The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER ADOPTING IN PART AND MODIFYING IN PART THE FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO REMAND ACTION TO THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAII; ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO AMEND COMPLAINT
Plaintiff Herbert DeAguiar, Jr., filed a wrongful termination action against his former employer, Defendant Whole Foods Market, Inc., in the Circuit Court of the First Circuit, State of Hawaii. See Civ. No. 12-1-0106-01 VLC, ECF No. 1-2. DeAguiar asserts claims of unlawful age-discrimination in violation of section 378-2(1)(A) of Hawaii Revised Statutes and intentional infliction of emotional distress. He also seeks attorney's fees. See id.
Whole Foods removed the action to federal court under 28 U.S.C. §§ 1332(a)(1) and 1441(b). See ECF No. 1.
On March 8, 2012, DeAguiar moved to amend his complaint to substitute the allegedly correct defendant and to remand the case to state court because the correct defendant would destroy diversity of citizenship. The motion did not challenge the amount in controversy. See ECF No. 9.
After extensive briefing, the Magistrate Judge issued his Findings & Recommendation ("F&R"), recommending that this court grant DeAguiar's motion for remand to state court. See ECF No. 35. The Magistrate Judge reasoned that the amount in controversy did not exceed $75,000, as required for diversity jurisdiction by 28 U.S.C. § 1332(a). Id. Because the Magistrate Judge concluded that this court lacks subject matter jurisdiction, he did not adjudicate DeAguiar's request that DeAguiar be allowed to amend the Complaint and that the action be remanded based on the substitution of a new defendant. Id.
Pursuant to Local Rules 7.2(d) and 74.2, the court decides this matter without a hearing. This court adopts the F&R's removal standard and the finding that DeAguiar and Whole Foods are citizens of different states. However, this court modifies the F&R and determines that Whole Foods has proved by a preponderance of the evidence that the amount in controversy exceeds $75,000. Accordingly, this court rejects the recommendation in the F&R that this action be remanded for failure to establish the required amount in controversy. The court denies the motion to amend and to remand, but this denial is without prejudice to DeAguiar's raising of issues set out in his original motion if he seeks rulings on those issues.*fn1
DeAguiar is a resident of the City and County of Honolulu, State of Hawaii. See Complaint ¶ 2, ECF No. 1-2. DeAguiar alleges that Whole Foods is a foreign for-profit corporation doing business in the State of Hawaii. Id. ¶ 3. Whole Foods says it is a corporation incorporated under Texas law and has its principal place of business in Texas. See Notice of Removal ¶ 4, ECF No. 1.
In August 2008, Whole Foods hired DeAguiar as its Bakery Team Leader. See Complaint ¶ 12. In June 2010, Whole Foods demoted DeAguiar to Assistant Bakery Team Leader. Id. ¶ 13. On December 13, 2010, Whole Foods terminated DeAguiar. Id. ¶ 17.
DeAguiar filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission on March 14, 2011, and, on November 5, 2011, received a Notice of Right to Sue from the EEOC. Id. ¶¶ 22-23.
On January 13, 2012, DeAguiar filed his Complaint in the Circuit Court of the First Circuit, State of Hawaii, in Civ. No. 12-1-0106-01 VLC. See Complaint, ECF No. 1-2. DeAguiar asserts that Whole Foods discriminated against him based on his age, in violation of section 378-2(1)(A) of Hawaii Revised Statutes, and that Whole Foods intentionally inflicted emotional distress on him by demoting and terminating him. Id. ¶¶ 20-21. The Complaint seeks damages for lost wages, benefits, and emotional distress, as well as attorney's fees. Id. at 7. DeAguiar did not specify the amount of damages sought. See id.
On February 17, 2012, Whole Foods removed the action under 28 U.S.C. §§ 1332(a)(1) and 1441(b). See Notice of Removal, ECF No. 1. Whole Foods claimed that DeAguiar's damages exceeded $75,000, thereby satisfying the amount in controversy requirement for diversity jurisdiction. Whole Foods estimated that DeAguiar would receive $56,000 for lost wages, $50,000 for emotional distress damages, and $18,000 for attorney's fees. Id. ¶¶ 7-10.
On March 8, 2012, DeAguiar moved to amend his Complaint and remand this case to state court. The motion sought to delete Whole Foods as a defendant and replace it with WFM Hawaii, LLC, a limited liability company registered in the State of Hawaii. See ECF No. 9. In a supplemental brief addressing the amount in controversy, DeAguiar, claiming that his damages did not exceed $75,000, estimated his lost wages at $54,280, offset by $29,068 in unemployment benefits. See ...