Opinion
22-cv-02474-JCS
06-07-2022
SARAH RUBIN, Plaintiff, v. LADY BENJAMIN CANNON, et al., Defendants.
REPORT AND RECOMMENDATION FOR REMAND TO STATE COURT
RE: DKT. NOS. 4, 8
JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE
Defendant Lady Benjamin Cannon, pro se, removed this case from state court asserting diversity jurisdiction under 28 U.S.C. § 1332(a). The undersigned magistrate judge granted Cannon's application to proceed in forma pauperis and ordered her to show cause why the case should not be remanded sua sponte for failure to establish the requisite amount in controversy for diversity jurisdiction. Order to Show Cause (dkt. 4). Plaintiff Sarah Rubin moves to remand on the basis that despite Cannon's assertion to the contrary, Rubin and Cannon are both citizens of California and thus complete diversity of citizenship is not present, as well as various procedural defects. Mot. to Remand (dkt. 8). Cannon has not filed a response to the order to show cause or an opposition to Rubin's motion within the time permitted to do so.
Federal courts have limited subject matter jurisdiction and may only hear cases falling within their jurisdiction. Generally, a defendant may remove a civil action filed in state court if the action could have been filed originally in federal court. 28 U.S.C. § 1441. The removal statutes are construed restrictively so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). The Ninth Circuit recognizes a “strong presumption against removal.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal quotation marks omitted). Any doubts as to removability should be resolved in favor of remand. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). The defendant bears the 1 burden of showing that removal is proper. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). A district court may remand a case to state court sua sponte if it determines that jurisdiction is lacking. 28 U.S.C. §1447(c); see Smith v. Mylan, Inc., 761 F.3d 1042, 1043 (9th Cir. 2014).
To establish diversity jurisdiction under 28 U.S.C. § 1332(a), as Cannon asserts here, a removing defendant must show that there is complete diversity of the parties-i.e., no defendant is a citizen of the same state as any plaintiff-and that the amount in controversy exceeds $75,000. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). “[A] defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by [28 U.S.C.] § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant's allegation.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). “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).
Cannon still has not met her burden to show that the amount in controversy exceeds $75,000, nor has she rebutted Rubin's evidence that Rubin and Cannon are citizens of the same state. The undersigned therefore recommends that the Court GRANT Rubin's motion and REMAND this case to the California Superior Court for the County of San Francisco, where it was assigned case number CGC-21-590125, both for the reasons stated in Rubin's motion and sua sponte for the reasons stated in the undersigned's order to show cause.
Rubin seeks attorneys' fees totaling $6,000 for preparing her motion to remand. Attorneys' fees are available where a removal is unreasonable, see Martin v. Franklin Capital Corp., 546 U.S. 132, 140-41 (2005), as appears to be the case here, but Rubin's fees were not reasonably incurred. The undersigned had already ordered Cannon to show cause why the case should be remanded before Rubin filed her motion, and if Rubin believed additional arguments for remand might be necessary, the order to show cause also flagged the issue that a defendant who resides in the forum state (as Cannon concedes she does in her notice of removal) may not remove based on diversity jurisdiction. See Order to Show Cause at 2 n.1 (citing 28 U.S.C. § 1441(b)(2)). 2
To the extent there was any doubt as to whether Cannon could cure her failure to show a sufficient amount in controversy, a one-paragraph motion asserting the forum defendant issue, which as previously noted must be asserted by a party rather than sua sponte, would have been sufficient to ensure the case was remanded. Rubin did not raise that issue in her motion, instead incurring thousands of dollars in fees raising other more complex and unnecessary issues. The undersigned recommends that Rubin's request for attorneys' fees be DENIED. That said, Cannon is admonished that any further baseless removals may result in sanctions.
Order to Show Cause at 2 n.1 (citing Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 936 (9th Cir. 2006)).
Because not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c), this case will be reassigned to a United State district judge for all further proceedings, including action on the recommendations of this report. Any party may file objections to these recommendations no later than June 21, 2022. Cannon, who is not represented by counsel, is once again encouraged to contact the Federal Pro Bono Project's Pro Se Help Desk at (415) 782-8982 or FedPro@sfbar.org to schedule a telephonic appointment for free legal assistance. 3