United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion to Remand, (ECF No.12), filed
by Martin Cayer (“Plaintiff”). Defendants The
Vons Companies (“Vons”) and Susan Hutchison
“Defendants”) filed a Response, (ECF No. 15), and
Plaintiff filed a Reply, (ECF No. 16). For the reasons stated
herein, Plaintiff's Motion to Remand is GRANTED.
case arises from incidents that occurred while Plaintiff was
employed by Vons. (Compl. ¶¶ 7-57, ECF No. 1-3). In
the Complaint, Plaintiff seeks to recover amounts in excess
of $10, 000 for general damages, special damages, and
punitive damages. (Compl. ¶ 80). Additionally, Plaintiff
seeks two times actual damages pursuant to NRS 41.1395, an
unspecified amount for attorneys' fees, and costs of the
originally filed this case in Clark County District Court on
September 19, 2016. (Id.). On October 13, 2016,
Defendants removed the case pursuant to diversity
jurisdiction under 28 U.S.C. § 1332. (Pet. of Removal
1:19-25, ECF No. 1). In the instant Motion, Plaintiff now
seeks to remand to state court for failing to meet diversity
jurisdiction. (Mot. to Remand 3:3-8).
plaintiff files a civil action in state court, a defendant
may remove that action to a federal district court if the
district court has original jurisdiction over the matter. 28
U.S.C. § 1441(a). Removal statutes are strictly
construed against removal jurisdiction. Ritchey v. Upjohn
Drug Co., 139 F.3d 1313, 1317 (9th Cir. 1998).
“Federal jurisdiction must be rejected if there is any
doubt as to the right of removal in the first
instance.” Gaus v. Miles, 980 F.2d 564, 566
(9th Cir. 1992) (quoting Libhart v. Santa Monica Dairy
Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). The removing
defendant always has the burden of establishing that removal
is proper. Gaus, 980 F.2d at 566.
at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c).
“Where 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 v. Progressive Specialty Ins.
Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
Court has original jurisdiction over all civil actions in
which the amount in controversy: (1) exceeds the sum or value
of $75, 000 and (2) is between citizens of different states.
28 U.S.C. § 1332(a). In their Petition for Removal,
Defendants assert that they meet the criteria for diversity
jurisdiction because: (1) Plaintiff seeks damages in excess
of $75, 000 and (2) Plaintiff fraudulently joined
Hutchison. (Pet. of Removal 2:16-28; 3:1-28; 4:1-25).
instant Motion, Plaintiff contends that removal was improper
because the amount in controversy is below the jurisdictional
threshold, and Plaintiff now seeks to remand the case. (Mot.
to Remand 3:3-8). In their Response, Defendants assert that
the amount in controversy is met because Plaintiff: (a) fails
to calculate attorneys' fees in his summation of damages;
(b) incorrectly argues that punitive damages should not be
considered in determining the amount in controversy; and (c)
requests in his initial demand letter damages that exceed the
jurisdictional threshold. (Resp. 1:26-28; 7:23-25; 8:1-24).
The Court will address each of the arguments in turn.
assert that attorneys' fees should be included within the
amount in controversy calculation pursuant to NRS §
41.1395. (Resp. 5:15-18). Specifically, under NRS §
41.1395(2), attorneys' fees may be sought by the
Plaintiff. In opposition, Plaintiff contends that
attorneys' fees should not be included because Defendants
fail to provide an adequate estimate of probable
attorneys' fees. (Reply 5:1-3).
true that “where an underlying statute authorizes an
award of attorneys' fees, either with mandatory or
discretionary language, such fees may be included in the
amount in controversy.” Galt G/S v. JSS
Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998).
However, the test determining whether attorneys' fees may
be included in the amount in controversy varies within this
District. See Pereza v. Progressive Direct Ins. Co.,
No. 2:15-cv-77-JCM-VCF, 2015 WL 1549270, at *11 (D. Nev. Apr.
8, 2015) (considering attorneys' fees despite the
defendant providing “little support for the
amount”); but see Rocha v. State Farm Mut. Auto.
Ins. Co., No. 2:14-cv-1423-GMN-VCF, 2014 WL ...