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JOHNSON v. CIRCUIT CITY STORES

October 12, 1999

TOM JOHNSON, PLAINTIFF,
v.
CIRCUIT CITY STORES, INC., FRY'S ELECTRONICS, INC., THE GOOD GUYS, INC. COMPUSA INC., COMPUSA STORES, L.P., STAPLES, INC., OFFICEMAX, INC., AND DOES 1-250, DEFENDANTS. AND RELATED CROSS CLAIMS.



The opinion of the court was delivered by: Chesney, District Judge.

ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND; DENYING ATTORNEY'S FEES

INTRODUCTION

Before the Court is the motion of plaintiff Tom Johnson for remand of this action to the Superior Court of California, County of Contra Costa. Having considered the papers submitted in support of and in opposition to the motion, the Court deems the matter appropriate for decision on the papers, and rules as follows:

BACKGROUND

On January 14, 1999, plaintiff filed suit against defendants in the Superior Court of California, County of Contra Costa. Plaintiff alleges that defendants have misrepresented and failed to reveal material information to their customers concerning Year 2000 ("Y2K") compliance*fn1 of their products in contravention of the California Unfair Trade Practices Act, Cal.Bus. & Prof.Code. § 17200 et seq., and the False Advertising Act, Cal.Bus. & Prof.Code § 17500. (Compl. at ¶ 32-41.) Plaintiff's complaint seeks an injunction requiring defendants to accurately and adequately disclose to their customers, the Y2K compliance of the computer hardware and software that they sell. (Pl.Mem.Mot. at 5.)

On July 20, 1999, while the state court action was proceeding, the Y2K Act, 15 U.S.C. § 6601 et seq. (West 1999), legislation intended to address problems concerning litigation arising out of Y2K failures, was signed into law. On July 22, 1999, two days after the signing of the Y2K Act, defendants filed a notice of removal to federal court based on federal question jurisdiction. 28 U.S.C. § 1331.

On August 3, 1999, plaintiffs brought the present motion for remand of this action to the Contra Costa County Superior Court. This motion was originally scheduled to be heard on September 17, 1999 before Senior Judge Samuel Conti. However, on September 3, 1999, Judge Conti entered an order recusing himself from this action, and, by order dated September 9, 1999, the case was reassigned to this Court and all matters scheduled for hearing were vacated.

DISCUSSION

1. Legal Standard

Pursuant to 28 U.S.C. § 1441, where a civil action over which the federal courts have original jurisdiction is brought in state court, the defendant may remove the action to the federal district court.

The Ninth Circuit has consistently held that 28 U.S.C. § 1441 is to be strictly construed against removal jurisdiction, and that "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992), citing to Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979).

After removal, a plaintiff may move to remand the action to state court under 28 U.S.C. § 1447 for lack of federal jurisdiction or for procedural defects. The defendant bears the burden of establishing federal jurisdiction and must "overcome a strict construction of the removal statute against removal." Mangini v. R.J. Reynolds Tobacco Co., 793 F. Supp. 925, 927 (N.D.Ca. 1992) citing Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir. 1988).

In the present action, plaintiff has brought the instant motion for remand based on four separate grounds: (1) lack of subject matter jurisdiction; (2) lack of federal standing; (3) failure to join a defendant, and (4) the voluntary/ involuntary rule. Plaintiff also requests that costs and ...


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