1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CAROLINE VILLALPANDO, Case No.: 19-CV-2055 JLS (BGS)

12 Plaintiff, ORDER REMANDING ACTION TO 13 v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY 14 SOUTHWEST AIRLINES CO., a Texas OF SAN DIEGO corporation; and DOES 1 THROUGH 10, 15 inclusive, (ECF No. 1) 16 Defendants. 17

18 On November 29, 2018, Plaintiff Caroline Villalpando filed a complaint in the 19 Superior Court of the State of California, County of San Diego, related to injuries sustained 20 when she fell down the escalator after she “was shown to the escalator rather than provided 21 with pre-arranged wheelchair assistance” following a flight on Defendant’s airline. See 22 ECF No. 1-2 at A-6. On May 9, 2019, Defendant removed to this Court on the grounds 23 that “[t]his is a civil action where the amount in controversy appears to exceed $75,000 24 and the parties are citizens of different states.” See Notice of Removal at ¶ 2, Villalpando 25 v. Sw. Airlines Co., No. 19-CV-875 JLS (BGS) (S.D. Cal. filed May 9, 2019) (“Villalpando 26 I”), ECF No. 1. To establish that the amount in controversy exceeded $75,000, Defendant 27 relied on a “Statement of Damages” provided by Plaintiff “wherein it is alleged that 28 Plaintiff is seeking damages in the amount of $5,000,000.” Id. ¶ 9. 1 On May 14, 2019, the Court sua sponte remanded the action on the grounds that 2 Defendant had “failed to produce evidence to meet its burden of showing by a 3 preponderance of the evidence that the amount in controversy attributable to Plaintiff’s 4 claims exceeds the $75,000 threshold.” See Order Remanding Action to the Superior Court 5 of the State of California, County of San Diego, at 3, Villalpando I, ECF No. 6 (citing 6 Schroeder v. PetSmart, Inc., No. CV191561FMOAGRX,

, at *3 (C.D. 7 Cal. Apr. 29, 2019)). “Following the remand to Superior Court, Southwest prepared and 8 served written discovery requests designed to verify whether or not Plaintiff’s claimed 9 damages exceeded the required amount in controversy.” ECF No. 1 ¶ 9. “On September 10 27, 2019, . . . Plaintiff admit[ted], under penalty of perjury, that her claim exceeds $75,000 11 in value; that she will or has experienced more than $75,000 in economic damages; and 12 also that she will or has separated experienced more than $75,000 in non-economic 13 damages and future damages (for a total claim in excess of $150,000 by virtue of Plaintiff’s 14 admissions).” Id. ¶ 10. “[B]ased upon these recent responses to Southwest’s discovery 15 requests, including Plaintiff’s responses to requests for admissions, . . . Southwest now 16 believes sufficient evidence is presented to confirm that the amount in controversy will 17 exceed $75,000.” Id. ¶ 12. Consequently, on October 25, 2019, Defendant again removed 18 this action, again contending that “the amount in controversy appears to exceed $75,000 19 based on available information.” See id. ¶ 2. 20 Pursuant to

(d), “[a]n order remanding a case to the State court 21 from which it was removed is not reviewable on appeal or otherwise.” “In light of the 22 prohibition against review of a remand order in § 1[4]46(d), once a district court has 23 remanded a case, a defendant generally may not remove the case to federal court a second 24 time.” Leon v. Gordon Trucking, Inc.,

, 1061–62 (C.D. Cal. 2014) 25 (alteration in original) (quoting Lodi Mem’l Hosp. Ass’n, Inc. v. Blue Cross of Cal., No. 26 CIV. 12 1071 WBS GGH,

, at *3 (E.D. Cal. Aug. 22, 2012)). “Stated 27 differently, ‘a party is not entitled to file a second notice of removal upon the same grounds 28 where the district court previously remanded the action.’”

at 1062 (quoting Allen v. 1 UtiliQuest, LLC., No. CV 13-4466 SBA,

, at *2 (N.D. Cal. Jan. 9 2014)) 2 (citing Seedman v. U.S. Dist. Ct. for C.D. Cal.,

(9th Cir. 1988); Andersen 3 v. Schwan Food Co., No. CV 13-02208 JGB,

, at *4 (C.D. Cal. Mar. 26, 4 2014)). “This general prohibition on successive removals, however, does not apply ‘when 5 subsequent pleadings or events reveal a new and different ground for removal.’”

at 6 1062–63 (emphasis in original) (quoting Kirkbride v. Cont’l Cas. Co.,

, 732 7 (9th Cir. 1991)) (collecting cases). “Indeed, ‘absent new and different grounds for removal 8 based on newly discovered facts or law, a defendant who improperly removes a case after 9 a federal court previously remanded it risks being sanctioned under Federal Rule of Civil 10 Procedure 11.’” Id. at 1063 (quoting Fed. Home Loan Mortg. Corp. v. Pulido, No. CV 12- 11 04525 LB,

, at *2 (N.D. Cal. Oct. 20, 2012). 12 “[I]t is the grounds discussed in the remand order, rather than the grounds alleged in 13 the notice of removal, that govern whether a successive removal is based on ‘new and 14 different’ grounds.”

at 1066–67 (citing Domenico v. Veolia Transp., Inc., No. 10-CV- 15 02104 WYD,

, *1 (D. Colo. Aug. 31, 2010); Andersen,

1266785 at *4). The operative question, therefore, is whether the grounds for removal in 17 Defendant’s instant Notice of Removal are “‘new and different’ from those addressed in 18 the [C]ourt’s prior remand [O]rder.”

at 1065 (quoting Seedman,

; Allen, 19

, at *2). 20 The Court concludes that they are not. In its prior removal, Defendant claimed that 21 the amount in controversy exceeded the $75,000 jurisdictional threshold on the basis on 22 Plaintiff’s $5,000,000 statement of damages. The Court concluded that Defendant had 23 failed to meet its burden of establishing by a preponderance of the evidence that the amount 24 in controversy exceeded $75,000. Consequently, Defendant “was at least aware that 25 Plaintiff’s medical expenses and potential medical expenses could have well exceeded 26 $75,000 . . . , [but] failed to provide such information to the Court.” See B.C. ex rel. 27 Coleman v. Ngo, No. CV 18-05913 RSWL-JPR,

, at *2 (C.D. Cal. July 28 2, 2019). “Because [Defendant] brings its successive removal on the same grounds as its 1 || first removal, and given that there has been no ‘relevant change of circumstances,’” remand 2 ||is appropriate. See

at *3 (quoting Reyes v. Dollar Tree Stores, Inc.,

(9th Cir. 2015)). 4 In any event, Plaintiff's responses to Defendant’s requests for admission fails to 5 ||establish by a preponderance of the evidence that the amount in controversy exceeds 6 ||$75,000. As with the Statement of Damages, Plaintiff’s bare admission “is entirely 7 ||conclusory[,] . . . provid[ing] no information that indicates it is a realistic assessment of 8 damages, or that it is based on facts that could be proved at trial. Hence it appears to be 9 || nothing more than a bold optimistic conclusion that is not sufficient to carry [Defendant]’s 10 burden of proving the amount in controversy.” Leon,

(quoting 11 ||Romsa v. Ikea U.S. W., Inc., No. CV 14-05552 MMM (JJEMx),

, at *2 12 ||(C.D. Cal. Aug. 28, 2014)) (internal quotation marks omitted) (citing Aparicio v. 13 ||Abercrombie & Fitch Stores Inc., No. CV 13-09209 MMM (Ex),

, at *6 14 ||(C.D. Cal. Feb. 10, 2014); Owens v. Westwood Coll. Inc., No. CV 13-4334 CAS (FFMx), 15 ||

, at *3 (C.D. Cal. Aug. 12, 2013)). The Court therefore REMANDS 16 || this action to the Superior Court of the State of California, County of San Diego. See

17 1072 (“[B]ecause [Defendant]’s second notice of removal is premised on the facts 18 || addressed in the court’s remand order, the court lacks jurisdiction to entertain the second 19 ||removal petition. For this reason, the court must remand the action to state court. Even if 20 ||court could exercise jurisdiction over the removal, moreover, [Defendant] has failed to 21 carry its burden of proving that the amount in controversy requirement is satisfied. For 22 || this reason as well, remand is appropriate.”’). 23 IT IS SO ORDERED. 24 25 ||Dated: November 13, 2019 psi L. Lo meeaitie- 26 on. Janis L. Sammartino United States District Judge 27 28