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44 55 66 77 United States District Court 88 Central District of California 99 1100

1111 PAOLA JARQUIN, individually and on Case No. 2:20-CV-06334-ODW (JEMx) behalf of a class of other similarly 1122 situated individuals, ORDER GRANTING MOTION TO

REMAND AND DENYING FEES

1133 Plaintiff, AND COSTS [10]; AND DENYING

MOTION TO DISMISS [13]

1144 v.

1155 RELIANT IMMEDIATE CARE MEDICAL GROUP, INC., et al., 1166

Defendants. 1177 1188 I. INTRODUCTION AND BACKGROUND 1199 On May 4, 2020, Plaintiff Paola Jarquin (“Jarquin”) filed this action in the Los 2200 Angeles County Superior Court against Defendant Reliant Immediate Care Medical 2211 Group, Inc. (“Reliant”). (Notice of Removal, Attach. 2 (“Compl.”), ECF No. 1-2.) 2222 Jarquin alleges that Reliant violated the Fair and Accurate Credit Transactions Act 2233 (“FACTA”), which requires merchants to print only limited credit and debit card 2244 information onto customer receipts. (Compl. ¶ 1.) Specifically, Jarquin alleges that 2255 she paid Reliant for medical services, and Reliant provided her with a receipt 2266 disclosing more than the last five digits of her credit or debit card information, in 2277 violation of FACTA. (Compl. ¶¶ 43–45.) 2288 1 On July 16, 2020, Reliant removed the case to this Court. (Notice of Removal, 2 ECF No. 1.) Now, Jarquin moves to remand the case to the Los Angeles County 3 Superior Court, arguing that this Court does not have subject matter jurisdiction 4 because she lacks Article III standing. (Mot. Remand (“Motion” or “Mot.”) 1–2, ECF 5 No. 10.) Jarquin also seeks attorneys’ fees and costs under 28 U.S.C. § 1447(c). (Id. 6 at 12–14.) The Motion is fully briefed. (See Opp’n, ECF No. 14; Reply, ECF 7 No. 15.) 8 For the following reasons, the Court finds that it lacks subject matter 9 jurisdiction and consequently REMANDS1 this action to state court.2 10 II. LEGAL STANDARD 11 Federal courts have subject matter jurisdiction only as authorized by the 12 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 13 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court 14 may be removed to federal court only if the federal court would have had original 15 jurisdiction over the suit. 28 U.S.C. § 1441(a). The removal statute is strictly 16 construed against removal, and “[f]ederal jurisdiction must be rejected if there is any 17 doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 18 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing 19 federal jurisdiction. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 20 (9th Cir. 2006). “If at any time before final judgment it appears that the district court 21 lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 22 III. DISCUSSION 23 The Court first addresses the issue of remand before turning to Jarquin’s request 24 for attorneys’ fees and costs. 25 1 On August 7, 2020, while this Motion was pending, Reliant filed a Motion to Dismiss for failure to 26 state a claim. (See Mot. Dismiss 1–2, ECF No. 13.) Reliant’s Motion is also fully briefed. (See Opp’n Mot. Dismiss, ECF No. 16; Reply Mot. Dismiss, ECF No. 21.) In light of the Court’s 27 determination that this case must be remanded, Reliant’s Motion to Dismiss is DENIED as moot. 28 2 Having carefully considered the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 A. Motion to Remand 2 Jarquin contends that this case must be remanded to state court because Reliant 3 cannot show she has Article III standing, as she does not allege an injury in fact. 4 (Mot. 5–8.) Reliant opposes the Motion, arguing that Jarquin’s allegations do 5 establish she has suffered an injury in fact. (Opp’n 5–6.) 6 Reliant insists Jarquin has alleged a concrete injury because she alleges: 7 (1) that she suffered a “heightened risk of identity theft”; (2) that Reliant invaded 8 Jarquin’s privacy through disclosure of her “private financial information to the world, 9 including to persons who might find the receipts in the trash . . . including identity 10 thieves . . . as well as [Reliant’s] employees who handled the receipts”; and (3) that 11 Jarquin was “forced . . . to take action to prevent further disclosure of the private 12 financial information displayed on the receipt.” (Opp’n 8–9 (quoting Compl. ¶¶ 45, 13 55, 74).) Notwithstanding these allegations, however, the Court finds that Jarquin 14 fails to allege she has “suffered an ‘injury in fact’ that is (a) concrete and 15 particularized and (b) actual or imminent, not conjectural or hypothetical.” See 16 Friends of the Earth, Inc. v. Laidlaw Env’t Servs (TOC), Inc., 528 U.S. 167, 181 17 (2000). 18 First, Jarquin’s allegation that she faced a heightened risk of identity theft 19 merely sets forth a “potential for exposure to actual injury,” which “do[es] not entail a 20 degree of risk sufficient to meet the concreteness requirement” and “is too speculative 21 for Article III purposes.” See Bassett v. ABM Parking Servs. Inc., 883 F.3d 776, 777, 22 783 (9th Cir. 2018); see also Anton v. Prospera Hotels, Inc., No. CV 19-534-CBM 23 (SHKx), 2019 WL 4266528, at *2 (C.D. Cal. July 18, 2019) (finding allegations of 24 elevated risk of identity theft “speculative, hypothetical, and conjectural” and 25 insufficient to establish an injury in fact). 26 Second, Jarquin’s allegations that Reliant disclosed her private financial 27 information to the world, including identity thieves and the Reliant employee who 28 handled her receipt, fail to establish a concrete injury. See Stelmachers v. Verifone 1 Sys., Inc., No. 5:14-CV-04912-EJD, 2017 WL 3968871, at *5 (N.D. Cal. Sept. 7, 2 2017) (finding allegations that the defendant “exposed Plaintiff’s credit card number 3 to ‘[the defendant’s] staff and possibly others’” insufficient to demonstrate “a material 4 risk to the concrete interest that Congress sought to protect through FACTA”). 5 Reliant argues these allegations demonstrate an injury that is “certainly impending,” 6 which is sufficient to confer standing. (See Opp’n Mot. 12 (citing Clapper v. Amnesty 7 Int’l USA, 568 U.S. 398, 401 (2013) (explaining that a “certainly impending injury” 8 may establish Article III standing)).) But any harm that could befall Jarquin (e.g., an 9 identity thief finding her receipt in the trash and using it for a nefarious purpose) 10 would not materialize absent a chain of possibilities which presently remain 11 speculative. See Stelmachers, 2017 WL 3968871, at *3 (clarifying that a “speculative 12 chain of possibilities do[es] not establish a certainly impending injury.” (internal 13 quotation marks omitted)). 14 Third and finally, Jarquin’s allegations that Reliant’s violation of FACTA 15 required her to take action to prevent further disclosure of her credit or debit card 16 information are not sufficient to establish standing. See, e.g., Anton, 2019 WL 17 4266528, at *2 (finding no standing where plaintiffs were allegedly “forced . . . to take 18 the time and effort to save receipts in a secure place to ensure that their credit card 19 information would not be stolen”); Stelmachers, 2017 WL 3968871, at *4–5 (finding 20 no standing where plaintiff was allegedly “burdened . . . with the duty to consistently 21 check his credit card statements, so as to make certain that identity thieves did not take 22 advantage of the FACTA violation” (internal quotation marks omitted)). 23 In sum, Reliant has failed to meet its burden to establish that Jarquin has alleged 24 Article III standing. Accordingly, this action must be remanded to state court. See 25 Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016). 26 B. Attorneys’ Fees and Costs 27 Jarquin seeks an award of attorneys’ fees pursuant to 28 U.S.C. § 1447(c). 28 (Mot. 12–14.) “An order remanding the case may require payment of just costs and 1 | any actual expenses including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c).. However, generally, a district court may award attorneys’ fees 3 | under § 1447 only when a defendant “lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). 5 || “Conversely, when an objectively reasonable basis exists, fees should be denied.” Jd. 6 || “[R]emoval is not objectively unreasonable solely because the removing party’s 7 || arguments lack merit, or else attorney’s fees would always be awarded whenever 8 || remand is granted.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 9 | 2008). Upon consideration of Reliant’s contentions and applicable law, the Court 10 | finds that Reliant’s attempt at removal was not objectively unreasonable. Thus, the 11 || Court DENIES Jarquin’s request for fees and costs. 12 IV. CONCLUSION 13 For the reasons discussed above, the Court GRANTS Jarquin’s Motion to 14 || Remand and DENIES her request for attorneys’ fees and costs. (ECF No. 10.) The 15 || Court REMANDS the action to the Superior Court of the State of California, County 16 || of Los Angeles, Spring Street Courthouse, 312 North Spring Street, Los Angeles, CA 17 || 90012, Department 017, Hon. Maren Nelson, Case No. 20STCV17264. Reliant’s 18 | Motion to Dismiss is DENIED as moot. (ECF No. 13.) The Clerk of the Court shall 19 || close this case. 20 21 IT ISSO ORDERED. 22 23 January 4, 2021 ~~ . 24 SB 25 Eel |

6 OTIS D. GHT, II

UNITED STATES, DISTRICT JUDGE

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