I. Background

A. Facts The following facts are drawn from Plaintiff Tarry Brown’s (“Plaintiff”) Complaint (Dkt. 1-1). Plaintiff was employed as a “Coach Operator” by Defendant First Transit, Inc. (“Defendant”), starting around September 2015. Compl. ¶ 14. Around July 2019, Plaintiff realized that he had sustained a knee injury from repeatedly stepping on the brake pedal while driving his bus. Id. ¶ 16. Plaintiff notified his supervisor of his injury, filed a workers’ compensation claim, and visited a physician, who diagnosed him with arthritis. Id. ¶¶ 16-18. After Plaintiff notified Defendant that he would need to be placed on a light, restricted work duty, Defendant refused to engage in an interactive process to discuss the needed restrictions and failed to provide Plaintiff any accommodation. Id. ¶ 19. Plaintiff’s supervisor became increasingly hostile towards him, causing Plaintiff to abandon his workers’ compensation claim in order to keep his job. Id. ¶ 20. On or about October 23, 2019, Plaintiff was called into a meeting, wherein

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Defendant falsely accused him of using an electronic device while driving. Id. ¶ 20. Plaintiff was placed on administrative leave, and subsequently fired on October 28, 2019. Id. ¶ 21.

B. Procedural History Plaintiff originally filed suit in the Superior Court of California, County of Orange, on January 2, 2020 (Dkt. 1-1). Plaintiff’s Complaint brings the following six causes of action under California state law:

(1) wrongful termination in violation of public policy; (2) discrimination based on disability; (3) retaliation; (4) failure to take reasonable steps to prevent discrimination; (5) failure to provide reasonable accommodation; and (6) failure to engage in a good faith interactive process.

See generally Compl.

Defendant removed the case to this Court on February 12, 2020. See generally Notice of Removal (“Notice”) (Dkt. 1). Defendant argues that this case has diversity jurisdiction under 28 U.S.C. § 1332 and that removal is proper under 28 U.S.C. § 1441. Notice ¶ 1.

II. Legal Standard

“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Removal of a case from state court to federal court is governed by 28 U.S.C. § 1441, which provides in relevant part that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed . . . to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441. This statute “is strictly construed against removal jurisdiction,” and the party seeking removal “bears the burden of establishing federal jurisdiction.” Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988) (emphasis added) (citations omitted). A federal court may order remand for lack of subject matter jurisdiction or any defect in the removal procedure. 28 U.S.C. § 1447(c).

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Federal diversity jurisdiction requires that the parties be citizens of different states and that the amount in controversy exceed $75,000. 28 U.S.C. § 1332(a). For diversity jurisdiction purposes, a corporation is “deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). The presence of any single plaintiff from the same state as any single defendant destroys “complete diversity” and strips the federal courts of original jurisdiction over the matter. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). Generally, a removing defendant must prove by a preponderance of the evidence that the amount in controversy satisfies the jurisdictional threshold. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2008). If the complaint affirmatively alleges an amount in controversy greater than $75,000, the jurisdictional requirement is “presumptively satisfied.” Id. A plaintiff who then tries to defeat removal must prove to a “legal certainty” that a recovery of more than $75,000 is impossible. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); Crum v. Circus Circus Enters., 231 F.3d 1129, 1131 (9th Cir. 2000). This framework applies equally to situations where the complaint leaves the amount in controversy unclear or ambiguous. See Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996).

A removing defendant “may not meet [its] burden by simply reciting some ‘magical incantation’ to the effect that ‘the matter in controversy exceeds the sum of [$75,000],’ but instead, must set forth in the removal petition the underlying facts supporting its assertion that the amount in controversy exceeds [$75,000].” Richmond v. Allstate Ins. Co., 897 F. Supp. 447, 450 (S.D. Cal. 1995) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992)). If the plaintiff has not clearly or unambiguously alleged $75,000 in its complaint or has affirmatively alleged an amount less than $75,000 in its complaint, the burden lies with the defendant to show by a preponderance of the evidence that the jurisdictional minimum is satisfied. Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010); Guglielmino, 506 F.3d at 699.

While the defendant must “set forth the underlying facts supporting its assertion that the amount in controversy exceeds the statutory minimum,” the standard is not so taxing so as to require the defendant to “research, state, and prove the plaintiff’s claims for damages.” Coleman v. Estes Express Lines, Inc., 730 F. Supp. 2d 1141, 1148 (C.D. Cal. 2010) (emphases added). In short, the defendant must show that it is “more likely

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than not” that the amount in controversy exceeds the statutory minimum. Id. Summary judgment-type evidence may be used to substantiate this showing. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090-91 (9th Cir. 2003); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997). For example, defendants may make mathematical calculations using reasonable averages of hourly, monthly, and annual incomes of comparable employees when assessing the amount in controversy in a wrongful termination suit. Coleman, 730 F. Supp. 2d. at 1148-49.

If the court lacks subject matter jurisdiction, any action it takes is ultra vires and void. See Gonzalez v. Crosby, 545 U.S. 524, 534 (2005); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 101-02 (1998). The lack of subject matter jurisdiction may be raised at any time by either the parties or the court. Fed. R. Civ. P. 12(h)(3). If subject matter jurisdiction is found to be lacking, the court must dismiss the action, id., or remand pursuant to 28 U.S.C. § 1447(c).

III. Discussion

A. Diversity Jurisdiction Does Not Obtain Because Defendant Has Not Met Its Burden to Show That the Amount in Controversy Exceeds $75,000 As stated above, Defendant must show by a preponderance of the evidence that the amount in controversy is greater than $75,000. The Notice of Removal—which approximates lost wages of $9484.80 at the time of filing, and speculates on the basis of past cases that attorneys’ fees would exceed the jurisdictional minimum—fails to carry this burden. See Notice ¶¶ 14-15. Because it has not been shown, to this Court’s satisfaction, that it is more likely than not that the amount in controversy exceeds $75,000, the Court finds that it does not have jurisdiction and that removal was improper.

IV. Disposition

For the reasons set forth above, the Court, on its own motion, REMANDS this action to Orange County Superior Court.

The Clerk shall serve this minute order on the parties.

MINUTES FORM 11 Initials of Deputy Clerk: kd

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