Case 8:22-cv-01528-CJC-KES Document 13 Filed 09/22/22 Page 1 of 5 Page ID #:227

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ) 12 ) ) Case No.: SACV 22-01528-CJC (KESx) 13 MIKE SKIER, ) ) 14 ) Plaintiff, ) 15 ) ORDER GRANTING PLAINTIFF’S v. ) MOTION TO REMAND [Dkt. 9] 16 ) ) 17 ) iPROMO, LLC, and DOES 1 through ) 18 20, inclusive, ) ) 19 ) ) 20 ) Defendants. ) 21 ) ) 22 ) 23 24 I. INTRODUCTION & BACKGROUND 25 26 On December 22, 2020, Plaintiff Mike Skier filed this action against Defendant 27 iPromo, LLC, in the Superior Court of California, County of Orange, alleging several 28 causes of action under the California Labor Code and the California Unfair Competition

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1 Law. (See Dkt. 1-1 [Complaint, hereafter “Compl.”].) Skier eventually served iPromo a 2 copy of the summons and complaint on May 16, 2022. (See Dkt. 1 [Notice of Removal, 3 hereinafter “Notice”] ¶ 1 at 2.) iPromo removed the action to this Court on August 16, 4 2022, invoking the Court’s diversity jurisdiction. (See id. ¶ 14 at 5.) Now before the 5 Court is Skier’s motion to remand. (See Dkt. 9 [Memorandum of Points and Authorities 6 in Support of Motion to Remand Action to State Court, hereinafter “MTR”].) For the 7 following reasons, the motion to remand is GRANTED.1 8 9 II. DISCUSSION 10 11 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 12 authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 13 (citation omitted). A civil action brought in state court may be removed by the defendant 14 to federal court only if the action could have been brought in federal court originally. See 15 28 U.S.C. § 1441(a). Federal district courts have diversity jurisdiction over suits when 16 more than $75,000 is in controversy and the citizenship of each plaintiff is different from 17 that of each defendant. See 28 U.S.C. § 1332(a). When a case is removed, the burden of 18 establishing subject matter jurisdiction falls on the defendant, and the removal statute is 19 strictly construed against removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 20 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to the 21 right of removal in the first instance.” Id. 22 23 “[W]hen a defendant seeks federal-court adjudication, the defendant’s amount-in- 24 controversy allegation should be accepted when not contested by the plaintiff or 25 questioned by the court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for May 16, 2022, is hereby vacated and removed from the calendar.

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1 81, 87 (2014). However, “when a defendant’s assertion of the amount in controversy is 2 challenged[,] . . . both sides submit proof and the court decides, by a preponderance of 3 the evidence, whether the amount-in-controversy requirement has been satisfied.” Id. at 4 88. Moreover, “when the defendant relies on a chain of reasoning that includes 5 assumptions to satisfy its burden of proof, the chain of reasoning and its underlying 6 assumptions must be reasonable ones.” LaCross v. Knight Transp. Inc., 775 F.3d 1200, 7 1202 (9th Cir. 2015). 8 9 The deadline for a defendant to remove a case from state to federal court is 10 generally thirty days after receipt of the initial pleading. See 28 U.S.C. § 1446(b)(1), 11 1446(b)(2)(A). “[I]f the case stated by the initial pleading is not removable,” however, a 12 defendant may remove the case thirty “days after receipt . . . of a copy of an amended 13 pleading, motion, order[,] or other paper from which it may first be ascertained that the 14 case is one which is or has become removable.” Id. § 1446(b)(3). A “bright-line 15 approach” based on an “objective analysis of the pleadings” governs removability. 16 Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 697 (9th Cir. 2005). It “is determined 17 through examination of the four corners of the applicable pleadings, not through 18 subjective knowledge or a duty to make further inquiry.” Id. at 694. Only when 19 removability is “unequivocally clear and certain” does the Section 1446(b)(3) thirty-day 20 countdown commence. Dietrich v. Boeing Co., 14 F.4th 1089, 1091 (9th Cir. 2021). 21 22 Skier offers two arguments why remand is required. First, he argues that removal 23 was improper because iPromo has failed to “establish that the amount in controversy 24 exceeds $75,000.” (Mot. at 3.) Second, he argues that removal “was untimely because it 25 was done more than thirty days after [iPromo] was served with a copy of the complaint 26 which formed the basis for its removal.” (Id. at 6.) 27 28

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1 The Court agrees that iPromo untimely removed this action. Removal had to occur 2 within thirty days after service of a copy of Skier’s complaint. See 28 U.S.C. 3 § 1446(b)(1). Since iPromo was served on May 16, 2022, that deadline was June 15— 4 but iPromo ultimately removed this action on August 16, well afterwards. (See 5 Notice ¶ 1 at 2.) And iPromo does not argue that a second thirty-day countdown under 6 Section 1446(b)(3) applies. Nor could it. Skier has not filed “any amended pleading, 7 motion, order or other paper” that could render removability “ascertainable” where it 8 once was not. 28 U.S.C. § 1446(b)(3). Indeed, iPromo suggests quite the opposite—that 9 Skier’s responses to discovery requests in state court were “deficient,” “incomplete,” and 10 “provided [no] basis for his damages.” (See Dkt. 11 [Defendant iPromo, LLC’s 11 Opposition to Plaintiff’s Motion for Remand, hereinafter “Opp.”] at 3.) 12 13 iPromo’s arguments that removal was timely are unavailing. It first cries that 14 Skier’s motion is improper because he “sent one meet and confer letter via email,” “never 15 responded” to iPromo afterwards, “never called [iPromo] to discuss the matter[,] and 16 never engaged in proper and complete meet and confer efforts” under Local Rule 7-3. 17 (Opp. at 5.) Skier did engage in some communication with iPromo regarding this 18 motion, and while an in-person discussion is “preferabl[e],” Local Rule 7-3, it is not 19 required. iPromo complains that Skier “refused and to date has provided no basis for his 20 damages” in response to discovery requests in state court, and since Skier “continues to 21 avoid providing any basis for his damages, [iPromo] has not necessarily ascertained 22 [Skier’s] damages fully and its 30 days to remove has not actually begun to run.” (Opp. 23 at 7–8.) That contention is belied by iPromo’s notice of removal wherein it says that the 24 amount in controversy was ascertainable—that it “exceeds $75,000 based on the amounts 25 of damages [iPromo] believes [Skier] seeks to recover” given the nature and duration of 26 the misconduct alleged in the complaint and on case law concerning the amounts in 27 controversy in comparable suits. (Notice ¶ 6 at 2; see also id. ¶¶ 7–12 at 3–5.) And even 28 if it were it true that removability was not yet ascertainable, that would separately

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1 || preclude removal, as it would amount to a concession that iPromo failed to meet its 2 ||}burden to show that the amount of controversy was met. See Gaus, 980 F.2d at 566. 4 |TV. CONCLUSION 6 For the foregoing reasons, Skier’s motion is GRANTED. The Court REMANDS 7 this action to the Superior Court of California, County of Orange. 9 10 □□ DATED: September 22, 2022 Ko . ( joe 12 ~~ sf * ee 13 CORMAC J. CARNEY 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28

5.