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Guerrero v. Panda Express, Inc.

United States District Court, D. Nevada

May 1, 2019

VICENTE GUERRERO, Plaintiff,
v.
PANDA EXPRESS, INC., Defendant.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Plaintiff Vicente Gurerrero sued Defendant Panda Express, Inc., after he slipped, fell, and was injured in one of their restaurants in Las Vegas, Nevada. (ECF No. 1-2.) Defendant removed the case to this Court. (ECF No. 1.) Before the Court is Plaintiff's motion to remand because the amount in controversy does not exceed the $75, 000 jurisdictional threshold (the “Motion”).[1] (ECF No. 8.) Because Defendant has failed to carry its burden to show the amount in controversy requirement is satisfied-specifically because Plaintiff's settlement demands do not appear to reflect a reasonable estimate of Plaintiff's claim-the Court will grant Plaintiff's Motion and remand this case to the Eighth Judicial District Court.

         II. BACKGROUND

         The following allegations come from the Complaint. (ECF No. 1-2.)

         Plaintiff was a patron at a Panda Express restaurant in Las Vegas, Nevada. (Id. at 2.) On his way out, he slipped and fell on a wet patch of floor. (Id.) There were no signs or other warnings of a wet floor. (Id.) He was injured by the slip and fall. (Id.)

         Plaintiff filed his Complaint in the Eighth Judicial District Court in and for the County of Clark (ECF No. 1-2 at 1), and Defendant removed based on diversity jurisdiction (ECF No. 1 at 1).

         Plaintiff asserts the following claims in the Complaint: (1) negligence; (2) negligent hiring, training, supervision, and retention; and (3) “Respondent Superior[.] [sic]” (ECF No. 1-2 at 2-4.) Plaintiff seeks general and special damages, and attorneys' fees. (Id. at 4.)

         III. LEGAL STANDARD

         Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction only over matters authorized by the Constitution and Congress. See U.S. Const. art. III, § 2, cl. 1; see also, 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. See 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. See Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).

         To 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. See 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. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).

         Under a 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. See Matheson, 319 F.3d at 1090 (citation omitted).

         IV. DISCUSSION

         Plaintiff does not request a specific amount of damages in the Complaint, instead alleging both general and special damages in excess of $15, 000. (See generally ECF No. 1-2.) Thus, Defendant must prove, by a preponderance of the evidence, that the amount in controversy requirement is ...


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