The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER DENYING MOTION TO REMAND [Doc. No. 6]
NTD Architects ("Plaintiff"), filed a motion, [Doc. No. 6], seeking to remand this case to state court pursuant to 28 U.S.C. § 1447(c). The Plaintiff asserts that the case should be remanded because:
(1) the state court action does not raise any federal questions or issues; (2) a co-pending federal case does not provide supplemental jurisdiction, even if based on the same facts; and (3) Defendants' removal was untimely. Defendants filed an opposition, [Doc. No. 8], and Plaintiff filed a reply, Doc. No. 9. Based upon the parties moving papers, Plaintiff's motion to remand, [Doc. No. 6], is hereby DENIED for the reasons set forth below.
The instant case arises from the departure of Defendants JON BAKER ("Baker")*fn1 and RICHARD NOWICKI ("Nowicki")*fn2 from NTD, after lengthy terms of employment. In or about May of 2011, Defendants Baker and Nowicki started BAKER NOWICKI DESIGN STUDIO, LLP ("BNDS") a competing architectural firm providing the same type of design work for large commercial projects such as public schools that Defendants Baker and Nowicki did while at NTD. (See State Court Complaint, Docket No. 1-4, on file herein (the "State Court Complaint"), ¶¶8-18).
The Plaintiff contends that in the process of leaving NTD, the Defendants physically stole property from NTD. The Plaintiff argues that it is undisputed that the Defendants are in possession of, and have refused to return, NTD's property, including but not limited to computer files, photographs, images, renderings, drawings, marketing plans, project tracking forms, funding calculation forms, BIM models, meeting minutes, external hard drives, and a laptop computer, all belonging to the Plaintiff. Case No. 12cv00020, Doc. No. 1-1, at 278. The Plaintiff also alleges that the Defendants stole trade secret material, a computer, and various files and documents. (See Doc. No. 1-4, at ¶¶8-18 ). Plaintiff, way of the State Court Complaint, contends that its seeks the return of physical items, damages for loss of possession, and to prevent Defendants from using the trade secret materials to their advantage.
The Plaintiff filed a complaint in San Diego Superior Court (Case No. 37-2011-00095778 -CU-BC-CTL) (hereinafter, "the State Action") against the Defendants on August 4, 2011, alleging causes of action for (1) Misappropriation of Trade Secrets; (2) Conversion; (3) Breach of Fiduciary Duty; (4) Breach of Employment Contract against Nowicki; (5) Breach of Employment Contract Against Baker; (6) Breach of Trust; (7) Intentional Interference with Prospective Economic Advantage; and (8) Unfair Competition. (See Doc. No. 1-4). The Defendants filed an answer on October 12, 2011. (See Doc. No. 1-5).
Based upon the same underlying facts, the Plaintiff filed a copyright infringement action (Case No. 11cv2836 AJB(JMA)) (hereinafter, "the Federal Action") in this Court on December 6, 2011, asserting the following two causes of action: (1) copyright infringement; and (2) false advertising under 15 U.S.C. §1125.
On January 4, 2012, the Defendants filed the notice of removal in the State Action. The Defendants argue that: (1) the claims do not give rise to a novel or complex issue of state law; (2) the state claims do not substantially predominate over the claim or claims over which the District Court has original jurisdiction; (3) the District Court has not dismissed any claims over which it has original jurisdiction; and (4) there are no compelling reasons for declining jurisdiction. On February 3, 2012, The Plaintiff filed the instant motion to remand.
The Plaintiff asserts two main grounds for remand: (1) the Defendants' motion to remove was untimely and (2) the claims in the State Action are not preempted by the Copyright Act.
I. Defendants' Removal was Timely because Defendants Filed Motion Within 30 Days of Receiving "Other Paper"
The court first turns to whether the Defendant's removal was timely, for if it was not, the discussion will end and remand can be granted. 28 U.S.C. Section 1446(b) prescribes the time limits for removing an action. With respect to removals of actions where the initial ...