April Scarlott v. Nissan North America, Inc

ON PETITION FOR REHEARING

IT IS ORDERED that the petition for panel rehearing is GRANTED and the opinion previously filed in this case is WITHDRAWN. The following opinion is substituted therefore:

Plaintiff-Appellant April Scarlott and Appellants Weisberg & Meyers, L.L.C. and Noah Radbil appeal the district court’s denial of Scarlott’s motion to remand, grant of summary judgment in favor of Defendants-Appellees Nissan North American, Incorporated (“Nissan”) and Hurricane Auto Care & Accessories, In*886corporated (“Hurricane”),1 as well as the district court’s final judgment and various management orders. Appellants contend that the district court lacked subject matter jurisdiction over this case. For the reasons below, we REVERSE and REMAND for proceedings consistent with this opinion.

FACTS AND PROCEEDINGS

In December 2006, Scarlott purchased a 2006 Murano from a Nissan dealership for $31,881, totaling $39,289 including all financing fees, warranties, taxes, and costs. For safety reasons, Scarlott wanted to purchase a ear that had a HomeLink system built into the mirror, which would allow her to sync her car with her home lights, alarm system, and garage door. The salesman at the dealership assured Scarlott that the car she purchased had a HomeLink mirror; however, when she attempted to program the mirror that night, she realized that the car did not have the necessary system. The day after she purchased the car, she went back to the dealership intending to return the car. Instead, she agreed to bring the car to a local factory-authorized installation center to have the HomeLink system and mirror installed. The dealership arranged for Hurricane to perform this installation and gave Scarlott a voucher so that she would not have to pay for it.

Nine months later, in September 2007, the car began experiencing electrical problems, including difficulty starting. Scar-lott took the car to the dealership, which replaced the car’s battery. The car continued to experience intermittent electrical problems over the next two years, requiring Scarlott to take her car to the dealership on seven occasions. The dealership replaced the battery four times. In November 2009, the dealership monitored the car for almost thirty days and then diagnosed the electrical problems as being caused by the improper installation of the HomeLink mirror. The dealership contacted Hurricane, and Hurricane agreed to fix the problem.

On October 19, 2009, Scarlott filed suit in Texas state court against Nissan for breach of express warranty, breach of implied warranty, and violation of the Texas Deceptive Trade Practices Act. Scarlott later amended her complaint to add claims against the dealership, a Nissan distributor, and Hurricane. On December 6, 2010, the defendants removed the suit to federal court based on federal question and supplemental jurisdiction. The defendants asserted federal question jurisdiction under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (“MMWA”), which allows litigants to bring breach-of-warranty claims in federal court if the amount in controversy is at least $50,000. See 15 U.S.C. § 2310(d)(3)(B).

Three months after removal, Scarlott raised the issue of subject matter jurisdiction at a conference with the district court, expressing concern that the amount in controversy did not meet the $50,000 threshold required by the MMWA. The district court indicated that it would be disinclined to dismiss the case for want of jurisdiction.

Scarlott subsequently dismissed her claims against the dealership and distributor, leaving only her claims against Nissan and Hurricane. On May 9, 2013, after the remaining parties had briefed a motion for *887summary judgment, Scarlott filed a motion to remand the suit to state court for lack of subject matter jurisdiction. Nissan and Hurricane opposed the remand. On August 28, 2013, the district court issued an order denying Scarlott’s motion to remand, excluding Scarlott’s expert report, and ■granting summary judgment in favor of Nissan and Hurricane. Scarlott timely appealed. On appeal, Scarlott raises several issues. Because we find that the district court erred in its decision not to remand the case to state court, we will only address the jurisdictional issue.

STANDARD

“Federal courts are courts of limited jurisdiction ‘havfing] only the authority endowed by the. Constitution and that conferred by Congress.’ ” United States v. Hazlewood, 526 F.3d 862, 864 (5th Cir.2008) (alteration in original) (quoting Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir.1981)). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “The party seeking to remove bears the burden of showing that federal jurisdiction exists and that removal was proper.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir.2013). “Any ambiguities are construed against removal and in favor of remand to state court.” Id. “In reviewing a district court’s denial of a plaintiffs motion to remand a case from federal court to state court, the Court of Appeals applies a de novo standard of review.” Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1117 (5th Cir.1998).

DISCUSSION

I. The Magnuson-Moss Warranty Act

The MMWA grants federal courts jurisdiction to hear claims for breach of express and implied warranty with the following limitation?

No claim shall be cognizable in a suit brought [in federal court] ... if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit....

15 U.S.C. § 2310(d)(3). Accordingly, federal question jurisdiction under the MMWA is limited to breach-of-warranty claims for which the amount in controversy is at least $50,000.

Generally, courts look to state law to determine the applicable measure of damages, which informs the amount in controversy under the MMWA. See Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1069 (5th Cir.1984) (applying Texas law); see also MacKenzie v. Chrysler Corp., 607 F.2d 1162, 1166 (5th Cir.1979) (“[T]he legislative history clearly implies that a resort to state law is proper in determining the applicable measure of damages under the Act.”). This court, however, has recognized several limitations in calculating the amount in controversy under the MMWA. First, personal injury damages for breach of warranty, which are not recoverable under the MMWA, may not be counted to satisfy the jurisdictional amount. Boelens, 748 F.2d at 1069. Second, attorneys fees may not be used to satisfy the jurisdictional amount, because the MMWA requires that the amount in controversy be calculated “exclusive of interests and costs.” Id.; see also Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 402 (3d Cir.2004) (“Nor may attorneys fees be considered in calculating the jurisdictional amount.”). Last, damages for any pendent state-law claims should not be included to satisfy the juris*888dictional amount. Boelens, 748 F.2d at 1071 n. 19. With those limitations in mind, we now look to the substantive law governing Scarlott’s breach-of-warranty claims to guide our calculation of the amount in controversy.

II. Damages for Breach of Warranty under Texas Law

In the present case, the parties agree that Texas law applies to Scarlott’s breach-of-warranty claims. Texas law allows recovery for the diminished value of the good caused by the breach of warranty. In particular, Texas law states: “The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.” Tex. Bus. & Com.Code Ann. § 2.714(b). Texas law additionally allows recovery of “incidental and consequential damages.” §§ 2.714(c), 2.715; see also Boelens, 748 F.2d at 1069 (calculating damages for the lost investment in a mobile home plus the additional costs of alternative housing up to the time of trial). Texas law does not, however, allow for punitive damages for breach-of-warranty claims. Boelens, 748 F.2d at 1070-71. Accordingly, under Texas law, the amount in controversy for Scarlott’s breach-of-warranty claims equals the diminished value of the car plus incidental and consequential damages.

III. Scarlott’s Complaint and the Amount in Controversy

The standard for determining the amount in controversy depends on whether Scarlott demanded a specific amount of damages in her complaint. If Scarlott did demand a specific amount, “[t]he amount stated in the complaint is itself dispositive of jurisdiction- if the claim is apparently made in good faith.” Id. at 1069. If Scarlott did not demand a specific amount, the removing defendant has the burden of proving, by a preponderance of the evidence, that the amount in controversy exceeds $50,000. See De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993) (“When the plaintiff’s complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [the jurisdictional requirement].”). There are two ways that this burden can be met. “First, a court can determine that removal was proper if it is facially apparent that the claims are likely above [the jurisdictional amount].” Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995). Second, “[i]f it is not thus apparent, the court may rely on ‘summary judgment-type’ evidence to ascertain the amount in controversy.” White v. FCI USA Inc., 319 F.3d 672, 675 (5th Cir.2003) (quoting St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998)).

a. Scarlott did not allege a specific amount of damages

Contrary to the district court’s reasoning, Scarlott did not demand a specific amount of damages in her complaint. The first paragraph of Scarlott’s first amended petition2 states:

*889 Discovery Control Plan

1. Plaintiff intends that discovery in this case shall be conducted under Level One as set forth in Tex.R. Civ. P. Rule 190.1. This suit involves only monetary relief totaling $50,000 or less, excluding court costs, prejudgment interest and attorney’s fees.

This statement complies with Texas Rule of Civil Procedure 190.1, which requires a plaintiff to select a discovery plan in the first paragraph of his or her complaint. Tex.R. Civ. P. 190.1 (“A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1, 2, or 3 of this Rule.”). The “Level 1” discovery plan, which Scarlott selected, is available for certain “[expedited [a]ctions and [djivorces [involving $50,000 or [l]ess.” Tex.R. Civ. P. 190.2. Consistent with Rule 190.1, the leading paragraph of Scarlott’s complaint served to select the Level 1 discovery control plan, and her reference to “$50,000 or less” was included to recite the terms of that discovery plan. Scarlott did not plead a specific amount of damages in the first paragraph, or any subsequent paragraph, of her complaint.

b. Damages of $50,000 are not “facially apparent.”

Examining the rest of the complaint, it is not “facially apparent” that Scarlott’s breach-of-warranty claims meet the $50,000 threshold. Scarlott requested damages for the diminished value of her car due to the defects. In her complaint, she alleged that the total purchase price for her car was $39,289, including all financing fees, warranties, and other costs. The complaint does not allege the value of Scarlott’s car in its defective condition, and thus does not give a basis for estimating the car’s diminished value. Scarlott also requested incidental and consequential damages. The complaint reflected that she had to take her car to the dealership for repairs on several occasions. Although it is reasonable to infer that she incurred some incidental costs, such as costs for alternative transportation while her car was in the shop, the face of the complaint gives no indication of how much these damages equaled. Therefore, it is not facially apparent that her total damages— the diminished value of her car, which cost less than $39,289, plus the cost she incurred associated with the repair efforts-meet the $50,000 threshold.

c. Defendants have not met their burden

Nissan and Hurricane have not met their burden of establishing, by a preponderance of the evidence, that Scarlott’s damages amount to $50,000 or more. Neither Nissan nor Hurricane supplied any evidence, or even an allegation, as to the value of the car in its defective condition.3 See Golden v. Gorno Bros., Inc., 410 F.3d 879, 884 (6th Cir.2005) (“[T]he party asserting federal jurisdiction must allege the ... value of the allegedly defective vehicle.... ” (quoting Samuel-Bassett, 357 *890F.3d at 402)). While the purchase price, which was $31,881 for the car itself, provides evidence of what the car was worth as warranted, there is no evidence that allows us to determine the diminished value of the car, which is the core of Scar-lott’s requested damages. Without evidence as to the diminished value of the car, the court is unable to determine the amount in controversy. See Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 521-22 (7th Cir.2003) (“Unfortunately, no party has provided us with the relevant numbers to plug into the [ ] formula, and we are thus in no position to conclude that jurisdiction under § 2301(d)(1)(B) existed over the Magnuson-Moss claims.”); Diamond v. Porsche Cars N. Am., Inc., 70 Fed.Appx. 893, 895 (7th Cir.2003) (“[W]e cannot possibly determine whether the amount in controversy has been met without knowing the value of the car with the alleged defects.”).

Even if we were to assume that the car was worthless with the defect — a counter-factual assumption in light of Scarlott’s continued use of the vehicle with the defect — Nissan and Hurricane still have not met their burden of proving that her damages meet the $50,000 threshold. Nissan and Hurricane submitted some evidence as to incidental and consequential damages. Specifically, they claim that Scarlott had to pay $1,600 for rental cars, $225 for a wrecker service, $1,700 for repairs, and $120 for a battery charger. Adding these values to the full purchase price, even including all financing charges, warranties, and costs, results in a maximum damages calculation of $42,934, still below the $50,000 threshold.

Nissan and Hurricane contend that Scarlott’s damages could exceed the $50,000 threshold if she recovers damages for lost profits in her real estate job due to car troubles. Texas law does allow for recovery of foreseeable lost profits where the lost profits are “reasonably certain,” rather than speculative. See Tex. Instruments, Inc. v. Teletron Energy Mgmt. Inc., 877 S.W.2d 276, 279 (Tex.1994). Nissan’s and Hurricane’s attempt to put lost profits “in controversy” fails for two reasons. First, Nissan and Hurricane did not produce any evidence that Scarlott is seeking damages for lost profits in this suit. Scarlott did not allege that she lost any profits, nor does she request damages for lost profits in her complaint. In fact, Scarlott’s complaint is devoid of reference to her job. Second, even if Scarlott were seeking damages for lost profits, such damages would be speculative and Nissan and Hurricane fail to provide a realistic estimate as to their amount. Nissan and Hurricane point to Scarlott’s deposition testimony to support their lost-profits theory, yet, contrary to their assertion, Scar-lott did not testify that she lost any clients or sales. When asked if she lost any clients, Scarlott responded that she did not know, stating: “You would have to ask them.... Some buyers flake, some buyers don’t. You know, it’s not always — it’s not like every time you show a client a house, they buy from you.” Nissan and Hurricane cannot identify a hypothetical source of recovery that Scarlott does not seek, inconsistent with the facts of the case, in order to raise the amount in controversy above the jurisdictional requirement. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.1995) (“The preponderance burden forces the defendant to do more than point to a state law that might allow the plaintiff to recover more than what is pled. The defendant must produce evidence that establishes that the actual amount in controversy exceeds $50,000.” (footnote omitted)).

CONCLUSION

For the foregoing reasons, the district court erred by denying Scarlott’s motion *891to remand. Consequently, we REVERSE the order granting summary judgment in favor of Nissan and Hurricane and denying the motion to remand. We REMAND the case to the district court with instructions to remand the case to state court. In light of our holding that the district court did not have jurisdiction over this case, the district court should reconsider whether to award attorneys’ fees and costs to the defendants; and if the court decides that attorneys’ fees and costs are still appropriate, the court should reconsider the amount of the award. See Hernandez v. Conriv Realty Associates, 116 F.3d 35, 41 (2nd Cir.1997).4 Consequently we VACATE the district court’s attorneys’ fees and costs order and REMAND that matter for further proceedings.