United States District Court, D. Nevada
ORDER GRANTING MOTION TO REMAND CASE TO STATE COURT,
(ECF NO. 12)
P. GORDON, UNITED STATES DISTRICT JUDGE
Insurance Services Offices, Inc. (ISO) removed this case to
federal court on September 14, 2017, invoking this
court's diversity and federal question jurisdiction. ECF
No. 1. Plaintiff Myesha Prather, appearing pro se,
moves to remand the case to state court, disputing that this
court can assert subject matter jurisdiction. ECF No. 12. Had
Prather properly pleaded her Third Amended Complaint, no
federal question would arise. And her newly-filed Fourth
Amended Complaint drops the only purported federal claim.
Moreover, because her claims do not plausibly suggest that
over $75, 000 is at issue, this court cannot assert diversity
jurisdiction. I therefore grant Prather's motion to
state-court actions that originally could have been filed in
federal court may be removed to federal court by the
defendant." Caterpillar Inc. v. Williams, 482
U.S. 386, 392, (1987). Federal courts are courts of limited
jurisdiction. Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). "A federal court
is presumed to lack jurisdiction in a particular case unless
the contrary affirmatively appears." Stock West,
Inc. v. Confederated Tribes of the Colville Res., 873
F.2d 1221, 1225 (9th Cir. 1989). "Federal jurisdiction
must be rejected if there is any doubt as to the right of
removal in the first instance." Gaits v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing
Libhart v. Santa Monica Dairy Co., 592 F.2d 1062,
1064 (9th Cir. 1979)). Thus, courts "strictly construe
the removal statute against removal jurisdiction."
Id. "The 'strong presumption' against
removal jurisdiction means that the defendant always has the
burden of establishing that removal is proper."
Id. Remand is required if the court lacks subject
matter jurisdiction. 28 U.S.C. § 1447(c); see also
Aguon-Schulte v. Guam Election Comm'n, 469 F.3d
1236, 1240 (9th Cir. 2006) ("[R]emand may be ordered
either for lack of subject matter jurisdiction or for
'any defect' in the removal procedure.").
Federal Question Jurisdiction.
time ISO removed this case, Prather's Third Amended
Complaint was the operative pleading. That pleading asserted
12 state-law causes of action and one claim purportedly
arising under the federal Fair Credit Reporting Act. ECF No.
12. ISO contends this court has federal question jurisdiction
because of that one brief reference to FCRA.
November 16, 2017, Prather filed a Fourth Amended Complaint.
ECF No. 26. Although Prather did not seek court permission to
do so, ISO consented to the filing in writing. See
ECF No. 22 ("Plaintiff has represented that she will
file a Fourth Amended Complaint by November 10, 2017. To
avoid the unnecessary costs of responding to an inoperative
complaint, Plaintiff agreed to Defendant's counsel's
request to extend the time for Defendant to file its
responsive pleading through and including November 30,
2017."); see also ECF No. 28 (stipulation for
extension of time to respond to Fourth Amended Complaint).
Thus, the Fourth Amended Complaint was properly filed under
Federal Rule of Civil Procedure 15(a)(2).
Fourth Amended Complaint eliminates the purported FCRA claim.
Because the only purported federal question has been dropped,
I have discretion to remand. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988) ("[W]hen the
federal-law claims have dropped out of the lawsuit in its
early stages and only state-law claims remain, the federal
court should decline the exercise of jurisdiction by
dismissing the case without prejudice.").
I were to disregard the Fourth Amended Complaint and consider
only Prather's Third Amended Complaint, remand would be
appropriate. In that pleading, Prather's Thirteenth Cause
of Action, in totality, states: "(Fcra (sic) Violations)
19. Plaintiff restates all preceeding (sic) and subsequent
allegations as though fully set forth herein." ECF No.
12 at 13. Although Prather was presumably referencing the
federal Fair Credit Reporting Act, she made no reference to
any particular statute. In her motion to remand, she admits
that her Third Amended Complaint was not well-pleaded, and it
was not her intent to assert a claim under the FCRA.
Id. at 3. The entirety of that pleading confirms
presence or absence of federal-question jurisdiction is
governed by the 'well-pleaded complaint rule, ' which
provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff s
properly pleaded complaint." Caterpillar,
482 U.S. at 392 (emphasis added). See also, Gully v.
First Nat"I Bank in Meridian, 299 U.S. 109, 113
(1936) (The federal issue cannot be "merely a possible
or conjectural one . . . ."). One exception to the
well-pleaded complaint rule is the artful-pleading doctrine:
plaintiffs cannot "avoid removal jurisdiction by
artfully casting their essentially federal law claims as
state-law claims." Federated Dep'tStores, Inc.
v. Moitie, 452 U.S. 394, 397 n. 2, (1981).
it appears that the plaintiff may have carefully crafted her
complaint to circumvent federal jurisdiction, courts
"consider whether the facts alleged in the complaint
actually implicate a federal cause of action."
Mikulski v. Centerior Energy Corp., 501 F.3d 555,
561 (6th Cir. 2007). So too where, as here, the plaintiff
appears to have incorrectly included a reference to a federal
statute, the court should consider the facts alleged in the
complaint to determine whether a federal cause of action
Third Amended Complaint alleges that ISO falsely accused her
of being involved with an insurance fraud ring and similar
wrongdoing. ECF No. 12 at 11. She asserts slander, libel,
defamation, and other similar claims. She admits she did not
intend to assert a claim under the FCRA, and her allegations,
while not the most articulate, back that up. The allegations
of a complaint filed by a.pro se plaintiff,
"however inartfully pleaded are held to less stringent
standards than formal pleadings drafted by lawyers."
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quotations
omitted). Had Prather properly pleaded her allegations and
claims, no federal law would be implicated. That is confirmed
by her subsequent Fourth Amended Complaint. Because her true
causes of action do not arise under the Constitution, laws,
or treaties of the United States, no federal question
jurisdiction exists. 28 U.S.C. § 1331.
cases where a plaintiffs state court complaint does not
specify a particular amount of damages, the removing
defendant bears the burden of establishing, by a
preponderance of the evidence, that the amount in controversy
exceeds [$75, 000]. Under this burden, the defendant must
provide evidence establishing that it is 'more likely
than not' that the amount in controversy exceeds that
amount." Sanchez v. Monumental Life Ins. Co.,102 F.3d 398, 404 (9th Cir. 1996). Broad allegations that the
jurisdictional amount is met, "although attempting to
recite some magical incantation, neither overcome[ ] the
strong presumption against removal jurisdiction, nor
satisf[y][the defendant's burden of setting forth, in the
removal petition itself, the underlying facts supporting its
assertion that the amount in controversy exceeds $75,
000." Abrego Abrego v. The Dow Chem. Co., 443
F.3d 676, 689 (9th Cir. 2006) (emphasis and quotation
omitted); see also ...