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Aqua Connect, Inc v. Code Rebel LLC

October 25, 2011

AQUA CONNECT, INC., PLAINTIFF,
v.
CODE REBEL LLC, ARBEN KRYEZIU, AND VLADIMIR BICKOV, DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER Re: Plaintiff Aqua Connect, Inc.'s Motion to Remand [11]

On October 12, 2011, Plaintiff Aqua Connect, Inc.'s Motion for Remand came on for regular calendar before this Court [11]. The Court, having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

The Court hereby DENIES Plaintiff's Motion to Remand.

I. BACKGROUND

A. Factual Background

Plaintiff brings this current Action against Defendants for claims arising from Defendants' alleged reverse engineering of Plaintiff's software and subsequent distribution of an allegedly infringing software product. Plaintiff is a Nevada corporation that sells software and has its principal place of business in California.

Defendant Code Rebel LLC ("Code Rebel") also sells software and is a limited liability corporation organized under the laws of Hawaii, with its principal place of business in Hawaii. Defendant Arben Kryeziu ("Kryeziu"), a citizen of Hawaii, is the managing partner and only member of Defendant Code Rebel. According to the Complaint, Defendant Bickov is a resident of Russia, who worked as an agent of Defendant Code Rebel, at the behest of Defendant Kryeziu. Defendant Bickov has not been served.

B. Procedural Background

On May 25, 2011, Plaintiff filed this Action against Defendants in the Superior Court of California, County of Los Angeles [1]. Defendants Code Rebel and Kryeziu were served with a Summons and Complaint on June 6, 2011. On July 12, 2011, Defendants Code Rebel and Kryeziu allege they received a letter from unserved Defendant Bickov, in which Defendant Bickov claimed to be a citizen of Ukraine and consented to removal.

Consequently, on July 13, 2011, Defendants Code Rebel and Kryeziu jointly filed a Notice of Removal on diversity grounds. Thereafter, on August 12, 2011, Plaintiff filed this present Motion to Remand [11].

II. LEGAL STANDARD FOR REMAND

In deciding whether to remand a case, this Court must determine whether the case was properly removed to this Court. The right to remove a case to federal court is governed by 28 U.S.C. § 1441, which in relevant part states that "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. . . ." 28 U.S.C. § 1441(a). District courts have diversity jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332.

Section 1446(b) governs the timing of removal. If the initial pleading shows that the case is "removable on its face," then a defendant has thirty days from receipt of the pleading to remove the case. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (quoting Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005)). If, however, no basis for removal is apparent in that pleading, the requisite thirty-day removal period does not begin until the defendant receives "a copy of an amended pleading, motion, order or other paper" from which removability may first be ascertained. 28 U.S.C. § 1446(b).

The Court may remand a case to state court for lack of subject matter jurisdiction or defects in removal procedure. 28 U.S.C. § 1447(c). The defendant has the burden of proving that removal is proper and that all of the prerequisites are satisfied. If at any time before final judgment it appears that the district court lacks subject matter jurisdiction over a case that has been removed to federal court, the case must be remanded. 28 U.S.C. § 1447(c). The Ninth Circuit strictly construes the removal statute against removal jurisdiction, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance. See Shamrock Oil ...


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