United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
parties in this case dispute whether Defendants Emerald
Grande, LLC (“Emerald”) and Wyndham Vacation
Resorts, Inc. (“Wyndham”) (collectively,
“Defendants”) pressured and deceived Plaintiff
Eileen Habacon into purchasing a timeshare interest. Before
the Court is Plaintiff's motion to remand
(“Motion”). (ECF No. 10.) The Court has reviewed
Defendants' response (ECF No. 14). No. reply was filed.
For the following reasons, the Court grants Plaintiff's
Motion and remands this case to the Eighth Judicial District
following allegations come from the Complaint unless
otherwise indicated. (ECF No. 3-1.)
alleges that Defendants pressured and deceived her into
purchasing a timeshare interest. (Id. at 6.)
According to the Complaint, Plaintiff agreed to attend a
two-hour timeshare presentation that ended up lasting five
hours and culminated in the execution of a contract
(“Contract”) for the purchase of a timeshare
interest in September 2015. (Id. at 7-8.) The
parties agreed that the purchase price of the timeshare was
$17, 679. (Id. at 9; ECF No. 14 at 3.) Plaintiff
paid for the timeshare with a down payment in the amount of
$2, 677.35, and a loan in the amount of $15, 001.65, financed
through Emerald. (ECF No. 3-1 at 9-10; ECF No. 14 at 3.)
Plaintiff has paid an additional $9, 314.76 in principal and
interest payments as well as $1, 970.61 in maintenance and
other fees. (ECF No. 14 at 4.) At the time the Complaint was
filed, Plaintiff had paid a total of $13, 962.72 for her
timeshare. (Id. at 4.) The parties seem to agree
that the Contract obligates Plaintiff to pay the remaining
principal and interest ($19, 346.04) as well as future
maintenance fees for the timeshare ($4, 442.04).
(Id. at 5; see ECF No. 10 at 5 (discussing
the remaining principal and interest and failing to dispute
that future maintenance fees are contractually obligated as
filed her Complaint in the Eighth Judicial District Court
(ECF No. 3-1 at 4), and Defendants removed based on diversity
jurisdiction (ECF No. 3 at 2).
asserts the following claims in the Complaint: (1) violation
of various provisions of the Nevada Deceptive Trade Practices
Act, NRS Ch. 598; (2) violation of NRS Ch. 119A.710 related
to time shares; (3) fraud in the inducement; (4) negligent
misrepresentation; (5) breach of implied covenant of good
faith and fair dealing; and (6) violation of the Florida
Vacation Plan and Timesharing Act, Fla. Stat. § 721.02
et seq. (ECF No. 3-1 at 10-17.) Plaintiff seeks
rescission of the Contract as well as actual damages,
punitive damages, civil penalties, treble damages, and
attorneys' fees. (Id. at 12-13, 18.)
courts are courts of limited jurisdiction, having
subject-matter jurisdiction only over matters authorized by
the Constitution and Congress. U.S. Const. art. III, §
2, cl. 1; e.g., Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in
state court may be removed to federal court if the federal
court would have had original jurisdiction over the suit at
commencement of the action. 28 U.S.C. § 1441(a).
However, courts strictly construe the removal statute against
removal jurisdiction, and “[f]ederal jurisdiction
must be rejected if there is any doubt as to the
right of removal in the first instance.” Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (emphasis
added). The party seeking removal bears the burden of
establishing federal jurisdiction. Durham v. Lockheed
Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).
establish subject matter jurisdiction pursuant to diversity
of citizenship under § 1332(a), the party asserting
jurisdiction must show: (1) complete diversity of citizenship
among opposing parties and (2) an amount in controversy
exceeding $75, 000. 28 U.S.C. § 1332(a). Where it is not
facially evident from the complaint that $75, 000 was in
controversy at the time of removal, a defendant seeking
removal must prove, by a preponderance of the evidence, that
the amount in controversy requirement is met. Valdez v.
Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).
preponderance of the evidence standard, a removing defendant
must “provide evidence establishing that it is
‘more likely than not' that the amount in
controversy exceeds” the jurisdictional minimum.
Id. at 1117 (citations omitted). As to the kind of
evidence that may be considered, the Ninth Circuit has
adopted the “practice of considering facts presented in
the removal petition as well as any
‘summary-judgment-type evidence relevant to the amount
in controversy at the time of removal.'”
Matheson v. Progressive Specialty Ins. Co., 319 F.3d
1089, 1090 (9th Cir. 2003) (quoting Singer v. State Farm
Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)).
Conclusory allegations are insufficient. Matheson,
319 F.3d at 1090 (citation omitted).
does not request a specific amount of damages in the
Complaint. (See generally ECF No. 3-1.) Thus,
Defendants must prove, by a preponderance of the evidence,
that the amount in controversy requirement is satisfied.
Valdez, 372 F.3d at 1117. Defendants have not made
this showing. Defendants argue that the amount in controversy
exceeds $75, 000 based on (1) the amount Plaintiff has
already paid for her timeshare ($13, 962.72); (2) the
remaining principal and interest on Plaintiff's loan
($19, 346.04); (3) future maintenance fees for the timeshare
($4, 442.04); (4) punitive damages; (5) attorneys' fees
between $35, 000 and $70, 000; and (6) treble damages and
civil penalties. (ECF No. 14 at 3-8.) The Court finds that
the amount in controversy consists of the first three amounts
plus Defendants' low-end estimate of ...