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ORDER 1–

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JARED PECK, individually and on behalf of

all the members of the class of persons

similarly situated,

Plaintiff,

v.

CINGULAR WIRELESS, LLC, a Delaware

limited liability company, d/b/a Cingular

Wireless, et al.,

Defendants.

No. C06-343Z

ORDER

THIS MATTER comes before the Court on plaintiff’s motion for remand, docket

no. 78. Having reviewed all papers filed in support of and in opposition to plaintiff’s

motion, the Court hereby GRANTS the motion and REMANDS this case to King County

Superior Court.

Background

In March 2006, defendants removed this case from King County Superior Court on

the ground that plaintiff’s state law claims are preempted by the Federal Communications

Act (“FCA”), 47 U.S.C. § 332. In October 2006, the Court granted defendants’ motion to

dismiss on the basis of preemption. Order (docket no. 61). Plaintiff appealed. In September
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ORDER 2–

2008, the Court of Appeals for the Ninth Circuit issued its mandate, giving effect to its

decision that the FCA does not preempt plaintiff’s claim under RCW 82.04.500, and

vacating this Court’s order of dismissal. Plaintiff now moves to remand this case to King

County Superior Court.

Discussion

Defendants contend that, although they did not in their Notice of Removal allege

jurisdiction on any basis other than preemption, the Court has jurisdiction over this case

pursuant to 28 U.S.C. § 1332(d)(2)(A), which provides in part that “[t[he district courts shall

have original jurisdiction of any civil action in which the matter in controversy exceeds the

sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which . . .

any member of a class of plaintiffs is a citizen of a State different from any defendant.” 

Plaintiff responds that defendants cannot rely on jurisdictional grounds not asserted in their

Notice of Removal. Ninth Circuit authority establishes a different standard than articulated

by either party: “Once a case has been properly removed, the district court has jurisdiction

over it on all grounds apparent from the complaint, not just those cited in the removal

notice.” Williams v. Costco Wholesale Corp., 471 F.3d 975, 977 (9th Cir. 2006). Thus, the

issues before the Court are whether the case was properly removed, and if so, whether

jurisdiction on a ground other than preemption is apparent from the complaint.

The analysis of both issues weighs in favor of remand. Because plaintiff’s state law

claims are not preempted by federal law, preemption did not serve as a valid basis for

removal of the action, and therefore, removal was never perfected. In addition, the factual

allegations of the complaint do not evidence the requisite jurisdictional amount. The

complaint explicitly states that the total amount of damages, including treble damages under

Washington’s Consumer Protection Act, is less than $5,000,000. Complaint at ¶ 8.5, Exh. A

to Notice of Removal (docket no. 1). The complaint provides as further support a potential

class size of “at least 100,000" persons, id. at ¶ 3.2, and an estimate of actual damages of less
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ORDER 3–

than $50 for the putative class representative, id. at ¶ 2.8; see also id. at ¶ 2.2 (indicating that

for the month of January 2005, the actual loss was $0.31). Defendants attempt to

supplement or contradict plaintiff’s computation of the amount in controversy, but having

failed to allege class action diversity jurisdiction in their Notice of Removal, defendants

cannot now amend to correct deficiencies relating to such basis for jurisdiction. See Barrow

Dev. Co. v. Fulton Ins. Co., 418 F.2d 316, 317 (9th Cir. 1969) (“[S]ince removal must be

effected by a defendant within 30 days after receiving a copy of the complaint (28 U.S.C.

§ 1446), the removal petition cannot be thereafter amended to add allegations of substance

but solely to clarify ‘defective’ allegations of jurisdiction previously made.” (interpreting 28

U.S.C. § 1653)). Thus, the Court concludes that it does not have jurisdiction in this matter

and REMANDS the case to King County Superior Court.

IT IS SO ORDERED.

The Clerk is directed to send a copy of this Order to all counsel of record.

DATED this 24th day of October, 2008.

AThomas S. Zilly

United States District Judge