DEAN D. PREGERSON United States District Judge

ORDER DENYING PLAINTIFF'S MOTION TO REMAND

[Dkt. No. 15]

Presently before the Court is Plaintiff Sevag Yaralian's Motion to Remand. (Dkt. No. 15.) After reviewing the parties' submissions, the Court adopts the following Order.

I. BACKGROUND

Plaintiff brings the present action against Defendant Home Depot U.S.A., Inc. for damages resulting from an injury Plaintiff sustained while shopping at a store owned and operated by Defendant. (See Compl. ¶ 11.) Plaintiff contends that due to Defendant's negligence, a heavy piece of lumber fell on his forehead, causing a serious injury. (Id.) In his complaint, Plaintiff seeks an unspecified amount of damages as a result of his injury. (Id. at 4:19-28.) Defendant timely removed the case to this Court on the basis of diversity jurisdiction. (See Def. Not. of Removal.) Plaintiff now moves this Court for an order remanding the action to state court pursuant to 28 U.S.C. § 1447(c). (See Pl. Mot. Remand.)

II. LEGAL STANDARD

A defendant may remove a case from state court to federal court if the case could have originally been filed in federal court. 28 U.S.C. § 1441(a). There is a "strong presumption" against removal and the Defendant has the burden of establishing that removal is proper by a preponderance of evidence. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); Morrison v. Zangpo, No. C-08-1945 EMC, 2008 WL 2948696, at *1 (N.D. Cal. July 28, 2008). A defendant has thirty days in which to remove the case after receiving, "through service or otherwise, . . . a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b)(1). Likewise, a "motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c).

III. ANALYSIS

Plaintiff argues that his "[m]otion for remand should be granted because there is a strong presumption against removal jurisdiction, the court must strictly construe the removal statute, and Defendant fails to carry its burden of establishing federal jurisdiction is proper in this case." (Pl. Mot. Remand at 3:5-8.) Specifically, Plaintiff alleges that "Defendant failed to establish by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional threshold." (Id. at 3:22-24.)

Defendant argues in response "that it has met its burden of establishing the amount of controversy in this matter exceeds the threshold statutory amount of $75,000." (Def. Opp'n at 2:8-9.) Defendant points to Plaintiff's pre-litigation settlement demand of $196,000 and Plaintiff's refusal to stipulate that the amount in controversy does not exceed $75,000. (Decl. Caitlin R. Johnson ¶¶ 3, 7.) Defendant notes that not only did Plaintiff make a pre-litigation settlement demand for $196,000, but also Plaintiff refused to reduce the demand after commencing litigation. (Id. ¶¶ 3, 4.) Further, Defendant offered to "stipulate to remand the action . . . if [Plaintiff] stipulated that the amount in controversy does not exceed $75,000," but Plaintiff refused. (Id. ¶ 7.)

Plaintiff responds that his "refusal to stipulate is not dispositive or even a persuasive factor in establishing the Court's subject matter jurisdiction." (Pl. Reply at 5:16-18.) Further, Plaintiff argues that the settlement letter is not relevant because "Defendant has utterly failed to provide a shred of evidence or analysis to support a finding that any alleged settlement offer was a reasonable estimate of Plaintiff's claim." (Id. at 6:18-19.) Plaintiff contends that the dismissal of Plaintiff's prayer for punitive damages renders "unreliable" Plaintiff's pre-litigation settlement demand. (Id. at 6:25-27.) Lastly, Plaintiff also makes an evidentiary objection to Defendant's reference to the settlement amount without including the actual settlement letter under the Best Evidence Rule. (Dkt. No. 19.)

"Where the complaint does not demand a dollar amount, the removing defendant bears the burden of proving by a preponderance of evidence that the amount in controversy exceeds [the jurisdictional threshold]." Singer v. State Farm Mut. Auto Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997) (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)). "When a '[d]efendant's calculations [are] relatively conservative, made in good faith, and based on evidence wherever possible,' the court may find that the '[d]efendant has established by a preponderance of the evidence that the amount in controversy' is met." Geerlof v. C & S Wholesale Grocers, Inc., No. 2:13-cv-02175-MCE, 2014 WL 1415971, at *7 (E.D. Cal. Apr. 14, 2014) (quoting Behrazfar v. Unisys Corp., 687 F. Supp. 2d 999, 1004 (C.D. Cal. 2009)). The court may additionally "consider[] facts presented in the removal petition as well as any 'summary-judgment-type evidence relevant to the amount in controversy at the time of removal.' Conclusory allegations as to the amount in controversy are insufficient." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090-91 (9th Cir. 2003) (quoting Singer, 116 F.3d at 377)(footnotes omitted).

Evidence in an opposition to a motion for remand is treated as an amendment to the notice of removal and can be considered for purposes of establishing the amount in controversy. Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n. 1 (9th Cir. 2002). This evidence may include settlement letters, affidavits, declarations, and a party's refusal to stipulate that damages are below the statutory threshold. See Babasa v. LensCrafters, Inc., 498 F.3d 972, 975 (9th Cir. 2007) (quoting Cohn, 281 F.3d at 840) ("We previously have held that '[a] settlement letter is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the plaintiff's claim.'"); Geerlof, No. 2:13-cv-02175-MCE, 2014 WL 1415974, at *4 (E.D. Cal. Apr. 14, 2014)(quoting Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010)) ("When a defendant must show that the amount in controversy exceeds the statutory amount, the defendant 'may rely upon affidavits and declarations to make that showing; . . . .'"); Morella v. Safeco Ins. Co. of Ill., No. 2:12-cv-00672-RSL, 2012 WL 2903084, at *1 (W.D. Wash. July 16, 2012) (finding that a refusal to stipulate was relevant although not conclusive in determining amount in controversy).

Here, Defendant has satisfied its burden of proving the amount in controversy exceeds the statutory amount. In its Notice of Removal, Defendant concluded that, based on the allegations in the complaint, the amount in controversy exceeds $75,000 in this case. (Def. Not. of Removal ¶ 10.) However, Defendant failed to provide any evidence beyond its assertion, and such conclusory allegations are insufficient to meet the preponderance of evidence standard. But Defendant's assertion is now supported by evidence presented in Defendant's Opposition to Plaintiff's Motion for Remand.

Specifically, Defendant presents evidence of Plaintiff's pre-litigation settlement demand of $196,000, Plaintiff's refusal to reduce the demand, and Plaintiff's refusal to stipulate that the amount in controversy does not exceed $75,000. (Decl. Caitlin R. Johnson ¶¶ 3, 4, 7; Def. Response to Pl. Evidentiary Objection, Ex. A (attaching the actual settlement letter from Plaintiffs in response to Plaintiff's evidentiary objection).) As the Ninth Circuit has made clear, "the amount in controversy inquiry in the removal context is not confined to the face of the complaint." Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). Instead, "the defendant 'may rely upon affidavits and declarations'" to show that the amount in controversy exceeds the statutory amount. Geerlof, No. 2:13-cv-02175-MCE, 2014 WL 1415971, at *4 (quoting Lewis, 627 F.3d at 400). Here, the settlement demand outlines in a reasonable manner the basis for Plaintiff's settlement amount, which is above $75,000 even without the punitive damages included. Because Defendant's calculations are reasonably supported by the evidence it now submits, the Court finds Defendant has established that the amount in controversy exceeds $75,000.

IV. CONCLUSION

For the reasons discussed above, the Court DENIES Plaintiff's Motion to Remand. (Dkt. No. 15.) Plaintiff's Evidentiary Objection is OVERRULED. (Dkt. No. 19.) IT IS SO ORDERED. Dated: December 9, 2015

/s/_________

DEAN D. PREGERSON

United States District Judge