Home Buyers Warranty Corporation v. Leighty

Full title: Home Buyers Warranty Corporation, Petitioner, v. Randy Leighty; Melyssa…

Court: United States District Court, D. Arizona

Date published: Dec 28, 2007

No. CV 07-177-PHX-RCB (D. Ariz. Dec. 28, 2007)

Opinion

No. CV 07-177-PHX-RCB.

December 28, 2007

ORDER

ROBERT BROOMFIELD, Senior District Judge

Currently pending before the court is a motion to dismiss for lack of subject matter jurisdiction brought pursuant to Fed.R.Civ.P. 12(b)(1) by respondents, Randy and Melyssa Leighty (doc. 6). Also pending before the court is a motion by petitioner Home Buyers Warranty Corporation ("HBW") to compel arbitration and to stay the parallel state court action of Leighty v. U.S. Homes, et al. , CV 2006-013254 (Superior Court, Maricopa Co.) ("Leighty I") (doc. 7). For the reasons set forth below, the court grants the respondents' motion to dismiss for lack of subject matter jurisdiction, and accordingly and denies as moot HBW's motion to compel arbitration.

Background

Both this action and the related state court action arise out of respondent's dissatisfaction with a new home which they purchased in 1997. Respondents complain of a number of "movement-related" problems with that home such as "cracks in pool plaster, drywall cracks" and "linoleum splitting[.]" Mot. to Compel Arbitration (doc. 7), exh. 3 thereto (state court co.) at ¶ 5. In addition to naming HBW, a warranty company, as a defendant in Leighty I, respondents named the home builder/seller, U.S. Homes.

In Leighty I respondents allege six causes of action: (1) breach of contract; (2) breach of the "warranty of workmanship[;]" (3) breach of the "warranty of habitability[;]" (4) negligence; (5) negligent misrepresentation; and (6) violations of the Arizona Consumer Fraud Act ("ACFA"), A.R.S. § 44-1522. See id., exh. 3 thereto. In that state court action respondents are seeking unspecified damages "in an amount as will be proven at trial, but believed to be in excess of $50,000.00[.]" Id. at ¶ 14. Respondents also are seeking, "where appropriate at law, exemplary damages . . ., plus, where appropriate at law, attorneys fees, costs and disbursements, interest, disgorgement and injunctive or reformation relief[.]"Id. at 12. Respondents did not allege any discrete amounts with respect to these other types of damages and relief though.

In accordance with section 4 of the Federal Arbitration Act ("FAA),¹ on January 29, 2007, HBW commenced the present action specifically seeking "to Compel Arbitration and Stay [the] State Action[.]" Co. (doc. 1) at 2. HBW relies upon 28 U.S.C. § 1332 and section 4 of the FAA, 9 U.S.C. § 4, as the jurisdictional bases for its claims. Mirroring the language of section 1332, in its complaint HBW baldly alleges that "[t]he amount in controversy exceeds $75,000, exclusive of interest and costs." Co. (doc. 1) at 2, ¶ 4. HBW further alleges, more specifically, that in Leighty I respondents are asserting that "HBW's alleged breaches and misrepresentations entitle [them] to recovery of $50,000+ repairs plus statutory interest (at 10% per annum), attorney's fees, taxable costs and disbursements, and punitive damages." Id. at 4, ¶ 9 (emphasis in original).

1 Section four provides in relevant part as follows:

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action . . . of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.

9 U.S.C. § 4 (West 1999).

On March 6, 2007, respondents filed the present motion to dismiss arguing first that the FAA does not create an independent ground of federal jurisdiction. Second, respondents argue that HBW did not sufficiently allege the $75,000.00 minimum amount in controversy necessary to confer subject matter jurisdiction upon this court pursuant to 28 U.S.C. § 1332. Shortly thereafter, on March 13, 2007, HBW filed its motion to compel arbitration and to stay the state court action (doc. 7). Respondents did not file a response to that motion. On July 27, 2007, HBW filed what it denominated as a reply, wherein it continues to seek an order compelling arbitration, in the event the court denies the motion to dismiss. See Reply (doc. 14) at 2-3.²

2 When respondents filed their motion to dismiss, they advised the court that U.S. Homes had filed a motion to compel arbitration in Leighty I, and that that motion was to be argued on March 28, 2007. Mot. (Doc. 6) at 2. As it may, the court has taken judicial notice of those state court proceedings. See Kolocotronis v. Benefis Health Care, 2007 WL 2710366, at *3 n. 3 (D. Mont. Sept. 13, 2007) (citing, inter alia, Smith v. Duncan, 297 F.3d 809, 815 (9^th Cir. 2002)) ("The Court may take judicial notice of matters of public record . . ., including pleadings or documents filed in state or federal courts.") From the filings inLeighty I it appears that the state court granted that motion to compel, and stayed that action until October 4, 2007, to allow completion of the arbitration. See Leighty I, slip op. at 4 (Superior Court, April 4, 2007) (doc. code 078). More recently, in an order filed on October 26, 2007, the state court continuedLeighty I on its "Inactive Calendar for dismissal on April 4, 2008, without notice, unless prior to that date a Judgment is entered, a Stipulation and Order to Dismiss is presented or a Motion to Set and Certificate of Readiness is filed." Id., slip op. at 1 (Superior Court, Oct. 25, 2007) (doc. code 084) (emphasis in original). Evidently, however, that arbitration involves only respondents and U.S. Homes, as HBW continues to seek arbitration in this action.

Discussion

I. Subject Matter Jurisdiction

As previously noted, HBW asserts two separate jurisdictional bases — the FAA and diversity. The court will address each in turn.

A. FAA

"[T]he [FAA] creates federal substantive law requiring the parties to honor arbitration agreements[.]" Southland Corp. v. Keating, 465 U.S. 1, 17 n. 9 (1984). By the same token though, it is well established that "[t]he FAA 'does not create any independent federal-question jurisdiction.'" Douglas v. U.S. Dist. Court for Cent. Dist. Cal., 495 F.3d 1062, 1067 n. 2 (9^th Cir. 2007) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32 (1983)). "Rather, § 4 of the FAA 'provides for an order compelling arbitration only when the federal district court would have jurisdiction over a suit on the underlying dispute; hence, there must be diversity of citizenship or some other independent basis for federal jurisdiction before the order can issue.'" Blue Cross of California v. Anesthesia Care Assoc., 187 F.3d 1045, 1050 (9^th Cir. 1999) (quoting Moses H. Cone, 460 U.S. at 25 n. 32) (emphasis added). As these well settled principles show, HBW is improperly relying upon the FAA as a basis for subject matter jurisdiction in this action. Therefore, subject matter jurisdiction exists here, if at all, based upon HBW's second asserted basis — 28 U.S.C. § 1332.

B. Diversity Jurisdiction

Section 1332 provides in relevant part that district courts "shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States[.]" 28 U.S.C. § 1332(a)(1) (West 2006) (emphasis added). Thus, as this court recently explained in Lacombe v. Bullhead City Hosp. Corp., 2007 WL 2702005 (D.Ariz. Sept. 12, 2007):

To establish federal jurisdiction under this statute, two requirements must be met. First, " each defendant [must be] a citizen of a different state from each plaintiff." Owen Equip. Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis in original) . . . Second, the complaint must include allegations that the amount in controversy "exceeds" $75,000.00.

Id. at *1 (other citation omitted). As will be seen, HBW cannot meet either requirement.

1. Citizenship

As in Lacombe, "[e]ven though 28 U.S.C. § 1332 'speaks of citizenship, not of residency,' [HBW] . . . did not [expressly] allege the citizenship of any of the parties." Id. at *2 (quotingKanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9^th Cir. 2001)). HBW did allege, however, that it is "a Colorado corporation with its principal place of business [in] . . ., Denver, Colorado." Co. (doc. 1) at 2, ¶ 1. As to the individual respondents, HBW alleges that each of them "reside in Maricopa County in the State of Arizona." Id. at 2, ¶¶ 2 and 3. Under the governing case law, as discussed below, while HBW's allegations are sufficient to establish that it is a citizen of Colorado for diversity purposes, HBW's allegations as to the residency of the individual respondents are insufficient to establish their citizenship.

a. Corporate Petitioner

"Corporations have dual citizenship for purposes of diversity jurisdiction[.]" Lacombe, 2007 WL 2702005, at *3. "A corporation is deemed to be a citizen of both the State in which it is incorporated 'and of the State where it has its principal place of business.'" Id. (quoting 28 U.S.C. § 1332(c)(1)). Based upon the allegations in its complaint, although HBW did not explicitly allege its citizenship, it can easily be inferred that it is a citizen of Colorado, the state where it is both incorporated and where it has its principal place of business. b. Individual Respondents

HBW's complaint cannot be so generously read, however, in terms of the citizenship of the individual respondents. On more than one occasion, this court has recently explicated "'the simple allegations needed to establish a natural person's state of citizenship' under § 1332(a)(1)[.]" Id. (quoting Western World Insurance Company v. Ramirez, 2007 WL 1839594, at *1 (D.Ariz. June 26, 2007)). More specifically:

To be a citizen of a state, a natural person must first be a citizen of the United States. . . . The natural person's state citizenship is then determined by her state of domicile, not her state of residence. A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return. . . . A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.

Id. (quoting Western World, 2007 WL 1839594, at *1) (quoting in turn Kanter, 265 F.3d at 857) (emphasis added by Western World court). In Western World, "[t]his court went on to explain that '[t]he distinction between domicile and residence is an uncontroversial principle to which the Supreme Court has spoken long ago: '[A]n averment that a party resided within the State or the district in which the suit was brought was not sufficient to support the jurisdiction, because in the common use of words a resident might not be a citizen, and therefore it was not stated expressly and beyond ambiguity that he was a citizen of the State, which was the fact on which the jurisdiction depending[.]''" Id. (quoting Western World, 2007 WL 1839594, at *1) (quoting in turn Shaw v. Quincy Mining Co., 145 U.S. 444, 447 (1892)).

"Applying these well settled diversity jurisdiction pleading requirements to the present case," as in LaCombe, HBW's "failure to allege the state of citizenship of [the] individual [respondents] is fatal because" HBW, as "the party asserting diversity jurisdiction[,] bears the burden of proof[.]" Id. (citing Kanter, 265 F.3d at 85758 (citation omitted)). Also as inWestern World and LaCombe, "this court cannot simply assume the state of citizenship of the individual respondents "based on where they reside or have resided." Id. (citing Western World, 2007 WL 1839594, at *2). Thus, even though respondents "do not dispute that there is complete diversity of citizenship between the parties[,]" the court is not free to ignore the explicit pleading requirements for diversity of citizenship as enunciated by the Supreme Court. See Resp. (doc. 10) at 3 (citation omitted). Accordingly the court finds, as it must, that HBW has not properly alleged the citizenship of the individual respondents as required to invoke section 1332. It appears that this jurisdictional defect could likely be cured by amendment, and ordinarily the court would allow such amendment as it did inLacombe. See id. at *4. Given that this jurisdictional defect is curable, combined with the fact that the amount in controversy is the focus of this dismissal motion, requires close examination of the amount in controversy element.

2. Amount in Controversy

Incorrectly assuming that complete diversity of citizenship has been properly alleged, respondents direct their motion to dismiss solely to the amount in controversy. Before delving into whether HBW has met the statutory minimum necessary to confer jurisdiction pursuant to section 1332, there are two matters which the court must address. The first is how to determine the amount of controversy in the context of a petition to compel arbitration. The second and more contentious issue centers around the burden of proof.

a. Focus of Amount in Controversy Inquiry

In contrast to the burden of proof issue, the parties seem to agree that in determining the amount of controversy when a petition to compel arbitration is brought, the focus is on "the potential award in the underlying arbitration proceeding." See Circuit City Stores v. McLemore, 2001 WL 1705659, at *4 (N.D.Cal. 2001), vacated on other grounds, 70 Fed. Appx. 917 (9^th Cir. 2003) (citing, inter alia, Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3^rd Cir. 1995)); see also Webb v. Investacorp, Inc., 89 F.3d 252, 257 n. 1 (5^th Cir. 1996) (§ 1332's amount in controversy met given that the difference to plaintiffs "between winning and losing the underlying arbitration w[ould] be $75,000"). Thus, "[t]he damages sought in the state court action . . . is the amount in controversy." Doctor's Associates, Inc. v. Hamilton, 150 F.3d 157, 160 (2d Cir. 1998) (internal quotation marks omitted). The rationale for "look[ing] through to the possible award resulting from the desired arbitration" is that "the petition to compel arbitration is only the initial step in a litigation which seeks as its goal a judgment affirming the award." Id. (internal quotation marks and citations omitted).

Admittedly, there is no Ninth Circuit case directly on point. See Circuit City Stores, 2001 WL 1705659, at *4 ("The issue of amount in controversy in the context of a petition to compel arbitration has apparently not been addressed by the Ninth Circuit.") In Theis Research, Inc. v. Brown Bain, 400 F.3d 659 (9^th Cir. 2005), however, the Ninth Circuit held that in a proceeding to vacate an arbitration award, "the amount in controversy is the amount [plaintiff] sought to recover by its complaint." Id. at 664. That holding strongly suggests that if directly confronted with the issue of how to measure the amount in controversy in a petition to compel arbitration, the Ninth Circuit would, in all likelihood, follow the approach outlined above taken by the Second, Third and Fifth Circuits. Accordingly, to measure the amount in controversy here, the court will examine the "underlying [state court] cause[s] of action that w[ill] be arbitrated[,]" as opposed to HBW's complaint seeking to compel arbitration. See Jumara, 55 F.3d at 877.

b. Burden of Proof

Respondents repeatedly contend that to survive this motion to dismiss HBW must "prove" that the amount in controversy in the underlying state court action satisfies the $75,000.00 statutorily prescribed minimum under section 1332. Mot. (doc. 6) at 6 (emphasis in original); see also id. at 7 (emphasis in original) (HBW "must prove that respondent[s] seek more than the threshold amount."); and at 8 ("[T]he burden is on [HBW] to prove that the amount in controversy is over $75,000.00[.]"); and Reply (doc. 10) at 6 (HBW's failure to "present . . . competent proof" of the "value of the . . . allegations in the state court complaint" requires dismissal). Instead of offering such proof, however, from respondents' perspective HBW is relying upon nothing more than "self-serving statements . . . and a set of woeful magical incantations[,]" none of which suffice to prove that the $75,000.00 threshold has been met here. Id. at 5 (internal quotation marks omitted). Respondents add that because U.S. Homes is named as a defendant in the state court action, along with HBW, that "further decrease[s] the likelihood that the amount in controversy" exceeds the "$75,000.00 jurisdictional threshold."³ Id. at 8.

3 This argument need not detain the court for long. In their state court action respondents allege joint and several liability Mot. to Compel Arbitration (doc. 7), exh. 3 thereto (st. ct. co.) at ¶ 2. Thus it does not, as respondents suggest, necessarily follow that because there is more than one defendant in that action, the amount in controversy is more likely to be less than the statutory minimum.

Relying upon the seminal case of St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938), HBW impliedly urges the court to apply a "legal certainty" standard in assessing the amount in controversy. Under that standard, "[a] dismissal for lack of jurisdiction . . . is warranted only if it appears to the Court to a legal certainty that the amount of the claim is really less than the jurisdictional amount." Floyd v. Oliverson, 2007 WL 3237728, at *7 (D. Mont. Oct. 31, 2007) (citing, inter alia, St. Paul Mercury, 303 U.S. at 288). HBW reasons that because in the state court action Respondents allege damages " believed to be in excess of $50,000.00[,]" as well as claims for punitive damages, attorney's fees and statutory interest, it does not "appear . . . to a legal certainty that the amount of the [state court] claim[s] is really less than" $75,000.00. See Mot. to Compel (doc. 7), exh. 3 thereto at ¶ 14 (emphasis added). HBW thus concludes that subject matter jurisdiction exists here, and therefore the court must deny respondents' motion to dismiss.

Respondents challenge HBW's reliance upon the "legal certainty" standard, asserting that that standard has been "flatly rejected by the Courts in cases such as the instant case." Reply (doc. 10) at 7. Based upon Gaus v. Miles, Inc., 980 F.2d 565 (9^th Cir. 1992), and its progeny, respondents explain that the "legal certainty" test does not come into play when an indeterminate amount of damages has been alleged[,]" as in the underlying state court action. Reply (doc. 10) at 7. Thus, as noted at the outset, respondents maintain that it is "incumbent upon [HBW] to prove, with competent proof, that [the state court] complaint alleges damages in excess of $75,000.00." Id. at 8. Because HBW has "failed to provide such proof," respondents contend that the state court "complaint should be taken on its face[.]" Id. When that is done, as respondents read that complaint, it does not "allege over $75,000" in controversy; hence, subject matter jurisdiction is lacking. See id. Therefore, the court must dismiss this action.

Admittedly, Gaus and its progeny limit the applicability of theSt. Paul Mercury legal certainty test. What Respondents fail to take into account, however, is that Gaus and Sanchez v. Monumental Life Ins. Co., 102 F.3d 398 (9^th Cir. 1996), the cases upon which they rely, were both removed actions. As such, the Ninth Circuit required the moving defendants to prove the amount in controversy by a preponderance of the evidence. The Court required that standard of proof primarily for two reasons. First, the Ninth Circuit invoked the "strong presumption" against removal jurisdiction. See Gaus, 980 F.2d at 566; Sanchez, 102 F.3d at 403. Second, requiring that burden of proof is consistent with the removing defendant's "burden of setting forth, in the removal petition itself, the underlying facts supporting its assertion that the amount in controversy exceeds [$75,000.00]."Gaus, 980 F.2d at 566 (citation omitted) (emphasis in original); and Sanchez, 102 F.3d at 403-04. Arguably neither of those concerns is implicated in this "independent federal suit[,]" which was not removed from state court. See Associates Housing Finance, LLC v. Young, 2001 WL 34043450, at *3 (D.Or. 2001) (internal quotation marks and citations omitted). Moreover, inGaus itself the Ninth Circuit recognized that "[i]n diversity cases, where the amount in controversy is in doubt, the Supreme Court has drawn a sharp distinction between original and removal jurisdiction[.]" Gaus, 980 F.2d at 566. Thus, simply put, because this is not a removed action, Respondents' reliance upon removal cases such as Gaus is misplaced.

Additionally, even after Gaus and its progeny the Ninth Circuit has continued to employ the "legal certainty" test in diversity actions such as this where the amount in controversy is at issue. For example, in Crum v. Circus Circus Enterprises, 231 F.3d 1129 (9^th Cir. 2000), the Ninth Circuit started from the well-settled rule that "[g]enerally the amount in controversy is determined from the face of the pleadings." Id. at 1131. Citing to St. Paul Mercury, the Ninth Circuit recited the equally well-settled rule that "[t]he sum claimed by the plaintiff controls so long as the claim is made in good faith." Id. (citingSt. Paul Mercury, 303 U.S. at 288). In further reliance upon St. Paul Mercury, the Court in Crum expressly stated that "'[t]o justify dismissal, 'it must appear to a legal certainty that the claim is really for less than the jurisdictional amount.'"⁴ Id. (quoting Budget Rent-a-Car, Inc. v. Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 1997) (quoting in turn St. Paul Mercury, 303 U.S. at 289). Applying that standard, the Ninth Circuit held that "it does not appear legally certain that [plaintiff] cannot recover more than $75,000.00" where she alleged $13,000.00 in medical expenses; estimated lost income in excess of $100,000.00; estimated future medical expenses of $36,000.00; and that "her injuries w[ould] cause a lifetime of pain and suffering."⁵ Id. (citing 28 U.S.C. § 1332(a)). Accordingly, the Court in Crum reversed the district court's dismissal for lack of subject matter jurisdiction due to sufficiently plead the requisite amount in controversy.

4 In Horton v. Liberty Mut. Ins. Co., 367 U.S. 348 (1961), the Supreme Court clarified the relationship between the good faith inquiry and the legal certainty standard, stating that "[i]n deciding the question of good faith[,] . . . it 'must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.'" Id. at 353 (quotingSt. Paul Mercury, 303 U.S. at 289).

5 More recently, the Ninth Circuit applied the "legal certainty" test to a Magnuson-Moss Warranty Act claim and held that the district court properly granted a motion to dismiss for lack of subject matter jurisdiction because plaintiff's claims did not meet the statutory thre shold under that Act. Kelly v. Fleetwood Enterprises, Inc., 377 F.3d 1034, 1037-38 (9^th Cir. 2004).

Because this is not a removed action and because the Ninth Circuit has applied the legal certainty test in diversity cases such as this, this court will employ that test to resolve respondents' motion to dismiss. At the same time though, the court is fully cognizant that "[o]n a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing subject matter jurisdiction (even though it is defendants' motion)." Sun Microsystems, Inc. v. Hynix Semiconductor, Inc., 2007 WL 3022556, at *5 (N.D.Cal. Oct. 15, 2007) (citing, inter alia, Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994)). In this regard, a plaintiff's "pleading must show 'affirmatively and distinctly the existence of whatever is essential to federal jurisdiction[.]'" Kelly v. Echols, 2005 WL 2105309, at *2 (E.D.Cal. 2005) (quoting Tosco Corp. v. Communities For a Better Env't, 236 F.3d 495, 499 (9^th Cir. 2001)). Therefore, HBW has the burden of "show[ing] that it d[oes] not appear to a legal certainty that [its] claim for relief [is] for less than the statutorily prescribed amount of $75,000.00." See Floyd, 2007 WL 3237728, at *8 (citing United States v. Southern Pacific Transportation Co., 543 F.2d 676, 682 (9^th Cir. 1976)). For the reasons outlined below, the court finds that HBW has not met this burden.

In deciding whether HBW has met its burden, the court notes that respondents are making a facial attack " i.e., the[y] [are] contend[ing] that the allegations of jurisdiction contained in the [state court] complaint are insufficient to demonstrate the existence of jurisdiction[.]" See Denney v. Drug Enforcement Administration, 508 F.Supp. 2d 815, 824 (E.D.Cal. 2007). Respondents did not file a "'speaking motion,' that is, [they] are not attacking jurisdiction with extrinsic evidence." See American Economy Insurance Co. v. Herrera, 2007 WL 2696716, at *1, n. 1 (S.D.Cal. Sept. 11, 2007) (citing Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9^th Cir. 1987)). Hence, because this is a facial attack, HBW "is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made." See Denney, 508 F.Supp.2d at 824. Namely, "[t]he factual allegations of the [state court] complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id. (internal quotation marks and citations omitted). By the same token, however, "[u]nlike a Rule 12(b)(6) motion, . . . the court will not reasonably infer allegations sufficient to support federal subject matter jurisdiction because a plaintiff must affirmatively allege such jurisdiction." Hawai'i Disability Center v. Chenung, 2007 WL 2823761, at * ___ (D. Hawai'i Oct. 1, 2007) (internal quotation marks and citation omitted); see also Kelly, 2005 WL 2105309, at *2 (citing, inter alia, Century Southwest Cable Television, Inc. v. CIIF Assocs., 33 F.3d 1068, 1071 (9^th Cir. 1994) ("[S]ubject matter jurisdiction must be affirmatively alleged, courts will not infer allegations supporting federal jurisdiction."))

Applying the foregoing principles to the present case compels a finding that subject matter jurisdiction is lacking here because the requisite $75,000.00 amount in controversy was not sufficiently alleged. Looking at the stakes in the underlying arbitration, the respondents allege only that the damages sought are " believed to be in excess of $50,000.00[.]" Mot. to Compel Arbitration (doc. 7), exh. 3 (state court co.) thereto at ¶ 14 (emphasis added). This speculative allegation does not come close to "affirmatively and distinctly" alleging the $75,000.00 amount in controversy necessary to confer jurisdiction under section 1332. See Tosco Corp., 236 F.3d at 499. HBW attempts to satisfy that statutory minimum by piggybacking onto the claimed $50,000.00 plus in damages the other types of damages which respondents are seeking in the state court action. This attempt is unavailing.

First of all, HBW makes much of the fact that "[s]tatutory interest in Arizona is at 10% per annum (A.R.S. § 44-1201(A)), and the [respondents] claim HBW first breached the HBW Warranty in 1998." Resp. (doc. 8) at 7 (citations omitted). Section 1332(a) explicitly provides that the amount in controversy must "exceed" $75,000.00, "exclusive of interest and costs[,]" however. 28 U.S.C. § 1332(a). Therefore, in calculating the amount in controversy, the court will not consider any possible award of interest, no matter how large.

Likewise, to satisfy the $75,000.00 amount in controversy, HBW cannot rely upon a possible award of punitive damages under the Arizona Consumer Fraud Act ("ACFA"), which HBW claims "if proven, can be valued in an amount five times compensatory damages[.]"See Resp. (doc. 8) at 7 (citation omitted). To be sure, "[p]unitive damages are available under the ACFA[.]" Howell v. Midway Holdings, Inc., 362 F.Supp.2d 1158, 1165 (D.Ariz. 2005) (citation omitted). Especially where the damages which respondents are seeking to recover are only "believed to be in excess of $50,000.00[,]" Mot. to Compel Arbitration (doc. 7), exh. 3 thereto at ¶ 14, the unspecified potential punitive damages in the underlying arbitration does not suffice to show, as HBW contends, that the stakes therein exceed $75,000.00. Cf. Nguyen v. Hartford Casualty Insurance Co., 2007 WL 2206903, at *3 (D.Ariz. July 30, 2007) (internal quotation marks and citations omitted) (remanding where, inter alia, removing defendant did not "take into account . . . that the mere possibility of a punitive damage award is insufficient to prove that the amount in controversy requirement has been met'"). Given that "[w]hether to award punitive damages and the amount thereof is within the discretion of the jury[,]" Schmidt v. American Leasco, 679 P.2d 532, 535 (Ariz.Ct.App. 1984) (citation omitted), further undermines HBW's ability to establish the requisite amount in controversy by relying upon a possible punitive damage award. Cf.Valente v. Colonial Life Acc. Ins., 2007 WL 2221048, at *6 (E.D.Cal. Aug. 1, 2007) (citation omitted) (refusing to consider a punitive damage award in calculating amount in controversy because such award "is solely with the discretion of the trier of fact[,]" and defendants did not show "by a preponderance of the evidence that such an award is likely or the amount of any such damages if awarded"), recommendation adopted in full, 2007 WL 2582893, at *1 (E.D.Cal. Sept. 7, 2007).

HBW is correct that "[a]ttorneys' fees may be included in computing the amount in controversy 'where an underlying statute authorizes an award of attorneys' fees, either with mandatory or discretionary language.'" Shoemaker v. Sentry Life Ins. Co., 484 F.Supp.2d 1057, 1058 (D.Ariz. 2007) (quoting Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9^th Cir. 1998)). "Arizona law authorizes a discretionary award of attorneys' fees in contract actions." Id. (citing A.R.S. § 12-341.01(A) ⁶). Although the state court complaint alleges that respondents "have incurred and continue to incur attorneys fees[,]" it is silent as to the amount. Mot. to Compel Arbitration (doc. 7), exh. 3 (st. ct. co.) thereto at ¶ 8. It does not, for example, allege the hours expended by respondents' attorneys to date, nor their hourly rate. Thus, the court declines to take into account this wholly speculative attorneys' fee award in determining whether HBW has satisfied section 1332's statutory threshold. Cf. Alvarez v. Limited Express, LLC, 2007 WL 2317125, at *4 n. 3 (S.D.Cal. Aug. 8, 2007) (citation omitted) (remanding where, among other things, "defendant claim[ed] the reasonable attorneys' fees result[ed] in an even higher amount in controversy, [but] [it] provide[d] the Court with no data from which [to] compute the estimated attorneys' fees recoverable").

6 Respondents did not mention this statute in their state court complaint and HBW did not reference it in its Response. Presumably, however, this is the basis for HBW's assertion that "statutory attorney's fees" should be included when computing the amount in controversy herein. See Resp. (doc. 8) at 7.

At the end of the day, in calculating the amount in controversy in the underlying arbitration, the court is left with nothing more than respondents' "belie[f]" that their damages will be "in excess of $50,000.00" — not even a belief that those damages will be in excess of $75,000.00 as section 1332 mandates. See Mot. to Compel Arbitration (doc. 7), exh. 3 (st. ct. co.) thereto at ¶ 14. Moreover, even including unspecified attorneys' fees and punitive damages, the state court complaint upon which HBW must rely does not "affirmatively and distinctly" show the existence of an amount in controversy in excess of $75,000.00, exclusive of costs and interest — an essential element of jurisdiction under section 1332. See Tosco Corp., 236 F.3d at 499. To find that the amount in controversy in the underlying arbitration exceeds $75,000.00 would require the court to impermissibly infer allegations to support federal subject matter jurisdiction. See Hawai'i Disability, 2007 WL 2823761, at * ___. In short, because it appears to a "legal certainty" that the stakes in the underlying arbitration "are really for less than" $75,000.00, the court grants respondents' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).⁷ The court hastens to add that construing the state court complaint in this way is in keeping with the "presumption . . . that 'a federal court . . . lack[s] jurisdiction in a particular case unless the contrary affirmatively appears.'" See Lacombe, 2007 WL 2702005, at *4 (quoting A-Z Intern. v. Phillips, 323 F.3d 1141, 1145 (9^th Cir. 2003)); see also Kokkonen, 511 U.S. at 377 (citation omitted) ("It is to be presumed that a cause lies outside this limited jurisdiction [of federal courts], . . ., and the burden of establishing the contrary rests upon the party asserting jurisdiction.")

7 The court is keenly aware that "[d]ismissal without leave to amend is improper unless it is clear, . . ., that the complaint could not be saved by any amendment." U.S. Mortg., Inc. v. Saxton, 494 F.3d 833, 840 (9^th Cir. 2007) (internal quotation marks and citation omitted). Although as earlier noted amendment could save HBW's complaint in terms of citizenship, the same is not true as to the jurisdictional amount in the underlying action, over which HBW has no control. Therefore, because under the unique circumstances of this action, respondents' complaint cannot "be saved by amendment[,]" there is no basis for granting leave to amend here.

Because subject matter jurisdiction is lacking here, plainly the court is unable to address petitioner's motion to compel arbitration. Consequently it denies that motion as moot.

To conclude, IT IS ORDERED that:

(1) respondents' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is GRANTED (doc. 6); and IT IS FURTHER ORDERED that:

(2) petitioner's motion to compel arbitration (doc. 7) is DENIED as moot.