Mpock v. FCA U.S. LLC

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EMANNUEL C. MPOCK, Plaintiff, v. FCA U.S. LLC, Defendant.

No. 1:21-cv-00330-NE-SAB

United States District Court, E.D. California

November 17, 2021

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF'S REMAND MOTION (ECF NO. 11) OBJECTIONS DUE WITHIN FOURTEEN DAYS

Plaintiff Emannuel Mpock (“Plaintiff”), who is represented by counsel, brings this action against Defendant FCA U.S. LLC (“Defendant” or “FCA”).^[1] Currently before the Court is Plaintiff's motion to remand. (ECF No. 11.) The matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(7).

A hearing on the motion was held on November 10, 2021. Counsel Tionna Dolin appeared by videoconference for Plaintiff. Counsel Garrett B. Stanton appeared by videoconference for Defendant. Having considered the moving, opposition and reply papers, the declarations and exhibits attached thereto, the arguments presented at the November 10, 2021 hearing, as well as the Court's file, the Court issues the following findings and recommendations recommending denying Plaintiff's motion to remand.

I. RELEVANT BACKGROUND

Plaintiff alleges he purchased a 2017 Chrysler Pacifica vehicle on July 30, 2016, from Defendant and received an express warranty in connection with the purchase.

(Compl. ¶ 8, ECF No. 1-2.) During the warranty period the vehicle “contained or developed” a number of defects which Plaintiff alleges “substantially impair[ed] the use, value or safety of the Vehicle.” (Id. at ¶ 10.) Plaintiff sought repairs but Defendant was unable to service or repair the vehicle in conformance with the applicable warranties, nor did Defendant promptly replace the Vehicle or make restitution to Plaintiff. (Id. at ¶ 27.)

On March 27, 2020, Plaintiff initiated this action against FCA and Central Valley in the Los Angeles Superior Court, asserting claims for breach of implied and express warranty under California's Song-Beverly Consumer Warranty Act (Cal. Civ. Code §§ 1790 et seq.)^[2] (“Song-Beverly Act”), fraud by omission against FCA, and negligent repair against Central Valley. (Id. at ¶¶ 26-62.) Thereafter, the parties stipulated to transfer venue of the case to the Stanislaus Superior Court. (See ECF Nos. 1-3, 1-4, 1-21.) On or around May 1, 2020, FCA and Central Valley answered the complaint. (ECF No. 1-17.)

On February 2, 2021, Plaintiff dismissed Central Valley from this action. (ECF No. 1-6.) On March 4, 2021, FCA, as sole remaining defendant, removed the action to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 (diversity jurisdiction). (ECF No. 1.)

On April 30, 2021, Plaintiff filed the instant motion for remand. (ECF No. 11.) Defendant opposed the motion and Plaintiff replied. (ECF Nos. 14, 15.) On October 15, 2021, the District Judge referred the matter to the undersigned for the preparation of findings and recommendations and other appropriate action. (ECF No. 18.) On November 10, the parties appeared before the Court for the hearing on the matter.

II. LEGAL STANDARD

A defendant may remove a matter to federal court if the district court would have original jurisdiction. See 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal district courts have original jurisdiction over state law civil actions between citizens of different states in which the amount in controversy exceeds $75, 000 exclusive of costs and interests.

28 U.S.C. § 1332(a)(1). A motion to remand is the proper procedure to challenge a removal based on lack of jurisdiction. 28 U.S.C. § 1447.

Ultimately, “[t]he removal statute is strictly construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to the party invoking the statute.” California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (citation omitted); see also Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (“The defendant bears the burden of establishing that removal is proper.”). Thus, if there is any doubt as to the right of removal, a federal court must reject jurisdiction and remand the case to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); see also 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).

III. DISCUSSION

Plaintiff seeks remand on the basis that Defendant has not established the amount in controversy exceeds $75, 000 or that complete diversity exists between the parties. (ECF No. 11-2.) Plaintiff does not dispute the timeliness of the removal notice or other removal requirements. (See generally id.) The parties additionally appear to dispute the evidentiary burden on removal and remand, specifically with respect to whether Plaintiff was required to produce any rebuttal evidence in response to Defendant's arguments and evidence on removal. Accordingly, the Court will address this dispute by clarifying the evidentiary burden of the parties on removal and remand. Thereafter, the Court will address the diversity of the parties and the amount in controversy arguments.

A. Evidentiary Burden of Proof

As an initial matter, the Court will address the parties' apparent dispute regarding evidentiary burdens. Defendant argues Plaintiff's failure to submit any evidence to rebut its prima facie case of domicile necessitates a finding of diversity of citizenship. Defendant further argues its actual damages valuation should be applied to the amount in controversy calculations because Plaintiff did not submit any rebuttal evidence. Plaintiff acknowledges he did not submit any evidence in support of remand but argues Defendant's burden-shifting argument is unavailing because Defendant bears the burden of establishing removal jurisdiction at all times. The parties both reiterated these points at the hearing on the motion.

As previously noted, removal requires that the moving party carry “the burden of establishing removal.” Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006). While the initial notice of removal “need not contain evidentiary submissions, ” Dart Cherokee Basin Operating Co., LLC v. Owens (Dart Cherokee), 574 U.S. 81, 84 (2014), removal allegations only remain undisturbed until “contested by the plaintiff or questioned by the court.” Id. at 87-88.

Once a plaintiff has challenged removal, as here, by moving to remand, the Supreme Court explained that “both sides submit proof and the court decides” whether jurisdiction has been met by a preponderance of the evidence. Id. at 88. The type of evidence to be submitted by the parties “includ[es] affidavits or declarations, or other summary-judgment-type evidence, ” which prevents the establishment of “removal jurisdiction by mere speculation and conjecture.” Ibarra v. Manheim Inv., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). However, the Ninth Circuit has observed, “the Supreme Court [in Dart Cherokee] did not decide the procedure for each side to submit proof on remand, ” and indicated that determination of “a reasonable procedure” in which “each side has a fair opportunity to submit proof” remains within the province of the district courts. Id. at 1200.

The Ninth Circuit has also carefully distinguished a plaintiff's challenge to removal jurisdiction based on a “facial” versus “factual” attack. See Salter v. Quality Carriers, Inc., 974 F.3d 959, 964-65 (9th Cir. 2020) (discussing Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014), and determining the plaintiff had asserted a facial, not factual challenge). “A ‘facial' attack accepts the truth of the [defendant's] allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.' ” Id. (citations and internal quotations omitted). A factual attack “contests the truth of the . . . allegations” themselves. Id. In Harris v. KM Industries, Inc., the Ninth Circuit demonstrated it is possible for a plaintiff to assert a factual challenge to removal jurisdiction without submitting rebuttal evidence, where the challenge successfully shows the defendant has not met its preponderance burden. Harris, 980 F.3d 694, 700 (9th Cir. 2020).

This approach is akin to the procedure in the summary judgment context whereby, if the party with the initial burden of production fails to carry its burden, the other party “has no obligation to produce anything.” See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (where the nonmoving party bears the burden of proof on a dispositive issue, motion for summary judgment may be made “with or without supporting affidavits”). Thus, Plaintiff is not required to submit rebuttal evidence to factually challenge Defendant's removal assumptions. See Harris, 980 F.3d at 700; Ibarra, 775 F.3d at 1199. Rather, Defendant bears “the burden of establishing removal, ” Abrego Abrego, 443 F.3d at 685, 692, and this preponderance burden does not shift to Plaintiff at any time. Id.; Harris, 980 F.3d at 701. Therefore, while Plaintiff may rebut Defendant's evidence with his own evidence under Dart Cherokee, he does not necessarily need to do so in order to prevail on his motion for remand. Harris, 980 F.3d at 700.

Nevertheless if Plaintiff declines to submit any evidence when moving to remand and instead elects to rest solely on the facial or factual arguments that Defendant has not met its preponderance burden, he does so at his own risk. This is because the Court's determination of whether the removal burden is met is based on a preponderance of all of the evidence - both Plaintiff's and Defendant's alike. See Arias v. Residence Inn by...