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Cumming v. Mohamed

United States District Court, N.D. California, San Jose Division

September 26, 2014

KARIN CUMMING, Plaintiff,
v.
HARSHAD CHERUVATHUR MOHAMED, et al., Defendants.

ORDER DENYING MOTION TO REMAND TO STATE COURT [Re: ECF 18]

BETH LABSON FREEMAN, District Judge.

For the reasons discussed below, Plaintiff's motion to remand this action to state court is DENIED. The hearing scheduled for October 2, 2014, is VACATED. See Civ. L.R. 7-1(b).

I. BACKGROUND

Plaintiff filed the present action in state court on December 23, 2013, and served the complaint on Defendant Infosys on April 11, 2014. On May 29, Defendant Infosys served on Plaintiff three Requests for Admission aimed at establishing Federal jurisdiction under 28 U.S.C. § 1332(a). Defendant Infosys received Responses to its Requests for Admission on July 3 and removed the action to this court on July 30.

Plaintiff now moves this court to remand the action on the following bases:

A. the citizenship of Defendants Mohamed, Dharan, Thekkiniyath, Gopinath, and Prem place the action outside this court's § 1332(a) jurisdiction;
B. the citizenship of Defendant Infosys places the action outside this court's § 1332(a) jurisdiction; and
C. the removal was not timely under 28 U.S.C. § 1446(b).

(ECF 18-2 pp. 4-5)

II. LEGAL STANDARD

A. Removal Jurisdiction Under § 1441

Generally, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441. When seeking removal, a defendant "has the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). This means, in the first instance, alleging facts adequate to support removal jurisdiction. Id. Where those facts are properly challenged, or where the court has independent cause to doubt their veracity, "the defendant bears the burden of actually proving the facts to support jurisdiction, " id. at 567, and must do so by a preponderance of the evidence, McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936).

Defendant here is claiming jurisdiction under 28 U.S.C. § 1332(a)(3), which grants U.S. district courts "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States and in which citizens or subjects of a foreign state are additional parties." So Defendant bears ...


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