Ricksecker v. Ford Motor Company ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GREGORY P. RICKSECKER, Case No. 21-cv-04681-HSG 8 Plaintiff, ORDER DENYING MOTION TO REMAND 9 v. Re: Dkt. No. 15 10 FORD MOTOR COMPANY, 11 Defendant. 12 13 Plaintiff Gregory P. Ricksecker (“Plaintiff”) initiated this lawsuit against Defendants Ford 14 Motor Company (“Ford”) and Henry Curtis Ford on February 5, 2021, in Sonoma County 15 Superior Court. See Dkt. No. 1-2 (or “Compl.”). Ford removed the action to this Court on 16 diversity grounds, and Plaintiff now moves to remand. See Dkt. Nos. 1, 15. Plaintiff’s Motion to 17 Remand is fully briefed. See Dkt. Nos. 15 (“Mot.”), 18 (“Opp.”), and 19 (“Reply”). 1 The Motion 18 is DENIED for the reasons discussed below. 19 I. BACKGROUND 20 According to the Complaint, Plaintiff bought a 2014 Ford Fusion (“Fusion”) on or around 21 October 30, 2015. Compl. ¶ 8. The Fusion was manufactured and/or distributed by Ford and sold 22 by Ford’s authorized dealership in Sonoma County, California. Id. When Plaintiff purchased the 23 Fusion, he also received an express written warranty providing that, if a defect developed during 24 the warranty period, Plaintiff could deliver the Fusion for repair services to Ford’s representative. 25 Id. The Complaint alleges that even though the Fusion developed various defects during the 26 express warranty period, Defendant Ford and its representatives did not service or repair it to 27 1 conform to applicable warranties. Id. ¶¶ 9, 25 2 Based on these facts, Plaintiff sued Defendants Ford and Henry Curtis Ford in Sonoma 3 County Superior Court on February 5, 2021. See generally id. The Complaint alleges claims for 4 breach of express and implied warranties under California’s Song Beverly Consumer Warranty 5 Act, Cal. Civ. Code § 1790, et seq. (“the Song Beverly Act”), as well as Fraud by Omission and 6 Negligent Repair against Defendant Henry Curtis Ford. See id. ¶¶ 24-68. 7 Although Plaintiff’s Complaint does not specify the amount of damages sought, it alleges 8 that “Plaintiff suffered damages in a sum to be proven at trial in an amount that is not less than 9 $25,001.00.” Id. ¶ 22. The Complaint also seeks: (1) “Plaintiff’s actual damages in an amount 10 according to proof;” (2) restitution; (3) rescission of the purchase contract and/or restitution of all 11 monies expended; (4) rescission of purchase contract under California Civil Code section 1692; 12 (5) a civil penalty in the amount of two times Plaintiff’s actual damages under Civil Code section 13 1794, subdivision (c) or (e); (6) any consequential and incidental damages; (7) costs of the suit and 14 Plaintiff’s reasonable attorneys’ fees under Civil Code section 1794, subdivision (d); and (8) 15 punitive damages. See id. at 14. 16 Plaintiff dismissed Defendant Henry Curtis Ford from the action on May 18, 2021. See 17 Dkt. No. 1-4. On June 18, 2021, Defendant Ford filed its Notice of Removal. Dkt. No. 1 (or 18 “Removal Notice”). 19 II. LEGAL STANDARDS 20 A. Removal Jurisdiction 21 A defendant may remove any civil action to federal court where the district court would 22 have original jurisdiction over the action. 28 U.S.C. § 1441; see also Caterpillar, Inc. v. Williams, 23 482 U.S. 386, 392 (1987). To do so, a party seeking removal must file a notice of removal within 24 30 days of receiving the initial pleading or within 30 days of receiving an amended pleading, 25 motion, order or “other paper from which it may first be ascertained that the case is one which is 26 or has become removable.” 28 U.S.C. § 1446(b)(1), (3). The notice must contain a “short and 27 plain statement of the grounds for removal.” Id. § 1446(a); see also Ibarra v. Manheim Invs., Inc., 1 The removing party bears the burden of establishing removal jurisdiction. Abrego Abrego 2 v. The Dow Chem. Co., 443 F.3d 676, 683–85 (9th Cir. 2006). A plaintiff may seek to remand a 3 case to the state court from which it was removed if the district court lacks jurisdiction or if there 4 was a defect in the removal procedure. 28 U.S.C. § 1447(c). 5 III. DISCUSSION 6 District courts have diversity jurisdiction over civil actions between citizens of different 7 states where the amount in controversy exceeds $75,000, exclusive of interest and costs. See 28 8 U.S.C. § 1332. Defendant’s Notice of Removal alleges that now that Henry Curtis Ford has been 9 dismissed, complete diversity of citizenship exists because Plaintiff is a citizen of California and 10 Ford is a Delaware Corporation with its principal place of business in Michigan. See Compl. ¶¶ 2, 11 4, 5; Notice of Removal ¶¶ 5-6. Plaintiff’s Motion does not dispute the existence of complete 12 diversity. See generally Mot. Instead, Plaintiff contends that this Court lacks jurisdiction because 13 Defendant’s Notice of Removal does not establish that the amount in controversy exceeds 14 $75,000. See id. at 1. The Court disagrees. 15 The amount in controversy is the “amount at stake in the underlying litigation,” and it 16 therefore “includes all relief claimed at the time of removal to which the plaintiff would be entitled 17 if she prevails.” Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 793 (9th Cir. 18 2018) (internal citations and quotation marks omitted). Put differently, the amount in controversy 19 “encompasses all relief a court may grant on [the] complaint if the plaintiff is victorious.” Chavez 20 v. JPMorgan Chase & Co., 888 F.3d 413, 415 (9th Cir. 2018). Because Plaintiff’s Complaint does 21 not specify the amount of damages sought, Defendant Ford must prove by a preponderance of the 22 evidence that the amount in controversy requirement has been met. See Abrego Abrego, 443 F.3d 23 at 683. 24 Plaintiff’s Complaint seeks, among other things: (1) damages in an amount that is “not less 25 than $25,001;” (2) a civil penalty of two times Plaintiff’s actual damages; (3) remedies including 26 the entire contract price of the Fusion; and (4) Plaintiffs’ reasonable attorneys’ fees and costs. See 27 Compl. at 7, 14. Defendant contends that the Complaint places more than $75,000 in controversy 1 damages as civil penalties under the Song-Beverly Act. See Opp. at 1. 2 This math checks out. By seeking both damages in an amount that is “not less than 3 $25,001” and “a civil penalty in the amount of two times Plaintiff’s actual damages,” Plaintiff’s 4 Complaint seeks a minimum of $75,003. See Compl. at 7, 14. Since $75,003 exceeds $75,000, 5 the federal amount-in-controversy requirement is satisfied. See, e.g., Coronel v. Ford Motor Co., 6 No. 19-CV-09841-DSF-JEM, 2020 WL 550690, at *6 (C.D. Cal. Feb. 4, 2020) (“If plaintiff’s 7 actual damages are at least $25,001, a civil penalty twice that amount would be $50,002. 8 Therefore, between actual damages and the civil penalty alone, Plaintiff put more than $75,000 in 9 controversy.”). 10 Plaintiff does not dispute this calculation but still contends that the Notice of Removal fails 11 to meet Defendant’s burden for two primary reasons. First, Plaintiff argues that the Complaint’s 12 allegation that Plaintiff suffered damages “in an amount that is not less than $25,001” does not 13 mean that his actual damages are at least $25,001, but rather that his total damages (including 14 actual damages, civil penalties, attorneys’ fees, punitive damages, etc.) are at least $25,001. See 15 Mot. at 6. The Court finds this interpretation implausible. The Complaint specifically seeks 16 remedies “including the entire contract price” of the Fusion, and Defendant provided the Retail 17 Installment Sales Contract, which shows that the “Total Sale Price” of the Fusion is $35,547.721. 18 See Compl. ¶ 33; Dkt. No. 1-5. When Plaintiff’s claim for the “entire contract price” of the Fusion 19 is considered, then, the Complaint’s allegation that Plaintiff suffered damages “in an amount that 20 is not less than $25,001” is clearly not a reference to Plaintiff’s total damages.2 21 Plaintiff’s second argument fares no better. The crux of it is that although the Song- 22 Beverly Act permits a plaintiff to obtain a civil penalty of up to two times the amount of actual 23 damages, Defendant has presented “no evidence whatsoever” that Plaintiff will actually receive 24 the maximum amount of civil penalties. See Mot. at 10. But no such evidence is required. While 25 2 See also Covarrubias v. Ford Motor Co., No. 19-CV-01832-EMC, 2019 WL 2866046, at *6 26 (N.D. Cal. July 3, 2019) (“Plaintiff’s claim for the full contract price of [his] Vehicle thus resolves any ambiguity regarding damages—the allegation that [he] ‘suffered damages in a sum to be 27 proven at trial in an amount not less than $25,001.00’ must be interpreted to refer to actual 1 recognizing that district courts have split on the issue, courts in this District have held that a 2 plaintiff places the maximum civil penalty in controversy when their complaint alleges that they 3 are entitled to that maximum amount. See, e.g., Pestarino v. Ford Motor Co., No. 19-CV-07890- 4 BLF, 2020 WL 1904590, at *3 (N.D. Cal. Apr. 17, 2020); Verastegui v. Ford Motor Co., No. 19- 5 cv-04806-BLF, 2020 WL 598516, at *3 (N.D. Cal. Feb. 7, 2020). 6 This makes sense. As the Ninth Circuit has explained, “[t]he amount in controversy is 7 simply an estimate of the total amount in dispute, not a prospective assessment of [a] defendant’s 8 liability.” Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010). So what 9 Defendant must prove by a preponderance of the evidence is that the Complaint seeks the 10 maximum civil penalty authorized by the Song-Beverly Act, not that Plaintiff will actually receive 11 it. See Chavez, 888 F.3d at 415 (The amount in controversy “encompasses all relief a court may 12 grant on that complaint if the plaintiff is victorious.”); Fong v. Regis Corp., No. 13-CV-04497-RS, 13 2014 WL 26996, at *2 (N.D. Cal. Jan. 2, 2014) (“The ultimate inquiry is what amount is put ‘in 14 controversy’ by the plaintiff’s complaint, not what a defendant will actually owe.”). What the 15 Complaint seeks is obvious here because it explicitly alleges that “Plaintiff is entitled to a civil 16 penalty of two times Plaintiff’s actual damages pursuant to Civil Code section 1794, subdivision 17 (c).” Compl. ¶ 27. And while Plaintiff may now assert that he might recover damages that are 18 less than what he sought in his Complaint, that “does not change the fact that his Complaint put in 19 controversy far more than that.” Verastegui, 2020 WL 598516, at *3 (citations omitted) (emphasis 20 in original). Hence, by seeking damages in an amount that is not less than $25,001 and a civil 21 penalty in the amount of two times Plaintiff’s actual damages, Plaintiff has “put in controversy” 22 civil penalties exceeding $50,000 and total damages exceeding $75,000. See, e.g., McDonald v. 23 BMW of N. Am., LLC, No. 3:17-CV-2011-CAB-BLM, 2017 WL 5843385, at *1-*2 (S.D. Cal. 24 Nov. 28, 2017) (Where “[t]he complaint states that Plaintiff’s damages exceed $25,000, and prays 25 for actual damages, statutory penalties of two times actual damages, attorney’s fees and punitive 26 damages,” no “guesswork or investigation” is needed to see that “Plaintiff seeks, at a minimum, in 27 excess of $75,000, not including attorney’s fees or punitive damages.”). 1 established complete diversity, the Court has subject matter jurisdiction over Plaintiff's claims 2 || under 28 U.S.C. § 1332(a).? 3 IV. CONCLUSION 4 The Court DENIES Plaintiff's Motion to Remand and SETS a telephonic case 5 management conference on January 11, at 2:00 p.m. All counsel shall use the following dial-in 6 || information to access the call: 7 Dial-In: 888-808-6929; 8 Passcode: 6064255 9 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all 10 || possible, parties shall use landlines. The Court has reviewed Docket No. 21, and the parties need 11 not file any further statement before the case management conference. 12 IT IS SO ORDERED. 13 || Dated: 12/22/2021 HAYWOOD S. GILLIAM, JR. IS United States District Judge 16 = 17 Z 18 19 20 21 22 23 24 3 Plaintiff also seeks reasonable attorneys’ fees and costs under California Civil Code section 1794, subdivision (d). See Compl. at 14. As the Ninth Circuit has explained, “when a statute or 25 contract provides for the recovery of attorneys’ fees, prospective attorneys’ fees must be included in the assessment of the amount in controversy.” Arias v. Residence Inn by Marriott, 936 F.3d 26 || 920, 922 (9th Cir. 2019). Based on “substantial” experience litigating Song-Beverly Act cases and review of fee motions made by Plaintiffs counsel in other Song-Beverly Act cases, Defendant 7 alleges that the attorneys’ fees sought in this case, as in many others, will likely exceed $50,000. See Opp. at 18. The Court finds that Defendant’s estimate is persuasive and supported by 28 sufficient personal knowledge. This data reinforces the Court’s conclusion that the total amount in controversy in this case easily exceeds $75,000.