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Cayer v. The Vons Companies

United States District Court, D. Nevada

July 21, 2017

MARTIN CAYER, Plaintiff,
THE VONS COMPANIES, a Michigan Corporation; SUSAN HUTCHISON, an individual; DOES I through X and ROE CORPORATIONS I through X, inclusive, Defendants.


          Gloria M. Navarro, Chief Judge

         Pending before the Court is the Motion to Remand, (ECF No.12), filed by Martin Cayer (“Plaintiff”). Defendants The Vons Companies (“Vons”) and Susan Hutchison (“Hutchison”) (collectively “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.

         I. BACKGROUND

         This 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 suit. (Id.).

         Plaintiff 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).


         If a 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.

         “If 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).


         This 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.[1] (Pet. of Removal 2:16-28; 3:1-28; 4:1-25).

         In the 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.

         a. Attorneys' Fees

         Defendants 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).

         It is 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 ...

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