The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge
ORDER GRANTING MOTION TO REMAND AND DENYING REQUESTS FOR COSTS [Doc. No. 12]
Plaintiffs Gerald and Brenda Kosen (collectively "Plaintiffs") filed an action in San Diego County Superior Court seeking damages, declaratory relief, and injunctive relief arising from an automobile accident which occurred in this judicial district. Mr. Kosen, a California resident, was the driver of one of the vehicles, and Mrs. Kosen was a passenger in the car. Defendant Kathleen Ruffing ("Ruffing"), a Pennsylvania resident, was the driver of the other vehicle. Plaintiffs initially named as defendants Ruffing, two insurance companies, and three individuals associated with the entity defendants. The defendants removed the case to this Court, alleging federal question jurisdiction based on Plaintiffs' claim for violations of the Racketeer Influenced and Corrupt Organizations statute, 18 U.S.C. §§ 1961, 1962, 1964 ("RICO"), and jurisdiction based on diversity of citizenship. The removing defendants have been dismissed from the case, so the only remaining defendant is Ruffing, against whom Plaintiffs pled no federal claim.
Plaintiffs filed a Motion to Remand the matter to state court and for fees and costs ("Motion") on May 12, 2008, one week after dismissing all named defendants except Ruffing. [Doc. No. 12.] Ruffing filed an Opposition to the Motion on June 9, 2008 [doc. no. 16], and Plaintiffs timely filed their Reply [doc. no. 23]. The Court found the issues presented in the Motion to be suitable for decision without oral argument pursuant to Civil Local Rule 7.1(d)(1). [Doc. No. 24.] For the reasons discussed below, the Motion is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying automobile accident occurred in La Jolla, California on February 24, 2006. Plaintiffs filed their Complaint in state court on February 21, 2008, naming as defendants Kathleen Ruffing (the driver), Allied Property & Casualty Insurance Company ("Allied"), Nationwide Mutual Insurance Company ("Nationwide"), and three individuals associated with the insurance companies (Rose Proctor, Mark Noel, and William Jurgensen).*fn1 On April 11, 2008, Plaintiffs filed a First Amended Complaint ("FAC"). The FAC alleged twelve causes of action for fraudulent and unfair business and advertising practices against Allied, Nationwide, Proctor, Noel, and Jurgensen; violations of RICO (18 U.S.C. §§ 1961, 1962, 1964) against Jurgenson, Proctor, and Noel; general negligence under California law against all defendants; loss of consortium against defendant Ruffing; and civil conspiracy against individual defendants Proctor and Noel. (FAC ¶¶ 38-206.)
On April 14, 2008, shortly after the FAC was filed, Mr. Beavers (counsel for defendant Ruffing) made a general appearance for Ruffing in the state court action by filing an answer to Plaintiffs' form complaint and a motion to strike the punitive damage request.*fn2 According to Plaintiffs, Beavers also served discovery requests on April 15, 2008. (Pls.' Mem. P. & A. 3.)
Plaintiffs' counsel has filed two certificates of service from the state court action. One indicates that Ruffing was served with the summons and FAC by mail on April 24, 2008, at her address in Pittsburgh, Pennsylvania. [Doc. No. 13.] The other proof of service states that Mr. Jurgensen was similarly served on that date.*fn3 [Doc. No. 14.] On April 30, 2008, Mr. Beavers served Ruffing's answer to the FAC, and a notice that the motion to strike punitive damages would be taken off-calendar. (Pls.' Mem. P. & A. 3.) The answer and notice were filed in the state court on May 2, 2008. (Def.'s Opp'n 3.)
Attorney Anthony Cannon filed the Notice of Removal in this Court on April 30, 2008. The Notice of Removal identifies the removing defendants as the insurance companies (Allied and Nationwide) and individual defendants Proctor and Noel. The removal notice recites, "none of the Moving Defendants have been served with the summons and complaint," but their attorney, Anthony Lawrence Cannon, Esq., indicated that his firm (Cannon & Nelms) had been authorized to accept service on behalf of the four removing defendants. (Not. of Removal ¶ 5.) The Notice of Removal stated that defendant Ruffing (represented by separate counsel, R. Wesley Beavers, Esq.) "joins" in the Notice of Removal. Defendant Jurgenson did not join because he had not been served.
Federal jurisdiction in support of removal was predicated on 28 U.S.C. § 1332 (diversity of citizenship) and 28 U.S.C. § 1441(b) (federal question removal jurisdiction) due to the RICO allegations. (Not. of Removal ¶ 4.) The Notice is accompanied by two exhibits. Exhibit A is a copy of the San Diego County Superior Court form Complaint. The exhibit is signed by Plaintiffs' counsel, Douglas J. Crawford, Esq., and bears a state court file stamp date of February 21, 2008. Exhibit B is Plaintiffs' First Amended Complaint.*fn4 The copy of the FAC bears Mr. Crawford's signature and a signature date of April 11, 2008, but no court file stamp date. No proof of service of either the Complaint or the FAC and no other pleadings or filings from the state court action were provided in the removal packet. Additionally, a copy of the state court docket was not provided.
On May 5, 2008, three court days after removal, Plaintiffs' counsel filed Notices of Voluntary Dismissal Without Prejudice of all the named defendants except Ruffing, none of whom had yet answered the original Complaint or the FAC. [See Doc. Nos. 3-7.] Thus, Ruffing is the only named defendant remaining in this action, and the only remaining causes of action from the FAC are the two relating to Ruffing: general negligence and loss of consortium.
In their remand motion, Plaintiffs argue the following: (1) Removal was untimely; (2) Defendants waived their right to remove; (3) Defendants failed to comply with all the procedural requirements for removal; and (4) the federal court "has discretion to remand the case back to State court [when] subject matter jurisdiction is no longer present," apparently referring to the absence of federal question jurisdiction through Plaintiffs' dismissal of all defendants against whom Plaintiffs had alleged RICO violations. (Pls.' Mem. P. & A. 4-6.) They also ask the Court to award the costs and attorneys' fees they incurred to oppose the "untimely and procedurally defective removal from state court." (Id. at 6-7.)
Ruffing opposes remand because she asserts removal was timely, she has not waived her right to remove the case, and the Court retains diversity jurisdiction over this dispute because Plaintiffs and Defendant are citizens of different states and the amount in controversy exceeds $75,000. (Def.'s Opp'n 5-9.) Ruffing seeks recovery of her attorneys' fees spent opposing the motion to remand.
A. Legal Standards for Removal Jurisdiction and Remand
"When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court . . . ." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); see 28 U.S.C. § 1441. The removing party bears the burden of demonstrating removal was proper. Abrego Abrego v. Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006) (examining the propriety of removal under the Class Action Fairness Act); United Computer Sys. v. AT & T Corp., 298 F.3d 756, 763 (9th Cir. 2002); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
A plaintiff objecting to the removal may file a motion asking the district court to remand the case to state court. Caterpillar, 519 U.S. at 69. The removal statutes are strictly construed, and doubts about the propriety of removal are resolved in favor of remand. Abrego Abrego, 443 F.3d at 685, 690 (citations omitted); Gaus, 980 F.2d at 566; Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985). A plaintiff may move for remand when removal to federal court was procedurally defective, although procedural defects do not necessarily deprive the court of subject matter jurisdiction.*fn5 28 U.S.C. § 1447(c). The timeliness of the removal raises a procedural defect. Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1077 (10th Cir. 1999) (citing Snapper, Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir. 1999)).
"[J]urisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments. . . . Because of this rule, a plaintiff may not compel remand by amending a complaint to eliminate the federal question upon which removal was based." Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998) (citing Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1488 (10th Cir. 1991)). Here, Plaintiffs have dismissed their RICO claims, which were the only basis for federal question jurisdiction. Nevertheless, as will be discussed further below, even if the Court were to find that diversity jurisdiction is lacking, a remand would not be required because federal question jurisdiction was present at the time of removal.
In the case of removal based on diversity jurisdiction, there must be complete diversity at the time the action was filed and at the time of removal. Ryan ex rel. Ryan v. Schneider Nat'l. Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001) (citations omitted); United Food & Comm. Workers Union v. Centermark Properties Meridien Square, Inc., 30 F.3d 298, 301 (2nd Cir. 1994); see also Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428 (1991) (stating that jurisdiction is either established or not at the time the action is commenced; if it exists "at the time the action is commenced, such jurisdiction may not be divested by subsequent events."). District courts have diversity jurisdiction over civil actions between citizens of different states when the amount in controversy exceeds $75,000, exclusive of interest and ...