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Cioffi v. Solomon

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

November 21, 2014


For Ronald Cioffi, Plaintiff: Gregory Paul O'Hara, LEAD ATTORNEY, Rhys W. Cheung, Nixon Peabody LLP, Palo Alto, CA; Jessica Esther Intrator, LEAD ATTORNEY, Nixon Peabody LLP, San Francisco, CA.

For Alex Solomon, Marvalyn Solomon, Solomon Technology Solutions, Inc., Defendants: Kevin Charles Barrett, Graif Barrett and Matura, P.C., Phoenix, AZ.


Ronald M. Whyte, United States District Judge.

Plaintiff Ronald Cioffi moves to remand this case to Santa Clara County Superior Court pursuant to 28 U.S.C. § 1447(c) and for an award of attorneys' fees for defendants' failure to comply with 28 U.S.C. § 1446(b). Defendants Alex Solomon, Marvalyn Solomon, and Solomon Technologies Inc., (collectively, " defendants") filed a motion to change venue and an opposition to plaintiff's motion to remand. For the reasons stated below, the court GRANTS plaintiff's motion to remand and DENIES the request for fees. Defendant's motion for change of venue is DENIED as moot.

I. Analysis

A. Motion to Remand

Plaintiff moves to remand this action to state court because he contends defendants' removal was untimely. Plaintiff argues that four different events triggered the thirty-day window for removal under 28 U.S.C § 1446(b): (1) the initial complaint, filed April 1, 2014; (2) the first amended complaint, filed April 14, 2014; (3) plaintiff's June 20, 2014, declaration; and (4) plaintiff's July 25, 2014, opposition. Dkt. No. 10, at 5. Defendants' removal was filed on September 12, 2014. Dkt. No. 1. Because defendants removed the case more than thirty days after at least one of these events triggered the thirty-day window for removal, Plaintiff contends defendants' removal was untimely.

Defendants argue that none of these four documents sufficiently revealed plaintiff's citizenship. Dkt. No. 14, at 6. Defendants also assert they " should not be penalized for their abundance of caution" in waiting for plaintiff's express written confirmation of his citizenship through responses to discovery, which they received on September 11, 2014, the day before they filed their notice of removal based on diversity of citizenship. Id. at 6.

A defendant may remove to federal court those civil actions filed in state court which could have been filed in federal court in the first instance. 28 U.S.C § 1441. Accordingly, an action between diverse parties may be removed to federal court on the basis of diversity jurisdiction under 28 U.S.C § 1332(a).

The removal statute provides defendants with two thirty-day windows in which to remove a case. See 28 U.S.C. § 1446(b)(1), (3). First, a defendant may remove a case to federal court for thirty days after the defendant receives the initial pleading. 28 U.S.C. § 1446(b)(1). Second, if the initial pleading does not reveal a basis for removal, then a case may be removed within thirty days of a defendant's receipt of a paper " from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). In the Ninth Circuit, " notice of removability under § 1446(b) is determined through examination of the four corners of the applicable proceedings, not through subjective knowledge or a duty to make further inquiry." Harris v. Bankers Life and Casualty Co., 425 F.3d 689, 694 (9th Cir. 2005). The court adopted this bright-line approach to avoid collateral litigation over defendants' subjective knowledge and the sufficiency of defendants' inquiry. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 886 (9th Cir. 2010) (citing Harris, 425 F.3d at 697).

If the district court does not have subject matter jurisdiction over a removed case, or the case was improperly removed, the court may remand the case back to state court. Flatwire Solutions, LLC v. Sexton, Case No. 09-07479, 2009 WL 5215757, at *1 (C.D. Cal., Dec. 29, 2009) (" Remand may be ordered either for lack of subject matter jurisdiction or for any defect in removal procedure."); see also 28 U.S.C. § 1447(c). The courts apply a strong presumption against removal, and all doubts respecting jurisdiction are resolved in favor of remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979).

Plaintiff's initial complaint did not trigger the first thirty-day window for removal because it only disclosed plaintiff's residency, not his citizenship. Dkt. No. 11-1, at ¶ 1. Diversity jurisdiction is based on parties' citizenship, not residency. 28 U.S.C. 1332. The first thirty-day period only begins to run if the case stated by the initial pleading affirmatively reveals on its face the grounds for removal--in this case, complete diversity of citizenship. Harris, 425 F.3d at 695. Because the initial complaint in this case did not reveal plaintiff's citizenship, defendants were not obligated to remove the case within the first thirty-day window. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (complaint and notice of removal which stated plaintiffs' residence were insufficient to establish diversity jurisdiction, and did not reveal grounds for removal).

If a case is not initially removable based on the face of the complaint, defendant may remove the case within thirty days from the filing of an amended pleading, motion, order, or other paper which reveals the case is removable. Harris, 425 F.3d at 694. This second thirty-day window to remove may result from either a change in the parties or other circumstance which renders the case removable, see, e.g., Owen v. L'Occitane, Inc., Case No. 12-09841, 2013 WL 941967, at *4 (C.D. Cal., Mar. 8, 2013), or when the actual facts supporting federal jurisdiction remain unaltered from the initial pleading, but their existence is revealed for the first time in later papers. Harris, 425 F.3d at 695.

Here, the second window for removal began on July 25, 2014 when plaintiff filed an opposition in state court admitting plaintiff's California citizenship. Dkt. No. 11-6, at 2. Specifically, plaintiff stated that: " Plaintiff Ronald Cioffi's citizenship of California has been disclosed since Plaintiff's first Complaint" and that " Plaintiff's California citizenship is already disclosed in Plaintiff's initial pleading." Id. This admission provided defendants notice that the parties were diverse and that the case was therefore removable. Defendants filed a notice of removal in ...

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