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Victoriano v. Classic Residence Management, LP

United States District Court, S.D. California

June 15, 2015

SHEILA VICTORIANO, an individual on behalf of herself and all others similarly situated and the general public, Plaintiff,
v.
CLASSIC RESIDENCE MANAGEMENT, LP dba VI AT LA JOLLA, a business form unknown; and DOES 1 to 100, inclusive, Defendants.

ORDER OF REMAND; AND ORDER DENYING ATTORNEY'S FEES

LARRY ALAN BURNS, District Judge.

Sheila Victoriano filed this action in San Diego County Superior Court on August 20, 2014, alleging numerous violations under the California Labor Code. She then filed a First Amended Complaint ("FAC") on September 4.

Defendant Classic Residence Management ("CRM") removed this action on October 3, alleging traditional diversity jurisdiction under 28 U.S.C. § 1332(a). It then filed an Amended Notice of Removal ("Amended Notice") on October 16, 2014, alleging the Class Action Fairness Act (CAFA) as an additional basis for jurisdiction.

On October 29, Victoriano moved to remand, and requested attorney's fees. CRM opposed the motion.

I. Removal

Under 28 U.S.C. § 1441(a), a case can be removed from state to federal court, provided it could originally have been brought in federal court. This statute is construed strictly against removal, 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); see also Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir.1988). The removing party bears the burden of establishing that the court has subject matter jurisdiction. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006).

II. DISCUSSION

Victoriano says this case should be remanded because: (1) the removal was untimely; (2) the Amended Notice was untimely; (3) CRM failed to properly allege a prima facie case of diversity jurisdiction, and (4) CRM failed to allege a prima facie case of CAFA jurisdiction. The Court agrees that the CAFA claim was improperly pleaded; only the first three bases are addressed.

A. Timeliness of Removal

Removing parties must comply with certain procedural requirements, such as timely filing the notice of removal. U.S.C. § 1441. That notice must be filed within thirty days after the service of the summons and complaint. 28 U.S.C. § 1446(b); see also Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). A renewed thirty-day removal period commences when a defendant receives "an amended pleading, motion, order or other 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). Untimely removal is a procedural defect requiring remand to state court. See 28 U.S.C. § 1447(c).

Victoriano argues that removal occurred thirty days after service was effected on CRM's agent of service. Victoriano arrives at this trigger date based on its mailing of the summons and complaint to CRM's agent, which occurred on August 22. ( Id., 8:13-17.) Because service is effective ten days following the mailing under California law, Victoriano contends the October 3 removal date is untimely. The Court agrees; CRM's agent was served more than thirty days before CRM removed.

1. Service of Process: Agent of Service

The sufficiency of service of process is "strictly a state law issue, " and is therefore analyzed under California law. Lee v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir.1993), overruled on different grounds, California Dept. of Water Resources v. Powerex Corp., 533 F.3d 1087, 1091 (9th Cir. 2008); see also Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (examining California state law to determine whether service was proper). In California, a limited partnership may be served by delivering a copy of the summons and complaint to a person authorized to receive service on their behalf. Cal. Code Civ. Proc. § 416.40. Authorized persons include (1) the person designated for service of process by the unincorporated entity with the Secretary of State, or (2) "a general partner or the general manager of the partnership." Id.

Classic Residence Management is a Chicago-based limited partnership whose agent for service of process is listed as Prentice-Hall Corporation System. (Remand, Ex. 3, CA Sec. of State Business Entity Detail.) California Code of Civil Procedure section 415.40 applies to service on persons outside of California:

A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by ...

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