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Cleveland v. West Ridge Academy

United States District Court, E.D. California

September 17, 2014



SHEILA K. OBERTO, Magistrate Judge.


Plaintiffs Craig Cleveland and Marianna Cleveland ("Plaintiffs") filed a civil suit against Defendants West Ridge Academy, Children and Youth Services, Inc., and Does 1-10 ("Defendants") on March 12, 2014, in Fresno County Superior Court. (Doc. 1, Notice of Removal, Ex. A.) On June 19, 2014, Defendants filed a Notice of Removal to this Court based on diversity jurisdiction. 28 U.S.C. § 1332. (Doc. 1.)

Plaintiffs filed a Motion to Remand on July 16, 2014, and Defendants filed an Opposition on August 18, 2014. (Docs. 6, 14.) The Court has reviewed the Motion, Opposition, and supporting documents, and determined that this matter is suitable for decision without oral argument pursuant to the Local Rules of the United States District Court, Eastern District of California, Rule 230(g). For the reasons set forth below, this action is REMANDED to Fresno County Superior Court.


In 2011 and 2012, Plaintiffs sent their minor daughter to Defendant West Ridge Academy, a resident care facility licensed by the State of Utah as a youth treatment and residential services program for counseling, mental health therapy, and remedial training of youth. Defendant West Ridge Academy is owned and operated by Defendant Children and Youth Services, Inc. Plaintiffs allege that Defendant West Ridge's agents behaved inappropriately toward their daughter, causing her to be set back emotionally and mentally; and that Defendants are vicariously liable for their agents' behavior, as the behavior fell within the scope of their agents' employment. Plaintiffs further allege that Defendants failed to adequately provide the mandatory "aftercare" component of the treatment program, for which Plaintiffs were required to pre-pay, and without which Defendants asserted the treatment program would be wasted.

Plaintiffs brought suit against Defendants on March 12, 2014, in Fresno County Superior Court, asserting California state law claims for breach of contract, general negligence, bad faith breach of contract, negligence per se, professional negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, false promise, breach of fiduciary duty, economic interference, and violation of deceptive practice law. Plaintiffs seek money damages plus interest, attorneys' fees, punitive damages, costs of suit, and other relief as the court deems fair, just, and equitable. The Complaint alleges that the amount in controversy exceeds $25, 000, according to proof, but does not state the specific amount in controversy.

On April 30, 2014, Defendants filed a Motion to Quash Summons based on forum selection, or in the alternative, a Motion to Stay or Dismiss the Action for Forum Non-Conveniens. The Superior Court denied Defendants' motion on June 10, 2014, and Defendants thereafter removed the matter to this Court on June 19, 2014, based on federal diversity jurisdiction. 28 U.S.C. § 1332. Defendants subsequently filed an Answer to Plaintiffs' Complaint on June 26, 2014, denying each of Plaintiffs' eleven claims and setting forth fifteen affirmative defenses.

On July 16, 2014, Plaintiffs filed the Motion to Remand currently pending before the Court. Plaintiffs seek remand on the ground that Defendants' Notice of Removal was untimely because it was not filed within thirty days of formal service of the Summons and Complaint. 28 U.S.C. 1446(b). (Doc. 6.)


A. Legal Standard Governing Removal Jurisdiction

When a case is filed in state court, removal is proper if there is a federal question or where, at issue here, there is diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332(a). It is presumed, however, "that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction.'" Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)) (alterations in original).

A motion to remand is the proper procedure for challenging removal, Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007), and "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a), " 28 U.S.C. § 1447(c). Where doubt regarding the right to removal exists, a case should be remanded to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam). However, a district court lacks discretion to remand a case to the state court if the case was properly removed. Carpenters S. Cal. Admin. Corp. v. Majestic Hous., 743 F.2d 1341, 1343 (9th Cir. 1984), abrogated in part on other grounds, Southern Cal. IBEW-NECA Trust Funds v. Standard Indus. Elec. Co., 247 F.3d 920, 924 n.6 (9th Cir. 2001).

Plaintiffs move to remand on the basis that Defendants failed to timely remove the case. 28 U.S.C. § 1446(b). A defendant must file a notice of removal within thirty days of receiving a copy of the complaint, or if the matter is not removable based on the contents of the complaint, within thirty days of receiving another pleading or "other paper" from which removability is apparent. 28 U.S.C. § ...

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