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Garcia v. El Pass-Los Angeles Limousine Express, Inc.

United States District Court, C.D. California

December 12, 2014

GLENDA GARCIA, individually and Guardian Ad Litem E.R., Guardian Ad Litem L.R.; Brenda Rivera, an individual, et. al., Plaintiffs,

For Glenda Garcia, individually and Guardian Ad Litem, E. R., Guardian Ad Litem, L. R., Brenda Rivera, an individual, Efrain Estrada, an individual, Luz Rivera, all individually for the wrongful death of, Luis Rivera, an individual, Plaintiffs: Stuart R White, LEAD ATTORNEY, Liles Harris PLLC, Corpus Christi, TX.

For Faye Stewart Transportation Services, LLC, Defendant: Bradley M Rose, Daniel F Berberich, Kaye Rose and Partners LLP, Los Angeles, CA; Frank C Brucculeri, Kaye, Rose and Partners, Los Angeles, CA.

For Searing Industries, Inc., Defendant: Matthew Patrick Harrison, Lewis Brisbois Bisgaard and Smith LLP, Los Angeles, CA.


HONORABLE RONALD S.W. LEW, Senior United States District Judge.

The Court is in receipt of Defendant Faye Stewart Transportation Services, LLC's (" Defendant") Notice of Removal, which alleges federal question jurisdiction as the ground for removing this Action to federal court [1].

The removal statute, 28 U.S.C. § 1441, allows a defendant to remove a case originally filed in state court when the case presents a federal question. See 28 U.S.C. § § 1441(a). See also 28 U.S.C. § § 1331, 1446.

The Ninth Circuit " strictly construe[s] the removal statute against removal jurisdiction, " and " [f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988), Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985), and Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). " The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990), and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)).

As the party invoking federal jurisdiction in this case, Defendant has the burden of establishing the existence of subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001); Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). The Notice of Removal alleges that removal is proper based on federal question jurisdiction--more specifically, that the Interstate Commerce Commission Termination Act (" ICCTA"), 49 U.S.C.A. § 14501(c)(1), preempts state jurisdiction because claims for personal injury " are a veiled attempt at regulating the 'services' offered by a freight broker." Notice of Removal 3:22-23.

" Where a plaintiff invokes traditional elements of tort law and the issue of preemption arises, 'the courts almost uniformly have resolved against federal preemption.'" Jimenez-Ruiz v. Spirit Airlines, Inc., 794 F.Supp.2d 344, 348 (D.P.R. 2011) (quoting Dudley v. Bus. Exp., Inc., 882 F.Supp. 199, 206 (D.N.H. 1994)); see, e.g., Owens v. Anthony, No. 2- 11-0033, 2011 WL 6056409, at *1 (M.D. Tenn. Dec. 6, 2011) (finding that personal injury negligence claims are not preempted by the FAAAA); Gill v. JetBlue Airways Corp., 836 F.Supp.2d 33, 42 (D. Mass. 2011) (state law negligence claim was not preempted by ADA). Here, Plaintiffs allege claims for negligence, peculiar risk, and non-delegable duty. See Compl., Exh. 1 to Notice of Removal.

Therefore, it is ORDERED that Defendant show cause why this case is removable to federal district court based on federal question jurisdiction. Defendant has until no later than January 6, 2015, to respond, demonstrating why this case should not be remanded for lack of subject matter jurisdiction.


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