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Sam Argyropoulus v. Dirty World, LLC - Response to Motion to Remand

Sam Argyropoulus v. Dirty World, LLC - Response to Motion to Remand

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Published by: David S. Gingras on Oct 29, 2012
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Case 2:12-cv-08741-R-PJW Document 9

Filed 10/29/12 Page 1 of 7 Page ID #:237

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048 (480) 668-3623

David S. Gingras, CSB #218793 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com Attorney for Defendant DIRTY WORLD, LLC

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SAM ARGYROPOULUS, an individual, Plaintiff, v. DIRTY WORLD, LLC, a Delaware Limited Liability Company; and Does 1–30 inclusive, Defendants. Case No: CV 12-8741-R DEFENDANT DIRTY WORLD, LLC’S RESPONSE TO PLAINTIFF’S MOTION TO REMAND

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Defendant DIRTY WORLD, LLC (“DW”) respectfully submits the following response in opposition to Plaintiff SAM ARGYROPOULUS’s (“Plaintiff”) Motion to Remand (Doc. #6). As explained herein, Plaintiff’s motion should be denied. I. PRELIMINARY COMMENTS Before addressing the substance of Plaintiff’s arguments, DW notes that Plaintiff’s motion should be taken off-calendar and/or summarily denied based on Plaintiff’s failure to comply with the local rules of this Court. Specifically, L.R. 7–3 provides “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” In the event counsel are unable to resolve the matter, the moving party must include a certification in his motion avowing: “This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on (date).” RESPONSE TO MOTION TO REMAND Case No: CV 12-8741-R

Case 2:12-cv-08741-R-PJW Document 9

Filed 10/29/12 Page 2 of 7 Page ID #:238

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048 (480) 668-3623

Here, Plaintiff’s motion does not contain the required certification for one simple reason—plaintiff’s counsel did not attempt to meet and confer in good faith prior to filing the instant motion. For that reason alone, the motion should be denied. II. ARGUMENT a. The Court Has Diversity Jurisdiction Pursuant to 28 U.S.C. § 1332(a) Because The Parties Are Completely Diverse And The Amount in Controversy Exceeded $75,000 At The Time Of Removal At the outset, it is important to note that the relevant question here is whether this case was properly removed at the time it was removed, not whether removal would have been appropriate based on Plaintiff’s post-removal attempts to avoid federal jurisdiction. Specifically, in his motion Plaintiff makes much of the fact that after this case was removed, he improperly filed a First Amended Complaint in state court which purported to abandon two of the three causes of action in his original Complaint and which also drastically lowered the amount of type and amount of damages sought. For instance, as noted in the original Complaint which was removed to this Court, a copy of which was attached a Exhibit A to the Notice of Removal (Doc. #1), Plaintiff’s original Complaint asserted three causes of action: 1.) Violation of Plaintiff’s publicity rights under Cal. Civ. Code § 3344; 2.) Violation of common-law publicity rights; and 3.) Defamation. Importantly and as explained in Defendant’s removal notice, the first cause of action carried potentially severe monetary penalties including 1.) statutory damages and a mandatory award of attorney’s fees and costs to the prevailing party, 2.) injunctive relief, 3.) restitution, including “all profits and/or other benefits from the of [plainitff’s] image”, 4.) compensatory and general damages; 5.) punitive damages, and 6.) “mental distress”. Based on his own assertion that Defendant’s exposure under this claim was substantial, in a letter which was incorporated by reference in his Complaint, Plaintiff’s counsel demanded an immediate settlement payment of $80,000 in order to avoid litigation. 2 RESPONSE TO MOTION TO REMAND Case No: CV 12-8741-R

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Case 2:12-cv-08741-R-PJW Document 9

Filed 10/29/12 Page 3 of 7 Page ID #:239

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048 (480) 668-3623

Plaintiff’s offer was not accepted. As a result, Plaintiff followed through with his threat and filed this action in state court which was timely removed to this court on October 10, 20121 pursuant to 28 U.S.C. § 1446. Two days after the case was removed, Plaintiff attempted to drastically change the nature of the case by filing a First Amended Complaint in state court on October 12, 2012 which deleted his first two causes of action and which attempted to disclaim any demand for damages greater than $75,000. Although it is unclear whether a post-removal pleading filed in state court has any effect at all on the federal proceeding, it is apparent that this amendment (if effective) would result in Plaintiff abandoning his right to recover an otherwise mandatory award of attorney’s fees under Cal. Civ. Code § 3344(a). Despite this, it is clear that the disposition of Plaintiff’s Motion to Remand cannot be based on events which occurred after removal; “Challenges to removal jurisdiction require an inquiry into the circumstances at the time the notice of removal is filed.” Spencer v. U.S. Dist. Court, 393 F.3d 867, 871 n.4 (9th Cir. 2004) (empahsis added); see also United Steel v. Shell Oil Co., 602 F.3d 1087, 1091–92 (9th Cir. 2010) (explaining “[P]ost-filing developments do not defeat jurisdiction if jurisdiction was properly invoked as of the time of filing.”) (empahsis added). Thus, the question is not whether the single remaining defamation claim in Plaintiff’s Amended Complaint is likely to involve damages of $75,000 or more. Rather, the only relevant question (which Plaintiff’s instant motion completely ignores) is whether the original Complaint which was removed to this Court presented claims which were sufficient to invoke the Court’s diversity jurisdiction at the time the Notice of Removal was filed. Because the answer to that question is yes, removal was proper and Plaintiff’s motion must be denied. Although the Notice of Removal (Doc. #1) reflects a docketing date of October 12, 2012, the notice was actually delivered to the Clerk of the U.S. District Court for filing on the morning of October 10, 2012. See Declaration of David S. Gingras ¶¶ 5–7 submitted herewith. It is unknown why the clerk failed to timely docket the notice until two days later. However, because it was delivered to the clerk on October 10, 2012, the Notice of Removal was timely filed. See Fed. R. Civ. P. 5(d)(2)(A) (defining “filing” as follows: “A paper is filed by delivering it: (A) to the clerk ... .”) 3
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RESPONSE TO MOTION TO REMAND Case No: CV 12-8741-R

Case 2:12-cv-08741-R-PJW Document 9

Filed 10/29/12 Page 4 of 7 Page ID #:240

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048 (480) 668-3623

This scenario is virtually identical to the events described in Fujii v. Llavina, 2010 WL 3385195 (D.Hawai'i 2010) (magistrate’s report and recommendation adopted by district judge; Fujii v. Llavina, 2010 WL 3385193 (D.Hawai'i Aug 23, 2010)). Fujii was a personal injury case arising from an automobile accident involving the plaintiff (a resident of Hawaii) and the defendant (a resident of Utah). The plaintiff’s initial state court Complaint requested “[g]eneral damages in an amount within the jurisdiction of the Circuit Court of the Second Circuit, State of Hawaii [i.e., $25,000]”, and various other relief such as attorney’s fees. However, the Complaint did not specifically request damages of more than $75,000. Rather, like this case, the initial Complaint merely requested “damages in such amounts as will be proved at time of trial.” Like this case, prior to filing suit the plaintiff in Fujii sent a demand letter to the defendant asserting that the value of plaintiff’s claim was “between $88,341.51 and $93,341.51.” Fujii, 2010 WL 3385195, *1. On that basis, after the action was filed in state court the defendant removed the case to federal court asserting diversity jurisdiction. Like this case, after removal the plaintiff in Fujii attempted to narrow the scope of his claims to avoid federal jurisdiction by offering to stipulate that the amount in controversy was less than $70,000. See Fujii, 2010 WL 3385195, *1. The court rejected this argument and found that because the plaintiff’s own demand letter evaluated his claims as exceeding $75,000, the case was properly removed. As such, the court denied the Motion to Remand, explaining: The Court will not consider Plaintiff’s post-removal offer to stipulate that the amount in controversy does not exceed $70,000.00, because “diversity jurisdiction is determined at the time the action commences, and a federal court is not divested of jurisdiction ... if the amount in controversy subsequently drops below the minimum jurisdictional level.”

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Fujii, 2010 WL 3385195, *3 (emphasis added) (quoting Hill v. Blind Indus. & Servs. of Maryland, 179 F.3d 754, 757 (9th Cir. 1999) (citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293–95, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). 4 RESPONSE TO MOTION TO REMAND Case No: CV 12-8741-R

Case 2:12-cv-08741-R-PJW Document 9

Filed 10/29/12 Page 5 of 7 Page ID #:241

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048 (480) 668-3623

With that point in mind, the Fujii court also rejected the exact same argument Plaintiff raises here: that the amount in controversy cannot be established by a settlement offer; “the demand letter would not be admissible as evidence of ‘liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction[,]’ Fed. R. Evid. 408(a), [but] it is admissible in the instant Motion to establish the amount in controversy for removal purposes.” Fujii, 2010 WL 3385195, *3 (emphasis added). The same rule was applied by numerous cases cited on page 4 of Defendant’s Notice of Removal; “A settlement letter is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the plaintiff’s claim.” Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) (empahsis added) (citing Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424, 428–30 (7th Cir. 1997) (finding plaintiff’s settlement offer is properly consulted in determining “plaintiff’s assessment of the value of her case”); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994) (while a “settlement offer, by itself, may not be determinative, it counts for something”); Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir.1994) (holding “Because the record contains a letter, which plaintiff’s counsel sent to defendants stating that the amount in controversy exceeded $50,000, it is ‘apparent’ that removal was proper.”). Here, Plaintiff offers no argument whatsoever to explain why his $80,000 demand was not a fair and reasonable estimate of the value of the claims set forth in his original Complaint. Because his self-serving post-removal attempt to nudge the amount requested below the jurisdictional minimum is irrelevant to the question of whether removal was proper at the time it occurred, the Motion to Remand must be denied. b. Additional Comments In his motion, Plaintiff argues (correctly) that federal courts have limited jurisdiction and that where it is clear that a case does not meet the statutory requirements for removal, remand is proper. Although this is an accurate summary of the law, it fails to recognize that “the exercise of diversity jurisdiction is not discretionary.” Brockman v. 5 RESPONSE TO MOTION TO REMAND Case No: CV 12-8741-R

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Case 2:12-cv-08741-R-PJW Document 9

Filed 10/29/12 Page 6 of 7 Page ID #:242

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048 (480) 668-3623

Merabank, 40 F.3d 1013, 1017 (9th Cir. 1994) (citing Carnegie-Mellon University v. Cohill, 484 U.S. 343, 356, 108 S.Ct. 614, 622, 98 L.Ed. 720 (1988)). On the contrary, “With rare exceptions not applicable here [e.g., abstention] where the district court is presented with a case within its original jurisdiction, it has a virtually unflagging obligation to exercise the jurisdiction conferred upon it by the coordinate branches of government and duly invoked by litigants.” Williams v. Costco Wholesale Corp., 471 F.3d 975, 977 (9th Cir. 2006) (holding district court had no discretion to remand removed case where diversity jurisdiction was present) (internal quotation marks omitted) (quoting United States v. Rubenstein, 971 F.2d 288, 293 (9th Cir. 1992)). Furthermore, “Removal based on diversity jurisdiction is intended to protect out-of-state defendants from possible prejudices in state court.” Lively v. Wild Oats Markets, Inc., 456 F.3d 933 (9th Cir. 2006) (citing Tosco Corp. v. Cmtys. for a Better Env’t., 236 F.3d 495, 502 (9th Cir. 2001) (“The purpose of diversity jurisdiction is to provide a federal forum for out-of-state litigants where they are free from prejudice in favor of a local litigant.”) These concerns are particularly apropos to the facts of this case. Here, Plaintiff is local real estate agent, while Defendant is a Delaware-LLC which operates from its sole place of business in Arizona. Although Plaintiff has chosen his home state of California as the venue, because complete diversity exists and the amount in controversy exceeded $75,000 at the time this case was removed, Defendant is entitled to a federal forum where it may litigate this matter free from prejudice in favor of a local plaintiff. III. CONCLUSION This court had diversity jurisdiction over this case on the day it was removed. As such, Plaintiff’s post hoc attempt to repudiate the value of his case notwithstanding, the case was properly removed and the Motion to Remand should be denied. DATED this 29th day of October, 2012. GINGRAS LAW OFFICE, PLLC /s/ David S. Gingras David S. Gingras Attorney for Defendant Dirty World, LLC 6 RESPONSE TO MOTION TO REMAND Case No: CV 12-8741-R

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Case 2:12-cv-08741-R-PJW Document 9

Filed 10/29/12 Page 7 of 7 Page ID #:243

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048 (480) 668-3623

CERTIFICATE OF SERVICE I hereby certify that on October 29, 2012 I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following: Mr. Timothy A. Hall, Esq. Law Offices of Hall & Lim 9595 Wilshire Blvd., Suite 900 Los Angeles, CA 90212 Attorney for Plaintiff And a copy delivered to: Hon. Manuel L. Real U.S. District Judge 312 North Spring Street, Room 217 Los Angeles, CA 90012-4701

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/s/David S. Gingras

7 RESPONSE TO MOTION TO REMAND Case No: CV 12-8741-R

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