Opinion
No. CV03-32-S-EJL
February 4, 2003
ORDER
Pursuant to 28 U.S.C. § 1446(a), the Defendant recently removed this action from state court and invoked this Court's jurisdiction on diversity grounds under 28 U.S.C. § 1332. The "burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Prize Frize, Inc, v. Matrix Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). Any doubt as to the right of removal is resolved in favor of remand. Gaus v. Miles. Inc., 980 F.2d 564, 566 (9th Cir. 1992).
This Court always undertakes an immediate review of a newly filed case to confirm that federal jurisdiction is proper. See Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir. 1986).
A federal case opened after January 19, 1997, that relies on § 1332 as a source of jurisdiction, must satisfy a jurisdictional minimum of $75,000. See Singer v. State Farm Mutual Auto. Ins. Co., 116 F.3d 373, 375 n. 1 (9th Cir. 1997). 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 [$75,000]." Gaus, 980 F.2d at 567 (emphasis in original); see also Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 273-74 (2d Cir. 1994) (holding that "if the jurisdictional amount is not clearly alleged in the plaintiffs complaint and the defendant's notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiff's action from state court").
In this case, the Defendant has failed to make the necessary showing. In the Notice of Removal, the Defendant notes that "Plaintiff's Complaint alleges: 'extensive permanent damage to his left arm' resulting in past medical expenses 'pain and suffering, permanent physical impairment, disfigurement, anticipated future medical and other expenses, loss of the enjoyment of life, and other general damages.'" Defendant's counsel, by way of affidavit, then states that he is "of the opinion" that the Plaintiff's damages "would reasonably entitle the Plaintiff, if he prevailed at trial, to an amount in excess of $75,000." However, Plaintiff's Complaint provides no reasoned basis for determining the amount in controversy. Nowhere in the Complaint does it relate the necessary facts or circumstances that would permit the Court to reasonably infer the probable extent of Plaintiff's medical expenses and/or general damages. See Cohn v. Petsmart, Inc., 281 F.3d 837, 839-40 n. 1 (9th Cir. 2002) (explaining that plaintiff's complaint requesting treble compensatory damages, treble profits, attorney's fee and injunction did not establish that the amount in controversy exceeded $75,000 because defendant failed to set forth the underlying facts supporting damages amount). Cf. Garza v. Bettcher Industries, Inc., 752 F. Supp. 753, 763 (E.D. Mich. 1990) (discussing examples of specific facts sufficient to establish the jurisdictional minimum including where "plaintiff's medical records revealed that he had undergone four separate surgical procedures for his injury").
Similarly, Defendant has "offered no facts whatsoever to support the court's exercise of jurisdiction." Gaus, 980 F.2d at 567. Counsel's opinion that Plaintiff's damages exceed the 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]." 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(e) for lack of subject matter jurisdiction. See Singer, 116 F.3d at 376 (explaining that "where the plaintiff does not claim damages in excess of S[75,000] and the defendant offers 'no facts whatsoever' to show that the amount in controversy exceeds $[75,000], then the defendant has not borne the burden on removal of proving that the amount in controversy requirement is satisfied").
With one exception, Defendant relies exclusively on out-of-circuit authority to support its Notice of Removal. The one Ninth Circuit opinion cited by Defendant sets forth the standard for evaluating a diversity case originally filed by a plaintiff in federal court. This follow the Ninth Circuit case law that governs removal actions and, as discussed above, its application clearly requires that this action be remanded.
ORDER
Based on the foregoing, and being fully advised in the premises, IT IS HEREBY ORDERED that the above-entitled action is remanded to the district court of the Fourth Judicial District of the State of Idaho In and For the County of Ada, No. CV PI 02004500; and the Clerk shall mail a certified copy of this Order to the Clerk of the aforesaid Idaho state court.
IT IS SO ORDERED