Bonal v. Costco Wholesale Corporation ( 2021 )

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 DOLORES BONAL, CASE NO. 21-cv-04273-YGR 6 Plaintiff, ORDER GRANTING MOTION TO REMAND 7 vs. Re: Dkt. No. 8 8 COSTCO WHOLESALE CORP., 9 Defendant. 10 Plaintiff commenced this case in San Mateo County Superior Court on April 21, 2020. 11 (Dkt. No. 1-2 at 8.) Defendant removed the action to federal court on June 4, 2021, on the basis of 12 diversity jurisdiction. (Dkt. No. 1 at 4.) Currently pending is the plaintiff’s motion to remand the 13 case on the basis of defendant’s untimely removal. (Dkt. No. 8.) Having carefully reviewed the 14 papers submitted, the Court GRANTS the motion, DENIES the request therein for attorneys’ fees 15 and costs incurred as a result of the removal, and REMANDS the case back to state court.1 16 Under 28 U.S.C. Section 1446(b), a notice of removal must be filed within thirty days of 17 the defendant’s receipt of the initial pleading, or, “if the case stated by the initial pleading is 18 not removable,” then the notice of removal must be filed within thirty days of the defendant’s 19 receipt “of a copy of an amended pleading, motion, order or other paper from which it may first 20 be ascertained that the case is one which is or has become removable.” In other words, “[S]ection 21 1446(b) identifies two thirty-day periods for removing a case.” Carvalho v. Equifax Information 22 Services, LLC, 629 F.3d 876, 885 (9th Cir. 2010). “The first thirty-day removal period is triggered 23 ‘if the case stated by the initial pleading is removable on its face.’” Id. (quoting Harris v. Bankers 24 Life & Casualty Co., 425 F.3d 689, 694 (9th Cir. 2005)). 25 26 1 The Court has determined that the motion is appropriate for decision without oral 27 argument, as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78. See 1 “The second thirty-day removal period is triggered if the initial pleading does not indicate 2 that the case is removable, and the defendant receives a copy of an amended pleading, motion, 3 order or other paper from which removability may first be ascertained.” Id. (internal quotation 4 marks omitted). In addition, a case may not be removed based on diversity jurisdiction more than 5 one year after the commencement of the action unless the plaintiff acted in bad faith to 6 prevent removal. 28 U.S.C. § 1446(c)(1). 7 “Where the complaint does not specify the amount of damages sought, the removal 8 defendant must prove by a preponderance of the evidence that the amount in controversy 9 requirement has been met.” Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 683 (9th 10 Cir. 2006) (citations omitted). To satisfy the preponderance of the evidence standard, a defendant 11 must provide evidence that “it is more likely than not” that the amount in controversy is satisfied. 12 Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). 13 Plaintiff contends that defendant’s notice of removal filed June 4, 2021, is untimely under 14 both Sections 1446(b)(3) and 1446(c)(1) because it was filed more than 30 days after she served 15 her statement of damages claiming an estimated $264,762.23 on November 10, 2020, and more 16 than one year after this diversity action was filed on April 21, 2020.2 Even assuming without 17 deciding that plaintiff acted in bad faith to prevent removal such that removal is permissible under 18 Section 1446(c)(1), the Court concludes that the notice of removal is untimely under Section 19 1446(b)(3), as it was filed after the second thirty-day removal period had lapsed. 20 In making this conclusion, the Court finds that defendant was able to ascertain the case’s 21 removability when it was served with the plaintiff’s statement of damages on November 10, 2020. 22 (Dkt. No. 1-1 at 39.) Indeed, upon reviewing the statement of damages, defense counsel wrote to 23 counsel for plaintiff by email dated December 2, 2020: “Given the amount in controversy you’re 24 claiming ($264,762.23), it seems like this case definitely qualifies for removal.” (Dkt. No. 8-1 at 25 9.) Defendant then asked for a stipulation to remove or to cap damages. Plaintiff declined. 26 27 1 Months later, by letter dated March 2, 2021, counsel for plaintiff advised defense counsel 2 again: “While Plaintiff cannot make an unequivocal admission that her damages are or are not in 3 excess of $75K, or that she will be claiming such an amount throughout the course of this 4 litigation, Plaintiff presently values her damages in excess of $75K.” (Id. at 16.) Notwithstanding 5 defendant’s apparent acknowledgement of the case’s removability and plaintiff’s subsequent 6 representation to that effect, defendant did not file its notice of removal until June 4, 2021. 7 According to defendant, plaintiff’s statement of damages claimed $9,871.00 in medical 8 expenses, $4,891,23 in lost earnings, “but strangely” $250,000 in “General damages.” (Dkt. No. 9 9 at 5.) Defendant argues that this “generic claim of $250,000 in her Statement of Damages served 10 on November 10, 2020 was insufficient to support removal to federal court.” (Id. at 8.) Instead, 11 “[i]t was not until May 6, 2021 that plaintiff finally served verified amended discovery responses 12 admitting for the first time that her damages claims do, in fact, exceed $75,000. Until that point, 13 Defendant could not prove by a preponderance of the evidence that Plaintiff’s damages exceeded 14 the jurisdictional threshold.” (Id. at 9 (citation omitted).) 15 While it is incumbent upon removing defendants to seek removal in good faith, defendants 16 may not delay removal until the amount in controversy has been substantiated, even if the parties 17 are attempting to resolve the matter expeditiously. As defendant acknowledges in its notice, “[t]he 18 amount in controversy is merely an estimate of the total amount in dispute; it is not a prospective 19 assessment of the defendant’s liability.” (Dkt. No. 1 at 6 (citing Lewis v. Verizon 20 Communications, Inc., 627 F.3d 395, 400 (9th Cir. 2010)).3 Here, defendant could have 21 ascertained that the case was removable (and, in fact, did so) upon receiving plaintiff’s statement 22 of damages on November 10, 2020. The law does not require plaintiff to affirmatively confirm 23 that her claimed damages exceed the jurisdictional amount. Accordingly, the Court finds that 24 25 3 Defendant further contends that “[i]t is not enough to have one piece of evidence that 26 removal might be appropriate if the overwhelming majority of evidence shows that it is not.” (Dkt. No. 9 at 8.) In making this showing, defendant points to plaintiff’s refusal to confirm the 27 amount in controversy in her discovery responses and her declination to stipulate that her damages ] removal is untimely under Section 1446(b)(3) and remands the case back to state court. The 2 || motion to remand is GRANTED. However, the Court declines to grant plaintiff's request for costs 3 and fees incurred as a result of the removal. 4 The Clerk of the Court is directed to REMAND the case to Santa Mateo County Superior 5 Court and close the file. 6 This Order terminates Docket Number 8. 7 IT Is SO ORDERED. 8 || Dated: August 9, 2021 Lope Haptic 9 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 10 1] 12 15 16 Z 18 19 20 21 22 23 24 25 26 27 28