaintiff-employee would have earned before removal (as opposed to after removal).”).
Plaintiff's challenge to removal has one theme: that Defendant offers “no evidence” in support of a supra-$75,000 amount in controversy but instead relies on “mere speculation and conjecture.” Motion at 1. Plaintiff does not venture beyond this purely negative point; he attaches no evidence to support a lower amount and elaborates no “reasoned argument[s]” against Defendant's amount-in-controversy assumptions. See Harris, 980 F.3d at 700. Plaintiff does not, for example, attempt to show with argument or evidence that the NOR's assumed liability period should have been shorter. Cf. McDonald v. Circle K Stores, Inc., No. 22CV495-L-AGS, 2023 WL 1466931, at *1 (S.D. Cal. Feb. 2, 2023). Instead, he asserts without much elaboration that “speculation and supposition” will taint any attempt to “prove the Amount in Controversy” in this case. Motion at 6.
The closest Plaintiff comes to a reasoned argument against Defendant's overall calculation is his claim that “it presumes Plaintiff has not mitigated.” Reply at 4. But Plaintiff neglects even to assert whether he has mitigated, let alone how mitigation might affect the amount in controversy; he simply argues that “Defendant will not and cannot provide admissible evidence as to mitigation.” Motion at 6. The Court concludes that the mere mention of “mitigation” does not transform Plaintiff's no-evidence refrain into a factual attack on the NOR's allegations.
All this amounts to a facial, not a factual, attack on jurisdiction. See Johnson v. Wal-Mart Assocs., Inc., No. CV-22-7425-MWF-MRWX, 2023 WL 2713988, at *3 (C.D. Cal. Mar. 30, 2023) (a “motion to remand based solely on a defendant's failure to meet its burden of proof in the NOR” is a facial challenge (citing Salter, 974 F.3d at 961)). In evaluating a facial attack, “the court, accepting the allegations as true and drawing all reasonable inferences in the defendant's favor, ‘determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.'” Salter, 974 F.3d at 964 (quoting Leite, 749 F.3d at 1121). They clearly are sufficient here and, contrary to Plaintiff's pro forma denial, are supported by admissible evidence from Defendant's human resources manager based directly on Plaintiff's payment records. [See Dkt. No. 13-1]. The reasonable-indeed, conservative-assumptions made in Defendant's NOR are “founded” on the Plaintiff's theories of liability, see Arias, 936 F.3d at 925, and plausibly support an amount in controversy over $75,000. Removal was proper.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion is denied.
IT IS SO ORDERED.