Hon. Janis L. Sammartino, United States District Judge.
Presently before the Court is the Notice of Removal of Japan Airlines Co., Ltd. to United States District Court ("Not. of Removal," ECF No. 1). On December 27, 2019, Defendant removed this action from the Superior Court of the State of California, County of San Diego on the grounds that "it is a civil action between a citizen of the State of California and a citizen of a foreign state, and the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs," id. ¶ 7, and "[t]his is an action over which the Court has original jurisdiction based on the existence of a federal question under 28 U.S.C. Section 1331" because "plaintiff's claims indisputably arise under the Montreal Convention." Id. ¶¶ 22, 25. Although Plaintiff Pamela Mozingo did not file a motion to remand, "[t]he court may—indeed must—remand an action sua sponte if it determines that it lacks subject matter jurisdiction." GFD, LLC v. Carter, No. CV 12-08985 MMM FFMX, 2012 WL 5830079, at *2 (C.D. Cal. Nov. 15, 2012) (citing Kelton Arms Condominium Owners Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (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.").
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co.
Federal courts have diversity jurisdiction "where the amount in controversy" exceeds $75,000, and the parties are of "diverse" state citizenship. 28 U.S.C. § 1332. "Where it is not facially evident from the complaint that more than $75,000 is in controversy, the removing party must prove, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional threshold." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam); accord Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (quoting Matheson, 319 F.3d at 1090). "Where doubt regarding the right to removal exists, a case should be remanded to state court." Matheson, 319 F.3d at 1090.
Here, the underlying complaint states only that it is an unlimited civil case seeking in excess of $25,000. See Compl. (ECF No. 1-2) at 10.
Defendant misconstrues the "facially apparent" standard. Under Ninth Circuit jurisprudence, "it is facially apparent from the complaint that the jurisdictional amount is in controversy" where the plaintiff alleges a specific amount of damages in her complaint.
Consequently, Defendant bears the burden to prove, by a preponderance of the evidence, that the amount in controversy exceeds the $75,000 jurisdictional threshold. See Singer, 116 F.3d at 376 (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)). This it is has failed to do. See, e.g., Corbelle v. Sanyo Elec. Trading Co., No. C-03-1509 EMC, 2003 WL 22682464, at *3 (N.D. Cal. Nov. 4, 2003) ("Because [the plaintiff]'s complaint contains allegations that she sustained serious and permanent injuries, that she has incurred and will continue to incur medical expenses, and that she has lost and will continue to lose wages, it is clear that the amount in controversy is not a small sum. However, the Court is not persuaded that these allegations alone establish that it is more likely than not that the amount in controversy exceeds $75,000."); Conrad Assocs. v. Hartford Acc. & Indem. Co., 994 F.Supp. 1196, 1198-99 (N.D. Cal. 1998) (noting that "[a] speculative argument regarding the potential value of the award is insufficient" and remanding action where the "[d]efendant contends that the amount in controversy, which includes contract damages in the amount of $56,500, plus attorneys fees, plus punitive damages, exceeds $75,000" because estimates of attorneys' fees and punitive damages were
Federal courts have federal-question jurisdiction for "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "Federal-question jurisdiction pursuant to 28 U.S.C. § 1331 arises in two situations." Cummings v. Cenergy Int'l Servs., LLC, 258 F.Supp.3d 1097, 1106 (E.D. Cal. 2017). "First, a court may exercise federal-question jurisdiction where a federal right or immunity is `an element, and an essential one, of the plaintiff's cause of action.'" Id. (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 11, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). "Second, federal-question jurisdiction arises where a state-law claim `necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.'" Id. (quoting Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)).
"To assess federal-question jurisdiction, courts apply the `well-pleaded complaint' rule under which `federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.'" Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 391-92, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). "A defense is not a part of a plaintiff's properly pleaded statement of his or her claim." Id. (quoting Rivet v. Regions Bank, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998)). A corollary to the well-pleaded complaint rule, however, is the "complete pre-emption doctrine." See Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425. Under the complete pre-emption doctrine, where "the pre-emptive force of a statute is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Id. (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). "Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. (citing Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841).
Defendant claims that removal is proper because "plaintiff's claims indisputably arise under the Montreal Convention,
In the absence of binding authority from the Ninth Circuit, the Court follows the "majority approach" and concludes that the Montreal Convention does not completely preempt Plaintiff's state law claims, but rather serves as an affirmative defense. See, e.g., Rocha, 2014 WL 12626317, at *3 (collecting cases following this "majority approach"); Greig, 28 F. Supp. 3d at 977 (noting "numerous district court opinions from within the Ninth Circuit" concluding that the Montreal Convention may serve as an affirmative defense). The Court therefore concludes that Defendant has failed to establish that the Court has federal-question jurisdiction.
In light of the foregoing, the Court
Similarly, in Lamke v. Sunstate Equipment Co., 319 F.Supp.2d 1029 (N.D. Cal. 2004), the district court concluded that it was not facially apparent that the jurisdictional amount in controversy was satisfied, allowing the court to "consider evidence relevant to the amount in controversy at the time of removal." Id. at 1032. In Lamke, the plaintiff withdrew his motion to remand, which was "tantamount to a concession that [the defendant]'s basis for removal was correct—i.e., that more likely than not there is more than $75,000 at issue." Id. at 1034. Further, the parties' joint case management conference statement claimed that the plaintiff's damages came to approximately $71,000, which excluded future economic damages, punitive damages, out-of-pocket medical expenses, and $10,000 of the $25,000 emotional distress damages pleaded in his complaint. See id. Lamke therefore does not support Defendant's "facially evident" argument, either.