Opinion
Case No. CV-04-109-C-EJL
April 1, 2004
ORDER ON REMOVAL
This case has been reassigned to this Court for lack of consent to the jurisdiction of a United States Magistrate Judge. Pursuant to 28 U.S.C. § 1446(a), Defendant Bob Barker Company removed this action from state court and invoked this Court's jurisdiction on diversity grounds under 28 U.S.C. § 1332. The Court now reviews the propriety of removal, pursuant to 28 U.S.C. § 1447(c). Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.
I. REVIEW OF COMPLAINT
A. BackgroundPlaintiff brings this action under "federal and state consumer laws." He contends that he purchased a fan, headphones, pillows, and other products through the prison commissary, and that the items were defective. He subsequently asked the manufacturers or vendors to replace the items. The manufacturers or vendors refused to do so. At least some of the manufacturers contended that they cannot send items directly to prisoners, but are subject to the security rules in place at the prison. It is unclear whether the commissary vendor which sold the items to Plaintiff made an effort to replace the defective items. Plaintiff requests specific performance, namely, replacement of the defective items, and punitive damages.
Federal cases relying on 28 U.S.C. § 1332 as a source of jurisdiction must satisfy a jurisdictional minimum amount in controversy of $75,000.00. Federal district courts have diversity jurisdiction over actions for specific performance where the action is between citizens of different states and the amount in controversy satisfies 28 U.S.C. § 1332. See Market Street Associates Ltd. Partnership v, Frey, 817 F. Supp. 784 (D. Wis. 1993), aff d, 21 F.3d 782 (7th Cir. 1994).
"Where it is not facially evident from the complaint that more than $75,000 is in controversy, the removing party must prove, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional threshold." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (internal citation omitted). Further, "[w]here doubt regarding the right to removal exists, a case should be remanded to state court." Id,
Where, as here, the complaint filed in state court does not specify damages in excess of the required federal jurisdictional limit, the removing defendant must set forth "in the removal petition itself, the underlying facts supporting its assertion that the amount in controversy exceeds [the statutory requirement]." Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). "Conclusory allegations as to the amount in controversy are insufficient." Matheson, 319 F.3d at 1090-91.
In the Notice of Removal, the Defendant alleges that the $75,000 threshold is met because Plaintiff has claimed consumer fraud and conversion of property, and because he has requested punitive damages, The Court is not convinced that a consumer fraud and conversion action for specific performance of a warranty for a fan, headphones, pillows, and other miscellaneous commissary items in a prison context meets the $75,000 amount in controversy threshold.
Adding Plaintiffs claim for punitive damages docs not convince the Court that the threshold is met. First, Plaintiff does not specify that the amount of punitive damages would exceed $75,000. Second, it is very unclear whether Plaintiff could prove the mens rea element required for entitlement to punitive damages under Idaho law, given the strict security rules which generally hinder the entry of property into the prison and which govern the type of property allowed in the prison, Idaho Code g 6-1604(2) provides that, "[i]n any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted."
Third, Defendant's Notice of Removal provides no facts showing that Plaintiffs claim even remotely approaches the $75,000 amount in controversy required. A defendant's "burden cannot be met simply by pointing out that the complaint seeks punitive damages and that damages awarded under such a claim could total a large sum of money, particularly in light of the high burden that must be met in order for a plaintiff even to be eligible for receipt of discretionary punitive damages." Conrad Assocs. v, Hartford Accident Indem, Co., 994 F. Supp. 1196, 1200-01 (D. Cal. 1998) (emphasis in original). Rather, here, as in Gaus, Defendant has "offered no facts whatsoever to support the court's exercise of jurisdiction," Gaus, 980 F.2d at 567. The mere allegation of a jurisdictional minimum "neither overcomes the 'strong presumption' against removal jurisdiction, nor satisfies [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]." Id; see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 n. 5 (9th Cir. 1996). Because removal jurisdiction cannot be based simply upon conclusory allegations, this case will be remanded to state court pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the above-entitled action is remanded to the Clearwater County Second Judicial District Court for the State of Idaho, No. CV 04-00033. The Clerk of Court shall mail a certified copy of this Order to the Clerk of the Clearwater County Court.