United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S
MOTION TO REMAND (DOC. 7)
LAWRENCE J. O’NEILL, UNITED STATES CHIEF DISTRICT
FACTUAL AND PROCEDURAL BACKGROUND
April 28, 2016, Plaintiff John Crenshaw
(“Plaintiff”) filed a complaint in the Superior
Court of California for the County of Fresno against
Defendants Sunham Home Fashions, LLC (“Sunham”),
Kam Hing Enterprises, Inc. (“KHE”), and
Macy’s, Inc. (“Defendant”) (collectively,
“Defendants”), and Does 1-50, for the injuries he
sustained after he slipped and fell while using a mat he had
purchased at a Macy’s retail store. Doc. 3, Ex. A,
attempt to remove this matter to federal court, on May 31,
2016, Defendant filed a civil cover sheet in this Court,
which he labeled a “Notice of Removal.” Doc. 8 at
2. On June 1, 2016, the Clerk of Court notified Defendant
that the filing was defective. Doc. 2 (“CLERK'S
NOTICE to Attorney Alexandra Seibert re Notice of Removal:
Your filing is entitled Notice of Removal, however, the
actual document attached is a Civil Cover Sheet. Please
file your Notice of Removal.”). In response,
Defendant filed a Notice of Removal of the case to this Court
on May 3, 2016, asserting jurisdiction exists because the
parties are completely diverse and Plaintiff seeks more than
$75, 000 in damages. See Doc. 3 at 2; 28 U.S.C.
§§ 1332, 1441; Doc. 3, Ex. B. Defendant asserts
that it is a New York corporation with its principal place of
business in Cincinnati, Ohio; Sunham is a New York
corporation with its headquarters and principal place of
business in New York City, New York; and KHE is a New Jersey
corporation, which does not have its principal place of
business or headquarters in California. Doc. 3 at 2.
13, 2016, Plaintiff moved to remand this case to the Superior
Court. Doc. 7 at 1. Plaintiff argues that (1)
Defendant’s notice of removal was untimely; (2) all
Defendants have not consented to removal; and (3) complete
diversity of all parties is not evident on the face of the
complaint. Id. Plaintiff therefore moves for fees
under 28 U.S.C. § 1447(c). Defendant contends its
removal was proper. See Doc. 12 at 6.
Court took the matter under submission on the papers pursuant
to Local Rule 230(g). Doc. 17. For the following reasons, the
Court DENIES Plaintiff’s motion to remand and
corresponding request for attorney’s fees.
STANDARD OF DECISION
28 U.S.C. § 1441(a), a defendant may remove an action to
federal court if the district court has original
jurisdiction. Hunter v. Phillip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009). If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded. 28 U.S.C.
§ 1447(c). The removal statute is strictly construed in
favor of remand and against removal. Harris v. Bankers
Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005). A
defendant always has the burden of establishing that removal
is proper. California ex rel. Lockyer v. Dynegy,
Inc., 375 F.3d 831, 838 (9th Cir. 2004). Federal
jurisdiction therefore 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).
Defendant’s Removal Was Timely.
bases his motion to remand primarily on the ground that
Defendant’s removal notice was untimely filed and
therefore failed to meet the requirements of 28 U.S.C. §
1446(b). Doc. 7 at 4. Plaintiff does not dispute that
Defendant’s removal, if timely, would have been proper.
Doc. 14 at 4.
claims that Defendant’s motion was untimely filed
because Defendant was served with the complaint on April 29,
2016, the 30-day removal deadline provided by 28 U.S.C.
§ 1446(b) fell on June 1, 2016, and Defendant filed a
sufficient notice of removal on June 2, 2016. Doc. 7 at 3.
Except as provided in subsection (c), if the case stated by
the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may