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LM, Inc. v. Khan

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


November 10, 2008

LM, INC., PLAINTIFF,
v.
PARVIZ KHAN, DEFENDANT.

The opinion of the court was delivered by: Elizabeth D. Laporte United States Magistrate Judge

ORDER DENYING THIRD PARTY PLAINTIFF'S MOTION TO REMAND

In March 2007, Defendant/Third Party Plaintiff Parvis Khan removed this matter from the Sonoma County Superior Court on the ground that the case arose under the Copyright Act. In April 2007, Khan filed a Third Party Complaint against Peter Simons and Nutechmart alleging copyright infringement. On August 16, 2007, pursuant to the stipulation of the parties, the Court severed this matter, remanding the original case, LM v. Khan, to Sonoma County Superior Court. The Third Party Complaint, Khan v. Simons and Nutechmart, remains in this Court. In December 2007, Khan moved for default against Simons and Nutechmart, which was denied without prejudice in January 2008. On September 30, 2008, Third Party Plaintiff Parvis Khan filed a motion to remand, arguing that remand is proper pursuant to 28 U.S.C. § 1447(c) because the Court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Khan argues that because the original Plaintiff in this case has since amended its complaint in Superior Court to allege a real property dispute rather than a copyright dispute, the basis for the Third Party Complaint no longer exists and the case should be remanded. Khan has provided no authority for this argument.

As explained at the November 4, 2008 hearing, the Court still has subject matter jurisdiction in this matter based on the copyright infringement claim that Khan continues to assert in his Third Party Complaint. The Third Party Complaint has not been amended to abandon the federal copyright claim. Therefore, remand pursuant to § 1447(c) is not appropriate, and Khan's Motion to Remand is denied.

At the November 4, 2008 hearing, Khan's counsel stated that he would amend the complaint to omit the federal copyright claim no later than the end of the day. To date, no amended complaint has been filed. If Khan intends to amend the complaint, he shall do so no later than November 17, 2008. As stated at the hearing, if an amended complaint is filed, and if Khan still seeks to remand this action, he would have to renew his motion to remand. The Court will hold a further status conference on December 2, 2008. Khan shall file a status conference statement no later than November 25, 2008. Khan's counsel may appear by telephone at the status conference by calling the Court's courtroom deputy at 415-522-3694 no later than November 25, 2008 with a telephone number for the Court to call on December 2, 2008.

IT IS SO ORDERED.

20081110

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