United States District Court, D. Oregon
WINDSOR SURRY COMPANY, a Delaware corporation, and WINDSOR WILLITS COMPANY, a California Corporation, Plaintiffs,
JESUS GOMEZ, Defendant.
Jennifer K. Oetter and Michael T. Belisle, Lewis Brisbois
Bisgaard & Smith LLP, Karl R. Loureiro and William E.
Pallares, Lewis Brisbois Bisgaard & Smith LLP, Of
Attorneys for Plaintiffs.
D. Larson, Stoll, Stoll, Berne Lokting & Shlachter P.C.,
Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
filed this action in the Circuit Court of the State of Oregon
for the County of Multnomah. Plaintiffs allege breach of a
settlement agreement by Gomez and seek injunctive and
declaratory relief, including specific performance. Gomez
removed the case to this Court, asserting jurisdiction under
28 U.S.C. § 1332 based on diversity of the citizenship.
Plaintiffs filed a motion to remand, arguing that the amount
in controversy does not exceed the $75, 000 threshold for
diversity removal because Gomez improperly relied on
speculative attorney's fees to reach the amount in
controversy. In Plaintiffs' reply, Plaintiffs add the
argument that because Gomez is a citizen of Oregon, he is
precluded from removing this case under 28 U.S.C. §
1441(b)(2), referred to as the “forum defendant
action generally may be removed from state court to federal
court if the federal district court would have had original,
subject matter jurisdiction over the case. 28 U.S.C. §
1441(a). Subject matter jurisdiction may be based on either
diversity jurisdiction or federal question jurisdiction. 28
U.S.C. §§ 1331, 1332. Diversity jurisdiction exists
over civil actions when the amount in controversy exceeds
$75, 000 and there is complete diversity among all plaintiffs
and defendants. 28 U.S.C. § 1332(a)(1).
“[D]iversity jurisdiction does not exist unless
each defendant is a citizen of a different State
from each plaintiff.” Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(emphasis in original). A motion to remand is the proper
procedure for a plaintiff to use when challenging removal. 28
U.S.C. § 1447; see also Moore-Thomas v. Ala.
Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). The
party seeking removal bears the burden of establishing by a
preponderance of the evidence that removal is proper.
Moore-Thomas, 553 F.3d at 1244.
12, 2017, Robert Torch filed a putative class action in
federal court in this district against Plaintiffs and the
Windsor Holding Company (collectively, the “Torch
Defendants”), Case No. 3:17-cv-0918-AA (the
“Torch Class Action”). Torch alleges that the
trim board sold by the Torch Defendants was defective because
it rots and decays. On or about August 14, 2017, the Torch
Defendants filed a motion to dismiss, arguing that
Torch's claim for breach of implied warranty is barred
because he purchased his home with the siding already
installed. On or about September 15, 2017, counsel for Torch
contacted the Torch Defendants to confer about adding Gomez
as an additional named plaintiff in the Torch Class Action.
After receiving a copy of the proposed amended complaint,
counsel for the Torch Defendants informed Torch's counsel
that Gomez had previously agreed to settle his claims against
Plaintiffs and that they would not agree to the amendment
adding Gomez as a plaintiff in the Torch Class Action.
Torch's counsel could file a motion to amend to add Gomez
as a plaintiff in the Torch Class Action, Plaintiffs filed
the state court action in this case in Multnomah County on
September 20, 2017, alleging that Gomez verbally accepted
Plaintiffs' settlement offer. On September 22, 2017,
Torch filed a motion to amend the complaint to add Gomez as
an additional named plaintiff in the Torch Class Action.
Judge Ann L. Aiken granted that motion on October 24, 2017,
and denied a motion to dismiss and a motion to strike as
moot. On November 7, 2017, Torch filed the amended complaint
adding Gomez as a named plaintiff.
November 22, 2017, Gomez removed this case to federal court.
On December 8, 2017, the plaintiffs in the Torch Class Action
and Gomez in this action filed motions to consolidate this
case with the Torch Class Action.
Court first addresses whether Plaintiffs have waived their
right to request remand based on the forum defendant rule.
The Court then addresses Plaintiffs' original argument
regarding the amount in controversy.
Forum Defendant Rule
Plaintiffs did not raise their argument challenging removal
under the forum defendant rule until their reply, the Court
ordered two rounds of supplemental briefing. The Court
requested that the parties brief whether Plaintiffs'
waived their right to challenge removal based on the forum
defendant rule by failing to raise the argument in
Plaintiffs' opening brief. The Court ...