United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion to Remand (Doc.
11, “Mot.”). On November 8, 2018, Defendant filed
a Notice of Removal (Doc. 1, “Notice”). Plaintiff
filed the Motion to Remand on November 9, 2018, and Defendant
subsequently filed an opposition to Plaintiff's Motion to
Remand on December 3, 2018 (Doc. 21, “Resp.”).
For the reasons stated below, Plaintiff's Motion to
Remand is GRANTED.
28 U.S.C. § 1441(a), the district courts have removal
jurisdiction over any claim that could have been brought in
federal court originally.” Hall v. N. Am. Van
Lines, Inc., 476 F.3d 683, 686-87 (9th Cir. 2007). Under
28 U.S.C. § 1332, federal district courts “have
original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75, 000 . . . and
is between . . . citizens of different States[.]”
“Where doubt regarding the right to removal exists, a
case should be remanded to state court.” Matheson
v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090
(9th Cir. 2003); see also Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.”).
the amount in controversy is in dispute or unclear,
‘the Supreme Court has drawn a sharp distinction
between original jurisdiction and removal
jurisdiction.'” Int'l Tech. Coatings, Inc.
v. Trover, No. 2:12-CV-01007-JAT, 2012 WL 2301382, at *2
(D. Ariz. June 18, 2012) (quoting Gaus, 980 F.2d at
566). “In a removed case, . . . the plaintiff chose a
state rather than federal forum. Because the plaintiff
instituted the case in state court, ‘there is a strong
presumption that the plaintiff has not claimed a large amount
in order to confer jurisdiction on a federal
court[.]'” Singer v. State Farm Mut. Auto. Ins.
Co., 116 F.3d 373, 375 (9th Cir.1997) (quoting St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
cases where no dollar amount is demanded in the complaint,
“the removing defendant bears the burden of proving by
a preponderance of evidence that the amount in controversy
exceeds” the jurisdictional threshold. Id. at
376 (citing Sanchez v. Monumental Life Ins. Co., 102
F.3d 398, 404 (9th Cir.1996)). “[T]he defendant must
set forth facts supporting the assertion that the amount in
controversy exceeds the statutory minimum.”
Int'l Tech., 2012 WL 2301382, at *3 (citing
Gaus, 980 F.2d at 567). “The court may
consider whether it is ‘facially apparent' from the
complaint that the amount in controversy has been met,
” and “[i]f it is not facially apparent, the
court may consider facts in the removal petition or
‘summary-judgment-type evidence relevant to the amount
in controversy at the time of removal.'” Plexus
Worldwide LLC v. TruVision Health LLC, No.
CV-14-02093-PHX-ROS, 2014 WL 12650627, at *2 (D. Ariz. Dec.
22, 2014) (quoting Singer, 116 F.3d at 377).
party argues that there is not complete diversity of
citizenship. (Resp. at 2) (noting that Plaintiff states he is
a citizen of Texas and Defendant states he is a citizen of
Arizona). Plaintiff, however, argues that this case should be
remanded to state court because the amount in controversy
does not exceed $75, 000. (Mot. at 2). Plaintiff contends
that the “only relief sought by Plaintiff in state
court was an injunction against harassment” and that
“Plaintiff seeks no monetary relief from Defendant in
this case[.]” (Mot at 2).
response, Defendant first states that Plaintiff filed a
lawsuit in Texas seeking “identical injunctive relief,
along with a claim for damages amounting to” $100
million. (Resp. at 3); (Notice at 2-3). Defendant next
asserts that he “wins” whether the Court values
injunctive relief on the theory of “plaintiff-viewpoint
rule” or the “either-viewpoint technique.”
(Resp. at 3). Defendant further argues that he has filed a
counterclaim for intentional infliction of emotional distress
and that he seeks damages in excess of $75, 000. (Resp. at
4). In conclusion, Defendant states that “Van Dyke is
seeking $100 million in damages, ” “Retzlaff has
counterclaimed seeking in excess of $75, 000 in damages,
” and “Retzlaff is seeking $1 million in
mandatory sanctions and attorney's fees pursuant to the
Texas anti-SLAPP statute.” (Resp. at 6). As Defendant
bears the burden of proving that the amount in controversy
exceeds $75, 000, the Court will review each of
Defendant's assertions as to why removal jurisdiction
exists in this case.
Defendant claims that that Plaintiff seeks $100 million
damages in a case pending in the U.S. District Court for the
Eastern District of Texas. (Notice at 2); (Resp. at 3).
However, any amount in controversy in that case does not
affect the amount in controversy in the instant action. Here,
the complaint on its face does not seek any monetary damages.
in calculating the amount in controversy, this Court does not
consider the amount of Defendant's counterclaim. When
determining the amount in controversy, “the great
weight of authority favors [the] position that the amount of
a counterclaim may not be considered[.]” Mesa
Indus., Inc. v. Eaglebrook Prod., Inc., 980 F.Supp. 323,
326 (D. Ariz. 1997) (collecting cases); see also
Int'l Tech., 2012 WL 2301382, at *5 (noting that
this Court cannot consider a defendant's counterclaims
when calculating the amount in controversy); Breckenridge
Prop. Fund 2016, LLC v. Gonzalez, No. 17-CV-03915-JCS,
2017 WL 3381155, at *3 (N.D. Cal. Aug. 7, 2017) (“The
amount in controversy is evaluated only with reference to the
complaint and does not take into account
counterclaims.”). Similarly, the Court would not
consider any amount sought by Defendant for sanctions and
attorney's fees in his pending motion to dismiss (Doc.
the Court will consider Defendant's assertion that he
wins whether the Court values injunctive relief on the theory
of “plaintiff-viewpoint rule” or the
“either-viewpoint technique.” “In actions
seeking declaratory or injunctive relief, it is well
established that the amount in controversy is measured by the
value of the object of the litigation.” Corral v.
Select Portfolio Servicing, Inc., 878 F.3d 770, 775 (9th
Cir. 2017) (quoting Cohn v. Petsmart, Inc., 281 F.3d
837, 840 (9th Cir. 2002)). In the Ninth Circuit, the Court
uses an “‘either viewpoint” rule.”
Stelzer v. CarMax Auto Superstores California, LLC,
No. 13-CV-1788 BAS JMA, 2014 WL 3700269, at *3 (S.D. Cal.
July 24, 2014) (citing Ridder Bros. Inc., v.
Blethen, 142 F.2d 395, 399 (9th Cir.1944)). “Under
the ‘either viewpoint' rule, the test for
determining the amount in controversy is the pecuniary result
to either party which the judgment would directly
produce.” In re Ford Motor Co./Citibank (S.
Dakota), N.A., 264 F.3d 952, 958 (9th Cir. 2001) (citing
Ridder Bros., 142 F.2d at 399); see also
Stelzer, 2014 WL 3700269, at *3 (“Under this rule,
either the plaintiff's potential recovery or the
potential cost to the defendant of complying with the
injunction must exceed the jurisdictional threshold.”).
merely states that he “wins” under either view,
(Resp. at 3), but does not attempt to place any value on the
injunctive relief in the Notice of Removal (Doc. 1) or
Response (Doc. 21). In the Motion to Remand, Plaintiff
asserts that he seeks only an injunction against harassment,
and if the Court were to value the relief from
Plaintiff's perspective, it would be required to look at
the value of such an injunction to Plaintiff, including
possible future interference with Plaintiff's employment
opportunities. (Mot. at 3-4). But Plaintiff claims that the
value of such potential benefits would not exceed the
jurisdictional threshold of $75, 000 and Defendant has not
provided evidence to the contrary. (Mot. at 4); see also
Kilgore v. Providence Place Mall, No. CV 16-135S, 2016
WL 3092990, at *3 (D.R.I. Apr. 1, 2016), report and
recommendation adopted, No. CV 16-135 S, 2016 WL 3093450
(D.R.I. June 1, 2016) (finding no jurisdiction when an
injunction against harassment did not have a pecuniary
consequence of more than $75, 000). Plaintiff also asserts
that “the cost to Defendant of ...