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Franco v. Empire Southwest Holdings

March 12, 2007

RAMON FRANCO; NORMA FRANCO; AND BREANNNA YVETTE BURQUEZ, A MINOR BY AND THROUGH HER GUARDIAN AD LITEM SAUL BURQUEZ,, PLAINTIFF,
v.
EMPIRE SOUTHWEST HOLDINGS, INC.,EMPIRE SOUTHWEST, LLC; D.L. PETERSON TRUST; KEVIN RAY CANNON; AND DOES 1 TO 50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Court Judge

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND TO STATE COURT

Plaintiffs Ramon Franco, Norma Franco and Breanna Yvette Burquez, a minor, (collectively, "Plaintiffs") move the Court to remand this action to state court. Defendants Empire Southwest, LLC, Empire Southwest Holdings, Inc., and D.L. Peterson Trust oppose the motion.

I. BACKGROUND

On December 16, 2004, Kevin Cannon ("Cannon") was driving a pick-up truck on his way to work at the Caterpillar dealership in Imperial County, California. He had an epileptic seizure, passed out and his vehicle collided head-on with another vehicle driven by Ramon Franco. Mr. Franco's 22-year old daughter, Yvette Franco, who was sitting in the front passenger seat, was killed in the accident.*fn1

Plaintiffs filed a complaint in state court in Imperial County, California on November 17, 2006 for negligence, negligent infliction of emotional distress, wrongful death, survival and equitable recovery. In the complaint, Plaintiffs alleged that they were all residents of California. Plaintiffs also alleged on information and belief that Empire Southwest, LLC was a limited liability corporation existing under the laws of Arizona and/or California, Empire Southwest Holdings, Inc. was a citizen of Arizona, D. L. Peterson Trust was a citizen of Maryland, and Cannon was an individual residing in Imperial County, California. Plaintiffs first served the Complaint on Empire Southwest, LLC on December 4, 2006; Empire Southwest Holdings, Inc. was served on December 8, 2006; the last service was on D. L. Peterson Trust on December 12, 2006. Defendant Cannon has not been served to date.

On January 3, 2007, two of the Defendants, Empire Southwest, LLC and Empire Southwest Holdings, Inc., filed a Notice of Removal to federal court ("Notice"). At the time of the removal, Plaintiffs had not yet served the complaint on Defendant Cannon. The other Defendant not to join the notice of removal was D.L. Peterson Trust. An Amended Notice of Removal was filed on January 8, 2007, adding D.L. Peterson to the notice ("Am. Notice"); Cannon still had not yet been served as of that date.

The Notice and the subsequent Am. Notice allege that at the time of filing of the action Empire Southwest, LLC was incorporated in Delaware with its principal place of business in Arizona; Empire Southwest Holdings, Inc. was incorporated in and has its principal place of business in Arizona; D.L. Peterson Trust was incorporated in and has its principal place of business in Delaware. The Am. Notice also alleges that Cannon was a resident of Arizona. Thus, the Notice and Am. Notice contend that there is diversity jurisdiction in federal court because there is complete diversity between Plaintiffs and Defendants and the amount in controversy is more than $75,000.

On February 2, 2007, Plaintiffs filed the instant motion to remand. The matter was fully briefed and pursuant to Local Rule 7.1, the Court decides the motion herein without oral argument.

II. DISCUSSION

A. Standard of Law

On a motion to remand, the court must determine whether the case was properly removed to the federal court under 28 U.S.C. § 1441. Emrich v. Touche Ross and Co., 846 F.2d 1190, 1194-95 (9th Cir. 1988). Section 1441(a) authorizes removal of "any civil action brought in a State Court of which the district courts of the United States have original jurisdiction." The removal statute is strictly construed and there is a strong presumption against removal. Gaus v. Miles, Inc. 980 F.2d 564, 566 (9th Cir. 1992) ("Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance."). "The burden of establishing federal jurisdiction is upon on the party seeking removal." Emrich, 846 F.2d at 1995 (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 96 (1921)).

B. Analysis

Plaintiffs assert both procedural and substantive defects bar the removal of this case. Procedurally, Plaintiffs contend that the Notice did not join all of the Defendants in the removal action and that the Am. Notice could not cure this defect. Substantively, Plaintiffs claim that Defendants have failed to meet their burden to demonstrate diversity jurisdiction under 28 U.S.C. § 1332.

Considering first the procedural aspect, the Court finds that the removal was timely and properly filed. All defendants must agree to the removal of the case to federal court, with the exception of nominal, unknown or fraudulently joined parties. 28 U.S.C. § 14476(a); Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 680 (9th Cir. 2006); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988). The joinder of all ...


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