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Shamrock Manufacturing Co. v. Ammex Corp.

August 9, 2010

SHAMROCK MANUFACTURING CO., PLAINTIFF,
v.
AMMEX CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND (Doc. 14), GRANTING DEFENDANT'S MOTION TO TRANSFER VENUE (Doc. 9), AND DIRECTING CLERK OF THE COURT TO TRANSFER THIS ACTION TO THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

On April 9, 2010, Shamrock Manufacturing Co. ("Shamrock") filed a complaint for breach of contract, account stated, goods had and received, and open book account against Ammex Corporation ("Ammex") in the San Bernardino County Superior Court.

On May 20, 2010, Ammex removed the action to this Court rather than to the United States District Court for the Central District of California on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332(a).

Shamrock moves to remand the action to the San Bernardino County Superior Court on the ground that Ammex removed the action to an incorrect district court. Ammex concedes that the action was removed to an incorrect district court, but moves to transfer venue of this action pursuant to 28 U.S.C. § 1406(a) or 28 U.S.C. § 1631, to the United States District Court for the Central District of California, the correct district, to be consolidated with Ammex Corporation v. Shamrock Manufacturing Co., No. CV-F-10-637 RAJ, filed by Ammex on April 14, 2010 in the United States District Court for the Western District of Washington, either in California or in Washington.

In opposition to the motion to remand and in support of the motion to transfer venue, Ammex files the Declaration of H. Troy Romero, counsel for Ammex:

3. On April 14, 2010, Ammex filed the Washington Action and served Plaintiff with the complaint and summons for the same on April 21. 2010 ... After being served with notice of Plaintiff's California State Court action ... on April 27, 2010, Ammex timely removed Plaintiff's California State action to the federal system ....

4. Based on a clerical error in my office, Ammex removed the California Action from the Superior Court in San Bernardino County. My legal assistant misread a map indicating which court superior courts were in the various Federal Districts for California. Based on this reading, we removed the California Action to the Eastern District of California instead of the Eastern Division of the Central District ....

5. Late in the afternoon of May 28, 2010 (at the start of the three day Memorial Day weekend) - after Ammex's originial thirty days to file a notice of removal had run -Plaintiff informed Ammex of its mistaken removal to the Eastern District by facsimile transmission. Due to the timing of Plaintiff's facsimile - the Friday leading up to the Memorial Day weekend - I was unable to act until June 1, 2010, the next business day, when I contacted Plaintiff seeking a stipulation to have the California Action transferred to the Central District ...

Plaintiff refused to stipulate.

At the hearing, Shamrock conceded that the parties are diverse, but asserted that the amount in controversy was not established. There is no question that federal subject matter jurisdiction over this action on the basis of diversity exists. Shamrock and Ammex are citizens of different states and Shamrock's complaint seeks over $200,000.00 in damages, exclusive of interest and costs. Shamrock does not seek remand on the ground that federal subject matter jurisdiction over the action does not exist.

28 U.S.C. § 1441(a) provides:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending ....

28 U.S.C. § 1446(a) provides: A defendant or defendants desiring to remove any civil action ... from a State court shall file in the district court ... for the district and division within which such action is pending a notice of removal ....

Courts strictly construe the removal statute against removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper. Gaus, id. "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th Cir.1999).

Whether this Court is required to remand the action to the San Bernardino Superior Court or has the power to transfer this action to the Western District of Washington or is subject to a split of authority. There is no binding Supreme Court or Ninth Circuit authority on point.

Shamrock cites Maysey v. CraveOnline Media, LLC, 2009 WL 3740737 (D.Ariz., Nov. 5, 2009); Addison v. North Carolina Dept. of Crime and Public Safety, 851 F.Supp. 214 (M.D.N.C.1994); Willingham v. Creswell-Keith, 160 F.Supp. 741 (W.D.Ark.1958); and Gopcevic v. California Packing Corporation, 272 F. 994 (N.D.Cal.1921), as authority that this Court has no power to transfer the action as requested by Ammex and must remand.

In Gopcevic, California then had two districts, the Northern and the Southern. The Northern District was divided into two divisions, the Northern division and the Southern division. The action was filed in Lake County, one of the counties ...


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