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Robert Rubin v. Air China Limited and United Airlines

March 21, 2011

ROBERT RUBIN,
PLAINTIFF,
v.
AIR CHINA LIMITED AND UNITED AIRLINES, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DENYING MOTION TO REMAND

Plaintiff Robert Rubin moves to remand this action to the Superior Court of Santa Clara County. Pursuant to Civil Local Rule 7-1(b), the Court finds that this motion is appropriate for 19 determination without oral argument and vacates the motion hearing set for March 24, 2011.

Having considered the submissions of the parties and the relevant law, the Court finds that removal 21 was proper and denies Plaintiff's motion to remand. The Court will hold a Case Management Conference, as scheduled, on March 24, 2011 at 1:30 p.m.

I.Background

On September 30, 2010, Plaintiff Robert Rubin filed a claim against Defendants Air China Limited and United Airlines, Inc. in the Small Claims Division of the Santa Clara County Superior Court ("Small Claims Court"). In his state-court complaint, Plaintiff alleges that he experienced 27 pain and suffering and incurred monetary damages due to a 13.5-hour delay on Air China Flight 983 28 from Beijing, China, to San Francisco, California. United Airlines was the contracting carrier for the flight. Plaintiff seeks $4,233 in damages under the "Passenger Compensation Rights for International Flights" provision of the Montreal Convention of 1999. trial in Small Claims Court on November 18, 2010. However, on November 10, 2010, Defendant Plaintiff served Air China and United Airlines on October 11, 2010, and the case was set for Air China removed the case to federal court under 28 U.S.C. § 1441(d), which permits foreign 6 sovereigns to remove any civil action to federal court, and under 28 U.S.C. § 1441(a)-(b), which 7 permits removal of actions arising under the treaties of the United States. Air China's notice of 8 removal states that a copy of the notice was served on all parties and will be filed with the Clerk of 9 the Santa Clara County Superior Court.

on the morning of November 18, 2010, the date trial was scheduled to be held in Small Claims Court. Later that day, Plaintiff and a representative from United Airlines appeared for trial, but Air

Commissioner informed the parties that he had just received notice that the case had been removed 15 to federal court. Plaintiff, proceeding pro se, now moves to remand the entire action on grounds 16 that Air China failed to give timely notice of the removal and may never have served United 17

Airlines with the notice of removal. In the alternative, Plaintiff argues that the Court lacks federal 18 question jurisdiction, and thus even if Air China properly removed under § 1441(d) as a foreign 19 sovereign, the Court should remand the claims against domestic defendant United Airlines. Air 20

China opposes Plaintiff's motion, and United Airlines joins in Air China's opposition.

either for lack of subject matter jurisdiction or for a defect in the removal procedure. 28 U.S.C. § 1447(c). "The removal statute is strictly construed, and any doubt about the right of removal 25 requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). A party

Plaintiff alleges that he received a copy of the notice of removal at his place of employment*fn1 China did not enter an appearance. Plaintiff claims that when the case was called, the small claims

II.Legal Standard

A Plaintiff may bring a motion to remand to challenge removal of an action to federal court, opposing removal on the basis of a procedural defect must make a motion to remand within thirty 2 days of the filing of the notice of removal. 28 U.S.C. § 1447(c). 3

III.Discussion

In his motion to remand, Plaintiff raises both jurisdictional and procedural objections to removal. The Court will first determine whether it has subject matter jurisdiction over the removed 6 action and then address the alleged procedural defects.

A.Subject Matter Jurisdiction

A cause of action may be removed to federal court only if it could have been brought originally in federal court. 28 U.S.C. § 1441(a). In its notice of removal, Air China identifies two 10 grounds for removal jurisdiction: (1) original jurisdiction under the Foreign Sovereign Immunities 11

Act for civil actions against a foreign state, pursuant to 28 U.S.C. ยงยง 1330 and 1441(d), and (2) federal question jurisdiction for actions arising under the Constitution, treaties, or laws of the United States, ...

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