United States District Court, W.D. Washington, Tacoma
ORDER OF REMAND
B. Leighton United States District Judge
MATTER is before the Court on the Magistrate Judge
Fricke's Order to Show Cause [Dkt. # 10] why the case
should not be remanded for failure to properly invoke the
Court's diversity jurisdiction. Plaintiffs Marchegiani
sued in Grays Harbor Superior Court for fraud,
misrepresentation, and breach of contract, in connection with
their purchase of a home in Ocean Shores. The
Marchegianis' complaint alleged damages of “not
less than $50, 000.” The defendants are the seller and
their real estate agent.
removed the case here, claiming that the amount sought, plus
the (under the contract) attorneys' fees meant the amount
in controversy exceeded $75, 000. Judge Fricke ordered them
to show cause why the case should not be remanded, based on
the amount in controversy. [Dkt. # 10].
Conrad Associates v. Hartford Accident & Indemnity
Co., 994 F.Supp. 1196 (N.D. Cal. 1998) and numerous
other authorities, the party asserting federal jurisdiction
has the burden of proof on a motion to remand to state court.
The removal statute is strictly construed against removal
jurisdiction. The strong presumption against removal
jurisdiction means that the defendant always has the burden
of establishing removal is proper. Conrad, 994
F.Supp. at 1198. It is obligated to do so by a preponderance
of the evidence. Id. at 1199; see also Gaus v.
Miles, 980 F.2d 564, 567 (9th Cir. 1992). Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance. Id. at 566.
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 Cir. 2006).
Marchegianis argue they seek $33, 211 for construction and
travel costs, plus no more than $30, 000 in fees. Defendants
argue that their own estimate of fees, based on their own
discounted reasonable rates, greatly exceeds the $75, 000
Court agrees that the rates described are reasonable, but
they are in Seattle, not Grays Harbor (where the case arose),
or Olympia (where plaintiff's attorney practices) or
Tacoma (where the case will be heard if it is in federal
court). In any event, they do not and cannot dispute the
amount claimed, or demonstrate that the plaintiff's own
estimated fees are unreasonable. This is a Court's of
limited jurisdiction. Not every case is removable just
because the parties could potentially spend multiples of the
actual amount in controversy on attorneys' fees. The
Defendants have not met their burden of demonstrating with
summary judgment like evidence that the amount in controversy
exceeds $75, 000.
is also a separate, fatal problem with the removal. The
Marchegianis are California residents, and both Defendants
are Washington residents [Dkt. # 1]. The
“forum-defendant rule” precludes removal where
the plaintiff is suing in the defendant's home state,
even if the parties are diverse: “Action[s] shall be
removable only if none of the parties in interest properly
joined and served as defendants is a citizen of the State in
which such action is brought.” 28 U.S.C. §
each of these reasons, the removal was improper, and the case
is REMANDED to Grays Harbor County Superior