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Segerstrom v. Yergovich

United States District Court, C.D. California

April 15, 2015

THEODORE SEGERSTROM, ET AL.,
v.
JEFFREY YERGOVICH, ET AL

CIVIL MINUTES - GENERAL

DAVID O. CARTER, District Judge.

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING MOTION TO REMAND [14]

Before the Court is Plaintiffs' Motion to Remand Case to Orange County Superior Court (Dkt. 14). The Court finds this matter suitable for resolution without oral argument. Fed.R.Civ.P. 78; L.R. 7-15. Therefore the hearing currently set for April 27, 2015 is hereby VACATED. Having considered the moving papers and relevant exhibits, along with the notice of removal and amended notice of removal, for the reasons below, the Court GRANTS Plaintiffs' Motion and REMANDS this matter to Superior Court.

I. BACKGROUND

This lawsuit arises out of restoration work Defendants performed on Plaintiffs' car. Plaintiffs Theodore Segerstrom and Rae Segerstrom, California citizens, filed this action in Orange County Superior Court on January 16, 2015, naming as defendants Jeffrey Yegovich and R&A Motorsports, Inc, both citizens of Missouri. Notice of Removal (Dkt. 1), Ex. A at 1. On February 15, 2015, Plaintiffs filed a "Doe" amendment to the Complaint, naming as a defendant J&J Performance Center, Inc., ("J&J") a California Corporation. Amended Notice of Removal (Dkt. 18) ¶ 6.

Plaintiffs bring claims for breach of contract, negligence, conversion, promise made without intent to perform, intentional misrepresentation, negligent misrepresentation, and unfair competition. See Compl. As to Defendant J&J, Plaintiffs apparently intend to assert the negligence claim against it.

The allegations in the Complaint as to the Doe defendants state generally that each Doe "is in some way liable... to Plaintiffs on the facts herein alleged and caused injuries and damages proximately thereby." Compl. ¶ 5.Therefore, Plaintiffs alleged each Doe "are jointly and severally liable to Plaintiffs." Id. ¶ 6.

The Complaint also provides that "Defendants... were under a duty to exercise ordinary care in the performance of their services" Id. ¶ 24. Plaintiffs aver in their Complaint that "Defendants... failed to use reasonable care in the performance of their services." Id. ¶ 25.

Defendants filed a notice of removal on March 3, 2015, on the basis of diversity jurisdiction 28 U.S.C. § 1441(b). In the Notice of Removal, the Defendants noted the Doe amendment, but asserted that J&J had not been served with the summons. On March 30, Defendants filed an Amended Notice of Removal ("Amended Notice") (Dkt. 18). The Amended Notice invokes diversity jurisdiction, but supplements the notice with allegations that J&J is a "sham" defendant. Id. Defendants attached to application to file their Amended Notice the affidavit of J&J operator Jay Bittle. Bittle Decl. (Dkt. 12).

Plaintiffs filed the present Motion on March 27, 2015, prior to the filing of the Amended Notice of Removal. Defendants filed an Opposition on April 4, 2015. Plaintiffs replied on April 8, 2015.

A. Legal Standard

Removal of a case from state to federal court is governed by 28 U.S.C. § 1441, which provides in pertinent part that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed... to the district court of the United States for the district and division embracing the place where such action is pending." The removing defendant must file a notice of removal in the appropriate United States District Court, together with all process, pleadings, and orders served upon the defendant. 28 U.S.C. § 1446(a). Remand may be ordered for lack of subject matter jurisdiction or any defect in the removal procedure. 28 U.S.C. § 1447(c).

To protect the jurisdiction of state courts, removal jurisdiction should be strictly construed in favor of remand. Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005) (citing Shamrock Oil & Gas Corp. v. Sheet, 313 U.S. 100, 108-09 (1941)). If there is any doubt as to the right of removal in the first instance, remand must be ordered. See Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988). "The party seeking removal bears the ...


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