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Koch v. Medici Ermete & Figli S.R.L

United States District Court, Ninth Circuit

May 6, 2013

J§RGEN KOCH D/B/A J.K. IMPORTS,
v.
MEDICI ERMETE & FIGLI S.R.L

CIVIL MINUTES - GENERAL Proceedings: PLAINTIFF'S MOTION TO REMAND ACTION TO STATE COURT (filed March 28, 2013) [Dkt. No. 15]

CHRISTINA A. SNYDER, District Judge.

I. INTRODUCTION & BACKGROUND

On October 24, 2012, plaintiff J§rgen Koch d/b/a J.K. Imports ("JKI") filed suit in the Los Angeles County Superior Court against defendant Medici Ermete & Figli S.R.L. ("Medici"), Case No. BC 494361.

Plaintiff is a California-based importer and distributor of fine wines. Plaintiff alleges that defendant is a winemaker based in the Emilia region of Italy who produces a "true Lambrusco red, " a wine whose popularity in the United States declined precipitously around 1995. Compl. §§ 7-8. To try and revive the fortunes of Medici's Lambrusco wines in the U.S., plaintiff alleges that it entered into an oral exclusive agency relationship with Medici in 1995, whereby Medici promised, inter alia, that it would not import or distribute its wines in the U.S. without plaintiff's permission. Id . § 3. By 2010, plaintiff alleges that it had "almost single-handedly rebuilt the market in the United States for quality Lambrusco... establishing Medici as a lead brand of true Lambrusco in the United States." Id . § 9. However, on October 25, 2010, plaintiff alleges that defendant terminated the parties' exclusive agency agreement without good cause or reasonable notice, in violation of the parties' agreement. Id . § 11. Plaintiff asserts a single claim for breach of contract in this action and seeks damages in excess of $500, 000.

On January 18, 2013, plaintiff sent a copy of the summons and complaint to defendant in Italy by mail, ostensibly effecting service of process pursuant to Cal. Code of Civ. P. § 415.40. Notice of Removal § 5. Defendant disputes that such service was proper, but acknowledges that if such service was proper, service would be deemed complete on January 28, 2013.

On February 25, 2013, defendant filed an answer and a cross-complaint in the Los Angeles County Superior court. notice of removal with this Court. Dkt. No. 1.

On March 28, 2013, plaintiff filed a motion to remand this case. Defendant opposed the motion on April 8, 2013, and plaintiff replied on April 12, 2013. The Court held a hearing on May 6, 2013. After considering the parties' arguments, the Court finds and concludes as follows.

II. LEGAL STANDARD

A. Motion for Remand

A motion for remand is the proper procedure for challenging removal. Remand may be ordered either for lack of subject matter jurisdiction or for any defect in removal procedure. See 28 U.S.C. § 1447(c). The Court strictly construes the removal statutes against removal jurisdiction, and jurisdiction must be rejected if there is any doubt as to the right of removal. See Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing federal jurisdiction. See Prize Frize, Inc. v. Matrix, Inc. , 167 F.3d 1261, 1265 (9th Cir. 1999). The defendant also has the burden of showing that it has complied with the procedural requirements for removal. Judge William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial § 2:609 (The Rutter Group 2012).

Under 28 U.S.C. § 1446(b), the defendant must file the notice of removal within 30 days after being served with a complaint alleging a basis for removal. When there are multiple defendants, all defendants named in the complaint and who have been properly joined and served in the action must also join in the removal. Hewitt v. City of Stanton , 798 F.2d 1230, 1232 (9th Cir. 1986). This is known as the rule of unanimity. See Chicago, Rock Island & P. Ry. v. Martin , 178 U.S. 245 (1900); see also Schwarzer, supra, § 2:905.2. If the defendant's removal notice fails to meet the procedural requirements of § 1446(b), the court may remand the action based on the plaintiff's timely motion. McAnally Enters., Inc. v. McAnally , 107 F.Supp.2d 1223, 1226 (C.D. Cal. 2000).

III. DISCUSSION

Plaintiff does not contend that this Court lacks subject matter jurisdiction over this action or that defendant's removal of this case was procedurally improper in any respect. Plaintiff's sole argument is that defendant waived its right to remove this case by filing a cross-complaint along with its answer in state court. By invoking the state court's jurisdiction to seek affirmative relief, plaintiff argues that defendant effectively waived its right of removal.

In the Ninth Circuit, a party "may waive the right to remove to federal court where, after it is apparent that the case is removable, the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum." Resolution Trust Corp. v. Bayside Developers , 43 F.3d 1230, 1240 (9th Cir. 1994); 10 James W. Moore, et al., Moore's Federal Practice, § 107.18[3][a] (same).[1] However, "a waiver of the right of removal must be clear and unequivocal." Id . (quotations omitted); see also EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd. , 322 F.3d 635, 649 (9th Cir. 2003) (holding that waiver requires "a clear and unequivocal abandonment of the right to a federal forum"); Foley v. Allied Interstate, Inc. , 312 F.Supp.2d 1279, 1284-85 (C.D. Cal. 2004) (noting that waiver is disfavored because "access to a federal forum is a significant right"). Generally, a defendant does not forfeit its right to remove "by action in state court short of proceeding to an adjudication on the merits." Id .; Acosta v. Direct Merchants Bank , 207 F.Supp.2d 1129, 1131-32 (S.D. Cal. 2002) (reciting the same). Determining whether a defendant has ...


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