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Parisi v. Mazzaferro

United States District Court, N.D. California

March 21, 2014

WILLIAM PARISI, Petitioner,
v.
RONALD MAZZAFERRO; RONALD MAZZAFERRO as Trustee of the Fiorani Living Trust; ROBERT F. VAN ZANDT; CAROL MARDEUSZ, aka CAROL VAN ZANDT; PAUL DEN BESTE; STUART BAILEY; DANIELLE DUPERRET; LOTCHK CORPORATION, a Nevada corporation; and GREAT SUNSET VENUTRES, INC., a Wyoming corporation, Respondents. EDITH MAZZAFERRI, Trustee of the Fiorani Living Trust (1/25/00), Plaintiff,
v.
RONALD MAZZAFERRO; RONALD MAZZAFERRO as Trustee of the Fiorani Living Trust; ROBERT F. VAN ZANDT; PAUL DEN BESTE; STUART BAILEY; DANIELLE DUPERRET; LOTCHK CORPORATION; and GREAT SUNSET VENTURES, INC., Defendants.

ORDER GRANTING MOTION TO REMAND

CLAUDIA WILKEN, District Judge.

Petitioner William Parisi has filed a motion to remand these consolidated cases to San Francisco County Superior Court. Respondent and Defendant Ronald Mazzaferro has filed an opposition. Respondents and Defendants Paul Den Beste and Robert Van Zandt have filed notices of joinder. Having considered the parties' papers and the record in this case, the Court GRANTS the motion to remand.

BACKGROUND

On June 3, 2010, Plaintiff Edith Mazzaferri, Trustee of the Fiorani Living Trust, filed a verified amended complaint in San Francisco Superior Court. Den Beste filed a notice of removal of Mazzaferri's case to this Court on February 27, 2012. Mazzaferro and Van Zandt joined in that notice of removal, which was denied. See NDCA case 12-992. On January 3, 2012, Petitioner William Parisi filed a Petition for Damages in San Francisco Superior Court. On April 19, 2013, the two cases were consolidated for all purposes by the San Francisco Superior Court. On February 19, 2014, less than two weeks before the cases were set to go to trial, Mazzaferro filed a notice of removal.

LEGAL STANDARD

A defendant may remove a civil action filed in state court to federal district court so long as the district court could have exercised original jurisdiction over the matter. 28 U.S.C. § 1441(a). Title 28 U.S.C. § 1447(c) provides that if, at any time before judgment, it appears that the district court lacks subject matter jurisdiction over a case previously removed from state court, the case must be remanded. On a motion to remand, the scope of the removal statute must be strictly construed. Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992). "The strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id . Courts should resolve doubts as to removability in favor of remanding the case to state court. Id.

DISCUSSION

I. Timeliness

Title 28 U.S.C. § 1446 provides that a "notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading." 28 U.S.C. § 1446(b)(1). Mazzaferro was served with the petition in Parisi's case in February 2012. Mazzaferro was served with the complaint in Mazzaferri's complaint on July 19, 2010.

Accordingly, Parisi asserts that the notice of removal was not timely filed. Mazzaferro appears to argue that, because the cases were recently consolidated by the state court, a new consolidated complaint must be filed, restarting the time for filing a notice of removal. However, nothing in the record shows that such a complaint is required by the state court. Moreover, § 1446 (b) (1) requires removal within thirty days of the initial pleading. Section 1446 (b) (3) provides an exception where the initial pleading is not removable and a later amended pleading is removable. However, there is no such amended pleading in this case.

The Court finds that Parisi's notice of removal was not timely filed. Moreover, as discussed below, even if the notice of removal was timely, there are no grounds for removal. Respondent and Defendant Mazzaferro removed this case on the basis of diversity jurisdiction and federal question jurisdiction. As discussed below, neither exists in this case. Mazzaferro also asserts that he removed the case pursuant to 28 U.S.C. §§ 1334, 1343, 1443 and 1452. As discussed below these statutes are not applicable to this case.

II. Diversity Jurisdiction

Federal courts have original jurisdiction over civil actions where the value of the matter in controversy exceeds $75, 000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C. § 1332. Section 1332 requires complete diversity. Where a case involves multiple plaintiffs and defendants, no plaintiff may have the same citizenship as any defendant. Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546, 553 (2005). In addition, 28 U.S.C. § 1441 provides that a civil action is not removable on the basis of diversity jurisdiction "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."

Here, the notice of removal itself states that Mazzaferro, Van Zandt, Den Beste and Carol Mardeusz are residents of California. Both Parisi and Mazzaferri are residents of California. Even if complete diversity jurisdiction existed, the case would not be removable on the basis of diversity ...


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