United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO REMAND DKT. # 6
HONORABLE RONALD B. LEIGHTON JUDGE
MATTER is before the Court on Plaintiff Corrie Robbins's
Motion to Remand. Dkt. # 6. Robbins sued her former employer,
Defendant Comcast Corporation, for discrimination and
retaliatory discharge. Robbins alleges that she suffered
pervasive sexual harassment at work during 2017. She changed
teams in 2018 and subsequently began working from home.
However, this apparently caused more tension at her workplace
and she was fired on August 21, 2018.
RCW 49.60, Robbins alleges claims for “hostile work
environment, ” “disparate treatment and impact,
” “unlawful retaliation, ” “actual
discharge, ” “termination in violation of public
policy, ” and “negligent infliction of emotional
distress.” Dkt. # 1-3 at 5-6. Robbins requests
“such general and/or special damages as shall be
established at time of trial . . . and for such
attorneys' fees, interest, costs, and such other and
further relief as shall be allowed by law or deemed just and
equitable.” Id. at 6. The Amended Complaint
was filed on June 12, 2019 and Comcast removed the case to
federal court on July 1. Because the parties do not dispute
diversity of citizenship, the only issue is whether
Robbins's damages satisfy the amount in controversy
requirement for federal jurisdiction.
defendant attempting to remove a diversity case must show by
a preponderance of the evidence that the
amount-in-controversy requirement is satisfied.”
Gibson v. Chrysler Corp., 261 F.3d 927, 933 (9th
Cir. 2001). Where the complaint does not specify the amount
of damages sought, it is the removing defendant's burden
to prove that the amount in controversy exceeds $75, 000.
Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d
373, 376 (9th Cir. 1997). Courts strictly construe the
removal statute against removal and resolve any doubts in
favor of remand. Gaus v. Miles, Inc., 980 F.2d 564,
566 (9th Cir.1992).
amount in controversy includes the amount of damages in
dispute, as well as attorney's fees, if authorized by
statute or contract.” Kroske v. U.S. Bank
Corp., 432 F.3d 976, 980 (9th Cir. 2005). The court must
first consider whether the amount in controversy is
“facially apparently” from the complaint.
McDermott v. Life Inv'rs Ins. Co. of Am., No.
C06-5344 RBL, 2006 WL 2668153, at *1 (W.D. Wash. Sept. 14,
2006). If it is not, “the court may consider facts in
the removal petition, and may require parties to submit
summary-judgment-type evidence relevant to the amount in
controversy at the time of removal.” Kroske,
432 F.3d at 976, (quoting Singer, 116 F.3d at 377)
(internal quotation omitted). Evidence of damages awarded in
similar cases may be probative. See Beaver v. NPC
Int'l, Inc., 451 F.Supp.2d 1196, 1199 (D. Or. 2006).
Post-removal admission by parties may also be considered.
Abrego v. The Dow Chem. Co., 443 F.3d 676, 691 (9th
discrimination cases, courts assess wage loss from the time
of termination to removal. Simmons v. PCR Tech., 209
F.Supp.2d 1029, 1032 (N.D. Cal. 2002). In addition, even if a
trial date has not been set, the court may consider the fact
that the plaintiff's lost wages will continue to
increase. Id.; see also McDermott, 2006 WL
2668153, at *2 (“The Ninth Circuit's recent trend
is to consider future damages in determining the amount in
controversy.”). Attorneys' fees likewise should be
assessed based on what the court can reasonably anticipate at
the time of removal. Simmons, 209 F.Supp.2d at 1035;
Holstrom v. Safeco Ins. Co. of Illinois, No.
C12-0506-JCC, 2012 WL 13020035, at *2 (W.D. Wash. June 15,
2012); but see Faulkner v. Astro-Med, Inc., No. C
99-2562 SI, 1999 WL 820198, *4 (N.D.Cal. Oct. 4, 1999)
(holding that future attorneys' fees are too speculative
to be considered).
Comcast has demonstrated that the damages sought in this case
more likely than not exceed $75, 000. Comcast has provided
evidence that Robbins had a pay rate of $52, 284.96 per year
when she was terminated. Dkt. # 14 at 1. Given that 314 days
passed between Robbins's termination and the date of
removal, the amount of wages lost at that time was roughly
$45, 000.00. Although the Court will not speculate about
Robbins's amount of lost wages by the time of trial, it
is reasonable to project that it will be more than $45, 000;
indeed, the amount has already increased by $5, 400 since
removal. While Robbins observes that she has an obligation to
mitigate damages, she does not state that she has obtained
new employment or offset her lost wages. Dkt. # 16 at 2.
Although ambiguities are construed against removal, the Court
will not speculate that Robbins has mitigated her damages
when she has opted to evade the issue rather than clarify it.
See Rivera v. Costco Wholesale Corp., No. C 08-02202
CW, 2008 WL 2740399, at *3 (N.D. Cal. July 11, 2008)
(“Without some evidence of mitigation to disprove, it
is sufficient for Defendant to present evidence of
Plaintiff's salary at the time of his
addition to lost wages exceeding $50, 000, Comcast points out
that Robbins seeks “general damages, ” which
include emotional distress. See Ellingson v. Spokane
Mortg. Co., 19 Wash.App. 48, 50, 573 P.2d 389, 390
(1978) (holding that RCW 49.60.030(2) provides for emotional
distress damages). Robbins's Amended Complaint indicates
in multiple places that the sexual harassment and termination
process caused her to periodically flee the office and suffer
panic attacks. Dkt. # 1-3 at 3, 5. Comcast identifies
multiple settlements and jury verdicts awarding hefty
emotional distress damages in similar cases. See, e.g.,
Sonya O'Brien v. City of Spokane, 17
Id.Verd.Stlmnt.Rpts. 213, 2017 WL 4621853 (June 13,
2017); Carrie Kuehn v. Seattle-King County Department of
Public Health, 02 N.W.P.I.Lit.Rpts. 194, 2002 WL 1773550
(March 28, 2002). Although it is difficult to predict an
exact number, the cases presented by Comcast and the year of
sexual harassment Robbins allegedly suffered convince the
Court that the emotional distress damages in this case could
RCW 49.60.030(2) also provides for reasonable attorneys'
fees. Although there is no direct evidence of attorneys'
fees up to this point, it is certain that they will at least
add several thousand dollars to the amount in controversy,
even if the case were to conclude tomorrow. This in
combination with the lost wages and emotional distress
satisfy the Court that the amount in controversy likely
exceeds $75, 000.
argues that Comcast's refusal to tender a $75, 000
settlement offer indicates that they do not believe the case
is worth that much. This argument is based on a July letter
from Robbins's counsel, Thaddeus Martin, in which he
requests that Comcast “officially offer $75, 000 so
that [he] can present this amount to [his] client for her
reasonable consideration.” Dkt. # 17, Ex. A; see
also Dkt. # 15. But Comcast's decision not to
attempt a settlement now has little bearing on their view of
the potential damages if they lost. In any case, this letter
does nothing to establish Robbins's own estimation of her
damages since it is possible she would have rejected a $75,
000 offer anyway. Indeed, Robbins refused to stipulate that
her case was worth less than $75, 000 when Comcast asked her
to do so. See Dkt. # 15. Robbins's arguments are
therefore insufficient to warrant remand.
above reasons, Robbins's ...