Elsa Chavez v. Jpmorgan Chase Bank

                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ELSA CHAVEZ,                                       No. 16-55957
                      Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           2:15-cv-02328-
                                                     DDP-PJW
 JPMORGAN CHASE & CO.; DOES, 1
 through 100, Inclusive,
                Defendants-Appellees.                 OPINION


       Appeal from the United States District Court
          for the Central District of California
    Dean D. Pregerson, Senior District Judge, Presiding

           Argued and Submitted February 14, 2018
                    Pasadena, California

                       Filed April 20, 2018

    Before: Marsha S. Berzon and Jay S. Bybee, Circuit
    Judges, and John A. Woodcock, Jr.,* District Judge.

                     Opinion by Judge Bybee




     *
       The Honorable John A. Woodcock, Jr., United States District Judge
for the district of Maine, sitting by designation.
2                 CHAVEZ V. JPMORGAN CHASE

                            SUMMARY**


                       Diversity Jurisdiction

   The panel held that the amount-in-controversy
requirement for diversity jurisdiction under 

28 U.S.C. § 1332

was satisfied.

    Elsa Chavez sued her former employer in California state
court, and the employer removed to federal district court on
the basis of diversity jurisdiction.

    The panel held that the amount in controversy was not
limited to damages incurred prior to removal – for example,
it was not limited to wages a plaintiff-employee would have
earned before removal (as opposed to after removal). The
panel further held that the amount in controversy was
determined by the complaint operative at the time of removal
and encompassed all relief a court may grant on that
complaint if the plaintiff was victorious. The panel applied
the standard and concluded that the amount-in-controversy
standard was easily satisfied in this case.

   The panel reviewed the merits of the district court’s
summary judgment decision in a concurrently filed
memorandum disposition.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               CHAVEZ V. JPMORGAN CHASE                      3

                         COUNSEL

Kelly R. Horwitz (argued) and Douglas G. Benedon, Benedon
& Serlin LLP, Woodland Hills, California; Christopher M.
Barnes and Marcus A. Mancini, Mancini & Associates,
Sherman Oaks, California; for Plaintiff-Appellant.

Sherry Swieca (argued) and Theresa M. Marchlewski,
Jackson Lewis P.C., Los Angeles, California, for Defendants-
Appellees.


                         OPINION

BYBEE, Circuit Judge:

   Elsa Chavez sued her former employer JPMorgan Chase
Bank (“JPMC”) in California state court. JPMC removed to
federal district court on the basis of diversity jurisdiction
under 

28 U.S.C. § 1332

 and won summary judgment on all of
Chavez’s claims. We review the merits of the district court’s
summary judgment decision in an accompanying
memorandum disposition. Here, we address only Chavez’s
contention that subject matter jurisdiction is lacking because
§ 1332’s amount-in-controversy requirement was not met
when the case was removed.

    Specifically, we write to clarify what it means to say that
the amount in controversy is determined as of “the time of
removal.” See, e.g., Kroske v. U.S. Bank Corp., 

432 F.3d 976, 980

 (9th Cir. 2005). We conclude that the amount in
controversy is not limited to damages incurred prior to
removal—for example, it is not limited to wages a plaintiff-
employee would have earned before removal (as opposed to
4              CHAVEZ V. JPMORGAN CHASE

after removal). Rather, the amount in controversy is
determined by the complaint operative at the time of removal
and encompasses all relief a court may grant on that
complaint if the plaintiff is victorious. Applying that
standard, the amount-in-controversy requirement is easily
satisfied here, and we have subject matter jurisdiction over
this action.

                    I. BACKGROUND

    Elsa Chavez worked as a mortgage banker for JPMC.
JPMC terminated her employment on February 6, 2014. She
sued JPMC in California Superior Court, alleging
(1) harassment, discrimination, and retaliation on the basis of
disability under the California Fair Employment and Housing
Act (“FEHA”); (2) harassment, discrimination, and retaliation
on the basis of age under FEHA; (3) harassment,
discrimination, and retaliation for taking protected leave
under the California Family Rights Act (“CFRA”); (4) failure
to produce employment records under California Labor Code
§ 226; and (5) wrongful termination under California
common law. Her complaint sought “loss of earnings” and
“loss of earning capacity,” as well as “medical expenses,”
“reasonable attorneys’ fees and costs,” “prejudgment
interest,” “punitive and exemplary damages,” “a $750.00
penalty, pursuant to California Labor Code § 226(f),” and
injunctive relief.

    On March 30, 2015, JPMC removed to the United States
District Court for the Central District of California on the
basis of diversity jurisdiction. Chavez did not contest
removal, and indeed, the parties filed a Stipulated Discovery
Plan and Scheduling Order stating: “The parties agree that
this Court has jurisdiction over this matter on the basis of
               CHAVEZ V. JPMORGAN CHASE                     5

diversity jurisdiction.” The district court granted summary
judgment for JPMC on all claims, and Chavez appealed. She
now argues for the first time that removal was improper and
that we lack subject matter jurisdiction over this action
because the amount in controversy does not exceed $75,000.

                     II. DISCUSSION

    Although Chavez did not contest jurisdiction below, we
have an independent obligation to ensure subject matter
jurisdiction exists. Henderson v. Shinseki, 

562 U.S. 428

, 434
(2011). We review the existence of subject matter
jurisdiction de novo. Geographic Expeditions, Inc. v. Estate
of Lhotka ex rel. Lhotka, 

599 F.3d 1102, 1106

 (9th Cir. 2010).
Even where subject matter jurisdiction is otherwise lacking,
we always “have jurisdiction to determine our own
jurisdiction.” Diaz-Covarrubias v. Mukasey, 

551 F.3d 1114, 1117

 (9th Cir. 2009).

    A defendant generally may remove an action filed in state
court if a federal district court would have had original
jurisdiction over the action. 

28 U.S.C. § 1441

(a); Gonzales
v. CarMax Auto Superstores, LLC, 

840 F.3d 644, 648

 (9th
Cir. 2016). The only jurisdictional basis alleged here is
diversity jurisdiction under 

28 U.S.C. § 1332

, which requires
complete diversity among the parties and an amount in
controversy in excess of $75,000, Corral v. Select Portfolio
Servicing, Inc., 

878 F.3d 770, 774

 (9th Cir. 2017). The
parties do not dispute complete diversity, and we have no
6                  CHAVEZ V. JPMORGAN CHASE

difficulty finding it satisfied.1 We therefore pass directly to
considering the amount in controversy.

    Where, as here, it is unclear from the face of the
complaint whether the amount in controversy exceeds
$75,000, “the removing defendant bears the burden of
establishing, by a preponderance of the evidence, that the
amount in controversy exceeds the jurisdictional threshold.”
Urbino v. Orkin Servs. of Cal., Inc., 

726 F.3d 1118

, 1121–22
(9th Cir. 2013) (quotation marks and citations omitted). The
amount in controversy may include “damages (compensatory,
punitive, or otherwise) and the cost of complying with an
injunction, as well as attorneys’ fees awarded under fee
shifting statutes.”     Gonzales, 840 F.3d at 648–49.
“Conclusory allegations as to the amount in controversy are
insufficient.” Corral, 

878 F.3d at 774

. In assessing the
amount in controversy, we may consider allegations in the
complaint and in the notice of removal, as well as summary-
judgment-type evidence relevant to the amount in
controversy. Kroske, 

432 F.3d at 980

.

    As a threshold matter, although litigants cannot stipulate
to subject matter jurisdiction where it does not otherwise
exist, Janakes v. U.S. Postal Serv., 

768 F.2d 1091, 1095

 (9th
Cir. 1985), Chavez’s concession of diversity jurisdiction
below is strong evidence that the amount in controversy

    1
       Chavez is a California citizen. JPMC is a national bank and, as
such, “is a citizen of the State in which its main office, as set forth in its
articles of association, is located.” Wachovia Bank v. Schmidt, 

546 U.S. 303, 307

 (2006) (rejecting the view that a national bank is a citizen of
every state in which it has a branch because the bank’s access to a federal
forum would then “be drastically curtailed in comparison to the access
afforded state banks”). Because JPMC’s main office is located in Ohio,
JPMC is an Ohio citizen and is diverse as to Chavez.
               CHAVEZ V. JPMORGAN CHASE                       7

exceeds $75,000. See Shaw v. Dow Brands, Inc., 

994 F.2d 364

, 367–68 (7th Cir. 1993) (finding diversity jurisdiction
where the plaintiff conceded the amount in controversy “by
not contesting removal when the motion was originally made,
and by jurisdictional statements . . . in his first brief”),
holding modified on other grounds by Meridian Sec. Ins. Co.
v. Sadowski, 

441 F.3d 536, 540

 (7th Cir. 2006). Chavez is the
master of her complaint, and her concession evinces a good
faith belief that her complaint seeks over $75,000. See Singer
v. State Farm Mut. Auto. Ins. Co., 

116 F.3d 373, 374, 376

(9th Cir. 1997) (plaintiff’s judicial admission that his case
was “absolutely” worth “considerably more” than $50,000
satisfied the then-applicable amount-in-controversy
requirement). Such a concession is tantamount to a plaintiff
expressly alleging damages in excess of the jurisdictional
amount, which we accept as the amount in controversy if
done in good faith. See Dart Cherokee Basin Operating Co.,
LLC v. Owens, 

135 S. Ct. 547, 551

 (2014).

    We need not rely on Chavez’s concession of jurisdiction
alone, as there is other, independently sufficient evidence that
the amount in controversy exceeds $75,000. As noted above,
Chavez’s prayer for relief included “loss of earnings” and
“loss of earning capacity.” Because Chavez did not contest
the amount in controversy below, the record with respect to
these claims is somewhat slim. Chavez did admit in her
deposition, however, that her salary as a mortgage banker was
greater than $39,000 a year and that she had intended to
continue working for another nine years. Chavez does not
contest these facts and agrees that, if victorious, California
8                 CHAVEZ V. JPMORGAN CHASE

law could entitle her to over $350,000 in lost wages.2 See
Wysinger v. Auto. Club of S. Cal., 

69 Cal. Rptr. 3d 1, 12

 (Cal.
Ct. App. 2007) (“Under FEHA, an employee . . . may be
compensated for a future loss of earnings.”). Thus, Chavez’s
prayer for past and future lost wages by itself exceeds
$75,000, even before factoring in non-economic and punitive
damages, attorneys’ fees, or other requested relief.

    Chavez nevertheless argues that, in calculating the
amount in controversy, we may only consider lost wages for
the period between her termination in February 2014 and
JPMC’s removal of this action a little over a year later in
March 2015. Looking only at this period, Chavez’s lost
wages would be less than $75,000 and would not satisfy the
amount-in-controversy requirement. Chavez bases this
argument on our oft-repeated statement that the amount in
controversy is assessed as of “the time of removal.” See, e.g.,
Kroske, 

432 F.3d at 980

. She contends that this means the
amount in controversy does not include any damages incurred
after the time removal, such as her lost earnings from after
March 2015.



    2
      Chavez does argue that these facts are insufficient to carry JPMC’s
burden of proof and attempts to analogize this case to Gaus v. Miles, Inc.,

980 F.2d 564

 (9th Cir. 1992). But the removing defendant in Gaus
“offered no facts whatsoever to support the court’s exercise of
jurisdiction.” 

Id. at 567

. Here, by contrast, JPMC cites Chavez’s
concession of jurisdiction and deposition admissions, which are sufficient
to carry its burden of proof. Cf. Singer, 

116 F.3d at 376

 (“We understand
Gaus to mean that where the plaintiff does not claim damages in excess
of [the jurisdictional threshold] and the defendant offers ‘no facts
whatsoever’ to show that the amount in controversy exceeds [this
threshold], then the defendant has not borne the burden on removal of
proving that the amount in controversy requirement is satisfied.”).
               CHAVEZ V. JPMORGAN CHASE                       9

     In considering this argument, we begin with first
principles. The amount in controversy is “not a prospective
assessment of [a] defendant’s liability.” Lewis v. Verizon
Commc’ns, Inc., 

627 F.3d 395, 400

 (9th Cir. 2010). Rather,
it is the “amount at stake in the underlying litigation.”
Gonzales, 840 F.3d at 648–49. If a plaintiff claims at the
time of removal that her termination caused her to lose future
wages, and if the law entitles her to recoup those future wages
if she prevails, then there is no question that future wages are
“at stake” in the litigation, whatever the likelihood that she
will actually recover them. In such a situation, although the
plaintiff’s employer would have paid the wages in the future
had she remained employed, they are presently in
controversy. Indeed, courts generally assume as much
without discussion. See, e.g., Andrews v. E.I. Du Pont De
Nemours & Co., 

447 F.3d 510, 515

 (7th Cir. 2006) (taking
into account plaintiff’s “lost wages (past and future)”);
Nelson v. Keefer, 

451 F.2d 289

, 294 n.10 (3d Cir. 1971) (the
amount in controversy includes “wages and earnings, past
and future”).

    When we say that the amount in controversy is assessed
at the time of removal, we mean that we consider damages
that are claimed at the time the case is removed by the
defendant. So, for example, if a plaintiff files a complaint in
state court and voluntarily dismisses a claim before removal,
any relief that might have been awarded on the dismissed
claim will not be included in the amount in controversy.
Likewise, when the amount in controversy is satisfied at
removal, any subsequent amendment to the complaint or
partial dismissal that decreases the amount in controversy
below the jurisdictional threshold does not oust the federal
court of jurisdiction. See St. Paul Mercury Indem. Co. v. Red
Cab Co., 

303 U.S. 283

, 292–93 (1938). That the amount in
10             CHAVEZ V. JPMORGAN CHASE

controversy is assessed at the time of removal does not mean
that the mere futurity of certain classes of damages precludes
them from being part of the amount in controversy. See, e.g.,
Steel v. United States, 

813 F.2d 1545, 1547

 (9th Cir. 1987)
(noting that “past and future pension payments” exceeded the
amount-in-controversy requirement); Broglie v. MacKay-
Smith, 

541 F.2d 453, 455

 (4th Cir. 1976) (“[A] plaintiff may
properly include as part of the amount in controversy costs
which will not be incurred until after the suit is ended.”).

    In sum, the amount in controversy includes all relief
claimed at the time of removal to which the plaintiff would be
entitled if she prevails.

                     III. CONCLUSION

     The amount in controversy is what is at stake in the
litigation at the time of removal. Where, as here, a plaintiff’s
complaint at the time of removal claims wrongful termination
resulting in lost future wages, those future wages are included
in the amount in controversy. That being the case, the
amount in controversy here easily exceeds $75,000. We
therefore have subject matter jurisdiction over this action.