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Mansu v. Kennedy

November 12, 2008

LEO MANSU, AN INDIVIDUAL; LISA FIDELDY, AN INDIVIDUAL; JERRY HARPER, AN INDIVIDUAL; DANEILLE HONODEL-HARPER, AN INDIVIDUAL; BARBARA ROSE, AN INDIVIDUAL; AND RICHARD SIEGFRIED, D.C., AN INDIVIDUAL, PLAINTIFFS,
v.
WILLIAM J. KENNEDY AKA BILL KENNEDY, INDIVIDUALLY AND D/B/A AMERICAN LEGAL SERVICES, D/B/A THE EAR OF MALCHUS, D/B/A THE LOST SHEEP; THE EAR OF MALCHUS, A WASHINGTON CORPORATION; THE LOST SHEEP, A WASHINGTON CORPORATION; LYLE E. DAVIES, INDIVIDUALLY AND D/B/A FINANCIAL WELL-BEING SOLUTIONS; KENNETH L. REISWIG AKA KENNY L. REISWIG, INDIVIDUALLY AND D/B/A THE SILVER TRUMPETS; THE SILVER TRUMPETS, A WASHINGTON CORPORATION; RITA I. JOHNSON AKA RITA A. JOHNSON, INDIVIDUALLY AND D/B/A HER COPYRIGHT; JUDITH RODERICK, AN INDIVIDUAL; DANNY V. SESE, INDIVIDUALLY AND D/B/A GENTRY GROUP; GENTRY GROUP, A TEXAS CORPORATION; JEROME WEBB, AN INDIVIDUAL; KURT F. JOHNSON, AN INDIVIDUAL; D. SCOTT HEINEMAN AKA DALE SCOTT HEINEMAN, AN INDIVIDUAL; TONY SCARLOTTA, AKA TONI SCARLOTTA, AN INDIVIDUAL; NEW CENTURY MORTGAGE CORPORATION, AN UNKNOWN BUSINESS ENTITY; COURTESY AUTOMOTIVE CENTER, AN UNKNOWN BUSINESS ENTITY; COURTESY CHEVROLET CADILLAC SUZUKI, AN UNKNOWN BUSINESS ENTITY; JOHN GROUP; BEN WELLS AKA BENJAMIN WELLS, AN INDIVIDUAL; JEFF AULT AKA JEFFREY AULT, AN INDIVIDUAL; VICK SINGH, AN INDIVIDUAL; INTERNATIONAL ASSOCIATION OF CORPORATION SOLE, AN UNKNOWN ENTITY; PETER KIM, INDIVIDUALLY AND D/B/A SKM DEBT SERVICES; SUSAN W. KIM, INDIVIDUALLY AND D/B/A SKM DEBT SERVICES; RICHARD LALONDE AKA RICK LALONDE; JERRY COOK AKA JEROME COOK; INDYMAC BANK, A CALIFORNIA CORPORATION; DARRYL LEBARTHE, AN INDIVIDUAL; WB FINANCIAL, A CALIFORNIA CORPORATION; JEROME WEBB, AN INDIVIDUAL; NICHOLE KLAUSNER, AN INDIVIDUAL; FINANCIAL TITLE COMPANY, A CALIFORNIA CORPORATION; AND DOES 1-100, INCLUSIVE, DEFENDANTS.



ORDER RE: MOTION TO REMAND

Plaintiffs Leo Mansu, Lisa Fideldy, Jerry Harper, Deneille Honodel-Harper, Barbara Rose, and Richard Siegfried D.C. filed this action in San Joaquin County Superior Court against over forty defendants alleging that they conspired in a fraudulent "debt elimination" scheme involving home mortgages and car loans. Defendant Courtesy Oldsmobile-Cadillac Inc. d/b/a/ Courtesy Automotive Center d/b/a Courtesy Chevrolet Cadillac ("Courtesy")*fn1 removed the case to federal court pursuant to 28 U.S.C. § 1441(a), and plaintiffs now move to remand the case to state court pursuant to 28 U.S.C. § 1447.

I. Factual and Procedural Background

Plaintiffs filed their Complaint in state court on May 1, 2008, alleging fraud; violations of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200; fraud in the inducement; violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964(c); unjust enrichment; breach of fiduciary duty; conversion; conspiracy to commit fraud; intentional misrepresentation; and negligent misrepresentation. Courtesy received service of process on August 1, 2008, and subsequently filed a notice of removal pursuant to 28 U.S.C. § 1441(a) on August 26, 2008. (Notice of Removal Ex. A at 3; Mot. to Remand 4:8-11.)

On September 24, 2008, defendants Judith Roderick, Kenneth L. Reiswig, Effie Reiswig, The Silver Trumpets, and Rita I. Johnson joined in Courtesy's notice of removal, and defendant Jerome Cook joined on September 25, 2008. (Docket Nos. 7, 8.) Plaintiffs then filed a motion to remand, arguing that removal was improper under 28 U.S.C. § 1441(a) and procedurally defective under 28 U.S.C. § 1446.*fn2 On November 3, 2008, the court ordered plaintiffs to submit their proofs of service for the court's inspection. (Id. Nos. 39, 40.) Courtesy also filed a response to the Minute Order. (Id. No. 43.)

II. Discussion

A. Legal Standard

When a plaintiff moves to remand a case, the defendant bears the burden of establishing that removal was proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Any questions regarding the propriety of removal should be resolved in favor of the party moving for remand. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). If removal was improper, "the district court lack[s] subject matter jurisdiction, and the action should [be] remanded to the state court." Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir. 1998) (citing 28 U.S.C. § 1447(c)).

B. 28 U.S.C. § 1441(a)

"Any civil action may be removed to federal district court so long as original jurisdiction would lie in the court to which the case is removed." Matheson, 319 F.3d at 1090; see 28 U.S.C. § 1441(a). Federal district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

Plaintiffs' Complaint asserts a federal claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c). (Notice of Removal Ex. A at 27.) "[A]lthough a RICO action may . . . be filed either in federal or state court, the claim itself both arises under and is governed by a comprehensive federal enforcement scheme . . . ." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Accordingly, since a federal RICO claim is one "arising under the laws of the United States," it falls within this court's original jurisdiction and is removable pursuant to § 1441(a). Id. at 1196.

B. 28 U.S.C. § 1446

Plaintiffs contend that removal was procedurally defective in two related respects. First, they argue that Courtesy's notice was untimely because it was filed more than thirty days after other defendants in the action had received service of process. (Mot. to Remand 8-10.) Second, plaintiffs contend that the removal violated the "rule of unanimity." (Id. at 7.) The court will address each argument in turn.

1. Timeliness

Section 1446(b) provides that "notice of removal . . . shall be filed within thirty days after the receipt by the defendant . . . of a copy of the initial pleading." 28 U.S.C. ยง 1446(b). The plain language of the statute refers to "the defendant," which has caused considerable ...


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