Soto v. Cardenas Markets, LLC ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ADRIANA SOTO, 4 Plaintiff, Case No.: 2:24-cv-01268-GMN-BNW 5 vs. ORDER GRANTING MOTION TO 6 CARDENAS MARKETS, LLC REMAND 7 Defendant. 8 9 Pending before the Court is the Motion to Remand, (ECF No. 3), filed by Plaintiff 10 Adriana Soto. Defendant Cardenas Markets filed a Response, (ECF No. 9), to which Plaintiff 11 replied, (ECF No. 10). 12 Because removal was not timely, the Court GRANTS Plaintiff’s Motion to Remand. 13 I. BACKGROUND 14 This case arises from a slip and fall incident at Cardenas Markets. (See generally Compl., 15 ECF No. 1-2). Plaintiff alleges that she suffered serious injuries after slipping on the wet floor 16 of Cardenas Market. (Id. ¶¶ 9–13). Plaintiff originally filed her Complaint in the Eighth 17 Judicial District Court for Clark County, Nevada on April 24, 2024. (Pet. Removal, ECF No. 18 1). On June 26, 2024, Plaintiff filed a motion in state court asserting damages exceeding 19 $102,872.01. (Resp. 2:2–10, ECF No. 9). On July 14, 2024, Defendant removed this case to 20 federal court on the basis of diversity jurisdiction. (Pet. Removal). Defendant argues that 21 complete diversity of citizenship exists because Plaintiff is a citizen of Nevada and Cardena’s 22 Market is a citizen of California. (Id. ¶ 11). Plaintiff now seeks to remand to state court 23 because the case was not timely removed. (See generally Mot. Remand, ECF No. 3). 24 25 1 II. LEGAL STANDARD 2 “Federal courts are courts of limited jurisdiction,” and “possess only that power 3 authorized by Constitution and statute, which is not to be expanded by judicial decree.” 4 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations 5 omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden 6 of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations 7 omitted). 8 The federal removal statute provides that a defendant may remove an action to federal 9 court based on federal question jurisdiction or diversity jurisdiction. 28 U.S.C. § 1441. “The 10 ‘strong presumption against removal jurisdiction means that the defendant always has the 11 burden of establishing that removal is proper,’ and that the court resolves all ambiguity in favor 12 of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 13 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)). “If at any time 14 before final judgment it appears that the district court lacks subject matter jurisdiction, the case 15 shall be remanded.” 28 U.S.C. § 1447(c). 16 To remove a state law civil action to federal court on the basis of diversity jurisdiction, 17 a removing defendant must show that the parties are completely diverse and that the matter in 18 controversy exceeds the sum or value of $75,000. 28 U.S.C. § 1332(a). Complete diversity of 19 citizenship under 28 U.S.C. § 1332 requires that each plaintiff be a citizen of a different state 20 than each defendant. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). 21 Diversity is determined, and must exist, at the time the complaint is filed, and removal is 22 effected. Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002). A 23 corporation is deemed to be a citizen of every state by which it is incorporated, as well as the 24 state where it has its principal place of business. 28 U.S.C. § 1322(c)(1). 25 1 A defendant may remove a case within 30 days of receipt of the initial pleading if it is 2 removable at that time. 28 U.S.C. § 1446(a). “[I]f the case stated by the initial pleading is not 3 removable, a notice of removal may be filed within thirty days after receipt by the defendant . . 4 . of a copy of an amended pleading, motion, order or other paper from which it may first be 5 ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). 6 III. DISCUSSION 7 Plaintiff does not contest that the amount in controversy requirement for removal is met, 8 and complete diversity exists. (See generally Mot. Remand). The Court agrees that the 9 requirements for removal on the basis of diversity jurisdiction are met. The amount in 10 controversy in this case exceeds $75,000 because Plaintiff has alleged damages in excess of 11 $75,000. (Pet. Removal 2:1–5). The Court further finds that the parties are diverse because 12 Plaintiff is a resident of Nevada, and Cardenas Markets and its parent companies are citizens of 13 California. (Id. 1:20–25). 14 Plaintiff argues that remand is appropriate because Defendant failed to file its notice of 15 removal within 30 days of receiving the initial pleading, which stated that Plaintiff suffered 16 damages in excess of $75,000. (See generally Mot. Remand, ECF No. 3). Defendant contends 17 that it was not aware the case was removable until Plaintiff filed a procedural motion on June 18 26, 2024. (Resp. 1:12–21). 19 Plaintiff’s initial complaint specifically alleged that her damages exceed $75,000. 20 (Compl. 2:18–20). Defendant argues that the grounds for removal were not apparent from the 21 Complaint because it alleges in only one location that the amount in controversy exceeded 22 $75,000, while it alleged in four other locations that the amount in controversy exceeded 23 $15,000. (Resp. 4:2–7). This inconsistency, according to Defendant, gives rise to an 24 assumption that the $75,000 amount was a “typographical error” resulting from the recycling of 25 common documents by lawyers. (Id. 4:8–12). Defendant ultimately argues that it could not 1 have known from reading the Complaint which amount in controversy allegation to believe. 2 (Id. 4:12–17). But the “inconsistency” that Defendant identifies is not actually inconsistent. 3 The amount of damages Plaintiff is seeking can be in excess of both $15,000 and $75,000 at the 4 same time. Thus, the two alleged amounts in controversy do not contradict one another such 5 that Defendant had no way of knowing which one was correct. Plaintiff’s complaint plainly 6 identified that she is seeking damages in excess of $75,000; Defendant was therefore on notice 7 that the case may be removable. 8 Defendant next argues that, because the ad damnum clause only identified damages in 9 excess of $15,000, the amount in in controversy over $75,000 was not facially apparent from 10 the complaint. (Resp. 4:19–5:21). Though Plaintiff plainly stated that she sought over $75,000 11 in damages in a different section, Defendant argues that it is only required to look to the ad 12 damnum clause to identify the damages for the purposes of determining the amount in 13 controversy. (Id. 4:21–23). But, as the Ninth Circuit has explained, “notice of removability 14 under § 1446(b) is determined through examination of the four corners of the applicable 15 pleadings.” Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). Here, the 16 statement that damages are in excess of $75,000 is within the four corners of the Complaint. 17 (Compl. ¶ 6). Thus, this statement provided Defendant with notice that the case was 18 removable. 19 The Court therefore finds that the initial Complaint placed Defendant on notice that the 20 case was removable. Because Defendant removed more than 30 days after it received the 21 initial complaint, removal was untimely. See 28 U.S.C. § 1446(a). On this basis, the Court 22 GRANTS Plaintiff’s Motion to Remand. 23 IV. CONCLUSION 24 IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand, (ECF No. 3), is 25 GRANTED. 1 IT IS FURTHER ORDERED that the case is hereby remanded to the Eighth Judicial 2 || District Court for Clark County, Nevada, for all further proceedings. 3 IT IS FURTHER ORDERED that all other outstanding motions are DENIED because 4 || the Court does not have jurisdiction to address them. 5 DATED this 19 day of November, 2024 6 7 g Gloria/M.j Navarro, District Judge UNITED/STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 of 5