The opinion of the court was delivered by: The Honorable Gary Allen Feess
Present: The Honorable GARY ALLEN FEESS
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiff: Attorneys Present for Defendant: None None Proceedings: (In Chambers)
INTRODUCTION & BACKGROUND
This action was previously removed to this Court and remanded on the basis of insufficient allegations of diversity. (See CV 12-8589, Docket No. 1; Docket No. 6.) Defendant Republic Services Inc. ("Republic") has now removed a second time, on the exact same basis. (CV 13-00134, Docket No. 1, [Not. of Removal ("Not.")].) For that reason, as explained in greater detail below, the Court again REMANDS this case.
On September 5, 2012, Plaintiff Joseph Gordon filed suit against Republic in Los Angeles County Superior Court, asserting various state causes of action for discrimination, intentional infliction of emotional distress, and wrongful termination. (Not., Ex. 1 [Compl.].) Republic removed the action to this Court originally on October 5, 2012, alleging diversity jurisdiction under 28 U.S.C. § 1332. (Id. ¶ 3.) The CV 12-8589 action was remanded on October 17, 2012 because Republic's allegation of Plaintiff's state of residency was insufficient to establish citizenship. (Id. ¶ 4.) Republic avers that "[o]n December 14, 2012, Defendant commenced Plaintiff's deposition" and "[i]n deposition, Plaintiff was asked a number of questions pertaining to his 'domicile' at the time of the filing of the State Court Action." (Id. ¶¶ 5-6.) Republic re-removed, again on the basis of diversity jurisdiction, claiming that "[t]he deposition transcript is the first 'paper' from which Plaintiff's 'domicile,' and thus citizenship . . . can first be ascertained." (Id. ¶ 7.) Accordingly, Republic believes that removal is timely pursuant to 29 U.S.C. § 1446. (Id.)
In the Ninth Circuit, "a defendant who fails in an attempt to remove on the initial pleadings can file a removal petition when subsequent pleadings or events reveal a new and different ground for removal." Kirkbride v. Continental Casualty Co., 933 F.2d 729, 732 (9th Cir. 1991) (quoting FDIC v. Santiago Plaza, 598 F.2d 634, 636 (1st Cir. 1979)) (emphasis in original); see Lara v. San Bernardino Steel Inc., 2011 U.S. Dist. LEXIS 110046, at *5 (C.D. Cal. Sept. 20, 2011) ("[A] party cannot remove a case twice based on the same grounds.") "Indeed, a second attempt at removal is justified only when there has been a 'substantial change in the nature of the instant case since it was last in this court.'" GB Inland Props. v. Levay, 2012 U.S. Dist. LEXIS 80039, at *3 (C.D. Cal. June 7, 2012) (quoting One Sylvan Rd. N. Assocs. v. Lark , 889 F. Supp. 60, 64 (D. Conn. 1995).
Republic originally removed this action on October 5, 2012 on the basis of diversity jurisdiction. (Not. ¶ 3.) Republic now removes a second time for the exact same reason. (Id. ¶¶ 8-10.) This time Republic alleges Plaintiff's state of citizenship, rather than his state of residency. (Id. ¶¶ 3-4, 10.) Republic argues that the deposition transcript was the first "paper" from which Plaintiff's domicile could be established. (Id. ¶¶6-7.) Be that as it may, this information does not give Republic a new thirty-day period for removal.
"[N]notice of removability under § 1446(b) is determined through examination of the four corners of the applicable pleadings, not through subjective knowledge or a duty to make further inquiry." Harris v. Bankers Life & ...