The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
Terrel L. Yuki ("Yuki") moves for an order remanding this case to the state court from which it was removed, and for an award of attorneys' fees incurred as a result of improper removal. Chevron Corporation ("Chevron") opposes the motion. Metropolitan Life Insurance Company, which is not a party to Yuki's third-party complaint against Chevron, filed a "Joinder in Third-Party Defendant [Chevron's] Opposition."
"The removal statute is strictly construed against removal jurisdiction." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (citation omitted). "The [removing party] bears the burden of establishing that removal is proper." Id. (citation omitted).
Chevron argues in its removal notice that it "hereby removes to this Court the state court action described [as] . . . a third-party complaint . . . filed in an action in the Superior Court of California, County of Butte, entitled In re Walter and Myrtis Revell Revocable Trust, Case No. PR-40074." (Removal Notice 1:3-6; Removal Notice Ex. A (containing Yuki's third-party complaint).) Chevron further argues "removal is proper" since "Yuki . . . asserts a cause of action for negligence against [Chevron] based upon [Chevron's] ERISA plan administration misconduct," and Yuki's negligence claim is preempted by ERISA. Id. 1:17-19, 2:14-16 & 2:27.
However, the removal statute prescribes: 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 . . . to the district court . . . . 28 U.S.C. § 1441(a) (emphasis added). Here, Chevron removed Yuki's third-party complaint from the Butte County Superior Court action. (See Removal Notice Ex. A (containing only Yuki's cross-complaint).) Since Chevron did not remove the "action" from state court, Chevron has not demonstrated that § 1441(a) authorized its removal.
In addition, "[o]nly 'true' defendants-as opposed to cross-defendants, counterdefendants, or third-party defendants-have the right to remove an action from state to federal court." Fed. Nat'l Mortg. Ass'n v. Barbuti, No. 2:12-cv-101, 2012 WL 1378648, at *2 (D. Nev. Apr. 20, 2012) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104-05 (1941); see Westwood Apex v. Contreras, 644 F.3d 799, 805 (9th Cir. 2011) ("[T]he Shamrock Oil rule[, under which plaintiffs who become counter-defendants cannot remove an action] has been extended to preclude removal by third-party defendants to an action."). Here, Chevron argues in its opposition brief that the initial complaint "was filed in the Butte County Superior Court by Myrtis P. Revell against Yuki and Metropolitan Life Insurance Company[, and] . . . third-party plaintiff Yuki [subsequently] filed her complaint against Chevron[.]" (Cross-Def.'s Opp'n 2:12-14.) Since Chevron's arguments demonstrate it is not a "true defendant," Chevron has not demonstrated it had the right to remove Yuki's third-party complaint.
Yuki also seeks attorneys' fees under 28 U.S.C. § 1447(c) since "Chevron . . . should have known that removal was not supportable[.]" (Mot. 11:10-11.) However, "[w]hen a party seeks an award of attorneys' fees, that party bears the burden of submitting evidence of the hours worked and the rate paid." Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006). Here, Yuki did not submit any evidence concerning the attorneys' fees she seeks. Therefore, her request is denied.
For the stated reasons, the third-party complaint is remanded to the Butte County Superior Court from which it was removed, and the Clerk ...