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Flores v. Safeway, Inc.

United States District Court, W.D. Washington, Seattle

October 1, 2019

CHERI FLORES, Plaintiff,
v.
SAFEWAY, INC., Defendant.

          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 ...


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