Heichman v. American Tel. & Tel. Co., CV 95-2756-SVW(BQRx).

• Decision Date: 26 December 1995
• Docket Number: No. CV 95-2756-SVW(BQRx).,CV 95-2756-SVW(BQRx).
• Citation: 943 F.Supp. 1212
• Court: U.S. District Court — Central District of California
• Parties: Paul HEICHMAN, individually, and on behalf of all others similarly situated, Plaintiffs, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a Delaware corporation; AT & T Corp., a New York corporation; and Does 1 through 100, inclusive, Defendants.

943 F.Supp. 1212

Paul HEICHMAN, individually, and on behalf of all others similarly situated, Plaintiffs, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a Delaware corporation; AT & T Corp., a New York corporation; and Does 1 through 100, inclusive, Defendants.

No. CV 95-2756-SVW(BQRx).

United States District Court, C.D. California.

December 26, 1995.

COPYRIGHT MATERIAL OMITTED

Brian R. Strange, Strange & Hoey, Los Angeles, CA, for Plaintiffs.

Andrew M. White, Eric N. Landau, Melvin N.A. Avanzado, Christensen, White, Miller, Fink, Jacobs, Glaser & Shapiro, Los Angeles, CA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND

WILSON, District Judge.

I. BACKGROUND

On March 22, 1993, plaintiff Paul Heichman made a telephone call originating in Trinidad and terminating in Beverly Hills, California. At the time of the call, plaintiff's billing address and residence were in Los Angeles. AT & T collected a tax on the call pursuant to a Los Angeles municipal ordinance. On March 21, 1995, plaintiff filed a class action complaint in Los Angeles Superior Court attacking AT & T's collection of state and local taxes on non-intrastate telephone calls, stating causes of action for unfair business practices, breach of contract, and breach of the covenant of good faith and fair dealing. As is customary in state court, plaintiff's complaint contained no allegation with respect to the amount in controversy; the ad damnum clause merely prayed for "general damages in a sum to be ascertained at the time of trial."

On April 25, 1995, within 30 days of its receipt of the complaint, AT & T filed a petition to remove the case to this Court on the basis of both diversity and federal question jurisdiction. Plaintiff filed a first amended complaint on May 26, 1995. The amended complaint contained an allegation that jurisdiction in this Court was properly founded upon diversity of citizenship. Plaintiff's amended complaint set forth causes of action for unfair business practices, breach of contract, and an accounting, and again alleged that plaintiff's injury was caused by AT & T's collection of state and local tax on telephone calls other than intrastate calls. Plaintiff again sought general damages in an amount to be ascertained at trial.

Plaintiff has moved to remand this action to state court, and AT & T has moved to dismiss the action.

In a declaration filed on August 28, 1995, plaintiff's counsel for the first time identified the call or calls at issue. Plaintiff's counsel stated that AT & T charged plaintiff $5.32 in state and local taxes on non-intrastate calls, and that this amount "is the only measure of damages plaintiff is currently aware of." In a further declaration filed on September 22, 1995, plaintiff's counsel stated that the $5.32 in allegedly unlawful taxes was charged on a single call made on March 22, 1993, originating in Trinidad and terminating in the city of Beverly Hills. Plaintiff also apparently was charged state and local taxes on two other non-intrastate calls, but his account was credited therefor after he complained to AT & T. Plaintiff has not been credited for the tax assessed on the Trinidad-Beverly Hills call.

For the reasons that follow, the Court has concluded that it lacks jurisdiction over this action and therefore must remand it to the state court in which it was originally filed.

II. Diversity of Citizenship Jurisdiction

Title 28 U.S.C. § 1332 provides that in diversity cases, "the matter in controversy" must exceed $50,000. This case was purportedly removed to this Court on the basis of both diversity and federal question jurisdiction. Removal jurisdiction exists only where original jurisdiction would also have existed, 28 U.S.C. § 1441(a), and the removing defendant bears the burden of establishing jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.1992). Plaintiff's first amended complaint stated that "the matter in controversy exceeds the jurisdictional minimum of $50,000," which, if the jurisdictional facts were unchallenged, would suffice to establish jurisdiction. Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir.1986).

It is axiomatic that subject matter jurisdiction may be raised by the Court sua sponte and at any time. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.") (emphasis added); Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994) ("When jurisdiction may not exist, however, the court must raise the issue even if the parties are willing to stipulate to federal jurisdiction.") (citation omitted). As the Supreme Court made clear as early as 1936, even where no party disputes a court's jurisdiction, "the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence." McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936).

In this case, neither party has offered any evidence whatever to establish that the requisite amount is in controversy. Instead, as in Gaus, AT & T simply recites the bare allegation that "the matter in controversy exceeds the jurisdictional minimum of $50,000." See 980 F.2d at 567. It hardly needs to be said that plaintiff's acquiescence in this allegation in his amended complaint (although he later apparently changed his mind and moved for remand) does not confer subject matter jurisdiction. Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556, 42 L.Ed.2d 532 (1975); Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934); American Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 541-42, 95 L.Ed. 702 (1951). It is irrelevant that the parties believe or wish there to be jurisdiction if the requisite jurisdictional facts do not exist, for "the subject matter jurisdiction of the federal court is too basic a concern to the judicial system to be left to the whims and tactical concerns of the litigants." Wright, Miller & Cooper, Fed.Pract. & Proced.: Jurisdiction 2d § 3522, at 66-68 (2d ed. 1984).

The Supreme Court has made it eminently clear that federal courts must not hesitate to confess the absence of jurisdiction even if doing so will reward litigants who have engaged in unpraiseworthy tactics by shuttling the proverbial apple to a different court to give those litigants a second bite. In Finn, the defendants had removed the action, and had successfully opposed the plaintiff's attempt to remand it. Plaintiff then won a verdict, and on appeal, defendants for the first time and in the teeth of their removal argued that the court lacked jurisdiction. The defendants prevailed, because while their conduct might have been sanctionable, nothing could alter the fact that the court never had jurisdiction. 341 U.S. at 16-18, 71 S.Ct. at 542. See also Wright, Miller & Cooper § 3522, at 68 n. 10; Id. at § 3522, at 76 ("the remedy for this conduct would be disciplinary action by the court rather than an assumption of subject matter jurisdiction that the court does not have") (citing Page v. Wright, 116 F.2d 449, 455 (7th Cir.1940), cert. dismissed, 312 U.S. 710, 61 S.Ct. 831, 85 L.Ed. 1142 (1941)).

Similarly, in Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707, 711 (9th Cir.1992), the defendants were permitted to contest the existence of diversity "almost four years after admitting the necessary jurisdictional facts." Even more striking is the Ninth Circuit's opinion in Richardson v. United States, 943 F.2d 1107 (9th Cir.1991), cert. denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992). There, after "fourteen years of litigation, three liability trials, one damage trial, and two prior appeals," during which "the government has continuously asserted the discretionary function defense [under the Federal Tort Claims Act] [and] repeatedly lost on the issue," id. at 1112 (internal alterations omitted), the district court belatedly concluded that the conduct at issue fell within the discretionary function exception and thus that it had no subject matter jurisdiction. Although the Ninth Circuit recognized the harshness to the plaintiffs of permitting the government to raise this defense at such a late stage in the proceedings after failing to raise it on the two earlier appeals, id. at 1112-13, the Court affirmed the district court's dismissal of the action because "[s]ubject matter jurisdiction cannot be conferred upon the courts by the actions of the parties and principles of estoppel and waiver do not apply," id. at 1113.¹

Compliance with the amount in controversy requirement is tested at the time the complaint is filed or the action is removed, e.g., Watson v. Blankinship, 20 F.3d 383, 387 (10th Cir.1994), and the plaintiff need only have a good faith belief at that time that the jurisdictional minimum is satisfied, St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Therefore, subsequent dismissal of certain claims or amendment of the prayer for relief does not destroy jurisdiction if the Court was properly seized of jurisdiction in the first place. St. Paul, 303 U.S. at 292, 58 S.Ct. at 591.

"A distinction must be made, however, between subsequent events that change the amount in controversy and subsequent revelations that, in fact, the required amount was or was not in controversy at the commencement of the action." Watson, 20 F.3d at 387 (quoting Jones v. Knox Exploration Corp., 2 F.3d 181, 183 (6th Cir.1993)). "[W]here `the proofs adduced at trial conclusively show that the plaintiff never had a claim even arguably within the [jurisdictional] range,' a diversity action must be dismissed." Jones, 2 F.3d at 183 (quoting Jimenez Puig v. Avis Rent-A-Car System, 574...