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Bassel v. 4Access Communications Co.

May 21, 2008

LARRY BASSEL AND BARBARA BASSEL, PLAINTIFFS,
v.
4ACCESS COMMUNICATIONS CO., DEFENDANT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING MOTION TO REMAND; DENYING AS MOOT REQUEST FOR RECONSIDERATION and DENYING MOTION FOR COSTS AND EXPENSES [doc #9]

Plaintiffs move to remand the above-captioned case from the State of California, County of San Diego Superior Court. Plaintiffs contend the notice of removal is untimely and defendant has failed to demonstrate the amount in controversy meets the requirement of 28 U.S.C. § 1332(a). [doc #9] The motion has been fully briefed. For the reasons set forth below, the case will/will not be remanded.

Legal Standard for Removal and Remand

Plaintiffs filed their complaint in the San Diego Superior Court on October 2, 2007 alleging breach of contract, conversion, violation of California Labor Code § 201 and California Business and Professions Code § 17220. Defendant removed the action on the basis of diversity jurisdiction on December 17, 2007.

The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 774 (9th Cir. 1986). It possesses only that power authorized by the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). It is constitutionally required to raise issues related to federal subject matter jurisdiction, and may do sua sponte. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).

Removal jurisdiction is governed by 28 U.S.C. § 1441 et seq. The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction. Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

A state court action can only be removed if it could have originally been brought in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). In addition to jurisdiction on the basis of a federal question, a federal court has jurisdiction over an action involving citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332.*fn1

Even if the Court has subject matter jurisdiction over the state court action, remand may be based upon a defendant's failure to comply with the procedural requirements of removal.

Discussion

a. Timeliness of Removal

Plaintiffs first argue that defendant did not timely remove the action. 28 U.S.C. § 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of ...


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