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Case No. 2:21-cv-08858-RGK-JPR Date November 15, 2021 Title Rochelle Swift v. Wal Mart Associates, Inc., et al.

Present: The R. GARY KLAUSNER, U.S. DISTRICT JUDGE Honorable Sharon L. Williams Not Reported Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present Proceedings: (IN CHAMBERS) Order Remanding Action to State Court On June 25, 2021, Rochelle Swift (“Plaintiff”) filed a complaint against Wal Mart Associates, Inc., Walmart Inc., and Does 1-50 (“Defendants”) alleging state statutory claims based on disability discrimination in the workplace. On November 10, 2021, Defendants removed the action to this Court alleging jurisdiction on the grounds of diversity of citizenship. Upon review of Defendants’ Notice of Removal, the Court hereby remands the action for lack of subject matter jurisdiction. Pursuant to 28 U.S.C. § 1332, district courts shall have original jurisdiction over any civil action in which the parties are citizens of different states and the action involved an amount in controversy that exceeds $75,000. After a plaintiff files a case in state court, the defendant attempting to remove the case to federal court bears the burden of proving the amount in controversy requirement has been met. Lowdermilk v. United States Bank Nat’l Ass’n, 479 F.3d 994, 998 (9th Cir. 2007). If the complaint does not allege that the amount in controversy has been met, the removing defendant must plausibly allege in its notice of removal that the amount in controversy exceeds the jurisdictional threshold. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553-54(2014). If the plaintiff contests, or the court questions, the defendant’s allegation, the defendant must establish that the jurisdictional requirement has been met by a preponderance of the evidence. Guas v. Miles, Inc., 980 F.2d 564, 566–67 (9th Cir. 1992). In her complaint, Plaintiff seeks damages for lost wages and benefits, emotional distress damages, punitive damages, and attorneys’ fees. In support of its removal, Defendants calculate that based on Plaintiff’s hourly rate, her back pay to date of removal is $61,845.00. Defendants then state that if the case resolves in September 2023, back pay would amount to $113,715.00. Defendants finally argue that including all other requested damages, such as front pay and emotional distress, the amount in controversy further exceeds the jurisdictional minimum.

CUENNTITREADL S DTIASTTERSIC DTI SOTFR CICATL ICFOOURRNTIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-08858-RGK-JPR Date November 15, 2021 Title Rochelle Swift v. Wal Mart Associates, Inc., et al. Defendants’ calculations arrive at the jurisdictional minimum only if they apply overly speculative assumptions regarding the length of litigation, possible front pay, and punitive damages. With $61,845.00 as a starting point, and no supporting evidence regarding emotional distress damages, Defendants do not meet the minimum amount in controversy, as future lost wages and punitive damages are speculative. District courts within the Ninth Circuit are split with respect to including prospective attorneys’ fees in the amount in controversy, and some courts have declined to do so. See, e.g., MIC Philberts Invs. v. Am. Cas. Co of Reading, Pa., 2012 WL 2118239 at *5 (E.D. Cal. June 11, 2012). In those cases, the courts have found that attorneys’ fees are in the control of the client and counsel and may be avoided or accrue over years, depending on legal strategy. See Grieff v. Brigandi Coin Co., 2014 WL 2608209 at *3 (W.D. Wash. June 11, 2014). The Court finds those holdings well-reasoned and finds that prospective attorneys’ fees are too speculative for inclusion into amount in controversy. As to punitive damages, Defendants have offered no evidence to support an award that is four times the calculated back pay. Accordingly, the Court finds that Defendant has not satisfied its burden of either plausibly alleging the minimum amount in controversy, or showing by a preponderance of the evidence, that the amount in controversy meets the jurisdictional requirement. In light of the foregoing, the action is hereby remanded to state court for all further proceedings.

IT IS SO ORDERED.

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