Unreported / Non-Citable
Background
Victoria Jacobsen sued Henkel Corporation in Los Angeles County Superior Court, alleging common-law misappropriation of likeness and statutory misappropriation under California Civil Code § 3344 — the state right-of-publicity law that protects against unauthorized commercial use of a person’s name, voice, signature, photograph, or likeness. Her complaint asserted that Henkel had agreed to use her image for one year only, then continued to use it beyond the agreed period.
Henkel offered to settle for $75,001 — exactly one dollar above the federal diversity threshold. Jacobsen rejected the offer. Henkel then removed the case to federal court within 30 days of that rejection, citing diversity jurisdiction. Jacobsen moved to remand, arguing both that removal was untimely (because the amount in controversy had been apparent from the face of the complaint long earlier) and that Henkel could not in any event prove the case was worth more than $75,000.
The Court’s Holding
The court denied remand and pointedly noted that Jacobsen’s two arguments were not just inconsistent but mutually exclusive — she could not simultaneously claim that the complaint plainly showed more than $75,000 was at stake (for timeliness purposes) and that no evidence supported a value above $75,000 (to defeat removal). The court treated the contradiction as the type of pleading “gamesmanship” Ninth Circuit law tries to discourage.
On timeliness, the court applied the well-settled rule that the 30-day clock under 28 U.S.C. § 1446(b)(1) starts only when the amount in controversy is apparent “from the four corners” of the complaint. Defendants need only apply a “reasonable amount of intelligence” by, for example, multiplying figures stated in a complaint — they do not need to extrapolate from vague damages categories or look to recoveries in other cases. Because Jacobsen’s complaint included no dollar figures and gave no information about the value of the underlying agreement, the amount in controversy was not facially apparent and the 30-day clock never started from the complaint itself.
On the substantive amount-in-controversy question, the court held that Jacobsen’s rejection of the $75,001 settlement offer was an “other paper” under § 1446(b)(3) and was independently sufficient evidence of the value of her case. Settlement communications can serve as an “other paper” triggering removal, and the court rejected Jacobsen’s effort to draw a distinction between settlement offers initiated by plaintiffs and those initiated by defendants. As another district court put it, by refusing the offer Jacobsen necessarily believed her case was worth more than $75,001 — otherwise she would have accepted. Jacobsen also failed to submit any contrary evidence (such as an affidavit) showing the amount in controversy was actually less than $75,000.
Key Takeaways
- The 30-day removal clock does not start until the amount in controversy is plain on the face of the complaint; defendants are not required to extrapolate or guess.
- A complaint that pleads only general categories of damages (general, emotional, punitive, fees) without dollar figures will not, by itself, trigger the removal deadline.
- A plaintiff’s rejection of a defendant’s settlement offer counts as an “other paper” under § 1446(b)(3), starting a fresh 30-day window to remove.
- By rejecting an offer of $75,001, a plaintiff effectively concedes that she values the case at more than $75,000.
- Plaintiffs who simultaneously argue that the complaint plainly establishes the federal threshold and that defendants cannot prove the threshold risk having both arguments rejected as inconsistent.
Why It Matters
This decision sharpens a tactic that defendants in publicity, employment, and consumer cases increasingly use: making a “strategic” offer of settlement just above the federal diversity threshold to force the plaintiff to choose between accepting an unsatisfactory amount or unlocking removal. Because the rejection itself becomes evidence of value, the plaintiff cannot easily contest the amount in controversy after rejecting.
For California right-of-publicity plaintiffs and others who pursue cases in state court, the takeaway is to plead carefully — vague damage allegations defer the removal clock but also leave room for defendants to use settlement offers as removal levers. For defendants, the case validates a relatively cheap and quick path to federal court: tender a $75,001 offer, wait for the rejection, and remove within 30 days.