The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [Docket Nos. 7, 8]
Plaintiff Kevin Morin ("Morin") commenced the instant action in the Superior Court for the State of California, County of San Diego ("Superior Court") on February 13, 2007. Defendant Abercrombie & Fitch Stores, Inc. ("Abercrombie") removed the case to this Court on May 15, 2007. Presently before the Court is Morin's Motion to Remand this case back to Superior Court. For the reasons that follow, Morin's Motion is GRANTED.
Morin filed his Complaint against Abercrombie in Superior Court on February 13, 2007, asserting eight state causes of actions. In his Complaint, Morin alleges that, at all times mentioned in the Complaint, he was a resident of the County of San Diego and Abercrombie was a corporation doing business in the County of San Diego.
On April 10, 2007, Abercrombie served Morin with two special interrogatories. The first interrogatory stated: "[a]re YOU DOMICILED in the State of California?" The second interrogatory stated: "[a]re YOU a United States citizen?" With various objections, Morin responded on May 7, 2007, stating only that "he lives in California" and "he is lawfully allowed to hold employment in the United States." On May 15, 2007, Abercrombie removed the case to this Court on the basis of diversity of citizenship under 28 U.S.C. § 1332. In its Notice of Removal, Abercrombie alleged that at the time of the filing of this action Abercrombie was, and still is, a corporation incorporated in the State of Ohio with its principal place of business also in the State of Ohio. Abercrombie further alleges that Morin's responses to the interrogatories suggest that he is domiciled in the State of California and he is a citizen of the United States.
Morin seeks to remand the case to Superior Court on two grounds: (1) diversity cannot be established by Morin's responses to the special interrogatories; and (2) Abercrombie's Notice of Removal was filed untimely. As discussed below, the Court is persuaded solely on the first ground.
Under 28 U.S.C. § 1441(a), a defendant may remove any civil action brought in a state court to a federal district court if the district court has subject matter jurisdiction over the action.
28 U.S.C. § 1441(a); see also Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1993). As courts of limited jurisdiction, federal district courts only have subject matter jurisdiction over cases arising under the Constitution, laws, or treaties of the United States or cases where there is diversity of citizenship between the parties. 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1332 (diversity jurisdiction). For purposes of removal, the burden of establishing federal jurisdiction is on the party seeking removal. Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994). If there is any doubt as to the right of removal in the first instance, it must be resolved in favor of remanding to state court as the removal statutes are construed strictly against removal. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
The procedure for removal is set forth in 28 U.S.C. § 1446(b). To properly remove an action, the defendant must file the notice of removal within thirty days after the defendant receives the initial pleading if the case stated by the initial pleading is removable on its face. 28 U.S.C. § 1446(b); Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). If, on the other hand, it is unclear whether the case is removable on the face of the complaint, the thirty-day period will not begin to run until the defendant is put on notice of removability.*fn2 Harris, 425 F.3d at 697. The Ninth Circuit adopted this interpretation to ensure that a defendant will not face an unreasonable and unrealistic burden to determine removabiltiy within thirty days of receiving the initial pleading. Id. at 694.
In the case at hand, Abercrombie removed the action to this Court on the basis that diversity of citizenship exists between the parties. As the party seeking removal, Abercrombie bears the burden of establishing diversity jurisdiction. Based on the records before the Court, the Court is not satisfied that Abercrombie met that burden when it filed the Notice of Removal. Specifically, nothing in the records establishes Morin's citizenship as to any particular state. In Morin's Complaint, he merely alleges that he "was a resident of the County of San Diego" and that Abercrombie was "a corporation doing business in the County of San Diego." However, it has long been settled that for the purposes of jurisdiction, residence and citizenship are wholly different things, and a mere averment of residence in a particular state is not an averment of citizenship of that state. Steigleder v. McQuesten, 198 U.S. 141, 143 (1905); see Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (noting that a person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state). Therefore, Morin's citizenship cannot be determined from the face of the Complaint. Similarly, Morin's responses to Abercrombie's special interrogatories are not sufficient to determine Morin's citizenship. Morin merely admits that he lives in California and that he is authorized to work in the United States. Abercrombie could not have ascertained Morin's citizenship based on this information. As federal district courts are required to resolve in favor of remanding to state court if there is any doubt as to the right of removal in the first instance, Morin's Motion to Remand will be granted. See Gaus, 980 F.2d at 566.
For the reasons set forth above, Plaintiff Morin's Motion to Remand is GRANTED. The case is ...