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Munjy v. Destination XL Group, Inc.

United States District Court, E.D. California

March 9, 2015

HIBBA MUNJY, Plaintiff,
v.
DESTINATION XL GROUP, INC.; CASUAL MALE STORE, LLC; and DOES 1 through 50, Defendants.

ORDER

TROY L. NUNLEY, District Judge.

The matter is before the Court on Plaintiff Hibba Munjy's ("Plaintiff") motion to remand this action to Fresno County Superior Court. (ECF No. 5.) Defendants Destination XL Group, Inc. ("XL Group") and Casual Male Store, LLC ("Casual Male") (collectively "Defendants") have opposed the motion. (ECF No. 12.) For the reasons discussed below, the motion to remand is GRANTED.

I. Background

On July 30, 2014, Plaintiff filed a complaint in Fresno County Superior Court. ( See ECF No. 1-1 ¶ 1.) The complaint brought six claims stemming from alleged incidents of sexual harassment and discrimination, which occurred while Plaintiff was attending a training session in Atlanta, Georgia. The complaint named the removing Defendants here - XL Group and Casual Male - but also Leo Hampton ("Hampton"), Plaintiff's supervisor while she was in Atlanta. (ECF Nos. 1-1, 1-2.)

On September 29, 2014, Hampton filed a motion to quash service of summons and complaint (the "motion to quash") in the state court, challenging the court's jurisdiction over him. Hampton asserted in that motion that the alleged offense conduct occurred in Atlanta; he lacked sufficient contacts with California; and he was served with the summons and complaint at his place of work in Atlanta. (ECF No. 1-3.) See Cal. Code Civ. Proc. § 418.10 (providing that a defendant "may serve and file a notice of motion... [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.")

On October 3, 2014, subsequent to Hampton's filing the motion to quash, but prior to the state court's ruling on it, XL Group and Casual Male - without Hampton - removed the case to this Court, on the basis of diversity. (ECF No. 1.)

On October 22, 2014, Plaintiff then filed the instant motion to remand in this Court, arguing that Hampton, as one of the named Defendants in the complaint, had not joined in the removal motion. (ECF No. 5.) See 28 U.S.C. §1446(b)(2)(A) ("...all defendants who have been properly joined and served must join in or consent to the removal of the action.")

On November 5, 2014, while the remand motion was pending before this Court, the state court held a hearing on the motion to quash, and then adopted its prior tentative ruling that, because the case had been removed, the court lacked jurisdiction to decide the motion to quash. The court therefore refrained from deciding the motion to quash. The state court also opined that Defendants' removal functioned to bring Hampton's pending motion to quash before this Court. (Decl. of Henry Sanchez, ECF No. 12-1, Ex. A.)

The immediate issue before the Court, thus, is Plaintiff's remand motion, premised on the fact that one of the named Defendants in the complaint, Hampton, did not join in removal. Removing Defendants here - XL Group and Casual Male - have filed an opposition to the remand motion, arguing that Hampton's absence is explained. (ECF No. 12.)

Also before the Court is the question of what to do with Hampton's motion to quash, which Defendants assert should be decided by this Court. Accordingly, Defendants argue the merits of Hampton's motion to quash in their opposition, and further argue that this Court should decide the motion based on California law. (ECF No. 12.) Defendants have also filed an amended declaration from Hampton, signed and dated on November 25, 2014, in support of Hampton's motion to quash. (ECF No. 21.) Plaintiff's position is that the motion to quash is not pending before this Court, and given that, Plaintiff moves to strike Hampton's declaration. (ECF No. 22.)

II. Applicable law: removal

A defendant in state court has the right to remove the case to federal court if the case could have been filed originally in federal court (i.e. on federal diversity or federal question grounds). 28 U.S.C. § 1441(a). The Court must order remand if there is any defect which causes federal jurisdiction to fail. 28 U.S.C. § 1447(c). Removal statutes are strictly construed against removal. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979).

Plaintiff seeks remand under 28 U.S.C. § 1446(a)(2)(A), the removal "unanimity requirement, " which provides: "When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action." Further, all defendants must join in removal within 30 days after service of process of the initial pleading. 28 U.S.C. § 1446(b)(1). See Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (adopting the "later served" rule, such that "each defendant is entitled to thirty days to exercise his removal rights after being served.")

"Where fewer than all the defendants have joined in a removal action, the removing party has the burden under section 1446(a) to explain affirmatively the absence of any co-defendants in the notice for removal." Prize Frize, Inc ...


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