United States District Court, D. Nevada
before the court is plaintiff Pamela Melfiteno's
(“Melfiteno”) motion to remand. (ECF No. 8).
Defendant McCormick & Company, Inc.
(“McCormick”) filed a response (ECF No. 11).
Melfiteno has not replied and the time to do so has passed.
is a foreign company that manufactures, designs, and
distributes Simply Asia Thai Green Curry Paste. (ECF No. 3-2
at 3). On May 5, 2017, Melfiteno, a Washington citizen,
purchased a jar of McCormick's curry paste at a grocery
store in Las Vegas, Nevada. Id. On May 9, 2017,
Melfiteno prepared a meal using the curry paste and
allegedly, unbeknownst to her, ingested numerous shards of
glass. Id. at 4.
February 8, 2018, Melfiteno sent McCormick a demand letter to
settle the dispute for $175, 000.00. (ECF No. 8 at 13).
However, McCormick did not accept the offer. Id. As
a result, Melfiteno filed a complaint in Nevada state court
on May 8, 2019, claiming negligence, strict liability, and
breach of implied warranty. Id. On June 14, 2019,
McCormick removed the case to federal court. (ECF No. 11 at
2). On June 17, 2019, Melfiteno sent a second demand letter
to settle the dispute for $65, 000.00. (ECF No. 8 at 11).
Now, Melfiteno moves to remand, asserting the amount in
controversy does not satisfy diversity jurisdiction.
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 Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
notice of removability, a defendant has thirty days to remove
a case to federal court once he knows or should have known
that the case was removable. Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28
U.S.C. § 1446(b)(2)). Defendants are not charged with
notice of removability “until they've received a
paper that gives them enough information to remove.”
Id. at 1251.
“the ‘thirty day time period [for removal] . . .
starts to run from defendant's receipt of the initial
pleading only when that pleading affirmatively reveals on its
face' the facts necessary for federal court
jurisdiction.” Id. at 1250 (quoting Harris
v. Bankers Life & Casualty Co., 425 F.3d 689, 690-91
(9th Cir. 2005) (alterations in original)). “Otherwise,
the thirty-day clock doesn't begin ticking until a
defendant receives ‘a copy of an amended pleading,
motion, order or other paper' from which it can determine
that the case is removable.” Id. (quoting 28
U.S.C. § 1446(b)(3)).
plaintiff may challenge removal by timely filing a motion to
remand. 28 U.S.C. § 1447(c). On a motion to remand, the
removing defendant faces a strong presumption against
removal, and bears the burden of establishing that removal is
proper. Sanchez v. Monumental Life Ins. Co., 102
F.3d 398, 403-04 (9th Cir. 1996); Gaus v. Miles,
Inc., 980 F.2d 564, 566-67 (9th Cir. 1992).
moves to remand the case, contending that the court lacks
subject matter jurisdiction pursuant to 28 U.S.C. §
1332. (ECF No. 8). Specifically, Melfiteno argues that the
amount in controversy does not exceed the $75, 000
requirement for diversity jurisdiction. Id.
U.S.C. § 1332 allows federal courts to exercise
diversity jurisdiction in civil actions between citizens of
different states where the amount in controversy exceeds $75,
000. See 28 U.S.C. § 1332(a); Mateo Yokeno
v. Sawako Sekiguchi, 754 F.3d 649, 652 (9th Cir. 2014)
(citation omitted). The party asserting diversity
jurisdiction has the burden to establish (1) complete
diversity; and (2) the amount in controversy. See 28
U.S.C. § 1332(a).
argues that Melfiteno's February 8, 2018, settlement
demand establishes the amount in controversy. (ECF No. 11 at
4-5). Section 1446(b) states in part: “If the case
stated by the initial pleading is not removeable, a notice of
removal may be filed . . . through service or otherwise, of a
copy of an amended pleading, motion, order, or other paper
from which is may first be ascertained that the case is one
which is or has become removeable . . .” 28 U.S.C.
Ninth Circuit has held that “a demand letter sent
during the course of the state action can constitute
‘other paper' within the meaning of section 1446(b)
if it reflects a reasonable estimate of the plaintiff's
claim.” Carvalho v. Equifax Info. Servs., LLC,
629 F.3d 876, 885 (9th Cir. 2010) (citing Babasa v.
LensCrafters, Inc., 498 F.3d 972, 975 (9th Cir. 2007)).
However, a demand letter sent prior to the initial pleading