Opinion
CIV. NO. 20-00015 LEK-KJM
04-10-2020
ANDREA ILIM DECOSTA, Plaintiff, v. HEADWAY WORKFORCE SOLUTIONS, Defendant.
ORDER SUA SPONTE REMANDING CASE TO STATE COURT
On December 23, 2019, pro se Plaintiff Andrea Llima DeCosta ("Plaintiff") filed her Complaint in the Third Circuit Court for the State of Hawai`i ("State Court"). [Notice of Removal, Exh. 1 (Complaint).] On January 10, 2020, Defendant Headway HR Solutions, Inc. ("Defendant") removed the case to this district court. [Dkt. no. 1.] On February 10, 2020, Plaintiff filed a document which was construed, in part, as a motion to remand ("Motion to Remand"). [Dkt. no. 9 (Motion to Remand); EO: Court Order Directing Plaintiff and Defendant to File Proof Regarding the Amount in Controversy, filed 2/14/20, (dkt. no. 13).] Although the parties stipulated to withdraw the Motion to Remand, they were ordered by this Court to file evidence regarding the amount controversy. [Dkt. nos. 15 (stipulation, filed 2/19/20); EO: Order Regarding Defendant's Letter Request, filed 2/24/20, (dkt. no. 18).] On February 27, 2020, the parties both filed their statements regarding the amount in controversy. [Dkt. nos. 19 (Def.'s "Mem. in Opp."), 20 ( "Pltf.'s Decl.")).] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii ("Local Rules"). The instant case is sua sponte remanded to the State Court for the reasons stated below.
BACKGROUND
According to the Complaint, Defendant contracted with Research Triangle Institute ("RTI") "to provide field interviewers to collect public health data under a federal contract." [Complaint at pg. 2.] Plaintiff alleges she was employed by Defendant as a field interviewer from November 2017 until January 2019 but did not receive her notice of termination until April 26, 2019. [Id. at pgs. 2-3.] Plaintiff's duties as a field interviewer were to travel to the homes of residents on the island of Hawai`i to conduct surveys of the residents regarding their drug use. Plaintiff's visits were unannounced, however they were preceded by a letter of introduction mailed in advance. Plaintiff disputes whether the residents actually received the letter of introduction prior to her arrival. [Id. at pg. 6, ¶¶ 10-11.]
Plaintiff's claims arise from allegations that she was subjected to sexual harassment by one potential survey respondent, "who repeatedly asked Plaintiff to provide the survey respondent with a massage, in exchange for the survey respondent's participation in the survey" ("Sexual Harassment Incident"). [Id. at pg. 1, ¶ 3.] Plaintiff also alleges she was threatened with gun violence by another potential survey respondent ("Gun Violence Incident"). [Id.] Based on these incidents, and Defendant's responses to them, Plaintiff claims Defendant: failed to provide "adequate supervision and safe work space/conditions" ("Count I"); [id. at pg. 1, at ¶ 1;] engaged in disability discrimination ("Count II"); [id. at pg. 7, at ¶¶ 1-3;] and retaliated against her ("Count III"), [id. at 8, ¶¶ 1-2]. Count II alleges Plaintiff's termination was due to discrimination on the basis of her post-traumatic stress disorder ("PTSD") and mental illness. [Id. at pg. 7, at ¶¶ 1, 3.] Count III alleges Plaintiff's termination was due to, or related to, "Plaintiff's requests for reasonable work accommodations." [Id. at pg. 8, ¶ 2.] Plaintiff also alleges the Sexual Harassment Incident and the Gun Violence Incident "led to Plaintiff being placed on worker's compensation." [Id. at pg. 4, ¶ 1.] The Complaint seeks "unspecified special and general damages" related to "Plaintiff's real and tangible wage loss and personal injury." [Id. at pg. 8.]
Defendant removed the action based on diversity jurisdiction. [Notice of Removal at ¶ 3.] Defendant argued removal was proper because Plaintiff and Defendant are citizens of different states and the amount in controversy exceeds $75,000. [Notice of Removal at ¶¶ 6-7.]
STANDARD
28 U.S.C. § 1441(a) states:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
District courts have original jurisdiction over civil actions in two instances: 1) where a federal question is presented in an action arising under the Constitution, federal law, or treaty; or 2) where diversity of citizenship and amount in controversy requirements are met. 28 U.S.C. §§ 1331, 1332. In relevant part, "[j]urisdiction founded on 28 U.S.C. § 1332 requires that the parties be in complete diversity and the amount in controversy exceed $75,000." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam).
This district court has stated:
"Removal and subject matter jurisdiction statutes are 'strictly construed,' and a
'defendant seeking removal has the burden to establish that removal is proper and any doubt is resolved against removability.'" Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014) (quoting Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008)). Thus, "'[i]t is to be presumed that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction.'" Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006))U.S. Bank, N.A. v. Mizukami, CIVIL NO. 15-00523 JMS-BMK, 2016 WL 632195, at *2 (D. Hawai`i Feb. 17, 2016) (alterations in U.S. Bank). In accordance with the strong presumption against removal, in cases "[w]here it is not facially evident from the complaint that more than $75,000 is in controversy, the removing party must prove, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional threshold. Matheson, 319 F.3d at 1090 (citations omitted).
(alterations in original). This "'strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper,' and that the court resolves all ambiguity in favor of remand to state court." Id. (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).
DISCUSSION
I. Amount in Controversy
Diversity of citizenship is not in dispute. Therefore, subject matter jurisdiction is contingent on the amount in controversy exceeding $75,000, excluding interest and costs. See § 1332(a). As an initial matter, the amount of damages Plaintiff seeks cannot be determined from the Complaint, as the Complaint simply requests "unspecified special and general damages." [Complaint at pg. 8.] Therefore, Defendant must demonstrate by a preponderance of the evidence that the amount in controversy is satisfied. See Matheson, 319 F.3d at 1090. Defendant argues that lost wages in the form of both back pay and front pay are proper components of the amount in controversy calculation. [Mem. in Opp. at 8 (some citations omitted) (citing Garcia v. ACE Cash Express, Inc., 2014 U.S. Dist. LEXIS 76351, at *11 (C.D. Cal. May 30, 2014)).] Defendant also argues Plaintiff's attorneys' fees and punitive damages should be included in the calculation, and those sums establish that the amount in controversy exceeds the jurisdictional threshold. [Id. at 11-17.]
Defendant alleges it is a citizen of Delaware and North Carolina, and that Plaintiff is a citizen of Hawai`i. [Notice of Removal at ¶¶ 4-5.] In light of the withdrawal of Plaintiff's Motion to Remand, Plaintiff has presented no facts or argument to the contrary.
Garcia, No. SACV 14-0285-DOC (RNBx), is also available at 2014 WL 2468344.
A. Lost Wages
At the time of her termination, Plaintiff was working 25.5 hours per week, earning $21.51 per hour, for a weekly wage of $548.50, and yearly earnings of $28,522.60. [Mem. in Opp., Decl. of Mary Thornbury ("Thornbury Decl.") at ¶¶ 10-13.] Although a trial date has not been set, Plaintiff's counsel estimates a trial date of January 10, 2022 based on the median time from case inception to trial in this district court, as calculated by the Administrative Office of the United States Courts and republished by the Ninth Circuit on http://cdn.ca9.uscourts.gov/datastore/general/2018/08/22/HI_June2018.pdf. [Mem. in Opp., Decl. of Andrew L. Pepper ("Pepper Decl.") at ¶¶ 3-4 (citing Exh. A (U.S. District Court - Judicial Caseload Profile).] Defendant argues the back pay calculation for the time period spanning from Plaintiff's termination on April 3, 2019 through the estimated trial date of January 10, 2022 amounts to "$21.51 per hour x 25.5 hours per week x 193.71 weeks, for a total of $106,250.90." [Mem. in Opp. at 10 (citing Thornbury Decl. at ¶ 17).] Defendant also estimates Plaintiff, if successful, would receive front pay at "$21.51 per hour x 25.5 hours per week x 104 weeks (or two years) [which] equals $57,044.52." [Id. at 11 (citing Thornbury Decl. at ¶ 18).] Therefore, Defendant argues the amount in controversy, with regard to back pay and front pay, is $163,295.42. [Id. (citing Thornbury Decl. at ¶ 19).]
Mary Thornburg is the Senior Vice President of Human Resources for Defendant. [Thornburg Decl. at ¶ 1.]
1. Back Pay
In determining whether the amount in controversy exceeds $75,000, the court may consider evidence submitted subsequent to the notice of removal. Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (per curiam) (citing Willingham v. Morgan, 395 U.S. 402, 407 n.3, 89 S. Ct. 1813, 23 L. Ed. 396 (1969)).
Here, Plaintiff argues removal was improper because she is seeking less than $75,000. [Pltf.'s Decl. at ¶¶ 9, 20.] Plaintiff argues she "has suffered personal injury, in the form of emotional distress and lost wages, due to Defendant's negligent, intentional, discriminatory, or retaliatory acts that are not exclusively voided by any workers compensation benefits" and that "[t]he lost wages total approximately $23,104.76." [Id. at ¶ 9] It appears Plaintiff arrived at this figure by multiplying the difference between her pre-injury weekly wage of $803 and the amount she receives pursuant to her worker's compensation benefit, $534.34, by the number of weeks that have elapsed since she has been out of work, eighty-six. See id. at ¶¶ 6-9. It is not facially apparent whether Plaintiff is seeking damages in excess of the lost wages.
In Plaintiff's Declaration there are two paragraphs on page three listed as number nine, the amount sought by Plaintiff, and other cited information related thereto, are found in the first paragraph nine.
Plaintiff alleges her "average wages at the time of the injury were calculated by the worker's compensation carrier, Traveler's, to be $803 per week." [Pltf.'s Decl. at ¶ 6.]
With regard to Defendant's back pay calculations, the Court finds that Defendant has not met its burden of showing, by a preponderance of the evidence, that the amount in controversy exceeds $75,000. In calculating back pay, a court may consider lost wages up until the date of a potential trial. "If a plaintiff claims at the time of removal that her termination caused her to lose future wages, and if the law entitles her to recoup those future wages if she prevails, then there is no question that future wages are 'at stake' in the litigation." Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 417 (9th Cir. 2018). Here, Plaintiff's Complaint does not specifically request future lost wages, however, Plaintiff alleges she suffered "a loss of wages and loss of employment." [Complaint at pg. 2, ¶ 6.] The loss of employment is construed as a reference to the loss of continuing and future wages. Therefore, because Plaintiff put future wages in controversy, the Court will include lost wages up until the date of trial.
Defendant argues the trial date should be estimated to be two years from the Notice of Removal. [Mem. in Opp. at 9 n.3.] However, recent authority supports an estimation of one year between the filing of a notice of removal and the trial. See, e.g., Fisher v. HNTB Corp., No. 2:18-cv-08173-AB-MRW, 2018 WL 6323077, at *5 (C.D. Cal. Dec. 3, 2018). "Despite the median time to trial estimate that Defendant points out, [some district courts] 'have often found that one year from the date of removal is a 'conservative estimate of the trial date' in employment cases.'" Snow v. United Parcel Serv., Inc., Case No. EDCV 20-025 PSG (AFMx), 2020 WL 1638250, at *3 (C.D. Cal. Apr. 1, 2020) (some citations omitted) (quoting Reyes v. Staples Office Superstore, LLC, No. CV 19-07086-CJC (SKx), 2019 WL 4187847, at *3 (C.D. Cal. Sept. 3, 2019)). At least one district court expressly reasoned that the one year "estimate is more realistic and specific to employment cases than [the median] estimate, which considers the time-to-trial regardless of the type of case." Id. Here, one year is an appropriate estimate of the time to trial. Therefore, the amount in controversy includes lost wages from the date of Plaintiff's termination on April 3, 2019 through a potential trial date of January 10, 2020. This is a period of 93 weeks, which, at $548.50 per week, results in an amount in controversy of $51,010.50.
Although the back pay calculation would likely be further reduced by Plaintiff's worker's compensation benefits, the Court does not need to reach that calculation because the amount in controversy does not approach the jurisdictional threshold. See Archibold v. Time Warner Cable, Inc., No. CV 15-1776 FMO (JPRx), 2015 WL 3407903, at *3 (C.D. Cal. May 27, 2015) (stating that worker's compensation and unemployment insurance benefits "constitute mitigation of damages, and are taken into account in determining the amount in controversy" (some citations omitted) (citing Lamke v. Sunstate Equipment Co., LLC, 319 F. Supp. 2d 1029, 1033 (N.D. Cal. 2004) (finding that the court "should engage in an inquiry into the facts with respect to mitigation of damages)); see also Lamke, 319 F. Supp. 2d at 1033 (stating the mitigation of damages inquiry is analyzed "under the preponderance of the evidence test applicable" to remand). Because the amount in controversy does not reach the jurisdictional threshold, it is not necessary to determine by how much the amount in controversy falls short.
2. Front Pay
Defendant asserts two years of front pay should be included in the amount in controversy, as a "conservative assumption that it will take two years for Plaintiff to find comparable work." [Mem. in. Opp. at 10 (citations and emphasis omitted).] Based on the two-year assumption, Defendant estimates front pay damages to be $57,044.52. [Id. at 11 (citing Thornbury Decl. at ¶ 18).] Defendant did not reference any facts to support the estimate of two years. Instead, Defendant lists cases from various courts of appeal that all similarly hold, in general, that it was not an abuse of discretion for the respective lower court to award front pay for a period of approximately ten years. See id. (some citations omitted) (citing Pierce v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 574 (7th Cir. 1995)). Defendant's listing of cases that ultimately awarded front pay is not persuasive to show that an award of front pay is likely here because Defendant did not establish any connection between the facts of those cases and the facts of the instant action. Without any argument pertaining to the facts and circumstances of this case, the two-year estimate is an ungrounded speculation, and the likelihood of a front pay award has not been demonstrated by a preponderance of the evidence. Therefore, the Court declines to include front pay in calculating the amount in controversy.
In sum, $51,010.50 will be included in the amount in controversy to account for Plaintiff's lost wages.
B. Attorneys' Fees
Defendant argues the Court should include attorneys' fees in the amount in controversy calculation because "[a]lthough Plaintiff currently is pro se, as a practical matter she will need to hire counsel if she wishes to continue pursuit of her claims." [Mem. in Opp. at 13 (emphasis omitted).] Defendant argues that "the Court should assume that Plaintiff will retain counsel as 'a court must include future attorneys' fees recoverable by statute or contract when assessing whether the amount-in-controversy requirement is met.'" [Id. (quoting Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 794 (9th Cir. 2018).
Defendant's reliance on Fritsch is misplaced. First, the plaintiff in Fritsch brought his complaint as a putative class action, which was removed pursuant to the Class Action Fairness Act ("CAFA"). 899 F.3d at 788. A class action requires representation by an attorney, unless a statute provides otherwise. Fed. R. Civ. P. 23(g)(1). Here, there has been no allegation that Plaintiff is bringing claims under a statute that requires her to hire counsel, nor that she is contemplating doing so. Further, the Ninth Circuit held that:
if a plaintiff would be entitled under a contract or statute to future attorneys' fees, such fees are at stake in the litigation and should be included in the amount in controversy. The defendant retains the burden, however, of proving the amount of future attorneys' fees by a preponderance of the evidence.Fritsch, 899 F.3d at 788. Here, Defendant has not met its burden. Even if Plaintiff would be entitled to attorneys' fees under a statute or contract, Defendant's counsel's assessment that Plaintiff will need to hire counsel to be successful does not satisfy the preponderance of the evidence standard. That is to say, Defendant's counsel's assessment of what Plaintiff should do is not evidence of what is more likely than not to happen. Next, in the Ninth Circuit's usage of "future attorneys' fees," the word "future" modifies the word "fees," not the word "attorneys.'". See id. at 794. There, the attorneys' fees a party had incurred from the inception of the case to the time the notice of removal was filed were distinguished from attorneys' fees that were likely to be incurred subsequent to the notice of removal. The Ninth Circuit held that the appropriate measure for the amount in controversy included both the fees incurred up to the time of removal and the fees likely to be incurred subsequent to removal. Id. Therefore, the fees that were included in the amount in controversy calculation were those of an already-hired attorney. There is no indication that the unsupported speculation a pro se party will choose to hire an attorney at some point in the future is sufficient to place those hypothetical sums at stake in the litigation. Finally, the general presumption against removal does not attach to removal pursuant to CAFA. Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014). Here, the removal was not made pursuant to CAFA, so the presumption against removal is in full effect. Therefore, Fritsch is distinguishable from the instant case and does not support finding that an estimation of attorneys' fees attaches to a pro se plaintiff for the purpose of determining amount in controversy.
For these reasons, no attorneys' fees will be included in the amount in controversy calculation.
C. Punitive Damages
Defendant argues punitive damages are properly considered in the amount in controversy because an award of punitive damages is possible under 42 U.S.C. § 1981a. [Mem. in Opp. at 14 & n.6.] "It is well established that punitive damages are part of the amount in controversy in a civil action." Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) (some citations omitted) (citing Bell v. Preferred Life Assur. Society, 320 U.S. 238, 240, 64 S.Ct. 5, 88 L.Ed. 15 (1943)). But, a removing defendant "must present evidence that punitive damages will more likely than not exceed the amount needed to increase the amount in controversy to $75,000." Burk v. Med. Sav. Ins. Co., 348 F. Supp. 2d 1063, 1069 (D. Ariz. 2004) (citing McCaa v. Mass. Mut. Life Ins. Co., 330 F. Supp. 2d 1143, 1149 (D. Nev. 2004)). Therefore, to establish punitive damages as part of the amount in controversy calculation, "a party asserting federal diversity jurisdiction may . . . introduce evidence of jury verdicts in cases involving analogous facts." Fisher, 2018 WL 6323077, at *6 (citation and quotation marks omitted). Defendant lists four allegedly analogous cases in support of its argument that punitive damages would satisfy the jurisdictional threshold:
Gibson has been superseded by statute on other grounds. See, e.g., Abikhalil v. Am. Med. Response Ambulance Serv., Inc., No. CV 15-9358 PSG (PJWx), 2016 WL 429764, at *2 (C.D. Cal. Feb. 2, 2016).
Ellen Harris v. The Queen's Medical Center[Mem. in Opp. at 16-17 (citing Decl. of Nicole K. Hudspeth ("Hudspeth Decl."), Exh. B (collection of reports from www.verdictsearch.com ("VerdictSearch")) (some emphases omitted); Hudspeth Decl. at ¶¶ 3-4.] Based on Defendant's counsel's representations, these are cases where punitive damages were awarded and therefore support a determination that an award of punitive damages in the instant case is likely and will push the amount in controversy over the jurisdictional threshold. However, Defendant did not analogize, explain, compare, contrast or identify reasons why the cited cases are factually similar to the instant action. "While citing these cases merely illustrates that punitive damages are possible, it in no way shows that a punitive damage award is likely or even probable in the instant action." See Barrera v. Albertsons LLC, Case No. 2:18-CV-10637-RGK-AFM, 2019 WL 1220764 (C.D. Cal. Mar. 15, 2019) (citation and quotation marks omitted). "[T]he mere possibility of a punitive damages award is insufficient to prove that the amount in controversy requirement has been met." Hill v. Avis Budget Car Rental, LLC, No. CV 14-1350 FMO (MANx) 2014 WL 1325556, at *3 (C.D. Cal. Apr. 2, 2014) (citations and quotation marks omitted). Therefore, the mere fact that other cases have resulted in punitive damages awards is insufficient to warrant the inclusion of punitive damages in the amount in controversy where Defendant failed to carry its burden of demonstrating similarity between the sample cases and the instant action. See Reyes, 2019 WL 4187847, at *4 (declining to include punitive damages in the amount in controversy calculation where the defendant had "made no effort to explain why [the sample cases] are similar" to the facts at issue (citation omitted)).
United States District Court, Honolulu, Hawaii Jury Awarded $3,200,000 damages for racial discrimination.
February 28, 2018
Keri Gall v. The Funny Farm, Inc., a Hawaii Corporation, and Kimberly W. Dey, Individually
Circuit Court for the First Circuit, Hawaii Jury Awarded $930,000 damages for retaliatory termination.
September 9, 2010
Rosi Godinez v. Alta-Dena Certified Dairy, LLC, Maria Flores, and Does 1-20, Inclusive
United States District Court, Central District, Los Angeles, California
Jury Awarded $545,000 for wrongful termination and disability discrimination, inter alia
March 14, 2016
Larkin Landau v. County of Riverside, a Governmental Entity
United States District Court, Central District, Los Angeles, California
Jury Awarded $500,000 damages for inter alia, disability discrimination, under the Americans with Disabilities Act.
February 12, 2010
The cases included by Defendant were not printed in a recognized reporter or presented in a judicially noticeable format. The Court may take judicial notice of facts that are "not subject to reasonable dispute" because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). Here, the VerdictSearch reports appear to be documents written by a VerdictSearch employee based on: 1) interviews with one or more of the attorneys involved; see, e.g., Hudspeth Decl., Exh. B at CM/ECF pg. 3 of 15 ("This report is based on information that was provided by plaintiff's counsel. Defense counsel did not respond to the reporter's phone calls."); or 2) an interview with an involved attorney and review of a newspaper article, see id. at CM/ECF pg. 6 of 15 ("This report includes information that was gleaned from an article published by the Star Advertiser and an interview of plaintiff's counsel. Defense counsel did not respond to the reporter's phone calls."). No other sources are cited. --------
Furthermore, even if the VerdictSearch reports were judicially noticeable, the facts of the cited cases are so distinguishable from those of the instant case that the cases would not be considered analogous, nor would they be helpful in determining whether to include punitive damages in the amount in controversy calculation. In Harris, an African-American nurse received a racist note in her work mailbox and a picture of a hangman's noose taped to her locker after reporting safety violations. [Hudspeth Decl., Exh. B at 2.] An expert testified about the symbolism of the noose to the African-American community and the jury found that the defendant employer had engaged in discrimination. [Id.at 2-3.] In Gall, a female employee, who lived with her family in employer provided housing, was terminated after reporting that a male co-worker attempted to kiss her. [Id. at 5.] As a result of her termination, she also lost her home. [Id.] According to the VerdictSearch report, while she sought lost wages, and general and punitive damages, she actually received emotional distress damages and wage loss damages, but none of the damages she received were expressly attributed to punitive or exemplary damages. See id. at 5-6. Similarly, nothing in the Godinez VerdictSearch report submitted by Defendant indicates the plaintiff was awarded punitive damages. See id. at 7-10. In Landau, the plaintiff was awarded damages for emotional distress, but there is no indication in the VerdictSearch report submitted by Defendant that she was awarded punitive damages. See id. at 11-15. Therefore, only one out of the four VerdictSearch reports submitted by Defendant expressly mentions that punitive damages were awarded, and that case, Harris, along with the other three cases, is factually distinguishable from the instant action. Thus, the cases submitted by Defendant do not provide evidence that punitive damages are more likely to be awarded than not.
For these reasons, Defendant has not met its burden. See Belton v. Hertz Local Edition Transporting, Inc., No. 19-cv-00854-WHO, 2019 WL 2085825, at *6 (N.D. Cal. May 13, 2019) (finding that, where the sample cases were factually distinguishable from the case at issue, the removing defendant had effectively submitted no evidence regarding damages, and the general presumption against removal required remand). Therefore, because "any doubt about the right of removal requires resolution in favor of remand," see Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citation omitted), and here the proffered punitive damages evidence has not diminished any doubt about the right of removal, punitive damages will not be included in the amount in controversy calculation.
D. Request for Limiting Affidavit or Declaration
Defendant requests that, in the event the Court is inclined to remand the instant case to state court, "the Court order Plaintiff to submit an affidavit or declaration capping her damages sought, including fees, at $75,000." [Mem. in Opp. at 17.] Defendant has not submitted any authority suggesting such an affidavit or declaration is required to calculate the amount in controversy, or to remand a case. Therefore, as an exercise of discretion, Defendant's request is denied.
II. Plaintiff's Request for Fees and Costs
Plaintiff argues removal of the instant case by Defendant was done in bad faith and requests that the Court order Defendant to pay Plaintiff $750.00. [Pltf.'s Decl. at ¶¶ 23-26.] "An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447. The award of fees and costs is at the discretion of the district court. Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). The removal statute provides for such fees because "[t]he process of removing a case to federal court and then having it remanded back to state court delays resolution of the case, imposes additional costs on both parties, and wastes judicial resources." Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005). However, "[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied." Id. at 141 (citations omitted). Therefore, "bad faith need not be demonstrated." Moore v. Permanente Med. Grp., Inc., 981 F.2d 443, 448 (9th Cir. 1992). Instead, the objectively reasonable basis is determined in light of whether the law in the Ninth Circuit is so clear "as to make Defendants' endeavor entirely frivolous." Lion Raisins, Inc. v. Fanucchi, 788 F. Supp. 2d 1167, 1175 (E.D. Cal. 2011).
Here, Plaintiff argues the $750 award is warranted based on Defendant's "frivolous, malicious and unsupported actions." [Pltf.'s Decl. at ¶ 21.] Plaintiff asserts Defendant's bad faith was demonstrated by the conduct of Defendant and Defendant's counsel throughout the litigation. [Id. at ¶ 24.] While the Court ultimately disagrees with Defendant's calculation of the amount in controversy, the law in the Ninth Circuit had not "clearly foreclosed the defendant's basis of removal." See Lussier, 518 F.3d at 1066. Therefore, removal was not "entirely frivolous." See Lion Raisins, 788 F. Supp. 2d at 1175. Furthermore, unusual circumstances are not present here. For these reasons, fees and costs will not be awarded to Plaintiff.
CONCLUSION
On the basis of the foregoing, the instant case is sua sponte REMANDED to the State of Hawai`i, Third Circuit Court. The Clerk's Office is DIRECTED to effectuate the remand on April 27, 2020, unless a timely motion for reconsideration of the instant Order is filed.
In light of the sua sponte remand, this Court will take no action on Defendant's Motion to Dismiss Tort Claims, filed February 11, 2020, [dkt. no. 12].
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 10, 2020.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge