I. Background

A. Facts The following facts are drawn from Plaintiff’s Complaint (“Compl.”) (Dkt. 1-2). This action concerns Plaintiff Gino Clemente’s (“Plaintiff”) purchase of a new 2017 Mercedes-Benz GLE 350 from Defendants. Compl. ¶ 2-5. Plaintiff filed suit against Defendants Mercedes-Benz USA LLC and Does 1-20 (“Defendants”) alleging (1) Breach of Implied Warranty of Merchantability under the Song-Beverly Warranty Act, (2) Breach of Express Warranty under the Song-Beverly Warranty Act, and (3) Fraudulent Inducement – Concealment. Id. at 1. Plaintiff seeks compensatory damages, punitive damages, costs and expenses, attorneys’ fees and interest. Id. at 10.

CIVIL MINUTES – GENERAL

Case No. ED CV 17-2288-DOC (SHKx) Date: December 2, 2020 Page 2

B. Procedural History Plaintiff originally filed suit in the Superior Court of Orange County, California. See generally Compl. (Dkt. 1-2). On August 24, 2020, Defendants removed the action to this Court, asserting diversity jurisdiction. Notice of Removal (Dkt. 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). 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 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).

CIVIL MINUTES – GENERAL

Case No. ED CV 17-2288-DOC (SHKx) Date: December 2, 2020 Page 3

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 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). A Court may raise the question of subject matter jurisdiction sua sponte. See Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002).

III. Discussion

Defendant argues that this Court has diversity jurisdiction in this action. See generally Opp’n, Dkt. 11. The Court agrees.

CIVIL MINUTES – GENERAL

Case No. ED CV 17-2288-DOC (SHKx) Date: December 2, 2020 Page 4

Plaintiff entered into a contract to purchase the subject vehicle on March 31, 2017. (Tarczy Decl. ¶ 3, Ex. A.) Plaintiff was scheduled to make payments totaling $75,610.80 over the purchase term. Id. § 4. California Civil Code sections 1794(c) and 1794(e) provide for a civil penalty of up to two times the amount of damages. Plaintiff is therefore seeking to recover up to $226,832.40 in damages, inclusive of a two-time civil penalty ($75,610.80+ [2 x $84,871.80]) with respect to the retail installment sales contract payments alone, without taking into consideration incidental and consequential damages Plaintiff may prove. The Court thus finds that Defendants have shown by a preponderance of the evidence that the amount in controversy exceeds $75,000, and the Court maintains diversity jurisdiction over this matter.

IV. Disposition

For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Remand Case to Orange County Superior Court. The Clerk shall serve this minute order on the parties. MINUTES FORM 11 Initials of Deputy Clerk: kd

CIVIL-GEN