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T3 Micro, Inc. v. SGI Co.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


December 15, 2009

T3 MICRO, INC.
v.
SGI CO., LTD., ET AL.

The opinion of the court was delivered by: Honorable S. James Otero, United States District Judge

CIVIL MINUTES - GENERAL

PROCEEDINGS (in chambers): ORDER REMANDING TO STATE COURT

This matter is before the Court on Defendants SGI Co., Ltd., formerly known as Shin Woo Good Item ("SGI"), and Hair Technic's ("Hair Technic") (collectively, "Defendants") Notice of Removal, filed November 30, 2009. (See Notice of Removal.) For the following reasons, this action is REMANDED to state court.

On April 27, 2009, Plaintiff T3 Micro, Inc. (Plaintiff") filed its Complaint in the Superior Court of the State of California for the County of Los Angeles. (See generally Compl.) Defendant SGI was served on April 27, 2009. (See Notice of Removal Ex. C.) On August 21, 2009, Plaintiff filed its First Amended Complaint ("FAC"). (See generally FAC.) In general, defendants must file a notice of removal within thirty days after receipt of the first pleading in the state action that sets forth a removable claim. 28 U.S.C. § 1446(b). In the instant action, the face of the pleading triggered the thirty day removal period. See 28 U.S.C. § 1446(b). Most courts, including this Court, hold that the thirty day removal period runs for all defendants from the date the first of the defendants is served with the original complaint, which in this instance, was on April 27, 2009. See United Computer Systems, Inc. v. AT & T Corp., 298 F.3d 756, 762 (9th Cir. 2002) (holding that the "first-served" rule has been adopted by a majority of courts).

The burden is on Defendants to establish that removal is timely. Defendants' Notice of Removal was filed more than thirty days after the Complaint and FAC were each filed in state court. Defendants have not established that they were not either served, or put on notice of the filing of the Complaint and/or the FAC less than thirty days from the date of filing Notice of Removal. Accordingly, this Action is REMANDED to state court for failure to timely remove. Id.

IT IS SO ORDERED.

20091215

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