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 ORDER GRANTING MOTION FOR 

REMAND - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BENJAMIN MITCHELL, 

Plaintiff, 

v.

K & G MEN’S COMPANY, INC., 

Defendant. 

CASE NO. C05-1859RSM

ORDER GRANTING MOTION FOR 

REMAND 

This matter is now before the Court for consideration of plaintiff’s motion for remand. Although

defendant has opposed the motion, the Court finds, for the reasons set forth below, that remand is

appropriate, and grants plaintiff’s motion. 

Plaintiff filed this action in King County Superior Court, alleging causes of action for wrongful

discharge and violation of the Washington Law Against Discrimination, RCW 49.60. No claim is

asserted under federal employment discrimination laws. Defendant, a Delaware corporation, removed

the case to this Court solely on the basis of the parties’ diversity, pursuant to 28 U.S.C. § 1332 and 

§ 1441(a). Plaintiff has moved for remand to state court, contending that defendant has not shown that

the amount in controversy exceeds the jurisdictional amount of $75,000. 

The complaint itself does not specify a particular amount of damages; plaintiff instead requests an

unspecified amount for back pay and interest, front pay or reinstatement, damages for emotional distress,

Case 2:05-cv-01859-RSM Document 16 Filed 12/09/05 Page 1 of 3
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 ORDER GRANTING MOTION FOR 

REMAND - 2

and attorney’s fees and costs. In the Notice of Removal, defendant asserts a “good faith belief” that

plaintiff is seeking more than $75,000 in damages. However, in moving for remand, plaintiff asserts that

his total economic damages to date are only $38,000. While defendant contests this assertion as “coy”

and “disingenuous”, it has provided no evidence that the amount in controversy is actually greater than

$75,000. 

When the plaintiff’s state court complaint does not specify a particular amount of damages, the

removing defendant bears the burden of establishing, by a preponderance of evidence, that the amount in

controversy exceeds the jurisdictional amount. Sanchez v. Monumental Life Insurance Company, 102 F.

3d 398, 404 (9th Cir. 2002). To carry this burden, the defendant must provide evidence establishing that

it is “more likely than not” that the amount in controversy exceeds $75,000. Id. Application of the

“preponderance of evidence” test “strikes ‘[t]he proper balance between a plaintiff’s right to choose his

forum, and a defendant’s right to remove, without unnecessarily expanding federal diversity

jurisdiction.’” Id. (quoting Tapscott v. MS Dealer Services Corp., 77 F. 3d 1353, 1357 (11th Cir. 1996)). 

Defendant has provided calculations as to plaintiff’s possible damages for back pay as of the date

of trial (as set by the state court). This amount is purely speculative and does not constitute evidence to

establish that it is more likely than not that plaintiff’s damages are that great. Defendant has also

provided a declaration of counsel that, in her experience, plaintiffs who succeed in their cases brought

under RCW 49.60 “always request the court to award more than $75,000 in attorney fees.” Declaration

of Susan Stahlfeld, ¶ 5. This statement is not probative of the amount in controversy between these

parties at this time. 

Where, as here, an underlying statute authorizes an award of attorneys’ fees, “such fees may be

included in the amount in controversy.” Galt G/S v. JSS Scandinavia, 142 F. 3d 1150, 1156 (9th Cir.

1998) (emphasis added). However, the courts of this circuit have disagreed as to whether attorneys’

fees earned after the date of removal are properly included in the amount in controversy. Burk v.

Medical Savings Insurance Company, 348 F. Supp. 1063, 1068 (D.Ariz. 2004) (collecting cases). 

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Although counsel did not provide this figure by separate sworn declaration, his signature on the

Reply in which this statement is made is sufficient to establish this fact.

 ORDER GRANTING MOTION FOR 

REMAND - 3

Plaintiff asserts that at this time his attorneys’ fees are no more than $2500.1

 In light of the discretionary

language allowing, but not mandating, inclusion of attorneys’ fees, and the disagreement among the

courts of this circuit as to whether attorneys’ fees likely to be incurred after the date of removal may even

be included, the Court declines to view defense counsel’s declaration as evidence sufficient to establish

that plaintiff’s damages are, more likely than not, over $75,000. 

There is a strong presumption against removal jurisdiction. Id., citing Gaus v. Miles, Inc., 980 F.

2d 564, 566 (9th Cir. 1992). Any doubts regarding the right to removal must be resolved in favor of

remand back to state court. Matheson v. Progressive Specialty Insurance Company, 319 F. 3d 1089,

1090 (9th Cir. 2003). Here, it is not evident from the face of the complaint that plaintiff’s damages

exceed $75,000, and defendant has failed to establish, by a preponderance of the evidence, that plaintiff’s

damages exceed that amount. Accordingly, plaintiff’s motion for remand is GRANTED, and this case is

hereby REMANDED to the King County Superior Court, Cause No. 05-2-33662-5KNT. 

 The Clerk shall close this file and send a certified copy of this Order to the Clerk of Court for the

King County Superior Court.

DATED this 9th day of December, 2005.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

Case 2:05-cv-01859-RSM Document 16 Filed 12/09/05 Page 3 of 3