United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' motion for
remand (Dkt. No. 13). Having thoroughly considered the
parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS the motion
as it relates to remand and DENIES the motion as it relates
to the award of attorney fees and costs.
Kurt Skau (“Skau”) worked as a truck driver for
Defendant JBS Carriers, Inc. (“JBS”). (Dkt. No.
1-1 at 3.) Skau filed a class action lawsuit against JBS in
King County Superior Court alleging that JBS violated several
Washington State pay and hour regulations. (Id. at
4-5.) JBS removed the lawsuit to this Court asserting
diversity jurisdiction under 28 U.S.C. § 1332. (Dkt. No.
1.) Skau asks the Court to remand the case to state court
because JBS has not proved that the amount in controversy is
greater than $75, 000. (Dkt. No. 13 at 6.)
to a civil action brought in state court may remove that
action to federal court if the district court would have had
original jurisdiction at the time of both commencement of the
action and removal. See 28 U.S.C. § 1441(a);
14B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3723 (4th ed. 2013). Where
federal jurisdiction is conferred by diversity, the removing
party bears the burden of proving complete diversity of
citizenship and an amount in controversy greater than $75,
000. See Abrego Abrego v. The Dow Chem. Co., 443
F.3d 676, 683 (9th Cir. 2006) (citation omitted). There is a
strong presumption against removal jurisdiction, and federal
jurisdiction “must be rejected if there is any doubt as
to the right of removal in the first instance.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir.1992). If the complaint does not specify the amount of
damages claimed, a removing defendant must establish the
amount in controversy requirement by a preponderance of the
evidence. Id. at 566-67.
motion turns on a single issue: should the Court factor
prospective attorney fees into the $75, 000 amount in
controversy requirement when it determines whether removal is
proper under 28 U.S.C. § 1441. Skau asserts that the
Court should only consider attorney fees that have been
incurred at the time of removal. (Dkt. No. 13 at 9.) JBS
argues that the Court may add to the amount in controversy a
reasonable estimate of Plaintiff's attorney fees likely
to be incurred during litigation. (Dkt. No. 1 at 8.)
undisputed that where an underlying statute authorizes an
award of attorney fees to a prevailing party, a claim for
such fees can be included in the amount in controversy.
Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155
(9th Cir. 1998). There is Circuit split, however, as to
whether attorney fees incurred after removal should be
included in the amount in controversy. Compare Hart v.
Schering-Plough Corp., 253 F.3d 272, 273-74 (7th Cir.
2001) (holding prospective attorney fees are not included as
part of amount in controversy), with Suber v. Chrysler
Corp., 104 F.3d 578, 585 (3d Cir. 1997), (“in
calculating the amount in controversy, we must consider
potential attorney's fees.”) The Ninth Circuit has
not resolved this issue. See Gonzales v. CarMax
Auto Superstores, LLC, 840 F.3d 644, 649 n. 2 (9th Cir.
2016). As the parties point out, courts across the
Circuit-and within the District-have reached differing
conclusions. (Dkt. Nos. 13 at 9); compare Keodalah v.
Allstate Ins. Co., No. C15-01412-RAJ, slip op. at 4
(W.D. Wash. Mar. 25, 2016) (holding that future attorney fees
should not be included in amount in controversy), with
Roe v. Teletech Customer Care Mgmt. (CO), LLC, No.
C07-5149-RBL, slip op. at 4 (W.D. Wash. June 6, 2007)
(holding that estimates of future attorney fees can be
included in the amount in controversy).
Court has addressed this issue in a prior case. See
Holstrom v. Safeco Insurance Company, Case No.
C12-0506-JCC, Dkt. No. 28 at 4 (W.D. Wash. 2012). Similar to
this case, Holstrom involved a class action lawsuit
that the Defendant removed to this Court based on diversity
jurisdiction. Id. at 2. The Defendant argued that
the amount in controversy requirement was met because the
Plaintiff's attorney would ultimately expend more than
$75, 000 litigating the case. Id. The Court reasoned
that because diversity jurisdiction must be determined at the
time an action commences, it is too speculative and
impractical to estimate prospective attorney fees as part of
the amount in controversy. Id. The Court held that
its position was “consonant with the policy of strict
construction of federal jurisdiction and the goals underlying
the amount-in-controversy requirement, which preserves the
jurisdiction of the state courts and limits the diversity
caseload of the federal courts.” Id. (citing
Snyder v. Harris, 394 U.S. 332, 340 (1969)). In
doing so, the Court joined others that have held that only
attorney fees incurred at the time of removal should be
included in the amount in controversy determination. See,
e.g., Gardynski-Leschuck v. Ford Motor Co., 142
F.3d 955, 959 (7th Cir. 1998); Kahlo v. Bank of Am.,
N.A., No. C12-0083-RSM, slip op. at 3 (W.D. Wash. Mar.
case, the parties dispute whether the amount in controversy
is greater than $75, 000. Skau's complaint seeks
compensatory and exemplary damages, as well as attorney fees
and costs under applicable state law. (Dkt. No. 1-1 at 12.)
Because the complaint does not specify the amount of damages
sought, JBS has the burden of proving that the amount in
controversy is greater than $75, 000.
notice of removal, JBS calculates Skau's prospective
damages as $53, 648.66. (Dkt. No. 1 at 7.) Skau does not
dispute this calculation. By declaration, Skau's
attorneys assert that they had incurred $14, 085 in fees at
the time JBS removed the case from state court. (See
Dkt. Nos. 14, 15.) While the total of these figures falls $7,
266.34 short of the $75, 000 amount in controversy threshold,
JBS argues that Skau will incur litigation costs far in
excess of that shortfall over the life of the lawsuit. (Dkt.
No. 1 at 8.) In addition, JBS cites to past class action
cases in which Skau's attorneys have been awarded
attorney fees that alone eclipsed $75, 000. (Id.) As
noted above, the Court does not find that an estimate of
future attorney fees can be used to satisfy the amount in
controversy requirement. Therefore, JBS has failed to prove
by a preponderance of the evidence that at the time of
removal the amount in controversy was greater than $75, 000.
For that reason, Skau's motion to remand is GRANTED.
additionally asks the Court to award him attorney fees and
costs because “JBS lacked an objectively reasonable
basis for removing this case to federal court.” (Dkt.
No. 13 at 12.) Because courts throughout our Circuit have
resolved this issue differently, the Court concludes that JBS
had an objectively reasonable basis to remove the case.
Skau's motion for attorney fees and costs is DENIED.
those reasons, Plaintiffs' motion for remand (Dkt. No.
13) is GRANTED in part and DENIED in part. The Clerk is
DIRECTED to ...