United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' motion to
remand (Dkt. No. 7). Having thoroughly considered the
briefing and the relevant record, the Court finds oral
argument unnecessary and hereby GRANTS the motion for the
reasons explained herein.
home in Marysville, Washington was damaged by a sudden,
accidental water leak. (Dkt. 1-1 at 1-2.) On August 2, 2019,
Plaintiffs sued Defendant in King County Superior Court,
asserting claims for breach of contract, insurance bad faith,
and violation of Washington's Consumer Protection Act
(“CPA”), Wash. Rev. Code § 19.86.
(Id. at 3.) Plaintiffs seek general, consequential,
and special damages, as well as exemplary damages under Wash.
Rev. Code § 19.86 and attorney fees and costs.
(Id. at 4.) Plaintiffs' complaint does not
specify an amount in controversy. (Id.)
September 4, 2019, Defendant removed this action to the Court
based on diversity jurisdiction under 28 U.S.C. §
1332(a)(1). (Dkt. No. 1 at 4.) Defendant's removal notice
alleges that Defendant is a citizen of New Hampshire and
Massachusetts and thus there is complete diversity of
citizenship. (Id.) Defendant's removal notice
further alleges that Plaintiffs' claims exceed $75, 000.
(Id. at 2, 4-7.) Plaintiffs now move to remand on
the ground that the amount in controversy requirement is not
satisfied. (Dkt. No. 7.)
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). Once
removed, the case can be remanded to state court for either
lack of subject matter jurisdiction or defects in the removal
procedure. See 28 U.S.C. § 1447(c). The
removing defendant bears the burden of proving, by a
preponderance of the evidence, each element necessary to
establish jurisdiction. Gaus v. Miles, 980 F.2d 564,
567 (9th Cir. 1992). Federal subject matter jurisdiction
exists in civil actions when the parties are completely
diverse and the amount in controversy exceeds $75,
28 U.S.C. § 1332. When the amount in controversy is not
clear from the face of the complaint, courts may consider
other “summary judgment-type” evidence to
determine whether the amount reaches the jurisdictional
minimum. Kroske v. U.S. Bank Corp., 432 F.3d 976,
980 (9th Cir. 2005).
Amount in Controversy
that the parties are diverse, the issue presented is whether
the amount in controversy exceeds $75, 000. The amount in
controversy may include not just actual damages, but also
statutorily authorized attorney fees and treble damages.
See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156
(9th Cir. 1998) (holding that statutorily authorized attorney
fees may be included in the amount in controversy);
Chabner v. United of Omaha Life Ins. Co., 225 F.3d
1042, 1046 n.3 (9th Cir. 2000) (noting that a court may take
into account the availability of treble damages).
agrees that Plaintiffs' policy covers at least part of
the actual costs to repair the water damage, and Defendant
has paid for several days of additional living expenses
(“ALE”). (See Dkt. No. 8 at 3-4.) Thus,
the amount in controversy depends on the difference in value
between the parties' respective calculations of repairs
and ALE. On August 8, 2019, after Plaintiffs filed their
complaint, Defendant provided a supplemental estimate.
(See Dkt. No. 2-4.) The supplemental estimate
calculated that the cost to repair the damage to
Plaintiffs' property is $31, 720.63 actual cash value
(“ACV”). (Id. at 10.) Plaintiffs'
appraiser estimated that the ACV is $72, 511.78. (Dkt. No.
2-6 at 11.) The difference between the two is $40, 791.15. In
addition, Plaintiffs' complaint includes a claim for ALE,
and Plaintiffs' appraiser estimated that the value of ALE
is $19, 724.00. (Id. at 12.) Thus, according to
Defendant, the combined amount in dispute for ACV and ALE is
$60, 515. (See Dkt. 1 at 6.) Defendant also contends
that Plaintiffs seek $25, 000 in punitive damages under the
CPA. (Dkt. No. 1 at 6-7.) This statute authorizes courts to
award treble damages, capped at $25, 000. See Wash.
Rev. Code. § 19.86.090. Plaintiffs also seek attorney
fees, but neither party cites a statutory basis for such an
award nor provides an estimate for such fees. (See
Dkt. Nos. 1, 1-1, 7.)
argue that Defendant has failed to meet its burden of proof.
(Dkt. No. 7 at 4.) First, Plaintiffs challenge
Defendant's contention that the amount in dispute for
repairs is $31, 720.63. (Id. at 3-4.) Plaintiffs
argue that Defendant has not submitted evidence from someone
with personal knowledge that shows how much Defendant
currently values Plaintiffs' insurance claim,
particularly because Defendant has not revealed the results
of its own appraisal or shown that it has refused to pay for
the repairs and ALE. (Dkt. No. 7 at 2-4.) On this basis,
Plaintiffs insist that Defendant has not proven that $60,
515.15 is in dispute with respect to repairs and ALE.
(Id.) Additionally, Plaintiffs contend that
Defendant has not demonstrated more than a mere possibility
of punitive damages under the CPA (Id. at 4.)
a party fails to file papers in opposition to a motion, such
failure may be considered by the court as an admission that
the motion has merit.” W.D. Wash. Local Civ. R.
7(b)(2). District courts deem noncompliance with such rules
as consent to the denial or granting of the motion. See,
e.g., Robichaux v. Fid. Nat. Ins. Co., 2013 WL
356902, slip op. at 1 (D. Ariz. 2013) (finding it proper to
remand on the basis of defendants' failure to respond);
Deuschel v. UC Regents Med. Centers, 2019 WL
1057046, slip op. at 2 (C.D. Cal. 2019). Defendant did not
respond to Plaintiffs' motion to remand. (See
docket.) In failing to respond, Defendant has admitted that
Plaintiffs' motion to remand is meritorious and conceded
that the amount in controversy requirement is not satisfied.
See W.D. Wash. Local Civ. R. 7(b)(2). Therefore,
Plaintiffs' motion to remand is GRANTED.