United States District Court, W.D. Washington, Seattle
ORDER
JOHN
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on the report and
recommendation of the Honorable J. Richard Creatura, United
States Magistrate Judge (Dkt. No. 16). Having thoroughly
considered the report and recommendation, Defendant's
objections (Dkt. No. 17), and the relevant record, the Court
REJECTS the report and recommendation and DENIES
Plaintiff's motion to remand (Dkt. No. 8) for the reasons
stated herein.
I.
BACKGROUND
Plaintiff
originally filed this action in state court, alleging that
she suffered “sever[e]” personal injuries when
she tripped on a pothole that Defendant failed to repair.
(Dkt. No. 1-2 at 3.) In her original filing, Plaintiff did
not state the amount of damages that she sought because Wash.
Rev. Code § 4.28.360 prohibits a plaintiff in a civil
action for personal injuries from including such a statement
in a complaint. Section 360 does, however, allow a defendant
to request that the plaintiff provide a separate statement of
the damages that the plaintiff seeks.
Defendant
availed itself of this provision and requested that Plaintiff
provide a statement of damages. (Dkt. No. 11.) Plaintiff,
through her counsel, provided the requested statement, which
said that Plaintiff sought $89, 651.50. (Dkt. No. 1-3 at 2.)
This statement-which broke down Plaintiff's damages into
three categories and was given to Defendant over two months
into the litigation-led Defendant to file a notice of removal
shortly after it received the statement.[1] (See
Dkt. Nos. 1 at 3, 1-3 at 3.)
Following
Defendant's removal of the case, Plaintiff filed a motion
to remand. (Dkt. No. 8.) In her motion, Plaintiff argues that
her “statement . . . of any special damages and general
damages sought, ” Wash. Rev. Code § 4.28.360, is
not actually the relief that she seeks-or rather, the
statement is not sufficient evidence of the relief that she
seeks. (See Dkt. No. 8 at 1- 2.) And because the
statement is, according to Plaintiff, such bad evidence of
her requested relief, Plaintiff argues that Defendant has not
established by a preponderance of the evidence that the
amount in controversy exceeds $75, 000. (See id.)
She therefore contends that remand is appropriate.
Judge
Creatura agrees with Plaintiff. As Judge Creatura sees it,
Plaintiff's statement is “too speculative and
conclusory to support a finding by a preponderance of the
evidence that the jurisdictional threshold has been
met.” (Dkt. No. 16 at 4.) Consequently, Judge Creatura
recommends that the Court grant Plaintiff's motion and
remand the case. (Id. at 6.)
II.
DISCUSSION
Statements
of damages are not pleadings. See Wash. Civ. R. 7(a)
(listing the pleadings allowed in Washington Superior Court).
Nor are they binding judicial admissions. See 2
McCormick on Evidence § 254 (Kenneth S. Broun, 7th ed.
2016) (defining “judicial admissions” as
“formal concessions in the pleadings in the case or
stipulations . . . that have the effect of withdrawing a fact
from issue”). But they are “statement[s] . . .
setting forth separately the amounts of any special damages
and general damages sought.” Wash. Rev. Code §
4.28.360. That makes them undoubtedly relevant to determining
the amount in controversy, which is simply the “damages
claimed or relief demanded” by the plaintiff.
Amount in Controversy, Black's Law
Dictionary (11th ed. 2019). The relevance of any such
statement will, as is so often true, depend on the facts of
the case. In some cases, the statement may be unreasonable
given the complaint's allegations. In other cases, the
plaintiff might disavow their statement and offer contrary
evidence of the amount in controversy. But here, Plaintiff
gave a specific estimate of the damages that she seeks, she
did not expressly disavow that estimate, and the estimate
appears reasonable given the serious allegations in
Plaintiff's complaint and settlement demand letter.
(See Dkt. Nos. 1-2, 1-3, 17-1.) Consequently,
Defendant has established by a preponderance of the evidence
that the amount in controversy exceeds $75, 000.
A.
Standard
A
non-resident defendant may remove a case to federal court if
the parties are diverse and the amount in controversy exceeds
$75, 000 at the time of removal. See 28 U.S.C.
§§ 1332, 1441; Sparta Surgical Corp. v.
Nat'l Ass'n of Secs. Dealers, Inc., 159 F.3d
1209, 1213 (9th Cir. 1998) (“[J]urisdiction must be
analyzed on the basis of the pleadings filed at the time of
removal.”). In an ordinary case, determining the amount
in controversy is simple: it is whatever the plaintiff says
it is, so long as the plaintiff demanded the amount in good
faith. See 28 U.S.C. § 1446(c)(2); St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288
(1938) (“The rule governing dismissal for want of
jurisdiction in cases brought in the federal court is that,
unless the law gives a different rule, the sum claimed by the
plaintiff controls if the claim is apparently made in good
faith.”). This simple rule is, however, available only
if the plaintiff asks for a specific amount of damages in
their “initial pleading.” See §
1446(c)(2). And because Plaintiff could not ask for a
specific amount of damages in her complaint, see
Wash. Rev. Code § 4.28.360, the rule is unavailable
here.
If the
complaint does not include a specific request for damages,
then the defendant bears the burden of showing by a
preponderance of the evidence that the amount in controversy
exceeds $75, 000. See §§ 1332(a),
1446(c)(2)(B); Corral v. Select Portfolio Servicing,
Inc., 878 F.3d 770, 774 (9th Cir. 2017). To satisfy this
burden, the defendant must point to facts that support
jurisdiction and may not rely on “conclusory
allegations as to the amount in controversy.”
Matheson v. Progressive Specialty Ins. Co., 319 F.3d
1089, 1090-91 (9th Cir. 2003); see Gaus v. Miles,
Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (remanding
case where the defendant offered “no facts whatsoever
to support the court's exercise of jurisdiction”).
Of course, while the defendant cannot rely on their own
conclusory assertions, “the parties need not predict
the trier of fact's eventual award with one hundred
percent accuracy.” Valdez v. Allstate Ins.
Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The amount in
controversy is, after all, “simply an estimate of the
total amount in dispute, not a prospective assessment of
defendant's liability.” Lewis v. Verizon
Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010);
see also McPhail v. Deere & Co., 529 F.3d 947,
956 (10th Cir. 2008) (“The amount in controversy is not
proof of the amount the plaintiff will recover. Rather, it is
an estimate of the amount that will be put at issue in the
course of the litigation.”). Likewise, the
defendant's burden of establishing the amount in
controversy “is a pleading requirement, not a demand
for proof. Discovery and trial come later.” Spivey
v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir. 2008).
With
those principles in mind, the Court must determine if
Defendant has established by a preponderance of the evidence
that the amount in controversy in this case-that is, the
amount that Plaintiff was claiming at the time of
removal-exceeds $75, 000. The Court concludes that Defendant
has carried its burden because Plaintiff's statement of
damages is strong evidence of the amount in controversy and
because that evidence is corroborated by the allegations in
Plaintiff's complaint and demand letter.
B.
Plaintiff's ...