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National Union Fire Insurance Company of Pittsburgh, PA v. Tokio Marine & Nichido Fire Insurance Co

October 18, 2010

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, PLAINTIFF,
v.
TOKIO MARINE & NICHIDO FIRE INSURANCE CO, LTD (US BRANCH) A CORPORATION AND DOES 1--25, DEFENDANT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER DENYING PLAINTIFF'S MOTION TO REMAND (Doc. No. 8.)

Presently before the Court is Plaintiff's motion to remand. (Doc. No. 8 (Mot. to Remand).) Also before the Court is Defendant's response in opposition (Doc. No. 11 (Opp'n)) and Plaintiff's reply (Doc. No. 14 (Reply).) For the reasons stated below, the Court DENIES Plaintiff's motion to remand.

BACKGROUND

Plaintiff initiated a declaratory judgment action in the Superior Court of California, County of San Diego, on July 13, 2010. (Doc. No. 1 at 8.) Defendant removed the case based on diversity jurisdiction a month later. (Id. at 1.) After filing a motion to dismiss, Plaintiff filed the present motion to remand. Plaintiff indicates that it has no objection to litigating this matter in federal court, but that it filed the motion to remand "in an abundance of caution in an effort to ensure there is no cloud over jurisdiction in the future." (Mot. to Remand at 2.)

LEGAL STANDARD

In cases "brought in a State court of which the district courts of the United States have original jurisdiction," a defendant may remove the case to federal district court. 28 U.S.C. §1441(a). However, courts "strictly construe the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). Therefore, "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).

The removing party bears the burden of establishing that federal subject matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). In order to establish removal jurisdiction over a diversity action, the removing defendants must establish compliance with 28 U.S.C. § 1332(a), which provides for diversity jurisdiction where (a) the amount in controversy exceeds $75,000, and (b) the suit is between citizens of different states. For purposes of the amount in controversy requirement, where, as in the present case, the "complaint filed in state court alleges on its face an amount in controversy sufficient to meet the federal jurisdictional threshold, such requirement is presumptively satisfied unless it appears to a 'legal certainty' that the plaintiff cannot actually recover that amount." Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007) (citing Sanchez v. Monumental Life Ins. Co., 95 F.3d 856, 862 (9th Cir. 1996)). Section 1332(a) also requires complete diversity between plaintiffs and defendants. Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch.) 267 (1806)). Courts look to "the time of the filing of a complaint" to determine whether complete diversity exists. In re Haw. Fed. Asbestos Cases, 960 F.2d 806, 810 (9th Cir. 1992) (citing Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957)). The removing party must prove their allegations by a preponderance of the evidence. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). The Court takes this proof from the notice of removal and may also, if it so chooses, construe the brief in opposition to the Motion to Remand as an amendment to the Notice of Removal. See Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (citing Willingham v. Morgan, 395 U.S. 402, 407 n.3 (1969)).

ANALYSIS

I. Plaintiff's Request for Judicial Notice

Plaintiff moves the Court to take judicial notice of thirteen exhibits in support of its motion to remand. (Doc. No. 8-2 (Judicial Notice).) Defendant does not oppose Plaintiff's request. The Court finds that each of these documents is properly judicially noticed. Further, the exhibits are repeatedly referenced in the motion to remand. Accordingly, the Court GRANTS Plaintiff's request for judicial notice.

II. Diversity of Citizenship

Both parties agree that the basis for federal subject matter jurisdiction is diversity jurisdiction. Both parties also agree that the amount in controversy exceeds the $75,000 necessary under 28 U.S.C. § 1332(a)(2). The only remaining question is whether the parties are diverse in citizenship.

For purposes of diversity jurisdiction, a corporation is a citizen of the State by which it has been incorporated and the State where it has its principal place of business. 28 U.S.C. § 1332(c)(1). As a result, an alien corporation is a citizen of both the country of incorporation and the state in which it has its principal place of business. See Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1994). "Significantly, it is the corporation's worldwide principal place of business that is relevant for purposes of diversity jurisdiction, and not its principal place of business within the United States." Cohen v. Colorado Elec. Supply Ltd., 2008 WL 4722528, at *2 (C.D. Cal. 2008) (citing Bailey v. Grand Trunk Lines New England, 805 F.2d 1097, 1100--01 (2nd Cir. 1986).

Plaintiff is a corporation incorporated in Pennsylvania, with a principal place of business in New York. Plaintiff's suit is against the entity "Tokio Marine & Nichido Fire Insurance Co., Ltd (U.S. Branch)" (Tokio Marine U.S. Branch). And this entity's citizenship is unclear. Plaintiff's complaint alleges that Tokio Marine U.S. Branch is a corporation incorporated in New York with a principal place of business in New York. But in its notice of removal, Defendant alleges that Tokio Marine U.S. Branch a "business unit" of Tokio Marine & Nichido Fire Insurance Co., Ltd (Tokio Marine Japan), which is a corporation ...


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