Carl Schroter Gmbh And Co KG Aso Exportadora Geofrut Ltda v. Cool-Pak Solutions, Llc et al

NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction

C.D. Cal.September 16, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT NEWHOUSE LAW GROUP, PC MICHAEL R. NEWHOUSE (SBN: 211204) SUZANNE M. HENRY (SBN: 204772) 1800 Century Park East, 6th Floor Los Angeles, California 90067 Telephone: (310) 684-3162 Facsimile: (310) 694-3076 Email: mnewhouse@newhouselawgroup.com shenry@newhouselawgroup.com Attorneys for Defendant COOL-PAK SOLUTIONS, LP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION CARL SCHROTER GMBH & CO. KG ASO EXPORTADORA GEOFRUT LTDA, Plaintiff, v. COOL-PAK SOLUTIONS, LLC; SOUTHERN FUME COMPANY, LLC and Does 1-10, inclusive, Defendants. CASE NO. CV 16-03681-SVW (E) DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT MATTER JURIDICTION (F.R.C.P. 12(B)(1)) Hearing: October 24, 2016 Time: 1:30 p.m. Ctrm: 6 Judge: Hon. Stephen V. Wilson Complaint Served: June 13, 2016 Trial Date: None Set [PROPOSED ORDER FILED CONCURRENTLY HEREWITH] Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 1 of 9 Page ID #:33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 24, 2016 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 6 of the above-captioned Court, located at 312 N. Spring Street, Los Angeles, California, 90012, Defendant Cool- Pak Solutions, LP (“Defendant” or “Cool-Pak”) will and hereby does move the Court to dismiss the Complaint filed by Plaintiff Carl Schroter GMBH & CO. KG ASO Exportadora Geofrut LTDA (“Plaintiff” or “Schroter”). The motion is made pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1332, on the grounds that the Court lacks subject matter jurisdiction over Plaintiff’s complaint, given that the amount in controversy is less than $75,000. Moreover, the motion should be dismissed with prejudice because the jurisdictional defect is not curable by amending the pleadings, in light of the judicial admissions contained in the complaint concerning the amount in controversy in the matter. This motion is made following the conference of counsel pursuant to L.R. 7- 3 which took place on September 16, 2016. /// /// /// /// /// Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 2 of 9 Page ID #:34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT COOL-PAK SOLUTIONS, LOP’S MOTION TO DISMISS COMPLAINT The motion is based upon this Notice; the Memorandum of Points and Authorities attached hereto; all pleadings, papers and records on file with the Court in this action; and all other such argument and evidence as may be presented to the Court in connection with the motion. DATED: September 16, 2016 NEWHOUSE LAW GROUP, PC By: /s/ Suzanne M. Henry MICHAEL R. NEWHOUSE SUZANNE M. HENRY Attorneys for Defendant COOL-PAK SOLUTIONS, LP Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 3 of 9 Page ID #:35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defendant Cool-Pak Solutions, LP (“Defendant” or “Cool-Pak”) hereby respectfully submits this Motion to Dismiss the complaint filed by Plaintiff, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction. While Plaintiff fails to specifically allege the basis for jurisdiction in this case in the complaint itself,1 the Civil Cover Sheet filed along with the complaint states that the basis for this Court’s jurisdiction is diversity, citing the diversity of citizenship between Plaintiff, a German entity, and Defendants. (See Dkt #1-1-3 Civil Cover Sheet.) However, more than diversity of citizenship is required for the Court to have subject matter jurisdiction over this suit, as there is a second prerequisite for jurisdictional pursuant to 28 U.S.C. § 1332; namely the requirement that “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs”. In fact, both the complaint and Plaintiff’s Civil Cover Sheet concede that the “money demanded in the complaint” is $22,255.00, well below the jurisdictional threshold necessary to invoke diversity jurisdiction under Section 1332. (See Dkt #1.; Complaint ¶ 15; Civil Cover Sheet.) As a result, as a matter of law this Court lacks jurisdiction to hear this case and this Motion to Dismiss must be granted without leave to amend. 1 Plaintiff’s failure to state a basis for the exercise of jurisdiction in the complaint is a violation of Local Rule 8-1. Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 4 of 9 Page ID #:36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT COOL-PAK SOLUTIONS, LOP’S MOTION TO DISMISS COMPLAINT I. ARGUMENT A. Dismissal of this Suit for Lack of Subject Matter Jurisdiction is Mandatory Federal Rule of Civil Procedure 12(h)(3) commands: “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” While Plaintiff’s complaint fails to allege the jurisdictional basis for this suit, it alleges three claims: 1) negligence; 2) breach of contract; and 3) breach of bailment and contract. Given that none of these claims are based on federal law, one can only conclude from the complaint’s allegations that the sole basis for subject matter jurisdiction over this case is diversity of citizenship pursuant to 28 U.S.C. § 1332, based on the allegation that Plaintiff is a non-US entity while the Defendants are both US entities. (See Dkt #1, Complaint ¶1, 4, 5.) This assertion is further confirmed in Plaintiff’s Civil Cover Sheet, which lists diversity as the basis for jurisdiction. (See Dkt #1, Civil Cover Sheet.) Notably, however, the complaint and the Civil Cover Sheet concede that the amount in controversy is $22,255.00, far below the $75,000 minimum threshold which is a statutory prerequisite to diversity jurisdiction under Section 1332. (See Complaint ¶15, Civil Cover Sheet.) As a result, the complaint fails to satisfy the second prong necessary for this Court to exercise jurisdiction over the suit pursuant to Section 1332. When a complaint fails to satisfy subject matter jurisdiction, a defendant may Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 5 of 9 Page ID #:37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT COOL-PAK SOLUTIONS, LOP’S MOTION TO DISMISS COMPLAINT attack jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. When a defendant challenges jurisdiction “facially,” all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). Here it is apparent from the face of the complaint and the Civil Cover Sheet that Plaintiff has not, and cannot, satisfy the monetary threshold for diversity jurisdiction. Plaintiff makes a judicial admission that the amount in controversy is only $22,255.00; more than fifty thousand dollars below the $75,000 threshold necessary for diversity jurisdiction. B. Plaintiff’s Judicial Admission that the Amount in Controversy Is $22,255.00 Necessitates that this Motion Be Granted In order to justify dismissal for lack of §1332 jurisdiction, “it must appear to Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 6 of 9 Page ID #:38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT COOL-PAK SOLUTIONS, LOP’S MOTION TO DISMISS COMPLAINT a legal certainty that the claim is really for less than the jurisdictional amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); Crum v. Circus Circus Enterprises, 231 F.3d 1129, 1131 (9th Cir. 2000); Budget Rent-A- Car, Inc. v. Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 1997). Generally, the amount in controversy is determined from the face of the pleadings. See Crum, 231 F.3d at 1131. The amount claimed by the plaintiff controls so long as the claim is made in good faith. St. Paul Mercury Indem., 303 U.S. at 288; Crum, 231 F.3d at 1131. Again, it is evident from the face of the pleadings that Plaintiff’s claim is for less than the jurisdictional amount. Plaintiff states in the complaint that it brings this suit as a subrogation claim, having paid its insured $22,255.00 for its losses (Complaint ¶¶ 15, 21, 27) for the damage to the fruit sustained as a result of the alleged failure to timely refrigerate 1,600 cases of kiwi fruit. As a result, it is evident that, on its face, Plaintiff cannot state a claim which satisfies the minimal jurisdictional requirements for diversity jurisdiction, namely that “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” Plaintiff concedes in both its complaint and civil cover sheet that the claim is far less than this amount. As a result, this Motion is proper, and the Court must dismiss this action with prejudice. /// /// Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 7 of 9 Page ID #:39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT COOL-PAK SOLUTIONS, LOP’S MOTION TO DISMISS COMPLAINT II. CONCLUSION It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Keene Corp. v. United States, 508 U.S. 200, 207 (1993); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Given that the complaint fails to satisfy the jurisdictional prerequisites necessary for diversity jurisdiction, this Court lacks jurisdiction over this suit. As a result, Cook-Pak respectfully requests that the Court grant this motion to dismiss Plaintiff’s complaint with prejudice DATED: September 16, 2016 NEWHOUSE LAW GROUP, PC By: /s/ Suzanne M. Henry MICHAEL R. NEWHOUSE SUZANNE M. HENRY Attorneys for Defendant COOL-PAK SOLUTIONS, LP Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 8 of 9 Page ID #:40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT COOL-PAK SOLUTIONS, LOP’S MOTION TO DISMISS COMPLAINT CERTIFICATE OF SERVICE I hereby certify that on this 16th day of September, 2016, a true and correct copy of the foregoing DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION (F.R.C.P. 12(B)(1)) AND [PROPOSED] ORDER was filed with the Clerk of Court via CM/ECF, which will send notification of such filing to the following interested parties in this action: Susan M. Benson, Esq. BENSON LEGAL, APC 6345 Balboa Boulevard, Bldg. 3, Suite 365 Encino, CA 91316 Tel: (818) 708-1250 Fax: (818) 708-1444 Attorneys for Plaintiff CARL SCHROTER GMBH & CO. KG ASO EXPORTADORA GEOFRUT LTDA Carmen A. Trutanich, Esq. William H. Dance, Esq. TUCKER ELLIS LLP 515 South Flower Street Forty Second Floor Los Angeles, CA 90071-2223 Tel: (213) 430-3400 Fax: (213) 430-3409 Attorneys for Defendant SOUTHERN FUME COMPANY, LLC By: s/ Suzanne M. Henry Suzanne M. Henry Case 2:16-cv-03681-SVW-E Document 9 Filed 09/16/16 Page 9 of 9 Page ID #:41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT NEWHOUSE LAW GROUP, PC MICHAEL R. NEWHOUSE (SBN: 211204) SUZANNE M. HENRY (SBN: 204772) 1800 Century Park East, 6th Floor Los Angeles, California 90067 Telephone: (310) 684-3162 Facsimile: (310) 694-3076 Email: mnewhouse@newhouselawgroup.com shenry@newhouselawgroup.com Attorneys for Defendant COOL-PAK SOLUTIONS, LP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION CARL SCHROTER GMBH & CO. KG ASO EXPORTADORA GEOFRUT LTDA, Plaintiff, v. COOL-PAK SOLUTIONS, LLC; SOUTHERN FUME COMPANY, LLC and Does 1-10, inclusive, Defendants. CASE NO. CV 16-03681-SVW (E) [PROPOSED] ORDER GRANTING DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT MATTER JURIDICTION F.R.C.P. 12(B)(1) Hearing: October 24, 2016 Time: 1:30 p.m. Ctrm: 6 Judge: Hon. Stephen V. Wilson Complaint Served: June 13, 2016 Trial Date: None Set Case 2:16-cv-03681-SVW-E Document 9-1 Filed 09/16/16 Page 1 of 2 Page ID #:42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANT COOL-PAK SOLUTIONS, LP’S MOTION TO DISMISS COMPLAINT Defendant Cool-Pak Solutions, LP’S Motion to Dismiss Plaintiff’s Complaint (the "Motion") came on regularly for hearing in Courtroom 6 of this Court on October 24, 2016. The Court has considered the Motion, the memoranda of points and authorities and all other papers, pleadings, records and files filed by the parties in this action, and argument of counsel. Good cause appearing, IT IS HEREBY ORDERED that Plaintiff's Motion is GRANTED with prejudice. IT IS SO ORDERED. DATED: October ___, 2016 Honorable Stephen V. Wilson UNITED STATES DISTRICT JUDGE Case 2:16-cv-03681-SVW-E Document 9-1 Filed 09/16/16 Page 2 of 2 Page ID #:43