The opinion of the court was delivered by: The Honorable Dolly M. Gee, United States District Judge
Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
VALENCIA VALLERY NOT REPORTED
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)
None Present None Present
Proceedings: IN CHAMBERS-ORDER TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE REMANDED TO VENTURA COUNTY SUPERIOR COURT
On February 14, 2012, Plaintiff VIM, LP, a California limited partnership, filed a complaint for breach of contract in Ventura County Superior Court against Defendant Mark Daniel Born, a Nevada resident. On March 28, 2012, Defendant filed a counterclaim (styled a "cross-complaint" in state court) for unlawful seizure of a vessel and loss of wages, which he amended on June 18. On August 13, 2012, Plaintiff/Counter-defendant removed the action to this Court on the basis of diversity jurisdiction.
Under 28 U.S.C. § 1441(a), a civil action "may be removed by the defendant or the defendants." In Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L. Ed. 1214 (1941), the United States Supreme Court held that the statute precludes "removal by a state-court plaintiff who 'was in point of substance a defendant to the cause of action asserted in the counterclaim.'" Westwood Apex v. Contreras, 644 F.3d 799, 805 (9th Cir. 2011) (quoting Shamrock Oil, 313 U.S at 104). "Since Shamrock Oil, the law has been settled that a counterclaim defendant who is also a plaintiff to the original state action may not remove the case to federal court." Id.
Therefore, the Plaintiff/Counter-defendant is hereby ORDERED TO SHOW CAUSE why this action should not be remanded to Ventura County Superior Court for improper removal. Plaintiff/Counter-defendant shall file its response by no later than September 4, 2012. Failure to file a timely satisfactory response will result in the remand of this action.
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